Women With Disabilities Australia (WWDA) - Australian Law Reform

Loading...
 

   

Women  With  Disabilities  Australia   (WWDA)    

Submission  to  the  National  Inquiry  into  Equal  Recognition  Before  the   Law  and  Legal  Capacity  for  People  With  Disability      

 -­‐  January  2014  -­‐      

 

 

  Submission  to  the  National  Inquiry  into  Equal  Recognition  Before  the  Law  and  Legal  Capacity  for  People   With  Disability       By  Carolyn  Frohmader  for  Women  With  Disabilities  Australia  (WWDA)     ©  Women  With  Disabilities  Australia  (WWDA)  January  2014      

About  Women  With  Disabilities  Australia  (WWDA)     Women  With  Disabilities  Australia  (WWDA)  is  the  peak  non-­‐government  organisation  (NGO)  for  women   with   all   types   of   disabilities   in   Australia.   WWDA   is   run   by   women   with   disabilities,   for   women   with   disabilities,  and  represents  more  than  2  million  disabled  women  in  Australia.  WWDA’s  work  is  grounded   in   a   rights   based   framework   which   links   gender   and   disability   issues   to   a   full   range   of   civil,   political,   economic,   social   and   cultural   rights.   Promoting   the   reproductive   rights   of   women   and   girls   with   disabilities,  along  with  promoting  their  rights  to  freedom  from  violence  and  exploitation,  and  to  freedom   from  torture  or  cruel,  inhuman  or  degrading  treatment  are  key  policy  priorities  of  WWDA.    

   

Contact  Details    

 

 

Women  With  Disabilities  Australia  (WWDA)   PO  Box  605,  Rosny  Park  7018  TASMANIA,  AUSTRALIA   Ph:  +61  3  62448288  Fax:  +61  3  62448255   Email:  [email protected]   Web:  www.wwda.org.au   Facebook:  www.facebook.com/WWDA.Australia   Contact:  Carolyn  Frohmader,  Executive  Director  

 

Winner,  National  Human  Rights  Award  2001   Winner,  National  Violence  Prevention  Award  1999   Winner,  Tasmanian  Women's  Safety  Award  2008   Certificate  of  Merit,  Australian  Crime  &  Violence  Prevention  Awards  2008   Nominee,  French  Republic's  Human  Rights  Prize  2003   Nominee,  UN  Millennium  Peace  Prize  for  Women  2000  

         

 

 

2  

Contents       Introduction  ...........................................................................................................................................................  5       Gendering  the  National  Inquiry  into  Equal  Recognition  Before  the  Law  &  Legal  Capacity     for  People  With  Disability  ................................................................................................................................  6       Sexual  and  Reproductive  Rights  and  Freedoms  ....................................................................................  8       The  Right  to  Freedom  from  Violence,  Abuse,  Exploitation  and  Neglect  ...................................  19       The  Right  to  Found  and  Maintain  a  Family  ...........................................................................................  31       The  Right  to  Work  ............................................................................................................................................  35       The  Right  to  Participate  in  Political  and  Public  Life  ..........................................................................  38          

Supporting  documents  formally  tabled  with  this  Submission:       Frohmader,   C   (2013)   ‘Dehumanised:   The   Forced   Sterilisation   of   Women   and   Girls   with   Disabilities  in  Australia’   -­‐   WWDA   Submission   to   the   Senate   Inquiry   into   the   involuntary   or   coerced  sterilisation  of  people  with  disabilities  in  Australia;  ISBN:  978-­‐0-­‐9876035-­‐0-­‐0.     DPP  v  Kumar  [20  November  2013]  VCC.     Dowse,  L.,  Soldatic,  K.,  Didi,  A.,  Frohmader,  C.  and  van  Toorn,  G.  (2013)  Stop   the   Violence:   Addressing   Violence   Against   Women   and   Girls   with   Disabilities   in   Australia.   Background   Paper.  Hobart:  Women  with  Disabilities  Australia.     Women   With   Disabilities   Australia   (WWDA),   University   of   New   South   Wales   (UNSW),   and   People  with  Disabilities  Australia  (PWDA)  (2013)  Report  of  the  Proceedings  and  Outcomes   of  the  National  Symposium  on  Violence  against  Women  and  Girls  with  Disabilities.   Hobart:   Women  with  Disabilities  Australia.     Frohmader,  C  (2011)  Women   With   Disabilities   Australia   (WWDA)   Submission   to   the   United   Nations  Thematic  Study  on  Violence  Against  Women  With  Disabilities.  Hobart:  Women  with   Disabilities  Australia.          

 

 

3  

        ‘The   Committee   notes   that   the   Australian   Law   Reform   Commission   has   been   recently   commissioned   to   inquire   into   barriers   to   equal   recognition   before   the   law   and   legal   capacity   for   persons   with   disabilities.   The   Committee   is   however   concerned   about   the   possibility  of  maintaining  the  regime  of  substitute  decision-­‐making,  and  that  there  is  still   no   detailed   and   viable   framework   for   supported   decision-­‐making   in   the   exercise   of   legal   capacity.     The   Committee   recommends   that   the   State   party   uses   effectively   the   current   inquiry   process   to   take   immediate   steps   to   replace   substitute   decision-­‐making   with   supported   decision-­‐making   and   provides   a   wide   range   of   measures   which   respect   the   person’s   autonomy,   will   and   preferences   and   is   in   full   conformity   with   article   12   of   the   Convention,  including  with  respect  to  the  individual's  right,  in  his/her  own  capacity,  to   give  and  withdraw  informed  consent  for  medical  treatment,  to  access  justice,  to  vote,  to   marry,  and  to  work.     The   Committee   further   recommends   that   the   State   party   provides   training,   in   consultation   and   cooperation   with   persons   with   disabilities   and   their   representative   organizations,   at   the   national,   regional   and   local   levels   for   all   actors,   including   civil   servants,  judges,  and  social  workers,  on  the  recognition  of  the  legal  capacity  of  persons   with   disabilities   and   on   the   primacy   of   supported   decision-­‐making   mechanisms   in   the   exercise  of  legal  capacity.’      

             

 

Committee  on  the  Rights  of  Persons  with  Disabilities   Concluding  observations  on  the  initial  report  of  Australia   Adopted  by  the  Committee  at  its  tenth  session  (2–13  September  2013)   4th  October  2013   UN  Doc.  CRPD/C/AUS/CO/1  

 

4  

Introduction   1.  

  2.  

  3.     4.  

The  determination  of  capacity  is  inextricably  linked  to  the  exercise  of  the  right  to  autonomy  and   self-­‐determination.   To   make   a   finding   of   incapacity   results   in   the   restriction   of   one   of   the   most   fundamental   rights   enshrined   in   law,   the   right   to   autonomy.  1  Yet   many   women   with   disabilities   throughout   Australia   are   stripped   of   their   legal   capacity,   due   to   stigma   and   discrimination,   through  judicial  declaration  of  incompetency  or  merely  by  a  third  party’s  decision  that  the  woman   “lacks  capacity”  to  make  a  decision.     ‘Incapacity’   is   very   often   used   as   a   valid   justification   for   violations   of   the   human   rights   and   fundamental   freedoms   of   women   and   girls   with   disabilities.   However,   the   United   Nations   Convention   on   the   Rights   of   Persons   with   Disabilities   (CRPD)   clearly   mandates   States   Parties   to   recognise   that   persons   with   disabilities   enjoy   legal   capacity   on   an   equal   basis   with   others   and   should   be   supported   to   exercise   their   legal   capacity.   This   means   that   an   individual’s   right   to   decision-­‐making   cannot   be   substituted   by   decision-­‐making   of   a   third   party,   but   that   each   individual   without   exception   has   the   right   to   receive   the   supports   they   need   to   make   their   own   choices  and  to  direct  their  own  lives,  whether  in  relation  to  medical  treatment,  family,  parenthood   and  relationships,  or  living  arrangements.2     The   CRPD   also   requires   respect   for   the   evolving   capacities   of   children   (CRPD   Art   3   and   7)   and   the   provision  of  support  for  children  with  disabilities  to  express  their  views,  and  for  these  views  to  be   given  appropriate  weight  in  the  context  of  their  age  and  maturity.   This   Submission   from   Women   With   Disabilities   Australia   (WWDA)   highlights   six   key   priority   areas  for  women  with  disabilities  that  are  considered  crucial  in  the  context  of  the   National  Inquiry   into   Equal   Recognition   Before   The   Law   And   Legal   Capacity   For   People   With   Disability.   These   six   areas  are:  

  •

 

• • • • •

Gendering   the   National   Inquiry   into   Equal   Recognition   Before   the   Law   and   Legal   Capacity   for  People  With  Disability   Sexual  and  Reproductive  Rights  and  Freedoms   The  Right  to  Freedom  from  Violence,  Abuse,  Exploitation  and  Neglect   The  Right  to  Found  and  Maintain  a  Family   The  Right  to  Work   The  Right  to  Participate  in  Political  and  Public  life  

This   Submission   provides   several   case   studies   to   illustrate   these   issues   as   they   affect   women   with   disabilities  in  the  context  of  legal  capacity  and  equal  recognition  before  the  law.  The  case  studies   provided  are  actual  cases  that  have  come  to  WWDA’s  attention  during  the  past  few  years.  For  the   purposes  of  confidentiality,  the  case  studies  have  been  de-­‐identified.        

 

                                                                                                                1

Law Reform Commission (Ireland) (2011) Sexual Offences and Capacity to Consent. A Consultation Paper. Law Reform Commission, Dublin. In Frohmader, C. (2013) ‘Dehumanised: The Forced Sterilisation of Women and Girls with Disabilities in Australia’. Women with Disabilities Australia (WWDA), Rosny Park, Australia. At: http://www.wwda.org.au/WWDA_Sub_SenateInquiry_Sterilisation_March2013.pdf 2

 

5  

Gendering  the  National  Inquiry  into  Equal  Recognition  Before  The   Law  And  Legal  Capacity  For  People  With  Disability   5.  

  6.  

In  recognition  of  the  fact  that  women  and  girls  with  disabilities  in  Australia  are  subject  to  multiple   discrimination  and  human  rights  violations,  WWDA  strongly  encourages  the  ALRC  to  ensure  that  a   gender   analysis   be   employed   in   all   aspects   of   the   National  Inquiry  into  Equal  Recognition  Before   The  Law  And  Legal  Capacity  For  People  With  Disability.  As  a  member  State  of  the  United  Nations,   and  as  a  party  to  a  number  of  human  rights  conventions  and  instruments  which  create  obligations   in   relation   to   gender   equality   and   to   disability   rights,   Australia   has   committed   to   take   all   appropriate   measures,   including   focused,   gender-­‐specific   measures   to   ensure   that   women   and   girls  with  disabilities  experience  full  and  effective  enjoyment  of  their  human  rights.3  The  CRPD  for   example,   recognises   gender   as   one   of   the   most   important   categories   of   social   organisation,   emphasising   the   obligation   of   States   Parties   to   incorporate   a   gender   perspective   in   all   efforts   to   promote   the   full   enjoyment   of   human   rights   and   fundamental   freedoms   by   people   with   disabilities.  There  is,  therefore,  a  clear  obligation  on  States  Parties  to  recognise  that  the  rights  of   women  with  disabilities  must  be  addressed  when  interpreting  and  implementing  every  article  of   the  CRPD.   Despite  the  CRPD’s  clear  articulation  of  the  obligation  for  a  gendered  perspective  in  all  efforts  to   promote  the  human  rights  of  disabled  people,  people  with  disabilities  are  often  treated  as  asexual,   genderless   human   beings.   This   view   is   borne   out   in   disability   policies   and   programs   the   world   over,  which  consistently  fail  to  apply  a  gender  lens.  Most  proceed  as  though  there  are  a  common   set  of  issues  -­‐  and  that  men  and  women  experience  disability  in  the  same  way.4  However  women   with   disabilities   and   men   with   disabilities   have   different   life   experiences   due   to   biological,   psychological,  economic,  social,  political  and  cultural  attributes  associated  with  being  female  and   male.  Patterns  of  disadvantage  are  often  associated  with  the  differences  in  the  social  position  of   women  and  men.  These  gendered  differences  are  reflected  in  the  life  experiences  of  women  with   disabilities  and  men  with  disabilities.  For  example,  women  with  disabilities:   • experience   violence,   particularly   family/domestic   violence,   violence   in   institutions,   and   violence   in   the   workplace,   more   often   than   disabled   men,5  are   often   at   greater   risk   than   disabled   men,   both   within   and   outside   the   home,   of   violence,   injury   or   abuse,   neglect   or   negligent  treatment,  maltreatment  or  exploitation;6  and,  are  more  vulnerable  as  victims  of   crimes  from  both  strangers  and  people  who  are  known  to  them;7       • witness   cases   involving   crimes   against   them   often   go   unreported,   and/or   inadequately   investigated,  remain  unsolved  or  result  in  minimal  sentences;8     • are  often  denied  effective  access  to  justice  because  violations  of  their  rights  are  not  taken   seriously;   • are   more   exposed   to   practices   which   qualify   as   torture   or   inhuman   or   degrading   treatment9  (such  as  forced  or  coerced  sterilisation,  forced  abortion,  forced  contraception,   gender  based  violence,  chemical  restraint,  forced  psychiatric  interventions);   • are  more  likely  than  disabled  men  to  acquire  a  disability  through  gender-­‐based  violence;10     • are   much   more   likely   than   disabled   men,   to   experience   restrictions,   negative   treatment,   and  violations  of  their  sexual  and  reproductive  rights;11  

                                                                                                                3

UN General Assembly, Convention on the Rights of Persons with Disabilities, 24 January 2007, A/RES/61/106. Gray, G. (2010 draft) By Women for Women, the Australian women's health movement and public policy. 5 Women With Disabilities Australia (WWDA) (2007b) 'Forgotten Sisters - A global review of violence against women with disabilities'. WWDA Resource Manual on Violence Against Women With Disabilities. Published by WWDA, Tasmania, Australia; Meekosha, H. (2004) Gender and Disability. Entry for the Sage Encyclopaedia of Disability. Available on line at: http://wwda.org.au/gendis2001.htm. 6 See Preamble [q] of UN General Assembly, Convention on the Rights of Persons with Disabilities; A/RES/61/106. 7 Groce, N. (2006) People with Disabilities, in Social Justice and Public Health, Barry S. Levy & Victor Sidel (Eds), accessed online April 2011 at: http://www.aidslex.org/site_documents/DB-0018E.pdf 8 WWDA (2007b) OpCit; Healey, L., Howe, K., Humphreys, C., Jennings, C. & Julian, F. (2008) Building the Evidence: A report on the status of policy and practice in responding to violence against women with disabilities in Victoria. Published by the Victorian Women with Disabilities Network Advocacy Information Service, Melbourne; French, P., Dardel, J., & Price-Kelly, S. (2010) Rights denied: Towards a national policy agenda about abuse, neglect and exploitation of persons with cognitive impairment, People with Disability Australia, Sydney. 9 Committee of Ministers of the Council of Europe (2009) Declaration: Making gender equality a reality. 119th Session of the Committee of Ministers, Madrid, 12 May 2009. 10 WWDA (2007b) Op Cit; Commonwealth of Australia (2009) Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009-2021. Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), Canberra. 4

 

6  







• • •

• •

• • •



are   more   likely   to   be   sole   parents,   to   be   living   on   their   own,   or   in   their   parental   family   than   disabled   men,12  are   at   higher   risk   of   divorce   than   disabled   men   and   often   experience   difficulty  maintaining  custody  of  their  children  post-­‐divorce;13   are  up  to  ten  times  more  likely  than  other  parents  to  have  a  child  removed  from  their  care   by   authorities   on   the   basis   of   the   mother’s   disability,   rather   than   any   evidence   of   child   neglect;14   are  poorer  and  more  likely  to  be  unemployed  than  men  with  disabilities,15  less  likely  to  be   in   the   paid   workforce   than   disabled   men,   and   have   lower   incomes   from  employment   than   men  with  disabilities;16     are  more  likely  to  experience  gender  biases  in  labour  markets,  and  are  more  concentrated   than  disabled  men  in  informal,  subsistence  and  vulnerable  employment;17   share   the   burden   of   responsibility   for   unpaid   work   in   the   private   and   social   spheres,   including  for  example,  cooking,  cleaning,  caring  for  children  and  relatives;18   are   more   likely   than   disabled   men,   to   be   affected   by   the   lack   of   affordable   housing,   due   to   the   major   gap   in   overall   economic   security   across   the   life-­‐cycle,   and   to   their   experience   of   gender-­‐based  violence  which  leads  to  housing  vulnerability,  including  homelessness;19   are  less  likely  to  receive  service  support  than  disabled  men;20     face   barriers   in   accessing   adequate   maternal   and   related   health   care   and   other   services   for  both  themselves  and  their  child/ren,21  and  are  more  likely  than  disabled  men  to  face   medical  interventions  to  control  their  fertility;22     experience   more   extreme   social   categorisation   than   disabled   men,   being   more   likely   to   be   seen  either  as  hypersexual  and  uncontrollable,  or  de-­‐sexualised  and  inert;23   are  more  likely  than  disabled  men  to  be  portrayed  in  all  forms  of  media  as  unattractive,   asexual  and  outside  the  societal  ascribed  norms  of  ‘beauty’;24   have   significantly   lower   levels   of   participation   in   governance   and   decision   making   at   all   levels  compared  to  men  with  disabilities;25   from   ethnic   or   indigenous   communities   are   more   likely   to   have   to   contend   with   forces   that  exclude  them  on  the  basis  of  gender  as  well  as  disability,  culture  and  heritage.26    

                                                                                                                                                                                                                                                                                                                                                                         

11 Manjoo, Rashida (2012) Report of the Special Rapporteur on violence against women, its causes and consequences; UN General Assembly; UN Doc. A/67/227; Grover, A. (2011) Interim report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. United Nations General Assembly; UN Doc. A/66/254. 12 Meekosha, H. (2004) Op Cit. 13 Arnade, S. & Haefner, S. (2006) Gendering the Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. Legal background paper. Published by Disabled Peoples´ International (DPI), Berlin. 14 This happens in two main ways: a) the child is removed by child protection authorities and placed in foster or kinship care; and b) a Court, under the Family Law Act, may order that a child be raised by the other parent who does not have a disability or by members of the child’s extended family. See: Victorian Office of the Public Advocate (OPA) (2012) OPA Position Statement: The removal of children from their parent with a disability. http://www.publicadvocate.vic.gov.au/research/302/ 15 WWDA (2009) Submission to the National Human Rights Consultation. WWDA, Tasmania. Available online at: http://www.wwda.org.au/subs2006.htm; Meekosha, H. (2004) Op Cit. 16 WWDA (2008) Submission to the Parliamentary Inquiry into pay equity and associated issues related to increasing female participation in the workforce. WWDA, Tasmania. Available online at: http://www.wwda.org.au/subs2006.htm; Human Rights and Equal Opportunity Commission (HREOC), 2005, National Inquiry into Employment and Disability; Issues Paper 1: Employment and Disability - The Statistics; HREOC, Sydney; O’Reilly, A. (2007) The right to decent work of persons with disabilities. International Labour Office (ILO), Geneva; Arnade, S. & Haefner, S. (2006) Op Cit. 17 UN Development Fund for Women (UNIFEM) (2008) Progress of the World's Women 2008/2009: Who Answers to Women? Gender & Accountability. Available at: http://www.unhcr.org/refworld/docid/4a09773a2.html [accessed 2 August 2009] 18 Cited in: Australian Human Rights Commission (2010), Op Cit. 19 Australian Human Rights Commission (2010) Australia’s Implementation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Independent Report to the Committee on the Elimination of Discrimination against Women. Accessed online July 2010 at: http://www2.ohchr.org/english/bodies/cedaw/cedaws46.htm 20 See: Australian Institute of Health & Welfare (AIHW) (2009) Disability support services 2007 – 08. National data on services provided under the Commonwealth State/Territory Disability Agreement. Disability series. Cat. no. DIS 56.Canberra: AIHW; Arnade, S. & Haefner, S. (2006) Op Cit. 21 World Health Organization (2009) Promoting sexual and reproductive health for persons with disabilities, WHO/UNFPA Guidance Note 2009, accessed on line April 2011 at: http://whqlibdoc.who.int/publications/2009/9789241598682_eng.pdf 22 Brady, S., Briton, J. & Grover, S. (2001) The Sterilisation of Girls and Young Women in Australia: Issues and Progress. A report commissioned by the Federal Sex Discrimination Commissioner and the Disability Discrimination Commissioner; Human Rights and Equal Opportunity Commission, Sydney, Australia. Available online at http://www.wwda.org.au/brady2.htm; WWDA (2009) Parenting Issues for Women with Disabilities in Australia: A Policy Paper. WWDA, Tasmania. Available online at: http://www.wwda.org.au/subs2006.htm; Steele, L. (2008) Making sense of the Family Court’s decisions on the non-therapeutic sterilisation of girls with intellectual disability; Australian Journal of Family Law, Vol.22, No.1. 23 Meekosha, H. (2004) Op Cit. 24 Ortoleva, S. (2011) Recommendations for Action to Advance the Rights of Women and Girls with Disabilities in the United Nations system; accessed online April 2011 at: http://sites.google.com/site/womenenabled/ 25 United Nations Development Programme (UNDP) (2010) Political Participation of Women with Disabilities in Cambodia: Research Report 2010, accessed online April 2011 at: http://www.un.org.kh/undp/knowledge/publications/political-participation-of-women-with-disabilities-incambodia

 

7  

Sexual  and  Reproductive  Rights  and  Freedoms   7.  

  8.  

  9.  

No  group  has  ever  been  as  severely  restricted,  or  negatively  treated,  in  respect  of  their  sexual  and   reproductive   rights,   as   women   with   disabilities.27  The   CRPD   Committee   has   clearly   identified   that   discrimination   against   women   and   girls   with   disabilities   in   areas   of   sexual   and   reproductive   rights,   including   gender-­‐based   violence,   is   in   clear   violation   of   multiple   provisions   of   the   CRPD.   The  CRPD  Committee  has  also  explicitly  articulated  the  urgent  need  for  States  Parties  to  address   these  multiple  violations.28   Sexual   and   reproductive   rights   are   fundamental   human   rights.   They   embrace   human   rights   that   are   already   recognised   in   international,   regional   and   national   legal   frameworks,   standards   and   agreements.29  They   include   the   right   to   bodily   integrity,   autonomy   and   self-­‐determination   –   the   right   of   everyone   to   make   free   and   informed   decisions   and   have   full   control   over   their   body,   sexuality,  health,  relationships,  and  if,  when  and  with  whom  to  partner,  marry  and  have  children  -­‐   without   any   form   of   discrimination,   stigma,   coercion   or   violence.   This   includes   the   right   of   everyone  to  experience,  enjoy  and  express  their  sexuality,  to  be  free  from  interference  in  making   personal   decisions   about   sexuality   and   reproductive   matters,   the   right   to   experience   love,   intimacy,   sexual   identity   and   the   right   to   access   sexual   and   reproductive   health   information,   education,  services  and  support.  It  also  includes  the  right  to  be  free  from  torture  and  from  cruel,   inhumane   or   degrading   treatment   or   punishment;   and   to   be   free   from   violence,   abuse,   exploitation  and  neglect.30     However,  women  and  girls  with  disabilities  in  Australia  have  failed  to  be  afforded,  or  benefit  from,   these   provisions   in   international,   regional   and   national   legal   frameworks,   standards   and   agreements  –  many  of  which  Australia  is  a  party  to.  Instead,  systemic  prejudice  and  discrimination   against  women  and  girls  with  disabilities  continues  to  result  in  multiple  and  extreme  violations  of   their   sexual   and   reproductive   rights,   through   practices   such   as   forced   and/or   coerced   sterilisation,   forced   contraception   and/or   limited   or   no   contraceptive   choices,   a   focus   on   menstrual   and   sexual   suppression,   poorly   managed   pregnancy   and   birth,   forced   or   coerced   abortion,  termination  of  parental  rights,  denial  of/or  forced  marriage,  and  other  forms  of  torture   and   violence,   including   gender-­‐based   violence.   They   also   experience   systemic   exclusion   from   sexual   and   reproductive   health   care   services,   information   and   education.   These   practices   and   violations   are   framed   within   traditional   social   attitudes   and   entrenched   disability-­‐based   and   gender-­‐based  stereotypes  that  continue  to  characterise  disability  as  a  personal  tragedy,  a  burden   and/or  a  matter  for  medical  management  and  rehabilitation.31    

           

                                                                                                                                                                                                                                                                                                                                                                          26

Groce, N. (2006), Op Cit. Manjoo, Rashida (2012) OpCit. See for eg: Committee on the Rights of Persons with Disabilities; Concluding observations of the Committee on the Rights of Persons with Disabilities: Spain. UN Doc. No: CRPD/C/ESP/CO/1; 19 October 2011; Committee on the Rights of Persons with Disabilities; Concluding observations of the Committee on the Rights of Persons with Disabilities: Peru. UN Doc. No: CRPD/C/PER/CO/1; 9 May 2012; Committee on the Rights of Persons with Disabilities; Concluding observations of the Committee on the Rights of Persons with Disabilities: China. UN Doc. No: CRPD/C/CHN/CO/1; 27 September 2012; Committee on the Rights of Persons with Disabilities; Concluding observations of the Committee on the Rights of Persons with Disabilities: Hungary. UN Doc. No: CRPD/C/HUN/CO/1; 27 September 2012; Committee on the Rights of Persons with Disabilities; Concluding observations of the Committee on the Rights of Persons with Disabilities: Tunisia. UN Doc. No: CRPD/C/TUN/CO/1; 13 May 2011. 29 High-Level Task Force for the ICPD (2013) Policy Recommendations for the ICPD Beyond 2014: Sexual and Reproductive Health & Rights for All. http://www.icpdtaskforce.org/pdf/Beyond-2014/policy-recommendations-for-the-ICPD-beyond-2014.pdf 30 Ibid. 31 Frohmader, C. (2013) ‘Dehumanised: The Forced Sterilisation of Women and Girls with Disabilities in Australia’; OpCit. See also: Ortoleva, S. & Lewis, H. (2012) ‘Forgotten Sisters- A Report on Violence Against Women with Disabilities: An Overview of its Nature, Scope, Causes and Consequences’; Northeastern University School of Law Research Paper No. 104-2012. At: http://ssrn.com/abstract=2133332 27 28

 

8  

Forced  and  coerced  sterilisation     10.  

  11.     12.  

  13.  

Women   and   girls   with   disabilities   in   Australia   are   at   particular   risk   of   forced   and   coerced   sterilisations  performed  under  the  auspices  of  legitimate  medical  care  or  the  consent  of  others  in   their  name.32  Forced  sterilisation33  of  women  and  girls  with  disabilities  is  a  practice  that  remains   legal   and   sanctioned   by   Governments   in   Australia,   yet   represents   grave   violations   of   multiple   human  rights  and  breaches  every  international  human  rights  treaty  to  which  Australia  is  a  party.34   Forced   sterilisation   is   an   act   of   violence,35  a   form   of   social   control,   and   a   clear   and   documented   violation   of   the   right   to   be   free   from   torture.36  Perpetrators37  are   seldom   held   accountable   and   women   and   girls   with   disabilities   who   have   experienced   this   violent   abuse   of   their   rights   are   rarely,  if  ever,  able  to  obtain  justice.38   The   monitoring   bodies   of   the   core   international   human   rights   treaties39  have   all   found   that   forced/involuntary   and   coerced   sterilisation   clearly   breaches   multiple   provisions   of   the   respective  treaties.40     Since   2005,   the   United   Nations   treaty   monitoring   bodies   have   consistently   and   formally   recommended   that   the   Australian   Government   enact   national   legislation   prohibiting,   except   where   there   is   a   serious   threat   to   life   or   health,   the   use   of   sterilisation   of   girls,   regardless   of   whether  they  have  a  disability,  and  of  adult  women  with  disabilities  in  the  absence  of  their  prior,   fully  informed  and  free  consent.41     In   October   2013,   the   Committee   on   the   Rights   of   Persons   with  Disabilities   released   its  Concluding   Observations  [Australia]   following   its   September   2013   review   of   Australia’s   compliance   with   the   CRPD.    The  Committee  expressed  its  “deep  concern”  with  the  recommendations  of  the  Australian   Senate   Inquiry   Report   into   the   Involuntary   or   Coerced   Sterilisation   of   Persons   with   Disabilities,   (released   in   July   2013),   which   would   allow   the   practice   of   involuntary/forced   sterilisation   to   continue.   The   Committee   also   expressed   its   “regret”   regarding   the   failure   of   Australia   to   implement   the   recommendations   from   the   Committee   on   the   Rights   of   the   Child   (CRC/C/15/Add.268;   CRC/C/AUS/CO/4),   the   Human   Rights   Council   (A/HRC/17/10),   and   the  

                                                                                                               

32 Women With Disabilities Australia (WWDA), Human Rights Watch (HRW), Open Society Foundations, and the International Disability Alliance (IDA) (2011) Sterilization of Women and Girls with Disabilities: A Briefing Paper. Available at: http://www.wwda.org.au/Sterilization_Disability_Briefing_Paper_October2011.pdf. See also: International Federation of Gynecology and Obstetrics (2011) Female Contraceptive Sterilization. Available at: http://www.wwda.org.au/FIGOGuidelines2011.pdf 33 ‘Forced/involuntary sterilisation’ refers to the performance of a procedure which results in sterilisation in the absence of the free and informed consent of the individual who undergoes the procedure, including instances in which sterilisation has been authorised by a third party, without that individual’s consent. This is considered to have occurred if the procedure is carried out in circumstances other than where there is a serious threat to life. Coerced sterilisation occurs when financial or other incentives, misinformation, misrepresentation, undue influences, pressure, and/or intimidation tactics are used to compel an individual to undergo the procedure. Coercion includes conditions of duress such as fatigue or stress. Undue influences include situations in which the person concerned perceives there may be an unpleasant consequence associated with refusal of consent. Any sterilisation of a child, unless performed as a life-saving measure, is considered a forced sterilisation. 34 Centre for Reproductive Rights, European Disability Forum, InterRights, International Disability Alliance and the Mental Disability Advocacy Centre (2011) Written Comments Submitted in the European Court of Human Rights: Joelle Gauer and Others [Applicant] Against France [Respondent], 16 August 2011. See also: Méndez, Juan. E, (2013) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN General Assembly; UN.Doc A/HRC/22/53. 35 See: Manjoo, Rashida (2012) OpCit. See also: Radhika Coomaraswamy (1999), Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences: Policies and practices that impact women’s reproductive rights and contribute to, cause or constitute violence against women, (55th Sess.), E/CN.4/1999/68/Add.4 (1999), [para. 51]. 36 Méndez, Juan. E, (2013) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN General Assembly; UN.Doc A/HRC/22/53; See also: Nowak, M. (2008) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; UN General Assembly, UN Doc. A/HRC/7/3; Committee on the Rights of the Child (2011) General Comment No. 13: Article 19: The right of the child to freedom from all forms of violence; UN Doc. CRC/C/GC/13. 37 A State’s obligation to prevent torture applies not only to public officials, such as law enforcement agents, but also to doctors, health-care professionals and social workers, including those working in private hospitals, other institutions and detention centres. As underlined by the Committee against Torture, the prohibition of torture must be enforced in all types of institutions and States must exercise due diligence to prevent, investigate, prosecute and punish violations by non-State officials or private actors. See: Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53. 38 Frohmader, C. (2013) OpCit. 39 OHCHR, The Core International Human Rights Instruments and their monitoring bodies. See: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx 40 Frohmader, C. (2013) OpCit. 41 Committee on the Rights of the Child; Consideration of reports submitted by States parties under article 44 of the Convention; Concluding observations: Australia; Sixtieth session, 29 May–15 June 2012; CRC/C/AUS/CO/4; UN General Assembly Human Rights Council (2011) Draft report of the Working Group on the Universal Periodic Review: Australia, 31 January 2011, A/HRC/WG.6/10/L. 8 [para. 86.39]. The final document will be issued under the symbol A/HRC/17/10; Committee on the Elimination of Discrimination against Women (2010) Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia. CEDAW Forty-sixth session, 12 – 30 July 2010. CEDAW/C/AUS/CO/7; Committee on the Rights of the Child, Fortieth Session, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Australia, CRC/C/15/Add.268, 20 October 2005, paras 45, 46 (e).

 

9  

Report   of   the   UN   Special   Rapporteur   on   Torture   (A/HRC/22/53),   which   addresses   concerns   regarding  sterilisation  of  children  and  adults  with  disabilities.  The  CRPD  Committee  subsequently:     “urges   the   State   party   to   adopt   national   uniform   legislation   prohibiting   the   use   of   sterilisation   of   boys   and   girls   with   disabilities,   and   of   adults   with   disability   in   the   absence  of  their  prior,  fully  informed  and  free  consent.”42     14.  

In  June  2012,  the  Committee  on  the  Rights  of  the  Child  (CRC),  in  its   Concluding  Observations43  to   the   Fourth   periodic   report   of   Australia,44  expressed   its   serious   concern   that   the   absence   of   legislation   prohibiting   non-­‐therapeutic   sterilisation   of   girls   and   women   with   disabilities   “is   discriminatory  and  in  contravention  of  article  23(c)  of  the  Convention  on  the  Rights  of  Persons  with   Disabilities………..”.  The  Committee  urged  the  State  party  to:    

  ‘Enact  non-­‐discriminatory  legislation  that  prohibits  non-­‐therapeutic  sterilization  of   all   children,   regardless   of   disability;   and   ensure   that   when   sterilisation   that   is   strictly   on   therapeutic   grounds   does   occur,   that   this   be   subject   to   the   free   and   informed  consent  of  children,  including  those  with  disabilities.’       Furthermore,   the   CRC   Committee   clearly   identified   non-­‐therapeutic   sterilisation   as   a   form   of   violence  against  girls  and  women,  and  recommended  that  the  Australian  Government:     ‘develop   and   enforce   strict   guidelines   to   prevent   the   sterilisation   of   women   and   girls   who  are  affected  by  disabilities  and  are  unable  to  consent.’     15.  

In   January   2011,   in   follow-­‐up   to   Australia’s   Universal   Periodic   Review,45  the   UN   Human   Rights   Council  endorsed  a  recommendation  specifically  addressing  the  issue  of  sterilisation  of  girls  and   women   with   disabilities.   It   specified   that   the   Australian   Government   should   enact   national   legislation  prohibiting  the  use  of  non-­‐therapeutic  sterilisation  of  children,  regardless  of  whether   they   have   a   disability,   and   of   adults   with   disabilities   without   their   informed   and   free   consent.46   The  Australian  Government’s  formal  response  to  this  recommendation  illustrated  an  apathy  and   indifference  to  the  urgency  of  the  issue,  and  a  callous  disregard  of  the  human  rights  of  women  and   girls   with   disabilities,   including   the   right   of   women   and   girls   with   disabilities   to   retain   their   fertility  on  an  equal  basis  as  others.  The  Australian  Government’s  formal  response  stated:  

  ‘The   Australian   Government   will   work   with   states   and   territories   to   clarify   and   improve   laws   and   practices   governing   the   sterilisation   of   women   and   girls   with   disability.’    47     16.  

However,   the   human   rights   treaty   monitoring   bodies   have   made   it   clear   that   the   issue   of   involuntary/forced/non-­‐therapeutic   cannot   be   left   as   a   matter   for   State   and   Territory   Governments  to  regulate,  but  rather,  requires  national  leadership  and  a  national  response.48      

 

                                                                                                               

42 Committee on the Rights of Persons with Disabilities; Concluding observations on the initial report of Australia, adopted by the Committee at its tenth session (2–13 September 2013); 4th October 2013, UN Doc. CRPD/C/AUS/CO/1 43 Committee on the Rights of the Child; UN Doc. CRC/C/AUS/CO/4. 44 Committee on the Rights of the Child; UN Doc. CRC/C/AUS/4. 45 The Universal Periodic Review (UPR) is a process undertaken by the United Nations and involves the review of the human rights records of the 192 Member States once every four years. The UPR provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations. The ultimate aim of the Review is to improve the human rights situation in all countries and address human rights violations wherever they occur. For more information see: http://www.ohchr.org/en/hrbodies/upr/pages/uprmain.aspx 46 UN General Assembly Human Rights Council (2011) Draft report of the Working Group on the Universal Periodic Review: Australia, 31 January 2011, A/HRC/WG.6/10/L. 8 [para. 86.39]. The final document will be issued under the symbol A/HRC/17/10; 47 On 10 December 2012, International Human Rights Day, the Australian Government released its National Human Rights Action Plan. In releasing the Plan, the then Federal Attorney General, Hon Nicola Roxon MP, stated that: ‘This action plan explains in detail how Australia will implement the recommendations accepted during its Universal Periodic Review at the United Nations in 2011.’ See for eg: Commonwealth of Australia (2012) Australia’s National Human Rights Action Plan 2012. Accessed online 10/12/2012 at: http://www.ag.gov.au/Humanrightsandantidiscrimination/Australiashumanrightsframework/Pages/NationalHumanRightsActionPlan.aspx See also: Hon Nicola Roxon MP, Attorney-General & Minister for Emergency Management, Media Release ‘National Human Rights Action Plan Released’, 10/12/12. 48 Committee on the Elimination of Discrimination against Women (2010) Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia. CEDAW Forty-sixth session, 12 – 30 July 2010. CEDAW/C/AUS/CO/7;

 

10  

17.  

In   July   2010,   at   its   46th   session,   the   UN   Committee   on   the   Elimination   of   Discrimination   against   Women   (CEDAW)   expressed   concern   in   its   Concluding   Observations   on   Australia   at   the   ongoing   practice  of  non-­‐therapeutic  sterilisations  of  women  and  girls  with  disabilities  and  recommended   that  the  Australian  Government:  

  ‘enact  national  legislation  prohibiting,  except  where  there  is  a  serious  threat  to  life   or   health,   the   use   of   sterilisation   of   girls,   regardless   of   whether   they   have   a   disability,  and  of  adult  women  with  disabilities  in  the  absence  of  their  fully  informed   and  free  consent.’  49       18.  

  19.  

In   2005,   the   Committee   on   the   Rights   of   the   Child   in   considering   Australia’s   combined   second   and   third   periodic   reports50  under   Article   44   of   the   Convention   on   the   Rights   of   the   Child   (CRC),   recommended   that   ‘the   State   party..…prohibit   the   sterilization   of   children,   with   or   without   disabilities….’51  and  in  2007  clearly  articulated  its  position  on  sterilisation  of  girls  with  disabilities,   clarifying  that  States  parties  to  the  CRC  are  expected  to  prohibit  by  law  the  forced  sterilisation  of   children  with  disabilities.52   Australia   is   due   to   report   to   the   United   Nations   Human   Rights   Committee   on   Australia’s   compliance  with  the  International   Covenant   on   Civil   and   Political   Rights  (ICCPR),  and  is  scheduled   to   appear   for   review   by   the   Human   Rights   Committee   in   2014.   Under   the   heading   of   ‘Violence   Against   Women’,   the   List   of   Issues   Prior   to   Reporting   (LOIPR),53  (adopted   by   the   Human   Rights   Committee  at  its  106th  session  in  late  2012)  for  Australia  contains  a  question  on  sterilisation,  to   which  the  Australian  Government  will  be  expected  to  respond.54  Specifically,  it  states:  

    Please   provide   information   on   whether   sterilization   of   women   and   girls,   including   those   with   disabilities,   without   their   informed   and   free   consent,   continues   to   be   practiced,  and  on  steps  taken  to  adopt  legislation  prohibiting  such  sterilisations.     20.  

International   medical   bodies,   such   as   the   International   Federation   of   Gynecology   &   Obstetrics   (FIGO),  have  also  now  developed  new  protocols  and  calls  for  action  to  put  an  end  to  the  practice  of   forced   sterilisation,   shoring   up   informed   consent   protocols   and   clearly   delineating   the   ethical   obligations   of   health   practitioners   to   ensure   that   women,   and   they   alone,   are   giving   their   voluntary   and   informed   consent   to   undergo   a   surgical   sterilisation.55  The   FIGO   ‘Guidelines   on   Female  Contraceptive  Sterilization’  clearly  state  that:  

  ‘It   is   ethically   inappropriate   for   healthcare   providers   to   initiate   judicial   proceedings   for   sterilization   of   their   patients,   or   to   be   witnesses   in   such   proceedings   inconsistently   with   Article   23(1)   of   the   Convention   on   the   Rights   of   Persons   with   Disabilities.’     21.  

In   calling   for   an   end   to   the   practice   of   forced   sterilisation   of   women   and   girls   with   disabilities,   human  rights  treaty  monitoring  bodies,  international  medical  bodies,  human  rights  advocates  and   disability   advocates   also   recognise   that   adult   women   with   disabilities   have   the   same   rights   as   their   non-­‐disabled   counterparts   to   choose   sterilisation   as   a   means   of   contraception.   In   this  

                                                                                                                49

UN Doc. CEDAW/C/AUS/CO/7, Op Cit. UN Convention on the Rights of the Child (CRC)(2004) Consideration of Reports Submitted By States Parties Under Article 44 of the Convention; Second and third periodic reports of States parties due in 1998 and 2003:Australia; 29 December 2004; CRC/C/129/Add.4. 51 Committee on the Rights of the Child, Fortieth Session, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Australia, CRC/C/15/Add.268, 20 October 2005, paras 45, 46 (e). 52 CRC General Comment No.9 [at para.60] states: ‘The Committee is deeply concerned about the prevailing practice of forced sterilisation of children with disabilities, particularly girls with disabilities. This practice, which still exists, seriously violates the right of the child to her or his physical integrity and results in adverse life-long physical and mental health effects. Therefore, the Committee urges States parties to prohibit by law the forced sterilisation of children on grounds of disability.’ See: Committee on the Rights of the Child (CRC), General Comment No. 9 (2006): The rights of children with disabilities, 27 February 2007, UN Doc.CRC/C/GC/9. 53 Since Australia was last reviewed in 2009, the Human Rights Committee has developed a new optional process for the review of states, known as the List of Issues Prior to Reporting (LOIPR). The Human Rights Committee develops a LOIPR on the basis of previous Concluding Observations and information provided by the Office of the High Commissioner on Human Rights (OHCHR), the Universal Periodic Review (UPR), the UN Special Procedures, NGOs and National Human Rights Institutions. The LOIPR on Australia was adopted by the Human Rights Committee at its 106th session in late 2012. 54 Human Rights Committee, International Covenant on Civil and Political Rights; List of issues prior to the submission of the sixth periodic report of Australia (CCPR/C/AUS/6), adopted by the Committee at its 106th session (15 October–2 November 2012); UN Doc No. CCPR/C/AUS/Q/6; 9 November 2012. 55 International Federation of Gynecology and Obstetrics (2011) OpCit. 50

 

11  

context,   safeguards   to   prevent   forced   sterilisation   should   not   infringe   the   rights   of   women   with   disabilities   to   choose   sterilisation   voluntarily   and   be   provided   with   all   necessary   supports   to   ensure   that   they   can   make   and   communicate   such   a   choice   based   on   their   free   and   informed   consent.56     22.  

  23.  

  24.  

  25.  

  26.  

In   September   2012   the   Australian   Senate   commenced   an   Inquiry  into  the  Involuntary  or  Coerced   Sterilisation  of  People  with  Disability  in  Australia,   and   released   the   Inquiry   Report   in   July   2013.57   The   Senate   Committee   undertaking   the   Inquiry   worked   hard   to   ensure   that   people   with   disabilities,   particularly   women   with   disabilities,   were   able   to   participate   in   the   Inquiry   and   express  their  views.  However,  as  it  transpired,  the  views  of  women  with  disabilities  –  those  most   affected   by   forced   sterilisation   and   other   denials   of   reproductive   rights   –   held   little   weight   and   had   less   influence   than   the   views   of   parents,   carers,   guardians   and   a   myriad   of   ‘professionals’   and   other   ‘experts’,   many   of   whom   argued   for   the   practice   of   sterilisation   of   girls   and   women   with   disabilities  to  be  allowed  to  continue  in  Australia.58   Although   several   of   the   Inquiry   Report’s   recommendations   were   welcomed   and   long   overdue   -­‐   particularly   those   emphasising   the   need   for   reproductive   and   sexual   health   education,   training   and   support   for   people   with   disability,   the   medical   workforce,   judicial   and   legal   officers   –   the   Inquiry   Report   recommends   that   national   uniform   legislation   be   developed   to   regulate   sterilisation   of   children   and   adults   with   disabilities,   rather   than   to   prohibit   the   practice,   as   has   long   been   recommended   to   Australia   by   international   human   rights   treaty   bodies,   UN   special   procedures,   human   rights   advocates,   disability   advocates,   and   most   importantly   women   with   disabilities  themselves.     The  Senate  Inquiry  Report  recommends  that  for  an  adult  with  disability  who  has  the  ‘capacity’  to   consent,  sterilisation  should  be  banned  unless  undertaken  with  that  consent.  However,  based  on   Australia’s   Interpretative   Declaration   in   respect   of   Article   12,   the   Report   also   recommends   that   where   a   person   with   disability   does   not   have   ‘capacity’   for   consent,   substitute   decision-­‐making   laws   and   procedures   may   permit   the   sterilisation   of   persons   with   disability.   The   Report   further   recommends  that  the  financial  costs  incurred  by  parents  or  guardians  in  child  sterilisation  cases   be   covered   by   legal   aid,   which   could   in   fact;   make   it   easier   rather   than   more   difficult,   for   sterilisation  procedures  to  be  sought.   It  is  clear  that  Australia’s  Interpretative  Declaration  to  the  CRPD  (in  respect  of  Articles  12,  17)  has   in  fact  exacerbated  the  pervasive  violations  of  the  human  rights  of  disabled  women  and  girls,  and   been   used   by   successive   Australian   Government   as   a   justification   to   deny   disabled   women   and   girls  their  sexual  and  reproductive  rights.   Regardless  of  the  fact  that  the  monitoring  bodies  of  the   core   international   human   rights   treaties59  have   all   found   that   forced/involuntary   and   coerced   sterilisation   clearly   breaches   multiple   provisions   of   the   respective   treaties, 60  the   Australian   Government   has   determined   that   Australia's   obligations   are   shaped   by   the   Interpretative   Declarations   made   at   the   time   Australia   entered   into   the   Convention.   In   entering   to   the   treaty,   Australia  declared  its  view  that  the  CRPD  allows  for  substituted  decision-­‐making  and  compulsory   medical  treatment.     During   its   September   2013   review   of   Australia’s   compliance   with   the   CRPD,  the   CRPD   Committee,   repeatedly   expressed   its   concern   at   the   impact   of   Australia’s   Interpretative   Declarations   to   articles  12,  17  and  18  on  the  implementation  of  the  CRPD.   The  CRPD  Committee  stressed  to  the   Australian   Government   delegation,   that   these   Interpretive   Declarations   have   in   fact   hindered   Australia’s  ability  to  comply  with  the  Convention   on   the   Rights   of   Persons   with   Disabilities  (CRPD).   The   Committee   repeatedly   asked   the   Government   delegation   what   actions   would   be   taken   to   repeal   these   Interpretative   Declarations.   In   responding   to   these   concerns,   Mr   Peter   Woolcott   (Australian   Ambassador   to   the   Permanent   Mission   to   the   UN),   speaking   on   behalf   of   the   Australian  Government  delegation,  advised  the  CRPD  Committee  that  due  to  ‘caretaker  mode’  the  

                                                                                                                56

WWDA, Human Rights Watch (HRW), Open Society Foundations, and the International Disability Alliance (IDA) (2011) OpCit. Community Affairs References Committee, Involuntary or coerced sterilisation of people with disabilities in Australia. July 2013, Available at: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=clac_ctte/involuntary_sterilisation/first_report/index.htm 58 See the Senate Inquiry Submissions online at: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilisation/Submissions 59 OHCHR, The Core International Human Rights Instruments and their monitoring bodies, OpCit. 60 In Frohmader, C. (2013) OpCit. 57

 

12  

delegation  was  unable  to  provide  a  response  to  the  issue  of  the  Interpretive  Declarations,  as  this   “would  be  a  matter  for  any  new  incoming  federal  Government  after  the  election.”   However,   he   did   state  that  he  was  “unaware  of  any  intention  for  the  Australian  Government  to  repeal  its  Interpretive   Declarations  to  the  CRPD.”61     27.  

The   Report   of   the   Senate   Inquiry   into   Involuntary   Sterilisation   of   People   with   Disabilities   in   Australia,   used   Australia’s   Interpretative   Declaration   to   the   CRPD   to   reject   the   United   Nations   (and   WWDA’s)   recommendation   that   the   Australian   Government   ‘enact   national   legislation   prohibiting,   except   where   there   is   a   serious   threat   to   life   or   health,   the   use   of   sterilisation   of   girls,   regardless  of  whether  they  have  a  disability,  and  of  adult  women  with  disabilities  in  the  absence  of   their  prior,  fully  informed  and  free  consent.’  Instead,  the  Senate  Inquiry  Report  stipulated  that:  

    In  those  cases  where  there  is  not  capacity  for  consent,  and  no  reasonable  prospect   that   it   may   develop,   laws   and   procedures   may   permit   the   sterilisation   of   persons   with   disabilities,   but   the   circumstances   in   which   this   may   occur   must   be   narrowly   circumscribed,   and   based   on   the   protection   and   advancement   of   the   rights   of   the   person.62     28.  

  29.  

  30.  

In   early   2013,   the   UN   Special   Rapporteur   on   Torture   [and   other   cruel,   inhuman   or   degrading   treatment   or   punishment],   in   addressing   reproductive   rights   violations   under   the   torture   framework,63  clarified   that   forced   sterilisation   of   people   with   disabilities,   regardless   of   whether   the   practice   is   legitimised   under   national   laws   or   justified   by   theories   of   incapacity   and   therapeutic   necessity,   violates   the   absolute   prohibition   of   torture   and   cruel,   inhuman   and   degrading   treatment.   The   Special   Rapporteur   further   clarified   that   the   grounds   on   which   a   medical   procedure   can   be   performed   without   a   person's   free   and   informed   consent   should   be   the   same   for   persons   with   or   without   a   disability.   Yet   the   Senate   Inquiry   Report   dismissed   this,   by   arguing  that  the  recommendations  contained  in  the  Special  Rapporteur’s  Report  “do  not  include   explicit  calls  for  the  prohibition  of  sterilisation  without  informed  consent.”64   In  practice,  this  means  that  the  status  quo  remains  -­‐  forced  sterilisation  of  women  and  girls   with   disabilities   remains   legal   and   sanctioned   by   Governments   in   Australia   and   the   Australian   Government   remains   of   the   view   that   it   is   an   acceptable   practice   to   sterilise   children   and   adults   with   disabilities,   provided   that   they   ‘lack   capacity’   and   that   the   procedure  is  in  their  ‘best  interest’,  as  determined  by  a  third  party.   Accompanying  this  Submission  is  a  copy  of  WWDA’s  formal  Submission  to  the  Senate  Inquiry  into   the   Involuntary   or   Coerced   Sterilisation   of   People   with   Disability   in   Australia.   WWDA’s  detailed  and   comprehensive   Submission   examines   the   rationale   used   to   justify   the   forced   sterilisation   of   women   and   girls   with   disabilities,   including   themes   such   as   eugenics/genetics;   for   the   good   of   the   State,   community   or   family;   incapacity   for   parenthood;   incapacity   to   develop   and   evolve;   prevention   of   sexual   abuse;   and   discourses   around   “best   interest”.   In   doing   so,   WWDA’s   Submission   analyses   Australian   Court   and   Tribunal   applications   and   authorisations   for   sterilisation   of   women   and   girls   with   disabilities,   and   demonstrates   that   in   reality,   applications   and  authorisations  for  sterilisation  have  very  little  to  do  with  the  ‘best  interests’  of  the  individual   concerned,   and   more   to   do   with   the   interests   of   others.   WWDA’s   Submission   demonstrates   that   the   Australian   Government’s   current   justification   of   the   “best   interest   approach”   in   the   sterilisation   of   disabled   women   and   girls,   has   in   effect,   been   used   to   perpetuate   discriminatory   attitudes  against  women  and  girls  with  disabilities,  and  has  only  served  to  facilitate  the  practice  of   forced   sterilisation.   WWDA’s   Submission   ‘Dehumanised:   The   Forced   Sterilisation   of   Women   and   Girls   with   Disabilities   in   Australia’   [ISBN:   978-­‐0-­‐9876035-­‐0-­‐0]   is   formally   submitted   as   an   attachment  to  WWDA’s  Submission  to  the  National  Inquiry  into  Equal  Recognition  Before  the  Law   and  Legal  Capacity  for  People  With  Disability.  

 

                                                                                                               

61 Frohmader, C. (2013) Report from the United Nations Committee on the Rights of Persons with Disabilities (CRPD) 10th Session - Review of Australia, Geneva, 2-13 September 2013. Available at: http://www.wwda.org.au/WWDA_CRPD_Review_Australia_ReportOct13.pdf 62 Community Affairs References Committee, Op Cit. 63 Méndez, Juan. E, (2013) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN General Assembly; UN.Doc A/HRC/22/53. 64 Community Affairs References Committee, OpCit., at: para. 3.31, p61.

 

13  

31.  

WWDA’s   Submission   to   the   Senate   Inquiry   into   the   Involuntary   or   Coerced   Sterilisation   of   People   with   Disability   in   Australia   clearly   demonstrates   that   incapacity   is   often   used   as   a   valid   justification   for   Court   authorisation   of   sterilisation   of   disabled   women   and   girls,   and   is   a   major   factor   in   all   applications   for   authorisation   of   sterilisation   procedures   involving   women   and   girls   with   disabilities.   Incapacity   in   this   context,   is   considered   to   be   a   fixed   state,   with   no   consideration   given  to  the  possibility  of  capacity  evolving  over  time,  as  evident  in  these  quotes  taken  from  court   and  tribunal  application  transcripts:  

  "Those   who   are   severely   intellectually   disabled   remain   so   for   the   rest   of   their   lives".65       “There   is   no   prospect   that   she   will   ever   show   any   improvement   in   her   already   severely  retarded  mental  state.”  66     “Katie  would  never  be  able  to  contribute  to  self-­‐care  during  menstruation……  Katie   is   unable   to   understand   re-­‐production,   contraception,   pregnancy   and   birth   and   that   inability  is  unlikely  to  change  in  the  foreseeable  future.”  67     “Sarah   is   unable   to   understand   reproduction,   contraception   and   birth   and   that   inability  is  permanent……her  condition  will  not  improve.”  68     “HGL   is   unlikely,   in   the   foreseeable   future,   to   have   capacity   for   decisions   about   sterilisation.”69     “There   has   been   no   alteration   in   H’s   capacity   for   eighteen   months   and   it   has   been   assessed  that  there  will  be  no  improvement  in  H  in  the  future.”70     32.  

  33.  

In  the  case  of  Re  Katie,71  for  example,  her  lack  of  capacity  was  a  key  consideration  in  the  Family   Court’s   decision   to   approve   her   sterilisation   at   the   age   of   16.   Katie   was   described   as   ‘being  able  to   finger  feed,  drink  out  of  a  cup  and  use  a  spoon  with  assistance’   yet   determined   as   not   having   ‘the   cognitive   capacity   to   understand   what   is   required,   nor   does   she   have   the   motor   skills   necessary   to   take   care   of   her   needs,   i.e.   to   change   pads’.  However,  it  was  also  stated  that  it  was  ‘likely   that   Katie   will   continue   to   make   some   slow   progress   in   her   development   if   able   to   participate   fully   in   educational  therapy  programs.  Failure  to  carry  out  the  proposed  surgery  could  significantly  reduce   her   ability   to   participate   in   these   programs.’   Paradoxically,   Katie   was   sterilised   because   she   had   ‘lack  of  capacity  to  develop’  but  also  so  that  she  might  ‘develop  capacity’.   The   UN   Special   Rapporteur   on   Torture   has   recently   re-­‐iterated   that   the   law   should   never   distinguish   between   individuals   on   the   basis   of   capacity   or   disability   in   order   to   permit   sterilisation   specifically   of   people   [girls   and   women]   with   disabilities.72  Yet   in   the   2009   case   of   Re   BAH,73  a   14   year   old   disabled   girl   whose   mother   sought   to   have   her   sterilised   prior   to   the   onset   of   menstruation,  the  NSW  Guardianship  Tribunal  stated:  

    “Ms  BAH’s  disability  is  clearly  central  to  the  Tribunal’s  deliberations  in  this  matter.   But   for   Ms   BAH’s   intellectual   disability,   the   Tribunal   would   not   have   given   consideration  to  the  proposed  treatment.”     34.  

The   UN   Special   Rapporteur   on   Torture   has   also   made   it   clear   that   ‘best   interest’   and   ‘medical   necessity’  are  no  justification  for  forced/involuntary  sterilisation  of  disabled  women  and  girls:74    

                                                                                                               

65 Between: the Attorney-General of Queensland and Parents Re S [1989] FamCA 80; (1990) FLC 92-124 13 Fam Lr 660 Children (22 November 1989) 66 Ibid. 67 Re Katie FamCA 130 (30 November 1995) 68 Between: L and GM Applicants and MM Respondent and the Director-General Department of Family Services and Aboriginal and Islander Affairs Respondent/Intervener [1993] FamCA 124; (1994) FLC 92-449 17 Fam Lr 357 Family Law (26 November 1993) 69 HGL (No 2) [2011] QCATA 259 (19 September 2011) 70 Re H [2004] FamCA 496 (20 May 2004) 71 Re Katie FamCA 130 (30 November 1995) 72 Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit. 73 BAH [2009] NSWGT 8 (28 July 2009) 74 Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.

 

14  

  “The   doctrine   of   medical   necessity   continues   to   be   an   obstacle   to   protection   from   arbitrary   abuses   in   health-­‐care   settings.   It   is   therefore   important   to   clarify   that   treatment   provided   in   violation   of   the   terms   of   the   Convention   on   the   Rights   of   Persons   with   Disabilities   –   either   through   coercion   or   discrimination   –   cannot   be   legitimate  or  justified  under  the  medical  necessity  doctrine.”       “The   mandate   has   recognized   that   medical   treatments   of   an   intrusive   and   irreversible   nature,   when   lacking   a   therapeutic   purpose,   may   constitute   torture   or   ill-­‐treatment  when  enforced  or  administered  without  the  free  and  informed  consent   of   the   person   concerned.   This   is   particularly   the   case   when   intrusive   and   irreversible,   non-­‐consensual   treatments   are   performed   on   patients   from   marginalized   groups,   such   as   persons   with   disabilities,   notwithstanding   claims   of   good   intentions   or   medical   necessity.   For   example,   the   mandate   has   held   that…....the   administration   of   non-­‐consensual   medication   or   involuntary   sterilization,   often   claimed  as  being  a  necessary  treatment  for  the  so-­‐called  best  interest  of  the  person   concerned,  when  committed  against  persons  with  psychosocial  disabilities,  satisfies   both   intent   and   purpose   required   under   the   article   1   of   the   Convention   against   Torture,  notwithstanding  claims  of  “good  intentions”  by  medical  professionals.”       35.  

In  2011,  Mr  Anand  Grover,  UN  Special  Rapporteur  [on  the  right  of  everyone  to  the  enjoyment  of   the   highest   attainable   standard   of   physical   and   mental   health],   in   his   report75  on   the   interaction   between  criminal  laws  and  other  legal  restrictions  relating  to  sexual  and  reproductive  health  and   the  right  to  health  [UN  Doc.  No:  A/66/254],  stated:    

  “The   use   of……coercion   by   the   State   or   non-­‐State   actors,   such   as   in   cases   of   forced   sterilization,   forced   abortion,   forced   contraception   and   forced   pregnancy   has   long   been   recognized   as   an   unjustifiable   form   of   State-­‐sanctioned   coercion   and   a   violation  of  the  right  to  health.  Similarly,  where  the…….law  is  used  as  a  tool  by  the   State   to   regulate   the   conduct   and   decision-­‐making   of   individuals   in   the   context   of   the   right   to   sexual   and   reproductive   health   the   State   coercively   substitutes   its   will   for   that   of   the   individual………………the   use   by   States   of   criminal   and   other   legal   restrictions   to   regulate   sexual   and   reproductive   health   may   represent   serious   violations   of   the   right   to   health   of   affected   persons   and   are   ineffective   as   public   health   interventions.   These   laws   must   be   immediately   reconsidered.   Their   elimination  is  not  subject  to  progressive  realization  since  no  corresponding  resource   burden,  or  a  de  minimis  one,  is  associated  with  their  elimination.”  

Forced  Contraception     36.  

Women   with   disabilities,   like   all   women,   have   a   right   to   safe   and   effective   contraception.   Yet   widespread   discriminatory   attitudes   which   portray   women   with   disabilities   as   either   asexual   or   hyper-­‐sexual,   often   see   them   denied   this   most   basic   right.   These   pervasive   negative   attitudes,   values  and  stereotypes  about  the  reproductive  capacity  of  women  with  disabilities  make  getting   accurate   information   about   contraceptive   options   very   difficult.   Although   the   contraceptive   needs   of  women  with  disabilities  are  essentially  no  different  from  those  of  the  general  population,76  the   pattern   of   contraceptive   use   amongst   women   with   disabilities   and   non-­‐disabled   women,   differs   widely.  Women  with  disabilities  (particularly  those  with  intellectual  disabilities)  are  more  likely   to  be  sterilised,  more  likely  to  be  prescribed  long-­‐acting,  injectable  contraceptives  and  less  likely   to  be  prescribed  oral  contraceptives.  In  addition,  women  with  disabilities  are  much  less  likely  to   be  involved  in  choice  and  decision-­‐making  around  the  type  of  contraception  they  use.77  In  the  case  

                                                                                                               

75 UN General Assembly, Interim report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; Mr Anand Grover; 3 August 2011; UN Doc. No: A/66/254. 76 Frohmader, C. (2013) OpCit., Dowse, L. (2004) 'Moving Forward or Losing Ground? The Sterilisation of Women and Girls with Disabilities in Australia'. Available online at: http://www.wwda.org.au/steril3.htm; Jones M. & Basser Marks L. (1997) Female and Disabled: A Human Rights Perspective on Law and Medicine in K. Petersen (ed) Intersections: Women on Law, Medicine and Technology Aldershot, Dartmouth: 49-71. 77 O’Connor, J. Literature Review on Provision of Appropriate and Accessible Support to People with an Intellectual Disability who are Experiencing Crisis Pregnancy. Available at: http://www.nda.ie/CntMgmtNew.nsf/DCC524B4546ADB3080256C700071B049/200FC923F86AE299802577A4003355CF?OpenDocument

 

15  

of   women   with   intellectual   disabilities,   the   decision   about   type   of   contraception   is   almost   exclusively  made  by  someone  else,  such  as  a  doctor  and/or  guardian,  parent,  or  carer.78     37.  

  38.  

  39.  

Forced   contraception,   recognised   as   a   form   of   torture,79  is   commonly   used   on   women   and   girls   with  disabilities   in  Australia  to  suppress  menstruation  or  sexual  expression  for  various  purposes,   including   eugenics-­‐based   practices   of   population   control,   menstrual   management   and   personal   care,   and   pregnancy   prevention   (including   pregnancy   that   results   from   sexual   abuse). 80  For   example,   the   disproportionate   use   of   Depo-­‐Provera   and   other   long   acting   contraceptives   on   women   with   disabilities   (including   those   who   are   not   sexually   active,   or   who   are   yet   to   begin   menstruation),   has   been   recognised   for   some   time   in   a   number   of   different   countries,   including   Australia.81  It   is   very   much   a   contemporary   and   widespread   problem,   and   illustrates   that   the   legacy  of  past  eugenic  ideologies  and  practices  has  far  from  disappeared.   Forced  contraception  practices  are  often  undertaken  under  the  guise  of  ‘behaviour  management’   strategies  or  treatment  for  ‘unwanted’  or  ‘offending  sexual  behaviour’.  These  practices  are  rarely,   if   ever,   subject   to   independent   monitoring   or   review.   For   example,   the   use   of   Depo   Provera   and   other   long   acting  contraceptive   medications,   used   to   suppress   menstruation   in   women   and   girls   with   disabilities   living   in   institutions   or   other   residential   settings,   often   occurs   through   an   ‘arrangement’   between   the   institution   or   residential   setting   and   a   doctor. 82  These   types   of   contraceptives  are  used  to  suppress  menstruation  in  women  and  girls  with  disabilities  as  a  first   and   only   response   to   what   is   deemed   by   others   as   ‘inappropriate   behaviour’,   such   as   removing   sanitary   pads   in   public   or   not   disposing   of   them   appropriately   in   a   waste-­‐bin.   Sex   education,   menstrual   management   strategies   and   supports   for   the   individuals   and   families   concerned   are   rarely  available  or  even  considered.   Men   and   boys   with   disabilities   (particularly   those   with   intellectual   disabilities   or   psychosocial   disabilities)   also   experience   violations   of   their   sexual   and   reproductive   rights   in   a   number   of   ways.   They   are   forced   or   coerced   into   undergoing   vasectomies   before   they   can   enter   into   marriage  or  continue  sexual  relationships;  or  after  they  have  had  a  child.  Research  conducted  in   the  late  1990s  in  Australia  found  that  it  was  likely  that  orchidectomies,  or  castration  by  surgical   removal   of   the   testes   were   being   performed   on   boys   and   young   men   with   disabilities   in   the   absence   of   disease   or   health   risks.   Depo   Provera   and   anti-­‐androgenic   medications   are   being   prescribed   to   boys   and   men   with   disabilities   to   prevent   sexual   behaviour   that   is   viewed   as   unwanted  or  excessive.  Although  the  behaviour  may  be  typical  of  the  sexual  behaviour  of  boys  and   young   men   without   disabilities,   the   response   is   to   ‘treat’   the   behaviour   as   if   it   is   inappropriate.   Depo   Provera   and   anti-­‐androgenic   medications   are   being   prescribed   to   boys   and   men   with   disabilities   to   prevent   inappropriate   sexual   behaviour,   such   as   masturbation   in   public.   In   many   situations,   these   boys   and   men   may   not   have   received   sex   education   or   positive   behaviour   supports.   Rather   than   consider   supports,   sex   education   and   counselling   for   the   individuals   and   families  concerned,  the  first  and  only  response  is  suppression  of  sexual  functioning.83  

           

                                                                                                               

78 Frohmader, C. and Ortoleva, S. (July 2013) The Sexual and Reproductive Rights of Women and Girls with Disabilities; Issues Paper commissioned by the ICPD International Conference on Human Rights, The Hague, July 2013. Available at: http://www.wwda.org.au/issues_paper_srr_women_and_girls_with_disabilities_final.pdf 79 Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit. 80 Frohmader, C. (2013) OpCit. 81 McCarthy, M. (2009) ‘I have the jab so I can't be blamed for getting pregnant’: Contraception and women with learning disabilities. Women's Studies International Forum, 32, pp. 198-208 82 People With Disability Australia (PWDA) (March 2013) Submission to the Senate Standing Committee on Community Affairs: Inquiry into the involuntary or coerced sterilisation of people with disabilities in Australia. PWDA, Sydney, Australia. 83 Ibid.

 

16  

Systemic  Denial  of  Access  to  Sexual  &  Reproductive  Health  Services,  Programs,   Information  &  Education     40.  

  41.  

  42.  

  43.  

The  right  to  participate  in  all  decision-­‐making  processes  that  affect  sexual  and  reproductive  health   and   development   is   a   basic   right   of   all   women,   including   women   and   girls   with   disabilities.   Yet,   more   often   than   not,   many   women   and   girls   with   disabilities   are   excluded   from   participating   in   decisions   that   affect   their   lives   on   a   daily   basis,   including   as   active   partners   in   their   own   sexual   and  reproductive  health  care.  They  are  further  excluded  and  ignored  in  sexual  and  reproductive   health   policy,   service   and   program   development,   including   information   and   education   resources.84     The  discrimination  experienced  by  women  with  disabilities  is  played  out  in  their  access  to  and  use   of   sexual   and   reproductive   health   services   and   programs.   For   many,   the   services   and   programs   they   require   to   realise   their   sexual   and   reproductive   rights   are   simply   not  available   to   them.   Even   where  services  and  programs  are  available,  many  women  with  disabilities  remain  excluded  due  to   economic,   social,   psychological   and   cultural   barriers   that   impede   or   preclude   their   access.   For   example,   support   for   choices   and   services   in   menstrual   management,   contraception,   abortion,   sexual   health   management,   pregnancy,   birth,   parenting,   assisted   reproduction,   and   menopause   remain   inappropriate,   absent   or   inaccessible.   Breast   and   cervical   cancer   screening   services   are   often   not   available   or   accessible   to   women   with   disabilities,   yet   a   disproportionate   number   of   deaths   from   breast   and   cervical   cancer   occur   among   women   with   disabilities.85  Services   and   programs  for  women  with  disabilities  experiencing,  or  at  risk  of  violence  is  a  further  area  where   women  with  disabilities  experience  exclusion  and  often  when  a  woman  with  a  disability  is  seen  by   health   care   workers,   they   fail   to   perform   screenings   for   possible   domestic   and   other   forms   of   violence  based  on  stereotypical  attitudes.  Even  where  sexual  and  reproductive  health  services  and   programs  are  available,  women  with  disabilities  are  inadequately  served,  due  to  a  wide  range  of   factors,   such   as:   inaccessible   venues;   lack   of   transport;   lack   of   appropriate   equipment;   non-­‐ inclusive   and/or   inflexible   service   policies   and   programs;   lack   of   skilled   workers;   and   pervasive   stereotypes  and  assumptions  that  women  with  disabilities  are  asexual.86   Health   practitioners   and   workers   have   long   been   seen   as   complicit   in   denying   women   with   disabilities   their   sexual   and   reproductive   rights,   and   in   perpetuating   myths   and   negative   stereotypes   about   women   with   disabilities. 87  The   lack   of   education   and   training   of   health   providers  has  been  identified  as  a  major  barrier  to  women  with  disabilities  accessing  sexual  and   reproductive   health   services.   This   lack   of   education   and   training   is   borne   out   in   a   myriad   of   ways.   For  example,  many  practitioners  lack  knowledge  of  disability,  hold  inaccurate  perceptions  about   women  with  disabilities,  and  have  a  tendency  to  view  women  with  disabilities  solely  through  the   lens   of   their   impairments.   Insufficient   time   to   address   the   full   range   of   needs   is   a   common   barrier   during  encounters  with  practitioners,  as  is  the  general  lack  of  sensitivity,  responsiveness,  courtesy   and  support  shown  to  women  with  disabilities.  Health  practitioners  can  have  a  tendency  to  treat   women  with  disabilities  as  objects  of  treatment  rather  than  rights-­‐holders,  and  do  not  always  seek   their  free  and  informed  consent  when  it  comes  to  interventions.88   For   many   women   and   girls   with   disabilities,   knowledge   of   sexual   and   reproductive   rights   and   health  has  been  shown  to  be  poor  and  access  to  information  and  education  limited.  Women  with   disabilities   express   desires   for   intimate   relationships   but   report   limited   opportunities   and   difficulty   negotiating   relationships. 89  For   women   with   intellectual   disabilities   in   particular,   attitudes   toward   sexual   expression   remain   restrictive   and   laws   addressing   sexual   exploitation   may   be   interpreted   by   others   as   prohibition   of   relationships.90  Paternalistic   and   stereotypical  

                                                                                                                84

WWDA (2010) Women With Disabilities & The Human Right to Health: A Policy Paper. Available online at: http://www.wwda.org.au/health2006.htm 85 Thierry, J. (2000) Increasing breast and cervical cancer screening among women with disabilities. Journal of Women's Health & Gender-Based Medicine, Vol. 9, No.1, pp.9-12. 86 Frohmader, C. and Ortoleva, S. (July 2013) OpCit. 87 Mall, S., & Swartz, L. (2012) Editorial: Sexuality, disability and human rights: Strengthening healthcare for disabled people. South African Medical Journal, Vol. 102, No. 10, October 2012. 88 Ibid. 89 In Frohmader, C. (2013) OpCit. 90 Eastgate, G., Scheermeyer, E., van Driel, M. & Lennox, N. (2012) Intellectual disability, sexuality and sexual abuse prevention: A study of family members and support workers. Australian Family Physician Vol. 41, No. 3, pp. 135-139.

 

17  

attitudes  towards  women  and  girls  with  disabilities,  often  result  in  others  deciding  on  a  disabled   woman  or  girls  behalf  what  is  in  their  ‘best  interests’.  It  is  clear  that  negative  attitudes,  values  and   stereotypes  about  the  reproductive  capacity  of  women  with  disabilities  influences  decisions  taken   about   their   sexual   and   reproductive   rights.   When   these   negative   attitudes   are   combined   with   authority  and  power,  they  are  a  potent  combination.91        

Case  Examples       Adult   male   and   female   residents   of   a   group   home   run   by   a   religious   organisation,   are   prohibited  from  having  any  form  of  sexual  or  intimate  relationships  on  the  premises  (either   with   each   other   or   anyone   else),   as   this   is   deemed   to   breach   organisational   policy   and   house   rules.   Although   the   residents   are   part   of   the   local   community   and   participate   in   activities   outside  the  group  home,  they  are  prohibited  from  bringing  a  sexual  or  intimate  partner  to   the   home.   Instead,   the   residents   are   told   that   if   they   want   to   have   sex   it   has   to   occur   off   site.   Several   of   the   residents   confirm   that   they   have   had   sex   in   the   local   park,   and   the   supermarket  car  park.             A  male  disability  support  worker  from  a  government  funded  group  home,  boasted  that  the   female  residents  in  the  group  home  where  he  worked,  were  all  “given  the  Primolut”  without   the   placebo   tablets   so   that   they   didn’t   get   their   periods.   When   asked   why   this   was   the   practice,  the  disability  support  worker  replied  that  “It’s  not  our  job  to  deal  with  periods”  and   that  it  “makes  it  easier  for  us  to  look  after  them.”             A  mother  of  a  24  year  old  woman  with  a  mild  intellectual  disability  seeks  information  as  to   whether   she   can   get   a   restraining   order   against   a   man   with   an   intellectual   disability   who   has  struck  up  a  friendship  with  her  daughter.  She  confirms  that  her  daughter  is  happy  in  the   man’s   company   and   wants   to   spend   more   time   with   him.   When   asked   why   she   wants   to   take   out  a  restraining  order  against  the  young  man,  the  mother  advises  that  she  doesn’t  want  her   daughter  to  mix  with  him  in  case  they  want  to  have  sex.                    

 

                                                                                                                91

 

McCarthy, M. (2009) OpCit.

18  

The  Right  to  Freedom  from  Violence,  Abuse,  Exploitation  and  Neglect   44.  

  45.  

  46.  

  47.  

International   human   rights   law   condemns   violence   against   women   in   all   its   forms,   whether   it   occurs  in  the  home,  schools,  in  institutions,  the  workplace,  the  community  or  in  other  public  and   private  institutions,  and  regardless  of  who  perpetrates  it.  Human  rights  standards  guarantee  the   right  to  be  free  from  violence,  torture,  and  cruel,  inhuman,  or  degrading  treatment  or  punishment,   as   well   as   the   rights   to   life,   health,   liberty,   security   of   person,   and   non-­‐discrimination.   These   guarantees   create   a   government   duty   to   respect,   protect,   fulfil   and   promote   human   rights   with   regard   to   violence   against   women   including   the   responsibility   to   prevent,   investigate   and   prosecute   all   forms   of,   and   protect   all   women   from   such   violence   and   to   hold   perpetrators   accountable.92   The  Australian  Government  has  consistently  articulated  its  commitment  to  meeting  its  obligations   under  the  treaties  it  has  ratified,93  and  has  made  it  clear  that  it  views  freedom  from  violence  as  a   pre-­‐requisite   to   women’s   exercise   and   enjoyment   of   human   rights.94  It   has   also   conceded   that   violence  against  women  with  disabilities  in  Australia  is  ‘widespread’,  that  women  with  disabilities,   particularly  intellectual  disabilities,  are  extraordinarily  vulnerable  to  violence  and  abuse,  and  that   disabled  women  experience  significant  barriers  in  accessing  domestic/family  violence  and  sexual   assault  services  and  support.95  Yet  successive  Australian  Governments  have  shown  little  interest   in,  and  taken  minimal  action  to  address  violence  against  women  and  girls  with  disabilities.  There   have  been,  and  remain,  significant  systemic  failures  in  legislation,  regulatory  frameworks,  policy,   administrative   procedures,   availability   and   accessibility   of   services   and   support,   to   prevent   and   address  violence  against  women  and  girls  with  disabilities.     Violence  against  women  and  girls  with  disabilities,  in  all  its  forms,  is  widespread  and  unaddressed   in  Australia.  Women  and  girls  with  disabilities  experience,  and  are  extraordinarily  vulnerable  to   multiple   forms   of   violence,   exploitation   and   abuse.   Although   women   and   girls   with   disabilities   experience   many   of   the   same   forms   of   violence   that   all   women   experience,   when   gender   and   disability   intersect,   violence   has   unique   causes,   takes   on   unique   forms   and   results   in   unique   consequences.   Women   and   girls   with   disabilities   also   experience   forms   of   violence   that   are   particular  to  their  situation  of  social  disadvantage,  cultural  devaluation  and  increased  dependency   on  others.  Poverty,  race,  ethnicity,  religion,  language  and  other  identity  status  or  life  experiences   can  further  increase  their  risk  of  violence.  96   Compared   to   non-­‐disabled   women,   women   with   disabilities   experience   violence   at   significantly   higher  rates,  more  frequently,  for  longer,  in  more  ways,  and  by  more  perpetrators,  yet  legislative   responses,   programs   and   services   for   this   group   either   do   not   exist,   are   extremely   limited,   or   simply  just  exclude  them.  Research  shows  that:  

  •



women   with   disabilities   experience   violence,   particularly   family/domestic   violence,   violence   in   institutions,   and   violence   in   the   workplace,   more   often   than   disabled   men,97  are   often   at   greater  risk  than  disabled  men,  both  within  and  outside  the  home,  of  violence,  injury  or  abuse,   neglect   or   negligent   treatment,   maltreatment   or   exploitation;98  and,   are   more   vulnerable   as   victims  of  crimes  from  both  strangers  and  people  who  are  known  to  them;99       women   with   disabilities   are   more   exposed   to   forms   of   violence   which   qualify   as   torture   or   inhuman   or   degrading   treatment100  (such   as   forced   or   coerced   sterilisation,   forced   abortion,  

                                                                                                               

92 United Nations General Assembly (2006) In-depth study on all forms of violence against women. Report of the Secretary-General. A/61/122/Add.1.New York. 93 Commonwealth of Australia (2010) Australia’s Human Rights Framework, Attorney-General’s Department, Canberra. 94 Commonwealth of Australia (2012) Information provided in follow-up to the concluding observations of the CEDAW Committee [Australia]; Responses by Australia to the recommendations contained in the concluding observations of the Committee following the examination of the combined sixth and seventh reporting periodic report of Australia on 20 July 2010. 95 In Frohmader, C. (2011) Op Cit. 96 Dowse, L., Soldatic, K., Didi, A., Frohmader, C. and van Toorn, G. (2013) Stop the Violence: Addressing Violence Against Women and Girls with Disabilities in Australia. Background Paper. Hobart: Women with Disabilities Australia. 97 Women With Disabilities Australia (WWDA) (2007b) OpCit.; Meekosha, H. (2004) OpCit. 98 See Preamble [q] of UN General Assembly, Convention on the Rights of Persons with Disabilities. 99 Groce, N. (2006) OpCit. 100 Committee of Ministers of the Council of Europe (2009) OpCit.

 

19  

• • • •

• •





•   48.    

forced   contraception,   gender   based   violence,   chemical   restraint,   forced   electro-­‐shock,   and   other  forced  psychiatric  interventions);   sexual  assault  and  abuse  is  a  significant  and  un-­‐addressed  problem  for  girls  and  women  with   disabilities,  particularly  for  those  in  ‘institutional’  settings;101   more   than   70%   of   women   with   a   wide   variety   of   disabilities   have   been   victims   of   violent   sexual  encounters  at  some  time  in  their  lives;102   the  rates  of  sexual  victimisation  of  girls  and  women  with  disabilities  ranges  from  four  to  10   times  higher  than  for  non-­‐disabled  women  and  girls;103   the   overwhelming   majority   of   perpetrators   of   sexual   abuse   of   disabled   girls   and   women   in   institutions  are  male  caregivers,  a  significant  portion  of  whom  are  paid  service  providers  who   commit  their  crimes  in  disability  service  settings,  and  other  forms  of  institutional  settings;104   perpetrators  frequently  target  and  select  women  and  girls  with  disabilities  for  their  perceived   powerlessness  and  vulnerability  -­‐  and  for  their  seeming  limitations;105   crimes   of   sexual   violence   committed   against   girls   and   women   with   disabilities   often   go   unreported,   and   when   they   are,   they   are   inadequately   investigated,   remain   unsolved   or   result   in  minimal  sentences;106     lack  of  reporting  of  sexual  abuse  of  girls  and  women  with  disabilities  in  institutions,  and  cover   up   by   staff   and   management,   is   acknowledged   as   a   widespread   and   common   problem   in   Australia,107  and   remains   a   significant   factor   in   the   lack   of   police   investigation,   prosecution   and  conviction  of  perpetrators;   police   are   often   reluctant   to   investigate   or   prosecute   when   a   case   involves   a   girl   or   woman   with   a   disability   in   an   institutional   setting;   and   they   also   fail   to   act   on   allegations   because   there  is  no  ‘alternative  to  the  abusive  situation’;108     girls   and   women   with   disabilities,   particularly   those   with   intellectual   and/or   cognitive   disabilities  and/or  psychosocial  disabilities  have  less  chance  of  being  believed  when  reporting   sexual  assault,  violence  and  abuse  than  non-­‐disabled  women  and  girls.109  

These  recent  examples  highlight  some  of  these  facts:   In   June   2011,   the   South   Australian   Health   Complaints   Commissioner   reported   that   there  had  been  five  cases  of  rape  and  serious  sexual  assault  against  girls  and  women   with  disabilities  in  the  past  year  and,  in  the  worst  case  of  abuse  in  care,  a  15  year  old   victim   had   become   pregnant   with   the   suspected   rapist’s   child   but   the   man   had   disappeared   before   any   action   could   be   taken   against   him.   None   of   the   five   cases   resulted   in   any   serious   police   action   because   of   a   lack   of   corroboration   or   the   extent   of  the  impairment  of  the  alleged  victim.110       In   July   2011,   authorities   in   South   Australia   decided   not   to   proceed   with   a   case   claiming   sexual   abuse   of   a   child   with   an   intellectual   disability.   The   prosecution   formed   the   view   that   the   child   could   not   give   reliable   evidence.   The   accused   was   released.  Although  it  transpired  that  up  to  30  other  intellectually  disabled  children   had   been   abused   by   the   accused   (a   volunteer   bus   driver   with   a   school   for   intellectually   disabled   children)   and   introduced   into   a   ring   of   paedophiles,111  the   police   and   the   school   authorities   did   not   tell   all   the   parents   whose   children   had  

                                                                                                                101

In Frohmader, C. (2011) Submission to the UN Analytical Study on Violence against Women and Girls with Disabilities. WWDA, Tasmania. Stimpson & Best; cited in Elman, A. (2005). Confronting the Sexual Abuse of Women with Disabilities. Harrisburg, PA: VAWnet, a project of the National Resource Center on Domestic Violence/Pennsylvania Coalition Against Domestic Violence. 103 Baladerian; Valenti-Hein & Schwartz; cited in Elman, A. (2005) OpCit. 104 Sobsey & Doe; cited in Elman, A. (2005) OpCit. 105 Elman, A. (2005) OpCit. See also WWDA (2007b) OpCit. 106 WWDA (2007b) OpCit. See also: Healey et al (2008) OpCit; See also: French, P., Dardel, J., & Price-Kelly, S. (2009) Rights denied: Towards a national policy agenda about abuse, neglect and exploitation of persons with cognitive impairment, People with Disability Australia, Sydney. 107 French, P. (2007) French, P. (2007) Disabled Justice: The barriers to justice for persons with disability in Queensland. Queensland Advocacy Incorporated (QAI), Brisbane. Accessed online October 2011 at: http://www.qai.org.au/images/stories/docs/1987-2007/doc_199.pdf; See also: Stewart, D. Chapter 11 Institutional culture and people with intellectual disabilities: Experiences of an inquirer. In Hauritz, M. Sampford, C. & Blencowe, S. (Eds) (1998) Justice for People with Disabilities – Legal and Institutional Issues. The Federation Press, Leichhardt, NSW; See also: French, P. et al (2010) OpCit. 108 French, P. (2007) OpCit; See also: French, P. et al (2010) OpCit. 109 In Frohmader, C. (2011) OpCit. 110 Ibid. 111 Australian Broadcasting Corporation (ABC) (2011) Church denies disabled kids' sex abuse cover-up. ABC TV ‘Four Corners’ September 26, 2011. Accessed online October 2011 at: http://www.abc.net.au/news/2011-09-26/four-corners-child-abuse-claims/2942602 102

 

20  

come  into  contact  with  the  accused.112  It  was  only  as  a  result  of  a  chance  encounter   between  the  parents,  that  the  full  extent  of  their  children's  abuse  was  revealed.     In   November   2011,   it   was   reported   that   a   major   mental   health   service   in   Victoria   has   been   covering   up   sexual   assaults   of   its   patients,   and   that   the   same   service   has   been  previously  investigated  for  allegedly  failing  to  protect  an  intellectually  disabled   teenage  girl  from  being  sexually  exploited  by  a  34  year  old  male  patient.  The  latest   allegations   involved   a   20   year   old   female   mental   health   patient   allegedly   sexually   assaulted   by   a   male   nurse.   When   the   young   woman   complained   to   a   female   staff   member,   she   was   told   not   to   tell   anyone   else   about   it   to   avoid   it   ''becoming   office   gossip''.   Police   investigated   the   case   but   did   not   lay   charges   on   the   grounds   it   would   be  difficult  to  prosecute.  An  internal  investigation  was  conducted  and  ''appropriate   disciplinary  action  implemented''  however,  it  is  not  known  what  disciplinary  action   was  taken,  and  it  has  been  reported  that  ‘soon  after  the  alleged  incidents’  the  male   nurse   resumed   working   in   mental   health   services,   and   ‘remains   in   a   role   where   he   interacts  with  female  patients’.113     In   2010,   three   intellectually   disabled   women   living   in   accommodation   run   by   the   Victorian  Department  of  Human  Services  were  allegedly  raped  and  assaulted  after   being  left  alone  with  a  male  carer  in  the  state-­‐run  house.114  The  mother  of  one  of  the   women  said  that  her  daughter  was  "covered  in  bruises"  after  the  alleged  attack  but   did  not  receive  counselling  until  10  days  later,  and  even  then  the  women  were  only   given  one  session  of  one-­‐on-­‐one  counselling.115  It  was  only  after  the  media  reported   the   story   that   the   Department   of   Human   Services   undertook   ‘an   internal   investigation’   and   police   became   involved.   However,   the   outcome   of   the   ‘internal   investigation’   is   unknown,   as   is   the   result   of   the   police   investigation.   This   lack   of   transparency  is  a  familiar  theme  in  cases  of  violence  and  abuse  against  women  and   girls  with  disabilities.     49.  

  50.  

Many   forms   of   violence   perpetrated   against   women   and   girls   with   disabilities   (such   as   violence   in   institutions;   sexual   and   reproductive   rights   violations;   restrictive   practices;   seclusion   and   restraint;   deprivation   of   liberty;   forced   psychiatric   interventions),   remain   unexplored   and   unaddressed   in   the   Australian   context,   and   fall   outside   the   scope   of   Australian   family/domestic   violence  legislation  and  policy  responses  to  addressing  violence  against  women.     Women   and   girls   with   disabilities   in   Australia   continue   to   be   subjected   to   multiple   forms   and   varying   degrees   of   ‘deprivation   of   liberty’   and   are   subjected   to   unregulated   or   under-­‐regulated   restrictive   interventions.116  This   is   particularly   the   case   for   women   and   girls   with   intellectual   and/or  cognitive  disabilities,  developmental  disabilities  and  those  with  psychosocial  disabilities.  A   restrictive   intervention   has   been   defined   as   ‘any  intervention  that  is  used  to  restrict  the  rights  or   freedom  of  movement  of  a  person  with  a  disability’,117  and   can   include   practices   such   as   chemical   restraint, 118  mechanical   restraint, 119  physical   restraint, 120  social   restraint, 121  seclusion 122 .   Such  

                                                                                                                112

Australian Broadcasting Corporation (ABC) (2011) St Ann's Secret. ABC TV ‘Four Corners’, October 3, 2011. Accessed online October 2011 at: http://www.abc.net.au/4corners/stories/2011/09/22/3323669.htm 113 Baker, R. & McKenzie, N. (2011) Patient 'silenced' after sex abuse. The Age, November 21, 2011. Accessed online November 2011 at: http://www.theage.com.au/victoria/patient-silenced-after-sex-abuse-20111120-1npeh.html 114 Mickelburough, P. (2010) Mentally disabled women 'raped by carer' in state-run house. Herald Sun, October 11, 2010. Accessed online October 2011 at: http://www.heraldsun.com.au/news/victoria/mentally-disabled-women-raped-by-carer-in-state-run-house/story-e6frf7kx-1225936849896 115 Grace, R. (2010) Rape claims levelled against DHS worker. The Age, October 11, 2010. Accessed online October 2011 at: http://www.theage.com.au/victoria/rape-claims-levelled-against-dhs-worker-20101011-16erd.html 116 Office of the Public Advocate (2010) Submission to the Victorian Law Reform Commission in Response to the Guardianship Information Paper. Accessed online October 2011 at: http://www.publicadvocate.vic.gov.au/file/file/Research/Submissions/2010/OPA-Submission-to-VLRC-May2010.pdf See also: French, P., Dardel, J. & Price-Kelly, S. (2010) OpCit. 117 Office of the Public Advocate (2010) Supervised Treatment Orders in Practice: How are the Human Rights of People Detained under the Disability Act 2006 Protected? Accessed online October 2011 at: http://www.publicadvocate.vic.gov.au/file/file/Research/Reports/STOs%20in%20Practice,%20How%20are%20the%20HRs%20of%20People%20 Detained%20under%20the%20Disability%20Act%202006%20Protected.pdf 118 Chemical restraint occurs when medication that is sedative in effect is prescribed and dispensed to control the person’s behaviour rather than provide treatment. See in: National Mental Health Consumer & Carer Forum (2009) Ending Seclusion and Restraint in Australian Mental Health Services. www.nmhccf.org.au 119 Mechanical restraint is understood as the use of any device to prevent, restrict or subdue movement of a person’s body for the primary purpose of behavioural control. See for eg: McVilly, K. (2008). Physical restraint in disability services: current practices; contemporary concerns and future directions. A report commissioned by the Office of the Senior Practitioner, Department of Human Services, Victoria, Australia.

 

21  

practices  are  often  imposed  as  a  means  of  coercion,  discipline,  convenience,  or  retaliation  by  staff,   family   members   or   others   providing   support.123  These   practices   are   not   limited   to   institutions   such   as   group   homes,   but   also   occur   in   educational   settings   (such   as   schools),   hospitals,   residential   aged   care   facilities   and   other   types   of   institutions   (such   as   hostels,   boarding   houses,   psychiatric/mental  health  community  care  facilities,  prisons,  supported  residential  facilities).     51.  

  52.  

  53.  

  54.  

The   Victorian   Government   has   estimated   that   between   44-­‐80%   of   people   with   disabilities   who   ‘show  behaviours  of  concern’  are  prescribed  chemical  restraint.124  No  controlled  studies  exist  that   evaluate  the  value  of  seclusion  or  restraint  in  those  with  ‘serious  mental  illness’,125  although  the   use  of  involuntary  seclusion  and  restraint  in  all  forms   is  an  everyday  occurrence,  particularly  in   Australia’s   public   acute   inpatient   facilities.126  The   widespread,   systemic   problem   of   restrictive   practices  and  children  with  disabilities  in  Australian  schools  remains  ignored  and  unaddressed  by   Governments.127     All   Australian   states   and   territories   have   provisions   for   the   ‘treatment’   of   people   with   mental   illnesses  without  consent.128  This  occurs  when  the  persons  illness  is  believed  to  impair  his  or  her   capacity  to  understand  the  need  for  treatment,  or  where  the  person  is  likely  to  put  themselves  or   others  at  risk  in  some  substantial  way.129  Legislation  typically  allows  for  involuntary  admission  to   hospital  and,  in  most  jurisdictions,  pharmacological  or  other  treatments  without  consent.     In  most  States  and  Territories  of  Australia,  involuntary  electroconvulsive  therapy  (ECT)  requires   the  approval  of  the  relevant  Mental  Health  Review  Tribunal,  except  in  Tasmania  (where  approvals   are   made   by   the   Guardianship   and   Administration   Board)   and   in   Victoria,   where   current   legislation  allows  treating  psychiatrists  to  administer  ECT  without  consent  or  external  review.130   Data   on   the   use   of  Electroconvulsive   therapy   (ECT)   on   involuntary   persons   in   Australia   is   difficult   to   source,   however,   where   it   is   available,   indicates   that   three   times   more   women   than   men   are   subject   to   the   practice. 131  Medicare   statistics   for   2007-­‐2008   record   203   ECT   treatments   on   children  younger  than  14  -­‐  including  55  aged  four  and  younger.132  Certain  legislation  in  Australia   currently   allows   for   children   to   undergo   ECT   provided   they,   or   their   parent   or   guardian   have   given  informed  consent.133   In  2009-­‐10  the  Queensland  Mental  Health  Tribunal  scheduled  462  ECT  applications  in  relation  to   355   patients.   This   was   15.5%   higher   than   the   previous   year.   Of   these,   98   (21.2%)   were  

                                                                                                                                                                                                                                                                                                                                                                         

120 Physical restraint is defined as the sustained or prolonged use of any part of a person’s body to prevent, restrict, or subdue movement of the body or part of a body of another person. See for eg: McVilly, K. (2008) OpCit. 121 Social restraint is recognized to include the use of verbal interactions and/or threats of social or other tangible sanctions, which rely on eliciting fear to moderate a person’s behavior. See for eg: McVilly, K. (2008) OpCit. 122 In Australia the definition of seclusion is both legislated and policy driven. Seclusion can be understood as ‘the confinement of a person alone at any hour of the day or night in a room, the door(s) and window(s) of which cannot be opened by the person from the inside; or the confinement of a person alone at any hour of the day or night in a room in which the door(s) or window(s) are locked from the outside or their opening is prevented by any other means, such as a person holding the door shut; or where exit from a place is prevented by the presence of another person. 123 Cited in McVilly, K. (2008). OpCit. 124 Department of Human Services (2008) Positive Solutions in Practice: Chemical Restraint: What every Disability Support Worker needs to know. Office of the Senior Practitioner, Melbourne. 125 Sailas EES, Fenton M. (2000) Seclusion and restraint for people with serious mental illnesses. Cochrane Database of Systematic Reviews 2000, Issue 1. Art. No.: CD001163. DOI: 10.1002/14651858.CD001163. 126 National Mental Health Consumer & Carer Forum (2009) OpCit. 127 See for eg: Australian Broadcasting Corporation (ABC TV) (17/05/2011) ‘Hidden shame‘; 7.30 Report. Accessed online October 2011 at: http://www.abc.net.au/7.30/content/2011/s3219518.htm See also: Martin, L. (March 11, 2010) ‘Outrage over Seven Hills West Public School putting autistic children in cage’; Accessed online October 2011 at: http://www.news.com.au/national/outrage-over-seven-hills-west-public-schoolputting-autistic-kids-in-cage/story-e6frfkvr-1225839691640 See also: Brown, D. (2010) ‘Autistic kids 'caged' at school.’ The Mercury Newspaper, September 13, 2010. Accessed: http://www.themercury.com.au/article/2010/09/13/172495_tasmania-news.html 128 For a detailed analysis of forced psychiatric interventions and practices, see the Center for the Human Rights of Users and Survivors of Psychiatry (CHRUSP) at: http://www.chrusp.org 129 Fitzgerald, P. (2011) ‘It’s time to move on from ECT’s shocking past.’ The Conversation; 29 September 2011; Accessed online October2011 at: http://theconversation.edu.au/its-time-to-move-on-from-ects-shocking-past-3312 130 Baker, R. & McKenzie, N. (2011) Mental health care inquiry. The Age, Accessed online October 2011 at: http://www.theage.com.au/victoria/mental-health-care-inquiry-20110905-1juiy.html 131 In Frohmader, C. (2011) OpCit.; See Also: ‘Child shock therapy’; Herald Sun Newspaper, January 25, 2009. Accessed online December 2012 at: http://www.heraldsun.com.au/news/victoria/child-shock-therapy/story-e6frf7kx-1111118657718 132 ‘Child shock therapy’; Herald Sun Newspaper, January 25, 2009. Accessed online December 2012 at: http://www.heraldsun.com.au/news/victoria/child-shock-therapy/story-e6frf7kx-1111118657718 133 See for example: Western Australia [Draft] Mental Health Bill 2012. Accessed online December 2011 at: http://www.mentalhealth.wa.gov.au/Libraries/pdf_docs/Green_paper-Mental_Health_Bill_2012_325-1.sflb.ashx

 

22  

applications   for   patients   undergoing   emergency   ECT.134  In   2009-­‐10   in   NSW,   716   applications   were  made  to  the  NSW  Mental  Health  Review  Tribunal  to  administer  ECT  to  involuntary  patients   (455   or   63.5%   of   the   applications   involved   female   patients).   Only   20%   of   the   716   applications   included   legal   representation   for   the   patient.   The   NSW   Mental   Health   Act   2007   allows   for   determinations  of  more  than  12  ECT  treatments  ‘if   the   Tribunal   is   satisfied   that   more   are   justified,   having  regard  to  the  special  circumstances  of  the  case.’   In   2009-­‐10,   5.4%   of   cases   were   for   more   than  12  treatments  approved.135       55.  

In   Victoria   in   2009-­‐10,   more   than   1100   people   received   electroconvulsive   therapy   (ECT),   in   the   public  mental  health  system.  Of  these,  377  (or  about  one  third)  were  deemed  involuntary  patients   who  did  not  consent  to  the  ECT.  Involuntary  mental  health  patients  received  more  than  half  of  the   12,968   ECT   sessions   administered   in   the   Victorian   public   psychiatric   system   in   2009-­‐10.136  The   use   of   ECT   in   Victoria's   public   and   private   psychiatric   services   has   increased   sharply   in   recent   years.  In  public  mental  health  services,  its  use  has  increased  by  12%  since  2003-­‐04,  and  private   ECT  sessions  in  Victoria  have  increased  by  71%  during  the  same  period.137  An  2011  investigation   into  Victoria’s  mental  health  system  reported  that:    

  ‘Practices   from   a   previous   age   appear   routine   in   some   hospitals:   threatening   patients   with   electroconvulsive   therapy   (ECT)   if   they   refuse   to   take   medication;   locking   bathrooms   to   prevent   patients   drinking   water,   which   would   negate   the   effect   of   the   ECT;   and   imposing   a   form   of   solitary   confinement   as   punishment   for   improper   behaviour.   Such   attempts   to   subdue   and   control   patients   are   disturbing   enough   in   fiction   such   as   One   Flew   Over   the   Cuckoo's   Nest;   they   have   no   place   in   hospitals  in  21st  century  Australia.’138     56.  

In   October   2013,   the   Committee   on   the   Rights   of   Persons   with   Disabilities   in   Concluding   Observations   [Australia]   expressed   its   concern   that   persons   with   disabilities,   particularly   those   with   intellectual   impairment   or   psychosocial   disability,   are   subjected   to   unregulated   behaviour   modification   or   restrictive   practices   such   as   chemical,   mechanical   and   physical   restraint   and   seclusion,   in   environments   including   schools,   mental   health   facilities   and   hospitals.   The   Committee  recommended  that  Australia:    

  take  immediate  steps  to  end  such  practices  including  by  establishing  an  independent   national   preventative   mechanism   to   monitor   places   of   detention   including   mental   health   facilities,   special   schools,   hospitals,   disability   justice   centres   and   prisons,   to   ensure   that   persons   with   disabilities   including   those   with   psychosocial   disabilities   are  not  subjected  to  intrusive  medical  interventions.     57.  

The  Committee  also  expressed  its  concern   that  under  Australian  law,  a  person  can  be  subjected  to   medical   interventions   against   his   or   her   will,   if   the   person   is   deemed   to   be   incapable   of   making   or   communicating  a  decision  about  treatment.  The  Committee  recommended  that:  

  Australia   repeal   all   legislation   that   authorises   medical   interventions   without   free   and   informed   consent   of   the   persons   with   disabilities   concerned,   and   legal   provisions   that  authorize  commitment  of  individuals  to  detention  in  mental  health   services,   or   the   imposition   of   compulsory   treatment   either   in   institutions   or   in   the   community  via  Community  Treatment  Orders  (CTOs).     58.  

The   UN   Special   Rapporteur   on   Torture,   in   his   ground-­‐breaking   report   of   2013139  which   clarified   practices   that   constitute   torture   and   ill-­‐treatment   in   health-­‐care   settings,   made   it   clear   that   women  living  with  disabilities,  with  psychiatric  labels  in  particular,  are  at  risk  of  multiple  forms  of  

                                                                                                               

134 Queensland Government (2010) Mental Health Review Tribunal Annual Report 2009-10. Accessed October 2011 at: http://www.mhrt.qld.gov.au/wp-content/uploads/2010/12/mhrt-annual-Report-2009-10.pdf 135 NSW Mental Health Review Tribunal (2010) Annual Report of the Mental Health Review Tribunal. Accessed online October 2011 at: http://www.mhrt.nsw.gov.au/mhrt/pdf/Annualreport200910.pdf 136 Baker, R. & McKenzie, N. (2011) OpCit. 137 Ibid. 138 The Age Newspaper; Silence hides shameful neglect of mentally ill; September 5, 2011; Accessed online October 2011 at: http://www.theage.com.au/opinion/editorial/silence-hides-shameful-neglect-of-mentally-ill-20110904-1js7t.html 139 Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.

 

23  

discrimination  and  abuse  in  health-­‐care  settings.  He  also  confirmed  that  any  restraint  on  people   with   ‘mental   disabilities’   [sic]   for   even   a   short   period   of   time   may   constitute   torture   and   ill-­‐ treatment.  His  report  states:       It   is   essential   that   an   absolute   ban   on   all   coercive   and   non-­‐consensual   measures,   including   restraint   and   solitary   confinement   of   people   with   psychological   or   intellectual  disabilities,  should  apply  in  all  places  of  deprivation  of  liberty,  including   in  psychiatric  and  social  care  institutions.  The  environment  of  patient  powerlessness   and  abusive  treatment  of  persons  with  disabilities  in  which  restraint  and  seclusion  is   used   can   lead   to   other   non-­‐consensual   treatment,   such   as   forced   medication   and   electroshock  procedures.     59.  

  60.  

The   UN   Special   Rapporteur   on   Torture   has   also   made   it   clear   that,   as   detention   in   a   psychiatric   context   may   lead   to   non-­‐   consensual   psychiatric   treatment,   deprivation   of   liberty   that   is   based   on   the  grounds  of  a  disability  and  that  inflicts  severe  pain  or  suffering  could  fall  under  the  scope  of   the  Convention  against  Torture  (CAT).140       The   UN   Special   Rapporteur   on   Torture   has   strongly   recommended141  that   States   Parties   (which   includes  Australia):    

  Safeguard   free   and   informed   consent   on   an   equal   basis   for   all   individuals   without   any   exception,   through   legal   framework   and   judicial   and   administrative   mechanisms,  including  through  policies  and  practices  to  protect  against  abuses.  Any   legal   provisions   to   the   contrary,   such   as   provisions   allowing   confinement   or   compulsory   treatment   in   mental   health   settings,   including   through   guardianship   and  other  substituted  decision-­‐making,  must  be  revised.  Adopt  policies  and  protocols   that  uphold  autonomy,  self-­‐determination  and  human  dignity.       Impose   an   absolute   ban   on   all   forced   and   non-­‐consensual   medical   interventions   against   persons   with   disabilities,   including   the   non-­‐consensual   administration   of   psychosurgery,  electroshock  and  mind-­‐altering  drugs  such  as  neuroleptics,  the  use  of   restraint  and  solitary  confinement,  for  both  long-­‐  and  short-­‐  term  application.  The   obligation   to   end   forced   psychiatric   interventions   based   solely   on   grounds   of   disability   is   of   immediate   application   and   scarce   financial   resources   cannot   justify   postponement  of  its  implementation.     Revise   the   legal   provisions   that   allow   detention   on   mental   health   grounds   or   in   mental  health  facilities,  and  any  coercive  interventions  or  treatments  in  the  mental   health   setting   without   the   free   and   informed   consent   by   the   person   concerned.   Legislation   authorizing   the   institutionalization   of   persons   with   disabilities   on   the   grounds   of   their   disability   without   their   free   and   informed   consent   must   be   abolished.     61.  

The   Australian   Government’s   primary   response   to   addressing   violence   against   women   in   Australia,   including   women   with   disabilities,   is   through   the   twelve   year   National  Plan  to  Reduce   Violence   against   Women   and   their   Children   2010-­‐2022,   [the   National   Plan]   and   its   National   and   jurisdictional   Implementation   Plans.   However,   in   relation   to   addressing   violence   against   women   and   girls   with   disabilities,   the   National   Plan   has   significant   limitations,   in   that   there   is   little   emphasis  on  girls  with  disabilities,  it  focuses  only  on  domestic/family  violence  and  sexual  assault   and   fails   to   address   the   multiple   forms   of   violence   that   women   and   girls   with   disabilities   experience.   In   addition,   although   Aboriginal   and   Torres   Strait   Islander   women   are   included   in   the   National   Plan   and   other   mainstream   strategies,   there   are   no   clear   provisions   which   address   violence   and   abuse   of   Aboriginal   and   Torres   Strait   Islander   women   with   disabilities,   and   this   remains  an  unaddressed  area  of  public  policy  and  service  provision.  A  similar  situation  exists  for   culturally  and  linguistically  diverse  (CALD)  women  with  disabilities.  Whilst  it  could  be  argued  that   the   National   Disability   Strategy   (NDS)   might   address   these   forms   of   violence,   most   state   and  

                                                                                                                140 141

 

Ibid. Ibid.

24  

territory   NDS   Implementation   Plans   (where   the   NDS   is   operationalised),   rely   on,   and   cite   the   National   Plan   as   the   key   (and   often   only)   strategy   to   address   violence   against   people   with   disabilities.   Regrettably,   the   majority   of   these   NDS   Implementation   Plans   are   un-­‐gendered.   This   type   of   policy   ‘siloing’,   and   lack   of   understanding   of   the   gendered   nature   of   violence   against   people  with  disabilities,  can  contribute  to  women  with  disabilities  who  experience,  and  who  are  at   risk  of  experiencing  violence,  falling  through  violence  prevention  legislation,  policy,  program  and   service  delivery  gaps.     62.  

  63.  

  64.  

For  example,  women  and  girls  with  disabilities  in  Australia  live  in  and  experience,  a  vast  range  of   ‘institutional’   settings,   such   as   group   homes,   supported   residential   facilities,   licenced   and   un-­‐ licenced   boarding   houses,   psychiatric/mental   health   community   care   facilities,   residential   aged   care  facilities,  hostels,  hospitals,  prisons,  foster  care,  respite  facilities,  cluster  housing,  congregate   care,   special   schools   and   out-­‐of-­‐home   care   services.   Women   and   girls   with   disabilities   in   institutions  are  at  particular  and  significant  risk  of  violence,  abuse  and  exploitation  due  to  a  range   of   factors,   including:   the   reinforced   demand   for   compliant   behaviours,   their   perceived   lack   of   credibility,   their   social   isolation   and   lack   of   access   to   learning   environments,   their   dependence   upon   others,   their   lack   of   access   to   police,   support   services,   lawyers   or   advocates;   the   lack   of   public  scrutiny  of  institutions;  and  the  entrenched  sub-­‐culture  of  violence  and  abuse  prevalent  in   institutions.142  Violence   perpetrated   against   women   and   girls   with   disabilities   in   institutions   is   rarely  characterised  as  domestic/family  violence  and  rarely  are  domestic/family  violence  related   interventions  deployed  to  deal  with  this  type  of  violence.   Violence  against  women  and  girls  in  institutions  in  Australia  has  consistently  been  identified  as  an   urgent   issue   requiring   national   leadership,   and   a   national   public   policy   response.   This   was   recently  reinforced  by  participants  and  delegates  at  the  ‘National  Symposium  on  Violence  Against   Women   and   Girls   with   Disabilities’143  where   there   was   unanimous   and   unequivocal   consensus   calling   for   urgent   action   on   this   issue.   For   a   number   of   years   now,   women   with   disabilities,   disabled   people’s   organisations,   human   rights   organisations,   and   the   United   Nations   (amongst   others),  have  called  for  urgent  action  by  Australian  governments  to  address  violence,  exploitation,   and  abuse  experienced  by  women  and  girls  with  disabilities  in  institutions.  Yet  in  Australia,  this   issue  remains  excluded  from  public  programmes  and  policies  on  the  prevention  of  gender-­‐based   violence.   Recent   media   reports 144  on   the   systemic   nature   of   violence   against   people   with   disabilities   in   institutions   throughout   Australia   further   demonstrate   and   reinforce   the   need   for   urgent  national  action  on  this  issue.     Most   recently,   in   October   2013,   the   Committee   on   the   Rights   of   Persons   with   Disabilities   in   its   Concluding   Observations   following   its   Review   of   Australia’s   compliance   with   the   CRPD,   expressed   its   “deep   concern”   at   the   high   rates   of   violence   perpetrated   against   women   and   girls   with   disabilities145  and  recommended  that  Australian  Governments  act  urgently  to:   • address   and   investigate,   without   delay,   violence,   exploitation   and   abuse   experienced   by   women  and  girls  with  disabilities  in  institutional  settings;   • include   a   more   comprehensive   consideration   of   women   with   disabilities   in   public   programmes  and  policies  on  the  prevention  of  gender-­‐based  violence;   • ensure  access  for  women  with  disabilities  to  an  effective,  integrated  response  system;  and,   • commission  and  fund  a  comprehensive  assessment  of  the  situation  of  girls  and  women  with   disabilities  in  Australia.  

 

                                                                                                                142

SafePlace Institute (2000) Stop the Violence, Break the Silence Training Guide & Resource Kit. Austin, Texas. The ‘National Symposium on Violence Against Women and Girls with Disabilities’ was held in Sydney on October 25th 2013, as a component of WWDA’s National COAG Reform Project on Violence Against Women and Girls with Disabilities. See: www.stvp.org.au 144 The Age Newspaper (November 20, 2013) ‘Former Yooralla worker Vinod Kumar jailed for attacking vulnerable women in his care’; at: http://www.theage.com.au/victoria/former-yooralla-worker-vinod-kumar-jailed-for-attacking-vulnerable-women-in-his-care-20131120-2xuh3.html See also: The Age Newspaper (November 21, 2013) ‘Yooralla senior executives accused of ignoring warning signs on rape claims’; at: http://www.theage.com.au/victoria/yooralla-senior-executives-accused-of-ignoring-warning-signs-on-rape-claims-20131120-2xvin.html See also: ABC 7.30 Report (May 2013) ‘Report reveals psychiatric care's shocking sexual assault statistics’; at: http://www.abc.net.au/7.30/content/2013/s3758227.htm; See also: ABC 7.30 Report (December 2013) ‘Protecting disabled people in group homes’; at: http://www.abc.net.au/7.30/content/2013/s3915884.htm 145 Committee on the Rights of Persons with Disabilities (2013) Concluding observations on the initial report of Australia, adopted by the Committee at its tenth session (2-13 September 2013); UN Doc. CRPD/C/AUS/CO/1; Available at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD%2FC%2FAUS%2FCO%2F1&Lang=en 143

 

25  

65.  

  66.  

  67.  

  68.  

These   recommendations   echo,   and   build   on   similar   recommendations   made   to   Australia   in   recent   years   from   the   Committee  on  the  Elimination  of  Discrimination  Against  Women   (CEDAW)   (2010);   the  Human  Rights  Council  (2011);146  the  Committee  on  the  Rights  of  the  Child  (CRC)  (2013);147  and   the   Committee   on   Economic,   Social   and   Cultural   Rights   (CESCR)   (2012). 148  In   addition,   the   Commission   on   the   Status   of   Women   (CSW)   Agreed   Conclusions   (2013),149  which   the   Australian   government   delegation   helped   to   formulate   and   subsequently   endorsed,   acknowledge   that   women  with  disabilities  are  more  vulnerable  to  all  forms  of  violence,  exploitation  and  abuse,  and   call  on  Governments  the  world  over  to  prevent  and  address  violence  against  women  and  girls  with   disabilities.     Provided  as  a  formal  attachment  to  this  Submission,  is  a  copy  of  the  sentencing  comments  from  a   recent   Australian   court   case,   DPP   v   Kumar   (20   November   2013),   whereby   a   casual   worker   employed   at   a   supported   accommodation   facility   in   Victoria,   was   sentenced   to   18   years   jail   for   multiple  counts  of  rape  and  other  sexual  offences  perpetrated  against  three  disabled  women  and   one   disabled   man.   This   document   illustrates   the   nature   of   violence   perpetrated   against   women   and   girls   with   disabilities   in   institutions,   and   is   just   one   example   of   this   widespread,   unaddressed   national  issue.  Although  harrowing  reading,  the  transcript  highlights  (amongst  other  things)  the   extreme   powerlessness   and   vulnerability   of   women   with   disabilities   in   institutions,   the   lack   of   credibility   they   are   given   when   trying   to   report   violence,   the   existence   of,   and   culture   within   institutions   as   breeding   grounds   for   the   perpetration   of   violence,   and   the   tendency   of   staff   and   management   to   minimise   and   essentially   cover   up,   acts   of   violence   perpetrated   against   people   with   disabilities.   It   is   highly   likely   that   the   main   reason   this   particular   case   proceeded   to   a   successful   conviction   was   because   the   perpetrator   pleaded   guilty   to   the   charges.   Despite   high   levels  of  violence  against  women  with  disabilities  in  Australia,  evidence  shows  that  few  cases  are   prosecuted.  It  has  been  well  documented  for  decades  that  police  are  reluctant  to  investigate  and   report   cases   of   violence   against   women   with   disabilities,   particularly   women   with   intellectual,   cognitive,   developmental,   psychosocial   disabilities.150  This   is   in   part   due   to   the   stereotypical   perceptions  of  women  with  disabilities  that  have  been  found  to  be  operating  at  almost  all  levels  of   the   criminal   justice   system,   including   police   and   courts   –   ie:   that   women   with   disabilities   are   sexually   promiscuous,   provocative,   unlikely   to   tell   the   truth,   asexual,   childlike,   or   unable   to   be   a   reliable  witness.151     Comprehensive,   inclusive   and   coherent   human   rights-­‐based   legislation   is   fundamental   for   an   effective  and  coordinated  response  to  violence  against  women  and  girls  with  disabilities.  Australia   has   clear   obligations   under   international   human   rights   law   to   enact,   implement   and   monitor   legislation   addressing   all   forms   of   violence   against   women   and   girls   with   disabilities,   including   those   to   which   they   are   more   vulnerable,   such   as   forced   sterilisation,   forced   institutionalisation   and  forced  abortion.152  This  is  important  not  only  to  ensure  legal  protection  but  also  to  promote  a   culture  where  no  form  of  violence  against  women  and  girls  with  disabilities  is  tolerated.153   In   Australia,   there   is   no   national,   coordinated   legislation   to   prevent   and   address   all   forms   of   violence   against   women,   including   family/domestic   violence.154  Legislation   in   federal   and   State   and   Territory   jurisdictions   sets   the   foundation   for   the   rights   of   women   to   be   protected   against   violence,   and   the   States   and   territories   carry   primary   responsibility   for   legislative   measures   to  

                                                                                                                146

UN General Assembly, Human Rights Council (2011) OpCit. Committee on the Rights of the Child (2012) UN Doc. CRC/C/AUS/CO/4, OpCit. 148 Committee on Economic, Social and Cultural Rights (2009) Concluding Observations of the Committee on Economic, Social and Cultural Rights: Australia; 12 June 2009; UN Doc. E/C.12/AUS/CO/4 149 UN Women (2013) Elimination and Prevention of All Forms of Violence Against Women and Girls: 2013 Commission on the Status of Women Agreed Conclusions. Available at: http://www.unwomen.org/~/media/Headquarters/Attachments/Sections/CSW/57/CSW57-AgreedConclusionsA4-en.pdf 150 WWDA (2007b) OpCit., See also: French, P. (2007) Disabled Justice: The barriers to justice for persons with disability in Queensland. Queensland Advocacy Incorporated (QAI), Brisbane. Accessed online October 2011 at: http://www.qai.org.au/images/stories/docs/19872007/doc_199.pdf See also: French, P., Dardel, J. & Price-Kelly, S. (2010) OpCit.. 151 WWDA (2007b) OpCit. See also: Healey, L., Howe, K., Humphreys, C., Jennings, C. & Julian, F. (2008) OpCit. 152 United Nations General Assembly (2012) Thematic study on the issue of violence against women and girls and disability: Report of the Office of the United Nations High Commissioner for Human Rights. UN Doc. A/HRC/20/5. 153 Ibid. 154 Commonwealth of Australia (2012) Information provided in follow-up to the concluding observations of the CEDAW Committee [Australia]; Responses by Australia to the recommendations contained in the concluding observations of the Committee following the examination of the combined sixth and seventh reporting periodic report of Australia on 20 July 2010. 147

 

26  

criminalise,   prosecute   and   punish   perpetrators   for   acts   of   domestic   violence.   According   to   the   Australian  Government:       this   foundation   is   augmented   by   a   range   of   integrated   support   services….   which   respond  to  the  needs  of  women  who  have  experienced  violence  at  the  time  of  crisis   and   recovery.   All   women   in   Australia   have   the   protection   of   the   law   and   the   right   to   access   support   services.   Every   state   and   territory   has   enacted   strong   legislative   measures  and  established  competent  tribunals  and  other  law  enforcement  agencies   to   ensure   the   effective   protection   of   women   against   any   act   of   violence…..155[emphasis  added]     69.  

  70.  

  71.  

However,   it   is   clear   that   women   with   disabilities   In   Australia   do   not   enjoy   the  “effective  protection   of   women   against   any   act   of   violence”.   There   is   no   specific   legal,   administrative   or   policy   framework  for  the  prevention,  protection,  investigation  and  prosecution  of  violence,  exploitation,   and   abuse   of   women   with   disabilities.   No   existing   Commonwealth   or   State/Territory   domestic   and/or   family   violence   is   framed   in   a   comprehensive   human   rights   framework   setting   it   in   the   context   of   Australia’s   obligations   to   the   core   international   human   rights   treaties   it   has   ratified,   each   of   which   creates   obligations   to   prevent   and   address   violence   against   women,   including   women  with  disabilities.   The   Commonwealth   Family  Law  Act  1975,  amended   in   2011   through   the   Family  Law  Legislation   Amendment   (Family   Violence   and   Other   Measures)   Bill   2011,   contains   no   over-­‐arching   objects   or   principles,   and   is   not   set   in   a   human   rights   framework.   The   only   amendment   made   in   2011   relating  to  human  rights  was  the  inclusion  of  an  object  at  sub  section  60B  (relating  to  children),   which  states  “an   additional   object   of   this   Part   is   to   give   effect   to   the   Convention   on   the   Rights   of   the   Child  done  at  New  York  on  20  November  1989”.156     The   Australian   Law   Reform   Commission   (ALRC)   in   its   2010   National   Inquiry   into   Family   Violence,157  recommended   that   Commonwealth,   State,   and   Territory   Family   Violence   legislation   should   contain   guiding   principles   and   objects   that   clearly   reference   a   human   rights   framework,   in   order   to:   give   effect   to   Australia’s   international   human   rights   obligations,   serve   as   an   educative   function  and  aid  in  interpretation  of  the  legislation.  The  principles  should  refer  to  or  draw  upon   all   applicable   international   human   rights   instruments.158  In   addition,   human   rights   based   family   violence   legislation   should   acknowledge   the   gendered-­‐nature   of   violence 159  and   that   family   violence   has   a   particular   impact   on   marginalised   and   vulnerable   groups,   including   people   with   disabilities,   Indigenous   persons;   those   from   a   CALD   background;   those   from   the   gay,   lesbian,   bisexual,   transgender   and   intersex   communities;   and   older   persons.   Yet   most   of   the   existing   family  violence  legislation  in  Australia  does  not  recognise  all  these  dimensions.  As  pointed  out  by   the  ALRC:    

  highlighting  the  impact  of  violence  on  these  groups  complements  the  Commissions’   recommendation   that   family   violence   legislation   include   examples   of   emotional   or   psychological   abuse   that   would   affect   diverse   groups   in   the   community.   The   combined   effect   of   these   recommendations   may   assist   in   the   challenging   task   of   ensuring  that  experiences  of  family  violence  of  such  groups  are  properly  recognised   across  the  legal  system.     72.  

Without   appropriate   and   inclusive   legislation,   there   are   limited   legal   means   to   fight   violence   against  women  with  disabilities.  Legislation  has  the  potential  to  demonstrate  that  violence  against   women   with   disabilities   is   a   public   issue,   not   a   private   concern.   In   order   to   accomplish   any   appreciable   reduction   of   violence   against   women   with   disabilities,   it   is   necessary   to   understand   its  complexity.  Causes,  interventions  and  prevention  strategies  are  contingent  upon  the  validity  of   definitions  available.160  Definitions  in  family  violence  legislation  are  critical,  because  they  set  the  

                                                                                                                155

Ibid. Family Law Act 1975, at sub section 60B. See at: http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/ 157 Australian Law Reform Commission (ALRC) (2010) Family Violence — A National Legal Response. ALRC Final Report 114. Accessed online January 2013 at: http://www.alrc.gov.au/publications/family-violence-national-legal-response-alrc-report-114 158 Ibid. 159 Ibid. 160 WWDA (2007b) OpCit. 156

 

27  

scope  for  who  is  covered  by  the  legislation  and  under  what  circumstances.  They  also  provide  the   benchmark  for  translation  into  relevant  policy  frameworks,  policies  and  service  responses.     73.  

  74.  

  75.  

  76.  

  77.  

In   Australia,   domestic   and   family   violence   legislation   differs   across   States   and   Territories   providing   different   levels   of   protection   and   definitions   of   what   constitutes   ‘family   violence’   and   what  constitutes  a  ‘domestic  relationship’.  Broader  definitions  include  residential  settings,  such  as   group  homes  and  institutions,  where  women  with  disabilities  often  live  and  interact  domestically   with   co-­‐residents,   support   workers   and   service   managers.161  However,   even   where   there   are   broader   definitions,   domestic   and   family   violence   legislation   is   rarely   utilised,   largely   because   violence  perpetrated  against  disabled  women  and  girls  in  residential  settings,  as  outlined  earlier,   is  not  characterised  or  conceptualised  as  domestic/family  violence.162  Where  narrower  definitions   apply,   women   with   disabilities   who   live   in   residential   settings   are   entirely   excluded   from   these   protections.     The  Commonwealth  Family  Law  Act  1975,  for  example,  provides  non-­‐exhaustive  examples  of  what   constitutes   ‘family   violence’   thereby   providing   scope   to   cover   some   of   the   forms   of   violence   experienced  by  women  and  girls  with  disabilities.  However,  the  examples  provided  in  the  Act  are   still   relatively   limiting   for   addressing   the   dimensions   of   domestic   and   family   violence   as   experienced  by  women  and  girls  with  disabilities.  For  example,  although  the  ALRC  has  interpreted   the  definition  of  family  violence  in  the  amended  Act  to  include  forced  sterilisation  and  abortion,163   it   remains   unclear   as   to   whether   the   Act   could   or   would   be   utilised   to   address   these   particular   forms  of  violence.  The  definition  of  ‘family  member’  and  ‘relative’  in  the  amended  Family  Law  Act   1975   does   not   appear   to   be   broad   enough   to   encompass   the   range   of   ‘domestic   relationships’   that   many   women   with   disabilities   may   be   in,   such   those   living   in   residential   settings.   The   limiting   definition   does   not   cover   paid   and/or   unpaid   carers,   which   makes   it   problematic   in   providing   protection  and  or  redress  for  women  with  disabilities  who  experience  domestic/family  violence  at   the  hands  of  carers.       Family   violence   legislation   in   some   jurisdictions   recognises   violence   between   persons   who   live   together  in  the  same  household  (that  is,  without  being  in  a  relationship)  as  family  violence.  Other   jurisdictions   recognise   meaningful   personal   relationships   between   people   outside   conventional   definitions.  Some  legislation  protects  persons  in  carer  relationships,  including  paid  carers;  some   cover  relationships  with  paid  and  unpaid  carers  as  long  as  the  relationship  is  ‘family  like’;  whilst   others  cover  unpaid  carers  only.  Other  family  violence  legislation,  however  (such  as  in  Tasmania   and   Western   Australia)   does   not   address   relationships   with   carers   at   all.164  This   is   just   one   example   that   highlights   the   inconsistent   approach   taken   in   family   violence   legislation   across   Australia  in  relation  to  violence  perpetrated  against  women  and  girls  with  disabilities.     It  is  clear  that  most  family  violence  legislation  in  Australia  is  not  set  in  a  human  rights  framework,   is   piecemeal   and   inconsistent   in   definitions   and   scope,   and   focuses   largely   on   protection   from   domestic/family  violence.  For  women  with  disabilities,  this  means,  in  effect,  that  their  experiences   of   violence,   including   domestic/family   are   not   properly   recognised   across   the   legal   system,   they   are   given   less   protection   than   their   non-­‐disabled   counterparts,   and   the   likelihood   of   them   benefiting  from  integrated  and  coordinated  responses,  including  prevention,  is  compromised.     The   Committee   on   the   Elimination   of   All   Forms   of   Discrimination   against   Women   (CEDAW)   has   consistently   expressed   its   concern   at   lack   of   federal   legislation   or   minimum   standards   for   protection   of   women   against   violence   and   domestic   violence   in   Australia,   and   has   repeatedly   recommended  that  Australia  develop  national  legislation  to  prevent  and  address  violence  against   women,  in  all  its  forms.165  Australia  however,  still  does  not  have  uniform,  comprehensive,  human   rights  based  national  legislation  to  prevent  and  address  all  forms  of  violence  against  women.      

                                                                                                                161

‘Disability Rights Now’ Civil Society Report to the United Nations Committee on the Rights of Persons with Disabilities; August 2012. Frohmader, C. & Swift, K. (2012) Opening minds & opening doors: Re- conceptualising ‘domestic violence’ to be inclusive of women with disabilities in institutions. [email protected], Vol. 11, No. 2, pp. 7-8. Available at: http://www.noviolence.com.au/public/reader/readerdec2012.pdf See also: ‘Disability Rights Now’ OpCit. 163 Australian Law Reform Commission (ALRC)(2012) Family Violence and Commonwealth Laws Information Sheet: People With Disability; at: http://www.alrc.gov.au/CFV-disability 164 Australian Law Reform Commission (ALRC) (2010) OpCit. 165 Committee on the Elimination of Discrimination against Women (2010) Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia. CEDAW Forty-sixth session, 12 – 30 July 2010. CEDAW/C/AUS/CO/7. 162

 

28  

  78.  

Accompanying   this   Submission   are   three   specific   documents   which   WWDA   is   formally   submitting   as   attachments   to   WWDA’s   Submission   to   the   National  Inquiry  into  Equal  Recognition  Before  the   Law  and  Legal  Capacity  for  People  With  Disability.  These  three  documents  are  extremely  relevant   and   timely   for   this   National   Inquiry,   and   they   explore   and   detail   a   range   of   issues   regarding   equal   recognition  before  the  law  and  legal  capacity  for  women  with  disabilities  in  relation  to  the  right  to   freedom  from  violence,  abuse,  exploitation  and  neglect.  These  three  documents  are:  

  Dowse,  L.,  Soldatic,  K.,  Didi,  A.,  Frohmader,  C.  and  van  Toorn,  G.  (2013)  Stop  the   Violence:   Addressing   Violence   Against   Women   and   Girls   with   Disabilities   in   Australia.  Background  Paper.  Hobart:  Women  with  Disabilities  Australia.   This   background   paper   provides   information   on   the   National   COAG   Reform   project  ‘Stop  the  Violence:  Improving  Service  Delivery  for  Women  and  Girls  with   Disabilities’.   This   national   Project,   implemented   by   WWDA   and   supported   by   a   research  team  at  the  University  of  New  South  Wales  (UNSW)  in  conjunction  with  a   project   team   from   People   with   Disabilities   Australia   (PWDA),   is   intended   to   lay   the   groundwork   for   improved   service   provision   by   building   the   evidence-­‐base   for   future   reforms   so   that   the   service   system   is   more   responsive   to   the   needs   of   women  and  girls  with  disabilities.  The  Background  Paper  provides  information  on   the  project  context,  activities  and  outcomes,  highlighting  six  key  issues  and  their   implications   that   are   considered   a   priority   in   addressing   reform   in   the   area   of   violence  against  women  and  girls  with  disabilities.         Women   With   Disabilities   Australia   (WWDA),   University   of   New   South   Wales   (UNSW),   and   People   with   Disabilities   Australia   (PWDA)   (2013)   Report   of   the   Proceedings   and   Outcomes   of   the   National   Symposium   on   Violence   against   Women  and  Girls  with  Disabilities.  Hobart:  Women  with  Disabilities  Australia.   The   National   Symposium   on   Violence   against   Women   and   Girls   with   Disabilities   was  part  of  the  activities  of  the  National  COAG  Reform  project  ‘Stop  the  Violence   Project   (STVP)’.   The   purpose   of   the   National   Symposium   was   to   engage   high-­‐level   stakeholders   and   decision-­‐makers   to   address   issues   of   violence   against   women   and   girls   with   disabilities   in   Australia   in   order   to   develop   measures   for   longer   term   sustainability   for   change   relating   to   the   National   Plan   to   Reduce   Violence   against   Women   and   their   Children,   2010-­‐2022.   The   National   Symposium   sought   to  foster  collaborative  approaches  to  policy  development  by  strengthening  cross-­‐ sector   relationships   and   leadership   for   sustaining   change   in   the   identification   and   implementation   of   better   practice   models   to   prevent   violence   against   women   and   girls  with  disabilities.       Women   With   Disabilities   Australia   (WWDA)   Submission   to   the   United   Nations   Thematic   Study   on   Violence   Against   Women   With   Disabilities   (December   2011)  Hobart:  Women  with  Disabilities  Australia.   In   mid   June   2011,   at   its   17th   session,   the   United   Nations   Human   Rights   Council   adopted   a   Resolution   to   accelerate   efforts   to   eliminate   all   forms   of   violence   against  women.  The  Resolution  called  for  a  study  to  be  conducted  on  the  issue  of   violence  against  women  and  girls  and  disabilities,  with  the  report  of  the  study  to   be  presented  to  the  20th  session   of  the  Human  Rights  Council  in  2012.  WWDA's   Submission   to   the   preparation   phase   of   the   UN   Analytical   Study   on   Violence   Against   Women   and   Girls   with   Disabilities,   provides   an   overview   of   the   legislation,   regulatory   frameworks,   policy,   administrative   procedures,   services   and   support   available   within   Australia   to   prevent   and   address   violence   against   women   and   girls   with   disabilities.   It   provides   detailed   information   under   the   following   themes:   data   and   statistics;   legislation   and   policies;   prevention   and   protection;   prosecution   and   punishment,   and   recovery,   rehabilitation   and   social   integration.        

 

29  

 

Case  Examples     A  39  year  old  woman  with  an  intellectual  disability  resides  in  a  group  home  ‘village’  complex   where  she  has  her  own  unit  and  lives  independently  which  some  support  provided  by  the  on   site   support   worker   staff.   There   are   a   number   of   other   residents   with   intellectual   disabilities   living  in  other  units  on  the  site  –  some  live  in  units  on  their  own,  whilst  other  share.  The  39   year  old  woman  is  raped  by  a  male  co-­‐resident  within  the  grounds  of  the  ‘village’  complex.   She  immediately  discloses  the  rape  to  an  on-­‐site  support  worker  who  advises  her  to  “try  to   keep  out  of  his  way”  and  that  “if  he  does  it  again”  the  staff  will  “cut  his  penis  off”.  The  rape  is   not  reported  to  the  police  and  the  woman  is  not  offered  any  support  or  counselling.         A  38  year  old  woman  with  a  mild  intellectual  disability  lives  on  a  farm  in  a  rural  and  isolated   location   with   her   violent   husband   who   is   20   years   her   senior.   They   have   been   married   for   three  years.  They  have  a  12  month  old  child  who  has  been  taken  into  care  by  authorities  due   to   the   ongoing   family   violence.   Local   police   are   aware   of   the   violence   and   have   visited   the   property   on   a   number   of   occasions.   The   woman’s   husband   tells   the   police   his   wife   is   “mental   and  retarded”.  The  police  do  not  intervene.  The  woman  eventually  decides  to  try  to  leave  her   husband   and   escapes   during   the   night.   She   goes   to   a   nearby   country   town   where   she   has   access   to   an   unoccupied   house   owned   by   a   relative.   She   seeks   support   via   phone   from   a   domestic   violence   outreach   service,   only   to   be   told   she   can’t   get   an   appointment   for   2   months.  Her  husband  reports  her  to  the  police  as  a  ‘missing  person’  telling  them  she  is  not   safe   to   be   on   her   own   because   she   has   an   intellectual   disability.   The   police   subsequently   arrive  at  the  house  where  she  is  staying,  and  take  her  back  to  her  violent  husband.  She  is  not   offered  any  alternative.  She  says:  “The  police  don’t  believe  me;  they  think  I’m  mental  and  he   tells  them  I’m  mental.”         Linda   is   a   22   year   old   woman   with   a   psychosocial   and   intellectual   disability.   She   resides   in   a   government   funded   group   home   with   five   other   women   with   disabilities.   Most   of   the   other   women   are   older   –   ranging   in   age   between   40-­‐60   years.   The   organisation   managing   the   group   home   also   runs   several   other   group   homes   in   the   area.   Linda   is   told   by   the   support   workers  that  she  is  being  taken  to  visit  “Jack”  –  a  young  man  with  an  intellectual  disability   who  resides  in  one  of  the  other  group  homes  run  by  the  organisation.  Jack  is  considered  to   have  significant  ‘behavioural  issues’  and  is  ‘difficult  for  staff  to  manage’.  Jack  is  considered   easier  to  ‘manage’  if  he  is  not  ‘sexually  frustrated’.  Linda  is  told  by  the  support  workers  that   Jack  is  her  “boyfriend”.  Linda  is  taken  to  the  group  home  where  Jack  resides  and  sent  into  his   bedroom.  Linda  is  raped  by  Jack  but  Linda  thinks  that  she  has  to  let  Jack  have  sex  with  her   (even  though  she  doesn’t  want  to)  because  she  has  been  told  that  Jack  is  her  “boyfriend”.  This   ‘arrangement’   continues   for   many   months   until   Linda   eventually   discloses   to   a   neighbour   that  Jack  “hurts  her”  when  he  makes  her  have  sex.  Linda  shows  her  neighbour  the  cuts  and   bruises   on   her   genitalia   and   inner   thighs.   Linda   is   eventually   taken   to   a   sexual   assault   support   service,   accompanied   by   an   independent   advocate.   After   one   session,   the   sexual   assault   support   service   says   they   can   no   longer   assist,   because   Linda   won’t   “open   up”   to   them,  and  they  don’t  have  the  resources  or  the  capacity  to  work  with  her.                    

 

 

30  

The  Right  to  Found  and  Maintain  a  Family   79.     80.  

  81.  

  82.  

  83.  

Although   the   right   to   ‘found   a   family’   and   to   ‘reproductive   freedom’   is   clearly   articulated   in   a   number   of   international   human   rights   instruments   to   which   Australia   is   a   party,166  for   many   women  with  disabilities  in  Australia,  such  fundamental  human  rights  are  not  realisable.     Parenting  remains  an  attitudinal  minefield  for  women  with  disabilities  and  an  area  in  which  they   experience  widespread  violations  of  their  human  rights.  Women  with  disabilities  the  world  over   are  discouraged  or  denied  the  opportunity,  to  bear  and  raise  children.167  The  situation  in  Australia   is   no   different.   Women   with   disabilities   have   been,   and   continue   to   be   perceived   as   asexual,   dependent,   recipients   of   care   rather   than   care-­‐givers,   and   generally   incapable   of   looking   after   children.168  Alternatively,   women   with   intellectual   disabilities   in   particular   may   be   regarded   as   overly   sexual,   creating   a   fear   of   profligacy   and   the   reproduction   of   disabled   babies,   often   a   justification  for  their  sterilisation.169  These  perceptions,  although  very  different,  result  in  women   with  disabilities  being  denied  the  right  to  reproductive  autonomy  and  self-­‐determination.     Recent   data   demonstrates   that   a   parent   with   a   disability   (usually   a   mother)   is   up   to   ten   times   more  likely  than  other  parents  to  have  a  child  removed  from  their  care,  with  the  child  removed  by   authorities   on   the   basis   of   the   parents   disability,   rather   than   any   evidence   of   child   neglect.170   Women   with   disabilities   are   also   coerced   to   have   hysterectomies   after   they   have   given   birth   to   one   or   more   children,   who   have   usually   been   taken   from   their   care;   or   as   a   condition   of   having   access  to  their  child  who  has  been  taken  from  their  care.171     Fears  of  women  with  disabilities  as  parents  persist  although  evidence  demonstrates  that  parents   with  disabilities  are  no  more  likely  to  maltreat  children  or  to  raise  so-­‐called  “defective”  children   than  non-­‐disabled  parents.172  Statutes  in  many  countries  on  termination  of  parental  rights,  child   custody  and  divorce  include  disability-­‐related  grounds  for  termination  of  parental  rights  or  loss  of   custody   and   may   emphasise   and   focus   on   disability   status   rather   than   actual   parenting   skill   or   behaviour,  implicitly  equating  parental  disability  with  parental  unfitness.173  Because  of  such  legal   definitions   and   societal   prejudices,   mothers   with   disabilities   are   often   subjected   to   greater   scrutiny  by  social  service  agencies  than  non-­‐disabled  women.  Fear  of  being  incorrectly  perceived   as  an  unfit  mother   by  a  court  on  the  basis  of  disability,  and  the  breakdown  of  their  relationship   with   children,   has   frequently   discouraged   mothers   with   disabilities   from   separating   from   an   abusive  partner.174   A  recently  released  report175  by  the  Victorian  Office  of  the  Public  Advocate  (OPA)  which  examines   the  removal  of  children  from  the  care  of  parents  with  a  disability  through  the  family  law  system,   asserts   that   in   relation   to   people   with   disabilities   and   their   right   to   parent,   current   policy   in   Australia  appears  to  be  based  on  the  following  broad  propositions:     • people  with  disabilities  cannot  be  competent  parents;     • it  is  rarely  in  the  best  interests  of  a  child  to  be  raised  by  parents  with  a  disability;  

                                                                                                               

166 See for eg: International Covenant on Economic, Social and Cultural Rights (Article 10); International Covenant on Civil and Political Rights (Article 23); Convention on the Elimination of All Forms of Discrimination against Women (Article 16); Convention on the Rights of Persons with Disabilities (Article 23). 167 Women With Disabilities Australia: 'Parenting Issues for Women with Disabilities in Australia' - A Policy Paper (May 2009). Available at: www.wwda.org.au/motherhd2006.htm 168 Ibid. 169 WWDA (2007b) OpCit. 170 This happens in two main ways: a) the child is removed by child protection authorities and placed in foster or kinship care; and b) a Court, under the Family Law Act, may order that a child be raised by the other parent who does not have a disability or by members of the child’s extended family. See: Victorian Office of the Public Advocate (OPA) (2012) OPA Position Statement: The removal of children from their parent with a disability. http://www.publicadvocate.vic.gov.au/research/302/ 171 People With Disabilities Australia (PWDA) (2013) Submission to the Senate Standing Committee on Community Affairs: Inquiry into the involuntary or coerced sterilisation of people with disabilities in Australia. See: www.pwd.org.au 172 UN General Assembly, Secretary General (2012) Report of the Special Rapporteur on violence against women, its causes and consequences. UN Doc No. A/67/227. 173 See: Disability and Parental Rights Legislative Change Project, ‘Guide for Creating Legislative Change’; University of Minnesota, http://www.cehd.umn.edu/ssw/CASCW/attributes/PDF/LegislativeChange.pdf 174 Frohmader, C. & Ortoleva, S. (2013) OpCit. 175 Office of the Public Advocate (December 2013) Whatever happened to the village? The removal of children from parents with a disability. Report 1: Family law – the hidden issues. OPA, Victoria.

 

31  



• •

•   84.  

  85.  

  86.  

  87.  

  88.  

if  a  case  has  been  made  for  removal  of  a  child,  then  alternative  care  is  seen  as  better  for  the   child   and   a   less   risky   solution   for   the   child   and   for   the   decision-­‐maker.   It   also   requires   no   follow-­‐up  supervision;     a   child   is   an   individual   bearer   of   rights   whose   rights   and   interests   are   not   necessarily   embedded  within  his  or  her  family;     within  both  family  law  and  child  protection  legislation  and  policy  in  Australia,  only  the  child   who   is   the   subject   of   the   application   has   rights.   Parents   have   duties   and   responsibilities.   Siblings  who  are  not  the  subject  of  the  application  do  not  have  rights  and  their  interests  are   only  relevant  to  the  extent  that  they  concur  with  those  of  the  child  who  is  the  subject  of  the   application;     the   impact   on   a   family   of   removing   a   child   from   his/her   parents   is   not   a   consideration   in   family  law  or  child  protection  legislation  and  practice  and  is  not  a  factor  in  deciding  the  best   interests  of  the  child  in  either  jurisdiction.  

The  OPA  Report  includes  a  series  of  recommendations  calling  for  significant  reforms  to  be  made   to   the   Commonwealth   Family   Law   Act   (1975),   family   law   policy   and   practice   that   would   assist   Australia   to   comply   with   the   conventions   to   which   it   is   signatory   in   relation   to   parents   with   a   disability  and  their  children  in  family  law.176   Although   there   is   no   known   published   research   in   Australia   on   the   issue   of   access   to   assisted   reproductive   technologies   (ARTs)   (such   as   in   vitro   fertilisation   (IVF)   and   assisted   insemination)   for  women  with  disabilities,  anecdotal  information  to  Women  With  Disabilities  Australia  (WWDA)   from  women  with  disabilities  in  Australia  suggests  that  they  face  discrimination  and  inequitable   access  to  ART’s.     The   predominance   of   white,   middle   class,   able-­‐bodied   women   living   as   heterosexual   couples   is   evident  across  private  IVF  clientele.  This  is,  in  part,  due  to  the  costs  to  the  client  associated  with   the   procedure.177  In   Australia,   Medicare   covers   the   treatment   of   IVF   for   medical   infertility,   but   for   women   who   are   deemed   not   to   be   ‘medically   infertile’   (such   as   single   women   and   lesbian   couples),   then   no   Medicare   rebate   is   available.   This   fact   alone   would   prevent   many   disabled   women   (particularly   single   disabled   women,   or   women   with   disabilities   who   are   in   a   lesbian   relationship)  from  accessing  ART’s.     There   is   no   Commonwealth   legislation   in   respect   of   ART   practice.   In   Australia,   the   eight   State   and   Territory  governments  control  assisted  reproduction  services,  with   SA,  NSW,  VIC,  and  WA  having   enacted   legislation   to   control   the   procedures   involved   (although   the   nature   of   the   governance   regimes   in   each   of   these   states   varies),   while   the   States   and   territories   without   specific   legislation   rely   on   the   Reproductive   Technology   Accreditation   Committee   accreditation   scheme   which   sets   standards   for   practice   and   requires   compliance   with   the   National   Health   and   Medical   Research   Council   (NHMRC)   Ethical   Guidelines   on   the   Use   of   Assisted   Reproductive   Technology   in   Clinical   Practice  and  Research   (2007).178  These   guidelines,   revised   in   2007,   effectively   ignore   access   and   eligibility  issues  by  failing  to  address  them.  Instead,  the  guidelines  recommend  that  each  assisted   reproduction   clinic   should   develop   a   ‘protocol’   around   access   to,   and   eligibility   for,   treatment.   Whilst   some   individual   clinics   specify   that   assisted   reproductive   treatment   procedures   are   not   denied  to  women  on  the  basis  of  marital  status  or  sexual  orientation,  none  mention  disability.  The   decision   for   eligibility   for   assisted   reproductive   services   therefore   rests   with   the   individual   clinics/fertility  consultants.   In   2007,   the   Victorian   Law   Reform   Commission   (VLRC)   released   its   final   report   on   ART   and   adoption.179  The  VLRC  had  been  commissioned  by  the  Victorian  Government  to  enquire  into  and   report  on  the  desirability  and  feasibility  of  changes  to  the  Infertility  Treatment  Act  1995  [Vic]  and   the  Adoption   Act   1984  [Vic]  to  expand  eligibility  criteria  in  respect  of  all  or  any  forms  of  assisted  

                                                                                                                176

Ibid. Petersen, M. M. (2005) Assisted reproductive technologies and equity of access issues; Journal of Medical Ethics; 31; pp. 280-285. National Health and Medical Research Council (NHMRC) (2004) (Revised 2007) Ethical guidelines on the use of assisted reproductive technology in clinical practice and research. NHMRC, Canberra, ACT. 179 Victorian Law Reform Commission (VLRC) (2007) Assisted Reproductive Technology & Adoption: Final Report. Victorian Law Reform Commission, Melbourne, Victoria. 177 178

 

32  

reproduction   and   adoption.   In   relation   to   access   to   assisted   reproductive   technology,   the   VLRC   decided:     “not   to   include   impairment   or   disability   as   one   of   the   grounds   on   which   discrimination  in  relation  to  access  to  ART  should  be  prohibited.  This  is  because  in   some   cases   there   is   a   nexus   between   disability   and   risk   of   harm   to   a   child   (for   example,  some  forms  of  severe  mental  illness).  Such  a  nexus  does  not  exist  in  relation   to   marital   status   or   sexual   orientation.   This   does   not   mean   that   people   with   a   disability   or   impairment   should   be   refused   treatment,   but   that   in   some   cases   a   different   approach   is   justified.   Such   an   approach   should   involve   making   enquiries   about  any  potential  risk  to  the  health  and  wellbeing  of  a  prospective  child”.       The  resulting  amended  legislation,  renamed  the  Assisted  Reproductive  Treatment  Bill  2008,  omits   disability   from   its   non-­‐discrimination   clause:   ‘persons   seeking   to   undergo   treatment   procedures   must   not   be   discriminated   against   on   the   basis   of   their   sexual   orientation,   marital   status,   race   or   religion’.180  In   practice,   this   means   that   women   with   disabilities   could   be   discriminated   against   on   the  basis  of  disability  if  seeking  to  access  ART  in  Victoria.      

Case  Examples     Lucy   has   been   married   for   five   years   to   her   husband   who   is   25   years   her   senior.   Lucy’s   husband   has   been   married   before   and   has   children   from   two   former   relationships.   Lucy’s   husband  has  a  long  history  of  violence,  including  domestic  violence,  and  has  been  imprisoned   in  the  past  for  violence  offences  and  breach  of  Apprehended  Violence  Orders.  Lucy  and  her   husband   have   a   three   year   old   daughter.   Lucy   has   a   past   history   of   mental   illness   but   has   been  non-­‐episodic  for  more  than  10  years.  The  marriage  eventually  breaks  down  due  to  the   domestic   violence   perpetrated   against   Lucy   by   her   husband.   A   custody   dispute   ensues.   The   Court   awards   full   custody   of   the   child   to   Lucy’s   husband,   on   the   grounds   that   Lucy   has   a   “mental  illness”.  Lucy  spends  the  next  12  years  fighting  to  get  her  daughter  back,  to  no  avail.           A   40   year   old   woman   with   a   psychosocial   disability   goes   into   labour   and   is   in   the   labour   ward   of   a   public   hospital   about   to   give   birth   to   her   first   child.   She   has   been   having   difficulty   stabilising  her  disability  during  her  pregnancy,  as  she  has  been  unable  to  take  her  standard   medications   due   to   the   potential   effect   on   the   unborn   child.   Whilst   she   is   giving   birth,   a   senior  nurse  involved  in  her  care  makes  an  urgent  phone  call  to  WWDA.  The  nurse  asks  for   urgent  help.  She  advises  WWDA  that  authorities  have  already  made  the  decision  to  remove   the   child   from   the   mother,   as   soon   as   the   child   is   born.   She   says   the   paperwork   is   all   done   and   the   hospital   social   worker   is   no   help,   because   she   supports   the   removal   of   the   child   from   her   mother.   The   nurse   advises   that   the   woman   has   not   been   told   and   has   no   idea   that   her   child  is  to  be  taken  from  her  as  soon  as  it  is  born.  The  nurse  says  she  didn’t  know  who  else  she   could  ring  for  help.  WWDA  makes  a  series  of  calls  to  seek  urgent  intervention.  The  Office  of   the  Public  Advocate  is  able  to  assist  and  intervenes.       Jasmine   is   21   years   old.   She   and   her   husband   both   have   a   mild   intellectual   disability,   and   both   are   Aboriginal.   Jasmine   and   her   husband   decided   they   wanted   to   have   a   child,   and   Jasmine  soon  became  pregnant.  Jasmine’s  pregnancy  was  uneventful,  and  she  gave  birth  to  a   healthy   baby   girl,   Tameka.   Four   days   after   Tameka   was   born,   child   welfare   authorities   arrived   at   the   hospital   and   removed   her   from   her   parents   care.   Jasmine,   her   husband,   and   their  parents  (Tameka’s  grandparents)  had  been  given  no  indication  that  Tameka  was  going   to  be  removed  by  child  welfare  authorities.  It  was  almost  a  month  later  that  Jasmine  and  her   family  were  told  why  Tameka  had  been  removed.  The  reasons  given  were  that  Jasmine  had  a   past  history  of  mental  health  issues  (which  had  been  undiagnosed  until  not  long  before  her   pregnancy   when   she   was   finally   diagnosed   with   a   specific   type   of   mental   health   impairment  

                                                                                                                180

 

[Victoria] Assisted Reproductive Treatment Bill 2008 (Part 1, 5, p.8).

33  

and   subsequently   stabilised   with   medication).   Other   reasons   given   were   that   Jasmine   had   displayed  ‘poor  parenting  skills’  and  that  she  was  deliberately  ‘starving  her  baby’.  In  actual   fact,   Jasmine’s   relatives   advised   that   she   had   experienced   severe   difficulties   with   breastfeeding  her  baby,  had  repeatedly  asked  for  guidance  and  help  from  the  nurses,  but  had   either  been  ignored  or  told  to  ‘just  persist’.  A  lawyer  was  engaged  by  Jasmine’s  mother  and   father  to  have  Tameka  returned  to  her  parents  care.  Although  the  lawyer  felt  that  this  was  a   clear   case   of   disability   discrimination   and   that   the   allegations   could   easily   be   proven   as   false,  the  lawyer  warned  it  could  take  up  to  a  year  for  the  case  to  be  resolved.  Jasmine  and   her   husband   are   now   only   able   to   see   their   daughter   twice   a   week   for   an   hour   at   a   time.   These   visits   are   supervised   and   Jasmine’s   relatives   also   believe   that   the   sessions   have   been   secretly   video   taped   with   smart   phones.   Jasmine’s   great   grandmother   was   part   of   the   Stolen   Generation.                                                              

 

 

34  

The  Right  to  Work   89.  

  90.     91.  

  92.  

Women   with   disabilities   in   Australia   are   significantly   disadvantaged   in   employment   in   relation   to   access  to  jobs,  in  regard  to  remuneration  for  the  work  they  perform,  and  in  the  types  of  jobs  they   gain.   Working-­‐age   women   with   disabilities   who   are   in   the   labour   force   are   half   as   likely   to   find   full-­‐time   employment   (20%)   as   men   with   disabilities   (42%);   twice   as   likely   to   be   in   part-­‐time   employment  (24%)  as  men  with  disabilities  (12%);  and  regardless  of  full-­‐time  or  part-­‐time  status,   are  likely  to  be  in  lower  paid  jobs  than  men  with  disabilities.181  A  2004   Senate  Inquiry  into  Poverty   and   Financial   Hardship   concluded   that   women   with   disabilities   are   also   affected   by   the   lower   wages   paid   to   women   relative   to   men   and   are   more   likely   to   be   in   casual   jobs   with   little   job   security.182     Although   the   National   Disability   Strategy   recognises   that   women   with   disabilities   ‘face   poorer   economic  outcomes  than  men  with  disabilities’,  the  Strategy  contains  no  gender-­‐specific  measures   to  address  this  disparity.     In  2009  the  Parliament  of  the  Commonwealth  of  Australia  undertook  a  national  inquiry  into  Pay   Equity  and  associated  issues  relating  to  female  participation  in  the  workforce.  The  Report  of  the   Inquiry  ‘Making  It  Fair’183  recommended,  amongst  other  things  that  ‘the  Government  as  a  matter  of   priority   collect   relevant   information   on   workforce   participation   of   women   with   disabilities   to   provide  a  basis  for  pay  equity  analysis  and  inform  future  policy  direction.’   This   recommendation   has   never  been  enacted.             In   October   2013,   the   Committee   on   the   Rights   of   Persons   with   Disabilities   in   its   Concluding   Observations   following   its   Review   of   Australia’s   compliance   with   the   CRPD,   recommended   that   the  Australian  Government:  

  ‘adopt   initiatives   to   increase   employment   participation   of   women   with   disabilities   by   addressing   the   specific   underlying   structural   barriers   to   their   workforce   participation’.184       93.  

In   2010,   the   UN   CEDAW   Committee   expressed   its   concern   at   the   continued   disadvantage   experienced   by   women   with   disabilities   with   regard   to   educational   and   employment   opportunities;   including   the   limited   access   to   job   opportunities   for   disabled   women.   The   Committee  recommended,  both  in  its  2006  and  2010  Concluding  Observations  [Australia]  that:  

  ‘the  State  Party  adopt  urgent  measures  to  ensure  that  women  with  disabilities  are   better   represented   in   decision-­‐making   and   leadership   positions,   including   through   the   adoption   of   temporary   special   measures   such   as   quotas   and   targets,   in   accordance   with   article   4,   paragraph   1   of   the   Convention   and   the   Committee’s   general  recommendation  No.  25.’       These   recommendations   have   not   been   taken   up   by   the   Australian   Government,   and   disabled   women  continue  to  experience  marginalisation  and  exclusion  in  the  Australian  labour  market  –  a   situation  that  has  remained  unchanged  for  more  than  two  decades.185    

                                                                                                               

181 Australian Bureau of Statistics, ‘Labour Force Characteristics of People with a Disability’ in Year Book Australia (2006); Sue Salthouse, ‘Jumping Through Hoops — Welfare and Industrial Relations Reform Implications for Women with Disabilities’ (Paper presented at the What Women Want Workshop — A Workshop on the Effect of the Federal Government’s Recent Policy Changes on Women of Working Age, Canberra, 12 July 2005) www.wwda.org.au/w2wjuly05.htm. 182 In ‘Disability Rights Now’ OpCit. 183 Commonwealth of Australia (2009) Making it Fair: Pay equity and associated issues related to increasing female participation in the workforce. Report of the House of Representatives Standing Committee on Employment and Workplace Relations. Accessed online December 2012 at: http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=ewr/payequity/report.htm 184 Committee on the Rights of Persons with Disabilities (2013) Concluding observations on the initial report of Australia, adopted by the Committee at its tenth session (2-13 September 2013); UN Doc. CRPD/C/AUS/CO/1; Available at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD%2FC%2FAUS%2FCO%2F1&Lang=en 185 UN Committee on the Elimination of Discrimination against Women, Concluding comments of the Committee on the Elimination of Discrimination against Women: Australia, 3 February 2006, CEDAW/C/AUL/CO/5.

 

35  

94.  

Successive  Australian  Governments  have  increased  focus  on  getting  people  with  disabilities  into   employment,   including   into   open   employment   and/or   supported   employment.   The   current   Federal   Government   has   signalled   its   intent   to   reduce   the   number   of   persons   on   ‘welfare’,   including   those   in   receipt   of   the   Disability   Support   Pension   (DSP).   Whilst   WWDA   supports   initiatives   that   enable   women   with   disabilities   to   find,   secure   and   maintain   meaningful   employment,   WWDA   remains   deeply   concerned   at   the   high   incidence   of   violence,   abuse,   exploitation,   bullying   and   harassment   perpetrated   against   women   with   disabilities   in   the   workplace.     There   would   appear   to   be   no   national   policy   response   to   this   widespread   issue.   Commonwealth   Government   funded   initiatives   (such   as   the   Job   Access   Program)   fail   to   address   violence   and   abuse   (including   sexual   violence)   perpetrated   against   women   with   disabilities   in   employment  settings.  Disability  Employment  Services   (DES),   funded   by   the   Federal   Government   and  which  are  one  of  the  primary  mechanisms  to  get  people  with  disabilities  into  the  workforce,   are   required   to   comply   with   the   Disability   Services   Standards,   which   contain   a   standard   on   ‘Protection   of   human   rights   and   freedom   from   abuse’.   In   reporting   against   this   Standard,   funded   agencies   ‘may   provide   evidence’   that   staff   have   the   knowledge   to   ‘report   criminal   activities,   abuse   and  neglect’,  and  can  provide  ‘practical  examples  of  how  they  act  to  prevent  abuse  and  neglect’.186   As   a   mechanism   to   prevent   and   address   violence   against   women   and   girls   with   disabilities,   the   Disability   Services   Standards   are   grossly   ineffective.   They   are   un-­‐gendered,   they   focus   only   on   ‘abuse  and  neglect’,  they  rely  on  service  providers  possessing  the  knowledge  of  what  constitutes   violence   against   women   and   girls   with   disabilities,   they   are   essentially   adult   focused,   and   are   concerned  primarily  with  the  collection  of  quantitative  data.  

   

Case  Examples     Fran   is   a   young   woman   in   her   mid   20’s.   Fran   has   a   cognitive   disability.   She   has   always   wanted  a  job  that  pays  her  proper  wages  and  that  is  interesting.  She  hasn’t  ever  had  much   success   at   getting   a   job.   She   finally   gets   some   help   from   a   Disability   Employment   Service   (DES),   which   finds   her   a   job   in   open   employment.   Fran   is   over   the   moon.   The   DES   support   worker  visits  Fran  at  work  every  few  weeks  to  see  how  she  is  getting  on.  Fran  loves  her  job   and   for   the   first   few   months   everything   goes   well.   Over   a   period   of   several   weeks,   Fran’s   demeanour   changes.   She   appears   withdrawn   and   sad.   She   is   having   trouble   sleeping   and   suddenly   wont   go   to   bed   without   the   lights   on.   Fran   finally   discloses   to   her   DES   support   worker,  that  she  is  being  repeatedly  raped  in  the  workplace  by  an  employee.  The  perpetrator   told  Fran  that  if  she  told  anyone  she  would  get  into  lots  of  trouble  and  would  lose  her  job.   Fran’s   parents   are   notified   and   they   call   in   the   police.   An   investigation   commences.   The   manager  of  the  company  where  Fran  works  thinks  Fran  might  be  ‘making  it  up’.    He  suggests   that   Fran   might   not   be   able   to   accurately   identify   the   perpetrator,   that   she   might   ‘inadvertently  get  him  mixed  up  with  someone  else’.  Already,  seeds  of  doubt  are  being  sown   about  Fran’s  credibility.  Fran’s  parents  decide  that  they  will  not  access  advocacy  support  to   go  through  the  police  investigation  process.  They  want  to  do  it  on  their  own.  Fran  doesn’t  get   a   choice   about   this.   Fran’s   parents   ask   the   DES   support   worker   where   they   can   access   specialist   counselling   support   for   the   daughter.   The   DES   worker   doesn’t   know.   WWDA   is   contacted  for  help.  WWDA  sources  and  organises  a  sexual  assault  crisis  support  service  for   Fran  and  her  family.  The  police  investigation  continues.       Mia  is  40  and  lives  in  a  regional  and  remote  area  of  Australia.  Mia  is  desperate  to  work  in   paid  employment.  She  loves  working  and  feels  she  has  a  lot  to  contribute.  She  stayed  in  her   last   job   for   10   years   and   was   a   highly   valued   employee.   She   only   left   her   job   because   her   [then]   partner   had   secured   a   good   job   in   regional   Australia.   Mia   has   a   disability   which   affects   her   vision   at   times,   however,   with   appropriate   aids   and   equipment,   she   is   a   productive  employee.  Mia  has  difficult  finding  a  job  in  her  new  area.  She  seeks  the  help  of  a   Disability  Employment  Service  (DES),  which  helps  her  to  apply  for  a  job  in  a  call  centre.  At   interview,  Mia  advises  the  manager  that  she  has  a  disability  which  affects  her  vision  but  that  

                                                                                                               

186 Department of Families, Housing, Community Services & Indigenous Affairs (FaHCSIA) (2011) Disability Services Standards Self-Assessment Guide; National Disability Advocacy Program. FaHCSIA, Canberra.

 

36  

it  will  not  affect  her  work  performance.  Mia  gets  the  job.  Mia  requests  an  orientation  to  her   new  job,  but  the  Manager  says  she  doesn’t  have  time  and  Mia  will  just  have  to  figure  it  out.   Within   days   of   commencing   her   new   job,   Mia   starts   to   experience   bullying   from   the   Manager.  Mia  is  placed  in  a  dark  corner  of  the  office  space  where  she  has  difficulty  seeing.   She   is   given   a   chair   that   doesn’t   allow   her   to   get   close   enough   to   the   desk   to   see   the   computer  screen.  Mia’s  request  for  minor  adjustments  to  her  work  station  (including  a  light)   are  denied  by  the  Manager.  The  discrimination  intensifies.  Mia  is  frightened  of  going  to  work   but  she  wants  to  keep  her  job  and  doesn’t  understand  why  she  is  being  treated  so  cruelly.  Mia   doesn’t   take   any   time   off,   despite   her   doctors   concerns   at   the   effect   the   discrimination   is   having   on   her.   Mia   keeps   her   DES   support   worker   updated   about   all   the   incidents   she   is   experiencing.   Her   DES   support   worker   agrees   Mia   is   experiencing   disability   discrimination   but  says  there  is  nothing  that  she  or  the  DES  can  do  about  it.  One  day  Mia  goes  to  work  and   is  introduced  to  a  young  man  who  has  been  employed  by  the  Manager.  He  is  in  the  process  of   receiving  an  orientation  from  the  Manger.  Later  that  day,  Mia  is  told  by  the  manager  that   she  is  being  sacked.  Mia  is  not  given  any  reasons  why  her  employment  is  being  terminated.   She  is  given  one  day’s  notice.  When  Mia  advises  her  DES  support  worker  what  has  happened,   the   DES   worker   re-­‐iterates   that   there   is   nothing   the   DES   can   do   about   it.   The   DES   worker   gives  Mia  WWDA’s  phone  number  and  tells  her  to  contact  WWDA  to  see  if  WWDA  can  help   her.   WWDA   is   able   to   find   Mia   a   solicitor   who   is   currently   working   with   Mia   to   lodge   a   formal  disability  discrimination  complaint  against  the  call  centre.                            

 

 

37  

The  Right  to  Participate  in  Political  and  Public  Life   95.  

  96.  

  97.  

  98.  

  99.  

  99.  

Participation   of   women   with   disabilities   as   citizens   is   at   the   basis   of   the   recognition   of   their   dignity.  For  women  and  girls  with  disabilities,  participation  in  social  and  political  life  and  ensuring   an  adequate  standard  of  living  depends  on  their  access  to  fundamental  social  structures  such  as   education,  employment,  health  care,  housing,  and  free  enjoyment  of  the  most  fundamental  human   rights,   such   as   the   right   to   sexuality   and   reproduction   and   freedom   from   all   forms   of   violence.   However,   regardless   of   country   or   culture,   disabled   women   and   girls   all   over   the   world,   do   not   have  access  to  the  social  structures  to  enable  them  to  enjoy  their  human  rights.  Many  are  denied   the  most  fundamental  rights  and  freedoms  to  enable  their  participation  in  social  and  political  life   on  an  equal  basis  as  others.  They  are  not  treated  with  dignity  and  respect,  they  remain  profoundly   more   disadvantaged   than   their   male   counterparts;   and   are   systematically   denied   opportunities   to   develop,  gain  an  education  and  live  a  full  and  meaningful  life.  Instead,  they  continue  to  experience   multiple  forms  of  discrimination,  and  widespread,  serious  violation  of  their  human  rights.187   Access   to   decision-­‐making,   political   participation   and   representation   are   essential   markers   of   gender   equality.   Although   there   has   been   progress   in   women’s   participation   in   decision-­‐making   globally,  the  participation  of  women  with  disabilities  in  all  areas  of  public  life  in  Australia  remains   woefully  inadequate.  Women  and  girls  with  disabilities  in  Australia  are  often  excluded  from,  and   denied   opportunities   to   participate   in   decision-­‐making   about   issues   that   affect   their   lives   and   those  of  their  families,  community  and  nation.     Australia   has   clear   obligations   under   the   international   human   rights   treaties   it   has   ratified,   including   CEDAW   and   the   CRPD,   to   ensure   the   active,   free,   informed   and   meaningful   participation   of   women   and   girls   with   disabilities   at   all   stages   of   the   design,   implementation,   monitoring   and   evaluation   of   decisions   and   policies   affecting   them,   including   for   example,   those   relating   to   sexual   and   reproductive   rights,   and   prevention   of   violence.   This   requires   capacity-­‐building   and   human   rights   education   for   women   and   girls   with   disabilities,   and   the   establishment   of   specific   mechanisms  and  institutional  arrangements,  at  various  levels  of  decision-­‐making,  to  overcome  the   obstacles  that  women  and  girls  with  disabilities  face  in  terms  of  effective  participation.       The   empowerment   of   women   with   disabilities   is   achieved   principally   through   women   with   disabilities   coming   together   to   share   their   experiences,   gaining   strength   from   one   another   and   providing   positive   role   models.   Women   and   girls   with   disabilities,   their   representative   organisations   and   networks,   must   be   empowered   with   sufficient   resources,   training   and   opportunities  to  effectively  participate  in  shaping  and  monitoring  the  policies  that  affect  them,  at   the  national,  regional  and  international  levels.     Organisations   and   groups   of   women   with   disabilities   play   a   critical   role   in   raising   awareness   of,   and   working   to   address   the   violations,   denials   and   infringements   of   their   human   rights.     In   Australia,   WWDA   is   the   only   national   representative   civil   society   organisation   (CSO)   for   women   and  girls  with  disabilities,  but  with  a  total  workforce  of  one  paid  employee  and  an  annual  budget   of   $163,000,   WWDA’s   capacity   to   promote   the   participation   and   inclusion   of   disabled   women   and   girls,   is   obviously   significantly   hampered.   Financial   and   political   support   is   therefore   urgently   needed  for  the  establishment  and  maintenance  of  organisations,  groups  and  networks  of  women   with  disabilities  at  the  national  and  state/territory  levels.   Fulfilling  the  right  to  information  is  a  key  prerequisite  for  the  active,  free,  informed,  relevant  and   meaningful   participation   of   women   and   girls   with   disabilities.   Yet   many   women   and   girls   with   disabilities  are  denied  the  right  to  seek,  receive  and  impart  information  about  decisions  affecting   their   lives.   They   are   far   less   likely   than   their   non-­‐disabled   counterparts   to   receive   general   information   or   information   that   is   gender   and   disability-­‐specific,   particularly   relating   to   issues   such   as   sexual   and   reproductive   rights,   and   prevention   of   violence.   They   are   denied   access   to   information   as   to   how   their   human   rights   and   freedoms   can   be   enforced   and   violations   remedied.   Women   with   disabilities   have   limited,   if   any,   input   into   the   development   of   relevant   policies,   services  and  programs,  including  information  and  education  resources.      

                                                                                                                187

 

Frohmader, C. (2013) OpCit.

38  

  100.  

The   Committee   on   the   Rights   of   Persons   with   Disabilities   (CRPD),   in   its   Concluding   Observations   (Australia),   released   in   October   2013,   expressed   its   regret   at   the   lack   of   mechanisms   for   consultation   and   engagement   between   Government   and   persons   with   disabilities   and   their   organisations   in   all   matters   of   Convention   policy   development   and   legislative   reform,   and   recommended  that:  

  the   State   party,   in   partnership   with   persons   with   disabilities   through   their   representative   organisations,   establish   engagement   mechanisms   for   ensuring   meaningful  participation  in  the  development  and  implementation  of  legislation  and   policies  to  implement  the  Convention.       101.  

  102.    

The   Committee   has   also   recommended   that   the   State   party   take   initiatives   to   increase   the   resources   available   for   independent   organisations   of   persons   with   disabilities   (including   organisations   representing   children   with   disabilities)   in   order   enable   meaningful   participation,   consultation  and  engagement  between  Government  and  persons  with  disabilities.188     The  CRPD  Committee  further  recommended  that  Australia:   take  immediate  steps  to  replace  substitute  decision-­‐making  with  supported  decision-­‐ making  and  provide  a  wide  range  of  measures  which  respect  the  person’s  autonomy,   will   and   preferences   and   is   in   full   conformity   with   article   12   of   the   Convention,   including  with  respect  to  the  individual's  right,  in  his/her  own  capacity,  to  give  and   withdraw   informed   consent   for   medical   treatment,   to   access   justice,   to   vote,   to   marry,  and  to  work.189  

  103.  

  104.    

In   addition,   the   CRPD   Committee   expressed   its   concern   that   Australia   lacks   a   participatory   and   responsive  structure  for  the  implementation  and  monitoring  of  the  Convention  in  line  with  Article   33,  and  recommended  the  State  party  immediately  set  up  a  monitoring  system  that  would  be  fully   in  line  with  the  provisions  of  Article  33  of  the  Convention.190   Furthermore,  the  CRPD  expressly  recommended  that  Australia:   commissions   and   funds   a   comprehensive   assessment   of   the   situation   of   girls   and   women  with  disability,  in  order  to  establish  a  baseline  of  disaggregated  data  against   which  future  progress  towards  the  Convention  can  be  measured.191  

  105.  

The   CEDAW   Committee   in   both   its   2006   and   2010   Concluding   Observations   [Australia]   has   expressed   its   concerns   at   the   slow   progress   in   ensuring   the   equal   participation   of   women   with   disabilities   in   leadership   and   decision-­‐making   positions,   in   public   and   political   life   as   well   as   their   equal   access   to   education,   employment   and   health.   The   CEDAW   Committee   has   re-­‐iterated   that   the   measures   taken   by   the   Australian   Government   to   enhance   the   participation   of   women   with   disabilities   in   public   life   remains   inadequate.   The   Committee   continues   to   be   concerned   that   Australia   does   not   favour   adoption   of   temporary   special   measures   in   the   form   of   compulsory   targets   and   quotas   to   address   the   under-­‐   representation   of   women   with   disabilities   in   decision-­‐ making   bodies,   in   political   and   public   life   and   the   persistent   inequality   of   their   access   to   education,   employment   opportunities   and   health   care   services.   The   CEDAW   Committee   has   also   explicitly   recognised   that   violence   against   disabled   women   and   girls,   and   denial   of   their   sexual   and  reproductive  rights,  severely  limit  the  opportunities  for  the  participation  of  women  and  girls   with  disabilities  in  public  life.  In  so  doing,  the  Committee  has  called  on  the  Australian  Government   to  address  these  issues.  

   

                                                                                                               

188 Committee on the Rights of Persons with Disabilities; Concluding observations on the initial report of Australia. Adopted by the Committee at its tenth session (2–13 September 2013); 4th October 2013; UN Doc. CRPD/C/AUS/CO/1. 189 Ibid. 190 Ibid. 191 Ibid.

 

39  

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA

DEHUMANISED ‘DEHUMANISED: THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA’ WWDA Submission to the Senate Inquiry into the involuntary or coerced sterilisation of people with disabilities in Australia By Carolyn Frohmader for Women With Disabilities Australia (WWDA) © Women With Disabilities Australia (WWDA) March 2013 ISBN 978-0-9876035-0-0 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced without written permission from Women With Disabilities Australia (WWDA). All possible care has been taken in the preparation of the information contained in this document. WWDA disclaims any liability for the accuracy and sufficiency of the information and under no circumstances shall be liable in negligence or otherwise in or arising out of the preparation or supply of any of the information aforesaid. This publication has been prepared by Women with Disabilities Australia Inc. for the Australian Government, represented by the Department of Families, Housing, Community Services and Indigenous Affairs. The views expressed in this publication are those of Women with Disabilities Australia Inc. and do not necessarily represent the views of the Australian Government. ABOUT WOMEN WITH DISABILITIES AUSTRALIA (WWDA) Women With Disabilities Australia (WWDA)1 is the peak non-government organisation (NGO) for women with all types of disabilities in Australia. WWDA is run by women with disabilities, for women with disabilities, and represents more than 2 million disabled women in Australia. WWDA’s work is grounded in a rights based framework which links gender and disability issues to a full range of civil, political, economic, social and cultural rights. Promoting the reproductive rights of women and girls with disabilities, along with promoting their rights to freedom from violence and exploitation, and to freedom from torture or cruel, inhuman or degrading treatment are key policy priorities of WWDA.2 WOMEN WITH DISABILITIES AUSTRALIA (WWDA) PO Box 605, Rosny Park 7018 Tasmania, Australia Ph +61 3 62448288 Fax +61 3 62448255 Email [email protected] Web www.wwda.org.au Facebook www.facebook.com/WWDA.Australia Winner, National Human Rights Award 2001 Winner, National Violence Prevention Award 1999 Winner, Tasmanian Women’s Safety Award 2008 Certificate of Merit, Australian Crime & Violence Prevention Awards 2008 Nominee, French Republic’s Human Rights Prize 2003 Nominee, UN Millennium Peace Prize for Women 2000

CONTENTS Acknowledgment

5

Overview

7

Key Recommendations

13

Terminology

21

Background and Status of the Issue in Australia

24

Rationale Used to Justify Forced Sterilisation in Australia

35

The Genetic/Eugenic Argument

36

For the Good of the State, Family and/or Community

38

Incapacity for Parenthood

43

Incapacity to Develop and Evolve

45

Prevention of Sexual Abuse

47

The ‘Best Interest’ Argument

53

The Impact

58

Forced Sterilisation as a Violation of Human Rights

69

The Convention on the Rights of Persons With Disabilities

71

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

73

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

75

The International Covenant on Civil and Political Rights (ICCPR)

78

The Convention on the Rights of the Child (CRC)

79

The International Covenant on Economic, Social and Cultural Rights (CESCR)

80

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

84

Other Key International and National Standards and Frameworks

85

Other Legal Precedents

86

Redress & Transitional Justice

88

Conclusion

96

Footnotes

98

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 4

ACKNOWLEDGEMENT In presenting this Submission to the Senate Inquiry into the Involuntary or Coerced Sterilisation of People with Disabilities in Australia, WWDA wishes to acknowledge and thank all the women who have been involved with Women with Disabilities Australia (WWDA).

We dedicate this work to all those who have suffered discrimination and the devastating life-long impact of forced or coerced sterilisation and other violations of their reproductive health rights. Although we can never take away the pain and trauma of those women and girls affected, we trust that our work will ensure that this gross violation of the human rights of women and girls with disabilities will never be allowed to occur again.

To our sisters in other countries who are also continuing the fight to stop the practice of forced and coerced sterilisation of women and girls, we hope our work can contribute in some small way to your efforts.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 5

“I think there should be an Act that should go through Parliament, it must be a Sterilisation Act that stops girls and women with intellectual disabilities being sterilised.” PARTICIPANT, STAR CONFERENCE ON STERILISATION, 19903

OVERVIEW

OVERVIEW 1.

Australia is a country that prides itself on values and principles which provide the basis for a free and democratic society, including for example: the equal worth, dignity and freedom of the individual; equality under the law; equality of opportunity; equality of men and women; and the right of its citizens to participate fully in the economic, political and social life of the nation.4 However, these entitlements remain a distant goal for many women and girls with disabilities. In contemporary Australia, many are denied the most fundamental rights and freedoms, they are not treated with dignity and respect, they remain profoundly more disadvantaged than their male counterparts; are systematically denied opportunities to develop, gain an education and live a full and meaningful life. They experience multiple forms of discrimination, and widespread, serious violation of their human rights.

2.

Denial of these rights and freedoms is predicated on the assumption - usually implicit - that there are degrees of being human, and that only the “fully human” are entitled to enjoy the advantages of our society and the full protection of its laws. Since ability and intelligence are highly valued in our society, they are closely associated with being human. ‘Diminished ability and intelligence’, on the other hand, is equated with lower forms of life. Women with disabilities have typically been perceived as sub-human - lacking such basic human needs as the need for love, intimacy, identity and freedom. Dehumanising conditions - such as those which still pervade many of our state institutions - have been rationalised on the basis that women with disabilities do not have the same needs and feelings as the “fully human”, and hence that they do not need privacy, personal property, recognition, intimacy or freedom of choice. Viewed as “undesirable” and as potential threats to society, women with disabilities have often been isolated in institutions and otherwise prevented from fully participating in society.5

3.

The right to bodily integrity and bodily autonomy, including the right of a woman to make her own reproductive choices, are enshrined in a number of international human rights treaties and instruments to which Australia is a party. However, women and girls with disabilities in Australia have failed to be afforded, or benefit from, these provisions in international human rights law. Instead, systemic prejudice and discrimination against them continues to result in widespread denial of their right to make decisions about their own bodies, experience their sexuality, have sexual relationships, and found and maintain families. In Australia there are women and girls with disabilities who have been and continue to be, denied these and other fundamental human rights through the ongoing Government sanctioned practice of ‘forced/involuntary’ and ‘coerced’ sterilisation.6

4.

Forced sterilisation – that is, sterilisation in the absence of the free and informed consent of the individual concerned - including instances in which sterilisation has been authorised by a third party, without that individual’s consent7 - is an act of violence,8 a form of social control, and a clear and documented violation of the right to be free from torture.9 Forced sterilisation of girls and women with disabilities is internationally recognised as a harmful practice based on tradition, culture, religion or superstition.10 Perpetrators11 are seldom held accountable and women and girls with disabilities who have experienced this violent abuse of their rights are rarely, if ever, able to obtain justice. Successive Australian Governments have not acknowledged this pervasive practice, nor expressed regret, nor offered redress to the women and girls affected.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 8

OVERVIEW 5.

Forced sterilisation constitutes torture.12 The right to be free from torture is one of the few absolute and non-derogable human rights, a matter of jus cogens,13 a peremptory norm of customary international law, and as such is binding on all States, irrespective of whether they have ratified specific treaties.14 A State cannot justify its non-compliance with the absolute prohibition of torture, under any circumstances. The UN Special Rapporteur on Torture has recently clarified: “Forced interventions [including involuntary sterilization], often wrongfully justified by theories of incapacity and therapeutic necessity inconsistent with the Convention on the Rights of Persons with Disabilities, are legitimized under national laws, and may enjoy wide public support as being in the alleged “best interest” of the person concerned. Nevertheless, to the extent that they inflict severe pain and suffering, they violate the absolute prohibition of torture and cruel, inhuman and degrading treatment.”15

“Forced interventions [including involuntary sterilization], often wrongfully justified by theories of incapacity and therapeutic necessity inconsistent with the Convention on the Rights of Persons with Disabilities, are legitimized under national laws, and may enjoy wide public support as being in the alleged “best interest” of the person concerned. Nevertheless, to the extent that they inflict severe pain and suffering, they violate the absolute prohibition of torture and cruel, inhuman and degrading treatment.”15

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 9

OVERVIEW 6.

Forced sterilisation breaches every international human rights treaty to which Australia is a party. Legal authorisation of forced sterilisation procedures directly implicate the Australian Government in the perpetration of torture against disabled women and girls. Any law which authorises forced sterilisation is a law which authorises violence against women, the consequence of which is severe pain and suffering,16 including ‘drastic and emotionally painful consequences that are un-ending’. 17

7.

The UN Special Rapporteur on Torture has made it clear that the failure of the State to exercise due diligence to intervene to prevent torture and provide remedies to victims of torture ‘facilitates and enables non-state actors to commit acts impermissible under [the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment] with impunity,’ and its indifference or inaction provides a form of encouragement and/or de facto permission.18 The UN Committee Against Torture has also confirmed that States have a heightened obligation to protect vulnerable and/or marginalised individuals from torture and cruel inhuman and degrading treatment and to: ‘adopt effective measures to prevent public authorities and other persons acting in an official capacity from directly committing, instigating, inciting, encouraging, acquiescing in or otherwise participating or being complicit in acts of torture.’ 19

8.

For more than twenty years, women with disabilities and their allies have been demanding successive Australian Governments show national leadership and undertake wide ranging reforms to stop the forced and coerced sterilisation of women and girls with disabilities, and develop policies and programs that enable disabled women and girls to realise their human rights on an equal basis as others. These recommendations to the Australian Government for action have been strongly echoed, supported and re-iterated by several international human rights treaty monitoring bodies and mechanisms since 2005.20 That Australian Governments have chosen to ignore the voices of disabled women, as well as clear recommendations from the United Nations and international medical bodies, clearly demonstrates that disabled women and girls are not considered by our Governments as worthy of all that it means to be fully human.

9.

No group has ever been as severely restricted, or negatively treated, in respect of their reproductive rights, as women with disabilities.21 The practice of forced sterilisation is itself part of a broader pattern of denial of human and reproductive rights of Australian disabled women and girls which also includes systematic exclusion from appropriate reproductive health care and sexual health screening, forced contraception and/or limited contraceptive choices, a focus on menstrual suppression, poorly managed pregnancy and birth, selective or coerced abortion and the denial of rights to parenting.22 These practices are framed within traditional social attitudes that continue to characterise disability as a personal tragedy, a burden and/or a matter for medical management and rehabilitation.23

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 10

OVERVIEW 10.

This Submission from Women With Disabilities Australia (WWDA) to the Senate Inquiry into the Involuntary or Coerced Sterilisation of People with Disabilities in Australia supplements many of the submissions, reports, articles, and letters previously provided by WWDA to successive Australian Governments on this issue over the last twelve years. This Submission does not intend to replicate all that work,24 but instead seeks to highlight key issues for consideration, in recognition that women and girls with disabilities have the right to experience full and effective enjoyment of their human rights on an equal basis as others. Indeed, the right to be fully human.25

11.

This Submission examines the background to the issue of forced and coerced sterilisation of women and girls with disabilities in Australia and highlights the status of the issue in Australia today. It examines the rationale used to justify the forced sterilisation of disabled women and girls, including themes such as eugenics/genetics; for the good of the State, community or family; incapacity for parenthood; incapacity to develop and evolve; prevention of sexual abuse; and discourses around “best interest”. In doing so, this Submission analyses Australian Court and Tribunal applications and authorisations for sterilisation of disabled women and girls, and demonstrates that in reality, applications and authorisations for sterilisation have very little to do with the ‘best interests’ of the individual concerned, and more to do with the interests of others. This Submission demonstrates that the Australian Government’s current justification of the “best interest approach” in the sterilisation of disabled women and girls, has in effect, been used to perpetuate discriminatory attitudes against women and girls with disabilities, and has only served to facilitate the practice of forced sterilisation.

12.

The impact of forced sterilisation on women and girls with disabilities is also highlighted in this Submission, and reaffirms that forced and coerced sterilisation has long-lasting physical, psychological and social effects and causes severe mental pain and suffering, extreme psychological trauma, including depression and grief. It also demonstrates that for women with disabilities, the issue of forced sterilisation encompasses much broader issues of reproductive health, including for example: support for choices and services in menstrual management, contraception, abortion, sexual health management and screening, pregnancy, birth, parenting, menopause, sexuality, violence and sexual assault prevention and more.

13.

This Submission looks in detail at forced sterilisation as a violation of human rights and provides an analysis of how the practice contravenes every international human rights treaty to which Australia is a party. It examines the human rights treaty monitoring bodies responses to the practice of forced sterilisation around the world and clearly demonstrates that Australia’s apathy and indifference to the issue sees it lagging behind the rest of the developed world, at the expense of the human rights of disabled women and girls.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 11

OVERVIEW 14.

The Submission provides examples of several recent legal cases to highlight that the issue of forced and coerced sterilisation of women and girls is increasingly being recognised in Courts around the world, as a violation of women’s fundamental human rights. Importantly, WWDA’s Submission also examines redress and transitional justice for women and girls with disabilities who have been sterilised in the absence of their fully informed and free consent. In doing so, the Submission looks at the necessary components of redress and transitional justice, including for example: measures of reparation, satisfaction and guarantees of non-repetition as well as compensation, rehabilitation and recovery.

15.

Given the magnitude of the issue of forced sterilisation of women and girls with disabilities, in that it represents just one element of a much broader pattern of denial of human and reproductive rights of Australian disabled women and girls, it is outside the scope of this Submission to address in detail the wide-ranging and extensive raft of actions required to address the breadth and scope of issues involved. This Submission has, however, endeavoured to identify key recommendations for consideration, whilst acknowledging that much more intensive work is required. Critically, any work in this area, must be based on the understanding that women and girls with disabilities must be at the forefront of any and all consultative and decision-making processes.

16.

Forced sterilisation of women and girls with disabilities, and the inadequacy of Australian Governments’ responses to it, represent grave violations of multiple human rights. The Australian Government is obliged to exercise due diligence to: prevent the practice of forced and coerced sterilisation from taking place; investigate promptly, impartially and effectively all cases of forced sterilisation of women and girls with disabilities; remove any time limits for filing complaints; prosecute and punish the perpetrators, and, provide adequate redress to all victims of forced or coerced sterilisation. Meeting these obligations requires the Australian Government to take into account the marginalisation of disabled women and girls, whose rights are compromised due to deeply rooted power imbalances and structural inequalities, and to take all appropriate measures, including focused, gender-specific measures to ensure that disabled women and girls experience full and effective enjoyment of their human rights on an equal basis as others. Nothing less is acceptable.

17.

Whilst WWDA welcomes the Senate Inquiry into the Involuntary or Coerced Sterilisation of People with Disabilities in Australia as a long-overdue initiative and commends the Senate for recognising the imperative to address this long neglected yet urgent human rights issue, we re-iterate that there are absolutely no grounds or excuses which can be used to justify the torture of women and girls with disabilities by forced sterilisation.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 12

KEY RECOMMENDATIONS

KEY RECOMMENDATIONS Based on the information provided in this Submission, coupled with WWDA’s extensive and dedicated work on this issue for more than twelve years, WWDA makes the following 18 Key Recommendations to the Australian Government through the Senate Inquiry into the Involuntary or Coerced Sterilisation of People with Disabilities in Australia:

RECOMMENDATION 1 As an immediate action, in keeping with the human rights treaties to which Australia is a party, and consistent with the recommendations to the Australian Government from the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW/C/AUS/CO/7), the Committee on the Rights of the Child (CRC/C/15/Add.268; CRC/C/AUS/CO/4), the Human Rights Council (A/HRC/17/10), along with the International Federation of Gynecology and Obstetrics (FIGO) Guidelines on Female Contraceptive Sterilization (2011); recommendations of the World Medical Association (WMA) (2011) and the International Federation of Health and Human Rights Organisations (IFHHRO) (2011), and the February 2013 Recommendations of the UN Special Rapporteur on Torture (A/HRC/22/53) enact national legislation prohibiting, except where there is a serious threat to life, the use of sterilisation of girls, regardless of whether they have a disability, and of adult women with disabilities in the absence of their fully informed and free consent. Such legislation must prohibit the removal of a child or adult with a disability from Australia with the intention of having a forced sterilisation procedure performed.

RECOMMENDATION 2 In consultation with women with disabilities, and as a matter of urgency, establish and adequately resource a National Task Force26 to develop a Policy and Framework for Transitional Justice and Redress to address the forced and coerced sterilisation of women and girls with disabilities in Australia. Such a policy and framework must be consistent with the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (A/RES/60/147), the Convention on the Rights of Persons With Disabilities (A/ RES/61/106) and other relevant international standards and frameworks.27 The following elements as articulated under the Convention Against Torture [and Other Cruel, Inhuman or Degrading Treatment or Punishment], must be included: measures of reparation, satisfaction and guarantees of non-repetition as well as compensation, rehabilitation and recovery.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 14

KEY RECOMMENDATIONS RECOMMENDATION 3 In developing measures of rehabilitation and recovery for those affected by forced sterilisation practices and other violations of their reproductive rights and freedoms, women and girls with disabilities must be actively consulted to identify the full range of rehabilitation and recovery measures required, which may include for example:  Ŕ TQFDJBMJTFEDPVOTFMMJOH QTZDIPMPHJDBM BOETPDJBMQSPHSBNT TFSWJDFTBOETVQQPSUT  Ŕ QSPWJTJPOPGMFHBMTFSWJDFT TVQQPSUTBOEBTTJTUBODFGPSTVSWJWPST  Ŕ TQFDJBMJTFEXPNFOōTIFBMUI BMMJFEIFBMUIBOENFEJDBMQSPHSBNT TFSWJDFTBOETVQQPSUT  Ŕ TQFDJBMJTFEBOEUBSHFUFEWJPMFODFBOETFYVBMBTTBVMUQSFWFOUJPOTFSWJDFT QSPHSBNTBOETVQQPSU  Ŕ TQFDJBMJTFESFQSPEVDUJWFBOETFYVBMIFBMUIFEVDBUJPOBOEUSBJOJOHTFSWJDFTBOEQSPHSBNT  Ŕ QSPDFTTFTGPSNFNPSJBMJTJOHBOEEPDVNFOUJOHUIFFYQFSJFODFT TUPSJFTBOEIJTUPSJFTPGUIPTFBŢFDUFE

RECOMMENDATION 4 Issue a formal apology that identifies the discriminatory actions, policies, culture and attitudes that result in forced and coerced sterilisation of people with disabilities and that acknowledges, on behalf of the nation, the harm done to those who have been forcibly sterilised and experienced other violations of their reproductive rights. The formal apology must be developed in consultation with those affected and their allies, and satisfy the five criteria for formal apologies as articulated by the Canadian Law Commission, which include:  Ŕ BDLOPXMFEHNFOUPGUIFXSPOHEPOFPSOBNJOHUIFPŢFODF  Ŕ BDDFQUJOHSFTQPOTJCJMJUZGPSUIFXSPOHUIBUXBTEPOF  Ŕ UIFFYQSFTTJPOPGTJODFSFSFHSFUBOEQSPGPVOESFNPSTF  Ŕ UIFBTTVSBODFPSQSPNJTFUIBUUIFXSPOHEPOFXJMMOPUSFDVS  Ŕ SFQBSBUJPOUISPVHIDPODSFUFNFBTVSFT

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 15

KEY RECOMMENDATIONS RECOMMENDATION 5 Provide financial reparation to women and girls with disabilities who have been forcibly sterilised. In establishing a scheme for financial reparation, the Australian Government should examine similar models used in Canada, Sweden and the US, including the North Carolina Justice for Sterilization Victims Foundation, established in 2010.

RECOMMENDATION 6 In consultation with people with disabilities and their allies, and consistent with the Convention on the Rights of Persons With Disabilities, act to undertake the following legislative reforms: Ŕ FOBDUOBUJPOBMMFHJTMBUJPOUIBUSFQMBDFTSFHJNFTPGTVCTUJUVUFEFDJTJPONBLJOHGPSQFPQMFXJUI disabilities with supported decision-making; Ŕ SFQFBMBOZMBXT QPMJDJFTBOEQSBDUJDFTXIJDIQFSNJUHVBSEJBOTIJQBOEUSVTUFFTIJQGPSBEVMUT BOE replace regimes of substitute decision-making with supported decision making); Ŕ FOTVSFUIBUUIFSFRVJSFNFOUGPSQSJPS GVMMBOEJOGPSNFEDPOTFOUJOBMMJOUFSWFOUJPOTBOEUSFBUNFOUT concerning people with disabilities is enshrined in relevant legal frameworks at national and state/ territory levels; Ŕ FOTVSFUIBUDSJUFSJBUIBUEFUFSNJOFUIFHSPVOETVQPOXIJDIUSFBUNFOUDBOCFBENJOJTUFSFEJOUIF absence of free and informed consent is clarified in the law, and that no distinction between persons with or without disabilities is made; and, Ŕ FOTVSFUIBUBOZMBXPSQPMJDZXIJDISFTUSJDUTJOBOZXBZ BEJTBCMFEXPNBOōTSJHIUUPGVMM enjoyment of her sexual and reproductive health rights and freedoms, is amended as a matter of urgency.28

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 16

KEY RECOMMENDATIONS RECOMMENDATION 7 In keeping with recommendations from the Committee on the Elimination of Discrimination Against Women (CEDAW/C/AUS/CO/7), act to adopt urgent measures to ensure that women with disabilities are better represented in decision-making and leadership positions, and that structures, mechanisms and initiatives are established to enable and foster their participation and engagement. Inherent in this is the need for the Australian Government to undertake an immediate and urgent review of the level and adequacy of the annual funding provided by the Australian Government to Women With Disabilities Australia (WWDA) ($163,000) including its staffing levels (1 EFT).

RECOMMENDATION 8 Act immediately to commission and adequately resource a National Public Inquiry into the removal and/or threat of removal of babies and children from parents with disabilities. Such an Inquiry must investigate reasons why in Australia today, a parent with a disability is up to ten times more likely than other parents to have a child removed from their care.29 The Inquiry must also address the over-representation of parents with intellectual disabilities in care and protection proceedings.

RECOMMENDATION 9 Act immediately on the urgent recommendation of the Committee on the Elimination of Discrimination Against Women (CEDAW/C/AUS/CO/7), to address the violence, abuse, neglect and exploitation experienced by women and girls with disabilities living in institutions or supported accommodation. Inherent in this is the need to develop and resource targeted, gendered initiatives to build capacity of individuals and organisations to prevent violence against people with disabilities and to ensure appropriate responses when it does occur.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 17

KEY RECOMMENDATIONS RECOMMENDATION 10 As a matter of urgency, and consistent with recommendations from other key Australian disabled people’s organisations, establish and adequately resource an independent, statutory, national protection mechanism for ‘vulnerable’ and/or ‘targeted’ adults, where the requirement for mandatory reporting is legislated.

RECOMMENDATION 11 Commission and fund a three year national research study on women and girls with disabilities’ right to reproductive freedom which: Ŕ JOWFTUJHBUFTNPEFMTPGCFTUQSBDUJDFJOUIFEFMJWFSZPGTFYVBMBOESFQSPEVDUJWFIFBMUIQSPHSBNTBOE services for women and girls with disabilities, including on all matters relating to parenthood and relationships; Ŕ BEESFTTFTUIFFŢFDUT JODMVEJOHMPOHUFSNFŢFDUT PGGPSDFEBOEDPFSDFETUFSJMJTBUJPOGPSBMMXPNFO and girls with disabilities, including those with psychiatric, cognitive, sensory and physical disabilities; Ŕ JOWFTUJHBUFTUIFQSBDUJDFPGNFOTUSVBMTVQQSFTTJPOPGHJSMTBOEXPNFOXJUIEJTBCJMJUJFT JODMVEJOHUIPTF in group homes and other forms of institutional care. Research into menstrual suppression practices must include: Ŕ JOWFTUJHBUJPOJOUPUIFOPODPOTFOTVBMBOEDPFSDFEBENJOJTUSBUJPOPG%FQP1SPWFSBBOEPUIFS injectable contraceptives, the contraceptive pill, and other forms of contraception to women and girls with disabilities; Ŕ JOWFTUJHBUJPOJOUPUIFVTFPGDPOUSBDFQUJPOBTBGPSNPGTPDJBMDPOUSPMPGHJSMTBOEXPNFOXJUI disabilities; Ŕ JOWFTUJHBUJPOJOUPUIFMPOHUFSNQIZTJDBM QTZDIPMPHJDBM BOETPDJBMFŢFDUTPGNFOTUSVBMTVQQSFTTJPO practices.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 18

KEY RECOMMENDATIONS RECOMMENDATION 12 In consultation with women with disabilities and their allies, commission specific work to assist women and girls with disabilities and their families and support persons to access appropriate reproductive health care. Work in this area would need to include: Ŕ 3FTFBSDIJOHBOEJNQMFNFOUJOHUIFTQFDJţDTVQQPSUTSFRVJSFECZDBSFSTTVQQPSUQFSTPOTUPCFUUFS assist them in managing the menstruation and reproductive health needs of women and girls with intellectual and/or cognitive disabilities; Ŕ

Ŕ

*OWFTUJHBUJOHUIFGFBTJCJMJUZPGFTUBCMJTIJOHBOBUJPOBMTDIFNF TJNJMBSUPTDIFNFTTVDIBTUIF Continence Aids Payment Scheme), which provides funding for all women and girls with disabilities and their families and support persons/carers to access appropriate reproductive health care; %FWFMPQJOHOBUJPOBMTFYVBMIFBMUIQSPUPDPMTGPSXPNFOBOEHJSMTXJUIEJTBCJMJUJFTUIBUJODPSQPSBUF options for menstrual management and contraception.

RECOMMENDATION 13 Establish, and recurrently fund a National Resource Centre for Parents with Disabilities, focusing on pregnancy and birthing, adoption, custody, assisted reproduction, adaptive baby-care equipment, as well as general parenting issues. In establishing such a Resource Centre, the Australian Government should examine similar Centres available in other countries, such as the US organisation ‘Through the Looking Glass’.30

RECOMMENDATION 14 Recognise, support and strengthen the role of women with disabilities organisations, groups and networks in efforts to fulfil, respect, protect and promote their human rights, and to support and empower women with disabilities, both individually and collectively, to claim their rights. This includes the need to create an environment conducive to the effective functioning of such organisations, groups and networks, including adequate and sustained resourcing. Inherent in this, is the need for financial and political support to enable the establishment and recurrent funding of a peak NGO for women with disabilities in each State and Territory.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 19

KEY RECOMMENDATIONS RECOMMENDATION 15 Ensure that information on women and girls with disabilities is provided in all human rights treaties Periodic Reports as a matter of course. This would include information on the situation of women with disabilities under each right, including their current de-facto and de jure situation, measures taken to enhance their status, progress made and difficulties and obstacles encountered. Inherent in this is the need to ensure disaggregated data is included in information provided under each right.

RECOMMENDATION 16 Act to separate disability policy and disability support from family carer policy and support in order to increase the autonomy of women and girls with disabilities and challenge the stereotype of women and girls with disabilities as burdens of care.

RECOMMENDATION 17 Through the National Registration and Accreditation Scheme for the Health Professions (NRAS),31 act to ensure that accreditation of the training of health professionals covered under the Health Practitioner Regulation National Law Act 2009, is contingent on disability, gender and human rights specific curriculum components.

RECOMMENDATION 18 Develop specific measures to ensure a gender perspective is incorporated into any national, state/territory JOJUJBUJWFTVOEFSUBLFOBTQBSUPGUIFEPNFTUJDJNQMFNFOUBUJPOPG"SUJDMF<"XBSFOFTT3BJTJOH>PGUIF$31%

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 20

TERMINOLOGY

TERMINOLOGY 18.

‘Sterilisation’ refers to the performance of a medical procedure which permanently removes an individual’s ability to reproduce, and/or the administration of medication to suppress menstruation. ‘Forced/involuntary sterilisation’ refers to the performance of a procedure which results in sterilisation in the absence of the free and informed consent of the individual who undergoes the procedure. This is considered to have occurred if the procedure is carried out in circumstances other than where there is a serious threat to life. Coerced sterilisation occurs when financial or other incentives, misinformation, misrepresentation, undue influences, pressure, and/or intimidation tactics are used to compel an individual to undergo the procedure. Coercion includes conditions of duress such as fatigue or stress. Undue influences include situations in which the person concerned perceives there may be an unpleasant consequence associated with refusal of consent.32

19.

In considering issues of sterilisation (whether referred to as non-therapeutic, involuntary, coerced) it is important to be clear that any sterilisation carried out without the free and informed consent of the individual concerned, is a forced sterilisation.33 This includes instances in which sterilisation has been authorised by a third party, such as a parent, legal guardian, court, tribunal, or judge, without the individual’s consent.34

20.

The practices that law makers and health care providers call ‘unlawful,’ ‘unauthorised,’ ‘non-consensual,’ ‘involuntary’, or ‘non-therapeutic’ sanitises the picture of what really happens to disabled women and girls in their reproductive choices. For many, the experience is about being denied access to suitable services, forced against their will, coerced, intimidated, pressurised, deceived, compelled, raped and even unknowingly deprived of their human rights to bodily integrity and control over their reproductive health. In the case of sterilisation, the fact that a procedure may be deemed ‘authorised’ or ‘lawful’ does not in any way obviate the reality that a woman with a disability, often a very young woman or girl, undergoes a medical procedure to remove non-diseased parts of her body which are essential to her ongoing health and well-being.35

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 22

TERMINOLOGY 21.

Whilst there may be instances where disabled men and boys are subject to sterilisation procedures, sterilisation disproportionately affects women and girls and is clearly a gendered issue. Women and girls with disabilities are at particular risk of forced sterilisations performed under the auspices of legitimate medical care or the consent of others in their name.36 The majority of cases that have come to the attention of relevant authorities in Australia (including Courts and Guardianship Tribunals) have involved the sterilisation of girls with intellectual disabilities.37 Similarly, there have been no instances in Australia where authorisations to sterilise have been sought for children without disabilities in the absence of a threat to life or health.38 In this context, this Submission focuses on women and girls with disabilities, whilst acknowledging that disabled men and boys who may be subject to forced or coerced sterilisation are entitled to the same protection against violations of their human rights as disabled women and girls. As recently highlighted by the Special Rapporteur on the Right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Women are generally more likely to experience infringements of their right to sexual and reproductive health given the physiology of human reproduction and the gendered social, legal and economic context in which sexuality, fertility, pregnancy and parenthood occur. Persistent stereotyping of women’s roles within society and the family establish and fuel societal norms.39

22.

In discussing sterilisation of people with disabilities, it must also be understood that adult women with disabilities and men with disabilities have the same rights as their non-disabled counterparts to choose sterilisation as a means of contraception. In this context, safeguards to prevent forced sterilisation should not infringe the rights of disabled women and men to choose sterilisation voluntarily and be provided with all necessary supports to ensure that they can make and communicate such a choice based on their free and informed consent.

“Women are generally more likely to experience infringements of their right to sexual and reproductive health given the physiology of human reproduction and the gendered social, legal and economic context in which sexuality, fertility, pregnancy and parenthood occur. Persistent stereotyping of women’s roles within society and the family establish and fuel societal norms.39 DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 23

BACKGROUND AND STATUS

BACKGROUND AND STATUS BACKGROUND AND STATUS OF THE ISSUE IN AUSTRALIA 23.

There is a historical precedent in several countries including for example the USA (until the 1950s), in Canada and Sweden (until the 1970s), and Japan (until 1996) indicating that torture of women and girls with disabilities by sterilisation occurred on a collective scale – that is, mass forced sterilisation. This policy was rationalised by a pseudo-scientific theory called eugenics – the aim being the eradication of a wide range of social problems by preventing those with ‘physical, mental or social problems’ from reproducing.40

24.

Although eugenic policies have now been erased from legal statutes in most countries, vestiges still remain within some areas of the legal and medical establishments and within the attitudes of some sectors of the community: “Disabled people should not have babies.”41 “We neuter our dogs and cats for the perfectly ethical reasons such as their health, to lessen the natural biological impact it causes to their bodies and to ensure that they don’t breed unnecessarily….. If she were a cat, dog, horse, hamster we would do what we could to alleviate her burdens and to make sure she enjoyed the best quality of life she can have.”42 “She doesnt have the skills necessary to raise a child herself (who will most likely be disabled too), so what use is a reproductive system anyway. Our health system is under enough pressure with the aging population without the addition to any more disabled people.”43 “Disabled children cost the council too much money and should be put down.”44

“We neuter our dogs and cats for the perfectly ethical reasons such as their health, to lessen the natural biological impact it causes to their bodies and to ensure that they don’t breed unnecessarily….. If she were a cat, dog, horse, hamster we would do what we could to alleviate her burdens and to make sure she enjoyed the best quality of life she can have.”42 DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 25

BACKGROUND AND STATUS 25.

In Australia the issue of sterilisation of disabled women and girls has been the subject of debate since the early 1980s when it became clear that many women with disabilities had been and were being sterilised without their consent and in many cases without their knowledge. It was clear this was happening with the informal consent of family, carers or doctors and without public scrutiny or accountability.45 This was in keeping with the legacy of the coercive and government sanctioned mass sterilisation of women with disabilities in pre-war Australia.46

26.

In 1992, in a case now known as Marion’s Case,47 an application was made to the High Court of Australia on appeal from the Family Court in relation to a teenage girl with an intellectual disability. The application was for a ‘non-therapeutic’48 surgical sterilisation in order to manage the young girl’s menstruation and prevent pregnancy. The High Court found that fundamental questions of human rights such as the right to reproduce should be decided by the courts rather than by parents, carers or medical practitioners.49 While this decision leant support to the rights of people with disabilities and has since assumed symbolic importance, subsequent judicial decisions and social practices have failed to give full effect to the promise of Marion’s Case.50 In reality considerations about forced sterilisation in Australia have remained effectively bogged down in an ongoing legalistic debate about who can authorise sterilisation, for whom, under what circumstances and within which jurisdiction.51 The main concern of public policy in the area has focused on piecemeal development of mechanisms, protocols and guidelines in an attempt to ‘minimise the risk of unauthorised sterilisations occurring’.52 Additionally, the legal question essentially addressed in the debates around forced sterilisation of women and girls with disabilities has been constructed as a decision about whether to sanction a ‘medical procedure.’53 This has resulted in the narrow conception of forced sterilisation as a legal and medical matter when it is clearly an issue of fundamental human rights.

27.

In 2003, Chief Justice Alastair Nicholson (Chief Justice of the Family Court of Australia from 1988-2004) reflected on the apathy of successive Australian Governments in addressing the issue of sterilisation of disabled women and girls: “I have no real knowledge of why successive governments of both federal and state haven’t taken a greater degree of interest in this area. It does concern me that the issue hasn’t been taken up in any real sense. I know the Federal Government has made some attempts to draw attention to it through the Attorney General’s department from time to time but that seems to be about as far as it’s gone.”54

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 26

BACKGROUND AND STATUS 28.

*O"VHVTU "VTUSBMJBO(PWFSONFOUT UISPVHIUIFStanding Committee of Attorneys-General (SCAG)55 agreed that a nationally consistent approach to the authorisation procedures required for the lawful sterilisation of minors was appropriate. From 2003-2007, despite strong opposition from disability and human rights advocates, the SCAG pushed ahead with a proposal to develop legislation aimed to regulate authorisation of sterilisation of minors with a ‘decision-making disability’ rather than prohibit this form of violence.56 In November 2006, the SCAG released for consultation with selected stakeholders, a draft Bill (Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006).57 The Bill set out the procedures that jurisdictions could adopt in authorising the sterilisation of children who have an intellectual disability.58

29.

The SCAG disbanded its work on the Draft Bill in 2008, declaring that ‘there would be limited benefit in developing model legislation’59 and instead, its Ministers agreed to ‘review current arrangements to ensure that all tribunals or bodies with the power to make orders concerning the sterilisation of minors with an intellectual disability are required to be satisfied that all appropriate alternatives to sterilisation have been fully explored and/or tried before such an order is made’.60 There is no evidence to date that these reviews were conducted, and in fact, in 2009, one State Government Attorney-General advised WWDA in writing that no such review had been undertaken in that particular State and nor was there any intention to undertake such a review.61

30.

In 2009, WWDA formally recommended to the Australian Government/s that the issue of sterilisation of girls and women with disabilities remain as a standing item on the SCAG agenda until such time that national legislation had been developed which prohibited forced sterilisation. Despite the fact that the Australian Government had conceded that: a) girls with disabilities continue to be sterilised in Australia,62 and b) ‘unrecorded and unauthorised non-therapeutic sterilisations of young women with intellectual disabilities [are] being undertaken in Australia’,6388%"ōTSFDPNNFOEBUJPOXBTSFKFDUFE XJUIUIF Federal Attorney-General, Hon Robert McClelland advising WWDA that: ‘While appreciating your organisation’s long advocacy on this issue……..I do not propose at this time to develop Commonwealth legislation or to pursue the issue further through SCAG.’64

31.

In 2009 the Australian Government formally asserted to the United Nations that: ‘a comprehensive review … indicated that sterilisations of children with an intellectual disability had declined since the 1997 report 65 - to very low numbers. Evidence also indicated that alternatives to surgical procedures to manage the menstruation and contraceptive needs of women are increasingly available and seem to be successful in the most part. Further, while it was not possible to be definitive due to limitations in the available information, the review concluded that existing processes to authorise sterilisation procedures appeared to be working adequately due to improvements in treatment options and wider community awareness.’66 DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 27

BACKGROUND AND STATUS 32.

There was however, no evidence to support that a ‘comprehensive review’ (including ‘evidence and information gathered relating to the issue’)67 had been undertaken. No report was ever made available to stakeholders who participated in the consultations on the SCAG 2006 draft legislation, and repeated requests by WWDA to the Australian Government for the report of the ‘comprehensive review’ were ignored. 68

33.

Forced sterilisations continue to occur in Australia,69 despite the Australian Government’s assertion that only ‘very low numbers’ of children with an intellectual disability are sterilised. A documentary by ABC TV program ‘Four Corners’ in 2003 into sterilisation of people with disabilities, reported on a number of girls and women with disabilities who had been illegally sterilised. Four Corners also ‘made contact with families who have had their daughters sterilised illegally…..they would not come on camera for fear of prosecution’.70 The Program identified that ‘some parents, frustrated by the system, are now seeking out illegal sterilisations or finding ways to get around the system’. The program interviewed a couple who had their 15 year old disabled daughter ‘secretly sterilised in hospital’. The doctor booked the young girl into the hospital in the mother’s name. The mother explained: ‘no one questioned me. No one, none of the nurses, no one. We were in a private room, we were on our own, and I stayed with her and then I brought her home and nursed her and she was fine…… It’s something we have to do behind closed doors because people don’t understand.’71

34.

In another case, a couple had their 15 year old disabled daughter sterilised in the United States. The parents wanted their daughter sterilised for menstrual management purposes and also to prevent a possible pregnancy in the future. The mother was of the view that, for her daughter to be sterilised in Australia would have been ‘virtually impossible’ and ‘we’d have to break the law’. She explained: ‘I’ve got many friends that have been down the line and been knocked back, some friends going through the process at the moment, some friends that it will come up in the next couple of years. The motivation for a parent to get an illegal sterilisation would be they’re doing the best for their child. Health and hygiene would be the utmost. And they would be desperate. And, yeah, I’d go down that track if we were not able to get a hysterectomy for Laura in the States.’72

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 28

BACKGROUND AND STATUS 35.

Although forced sterilisation breaches every international human rights treaty to which Australia is a party, and is a practice that constitutes torture, successive Australian Governments have consistently taken the view that there are instances in which forced sterilisation can and should be authorised, as evidenced for example, in the current Australian Government’s 2009 Report to the United Nations under the Convention on the Rights of the Child (CRC): A blanket prohibition on the sterilisation of children could lead to negative consequences for some individuals. Applications for sterilisation are made in a variety of circumstances. Sometimes sterilisation is necessary to prevent serious damage to a child’s health, for example, in a case of severe menstrual bleeding where hormonal or other treatments are contraindicated. The child may not be sexually active and contraception may not be an issue, but the concern is the impact on the child’s quality of life if they are prevented from participating to an ordinary extent in school and social life.73

‘I’ve got many friends that have been down the line and been knocked back, some friends going through the process at the moment, some friends that it will come up in the next couple of years. The motivation for a parent to get an illegal sterilisation would be they’re doing the best for their child. Health and hygiene would be the utmost. And they would be desperate. And, yeah, I’d go down that track if we were not able to get a hysterectomy for Laura in the States.’72

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 29

BACKGROUND AND STATUS 36.

In June 2011, WWDA lodged a formal complaint with four of the United Nations Special Rapporteurs, requesting urgent intervention from each of their offices simultaneously.74 The Special Rapporteurs75 wrote to the Australian Government on 18 July 2011 seeking a formal response in relation to the alleged ongoing practice of forced sterilisation of girls and women with disabilities in Australia (see Appendix 2). The Government’s response, provided to the UN on 16 December 2011 (see Appendix 3), outlined the different laws governing sterilisation in Australia; and stated that ‘sterilisations are authorised only where they are the last resort, as less invasive options have failed or are inappropriate, and where they are in a person’s best interests’. The response demonstrates that the Australian Government does not currently have a coherent national approach to sterilisation of women and girls with disabilities and indicates that the Australian Government remains of the view that there are instances in which forced sterilisation of disabled girls and women, can and should be authorised.

37.

Since 2005, United Nations treaty monitoring bodies have consistently and formally recommended that the Australian Government enact national legislation prohibiting, except where there is a serious threat to life or health, the use of sterilisation of girls, regardless of whether they have a disability, and of adult women with disabilities in the absence of their fully informed and free consent.76

38.

In June 2012, the Committee on the Rights of the Child (CRC), in its Concluding Observations77 to the Fourth periodic report of Australia,78 expressed its serious concern that the absence of legislation prohibiting non-therapeutic sterilisation of girls and women with disabilities “is discriminatory and in contravention of article 23(c) of the Convention on the Rights of Persons with Disabilities………..”. The Committee urged the State party to: ‘Enact non-discriminatory legislation that prohibits non-therapeutic sterilization of all children, regardless of disability; and ensure that when sterilisation that is strictly on therapeutic grounds does occur, that this be subject to the free and informed consent of children, including those with disabilities.’ Furthermore, the Committee clearly identified non-therapeutic sterilisation as a form of violence against girls and women, and recommended that the Australian Government ‘develop and enforce strict guidelines to prevent the sterilisation of women and girls who are affected by disabilities and are unable to consent.’

39.

In January 2011, in follow-up to Australia’s Universal Periodic Review,79 the UN Human Rights Council endorsed a recommendation specifically addressing the issue of sterilisation of girls and women with disabilities. It specified that the Australian Government should enact national legislation prohibiting the use of non-therapeutic sterilisation of children, regardless of whether they have a disability, and of adults with disabilities without their informed and free consent.80 The Australian Government’s formal response to this recommendation illustrates its blatant disregard of the human rights of women and girls with disabilities: ‘The Australian Government will work with states and territories to clarify and improve laws and practices governing the sterilisation of women and girls with disability.’ 81

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 30

BACKGROUND AND STATUS 40.

In July 2010, at its 46th session, the UN Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern in its Concluding Observations on Australia at the ongoing practice of non-therapeutic sterilisations of women and girls with disabilities and recommended that the Australian Government ‘enact national legislation prohibiting, except where there is a serious threat to life or health, the use of sterilisation of girls, regardless of whether they have a disability, and of adult women with disabilities in the absence of their fully informed and free consent.’ 82 In September 2012, the Australian Government submitted its Interim Report to the CEDAW Committee,83 to address how it was responding to the recommendations from the 2010 CEDAW Concluding Observations on Australia,84 specifically on violence against women, and Aboriginal and Torres Strait Islander women. Despite the fact that forced sterilisation of women and girls with disabilities constitutes violence against women,85 the Australian Government’s 42 page response completely ignores the CEDAW recommendation on sterilisation of women and girls with disabilities.

41.

In 2005, the Committee on the Rights of the Child in considering Australia’s combined second and third periodic reports86 under Article 44 of the Convention on the Rights of the Child (CRC), recommended that ‘the State party..…prohibit the sterilization of children, with or without disabilities….’87 and in 2007 clearly articulated its position on sterilisation of girls with disabilities, clarifying that States parties to the CRC are expected to prohibit by law the forced sterilisation of children with disabilities.88

42.

To date, the Australian Government has failed to comply with any of these recommendations.

43.

Australia is due to report to the United Nations Human Rights Committee on Australia’s compliance with the International Covenant on Civil and Political Rights (ICCPR). It is required to submit its response to the List of Issues Prior to Reporting (LOIPR),89 (adopted by the Human Rights Committee at its 106th session in late 2012) by 1 April 2013 and is scheduled to appear for review by the Human Rights Committee in 2014. Under the heading of ‘Violence Against Women’, the LOIPR for Australia contains a question on sterilisation, to which the Australian Government is expected to respond.90 Specifically, it states: Please provide information on whether sterilization of women and girls, including those with disabilities, without their informed and free consent, continues to be practiced, and on steps taken to adopt legislation prohibiting such sterilisations.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 31

BACKGROUND AND STATUS 44.

Australia is also due to report to the United Nations Committee on the Rights of Persons with Disabilities (CRPD). In April 2013, the CRPD Committee will meet at its 9th session91 to develop the List of Issues Prior to Reporting (LOIPR) for Australia in relation to its compliance with and implementation of the Convention on the Rights of Persons with Disabilities. Australia’s NGO Shadow Report to the CRPD92 Committee will be considered in the development of the LOIPR for Australia along with information provided by WWDA. It is anticipated that the CRPD LOIPR for Australia will include a specific question on the sterilisation of girls and women with disabilities.

45.

International and national NGO/Civil Society Shadow Reports93 submitted to the CRPD Committee for Australia’s upcoming review under the CRPD, explicitly deal with the issue of forced and coerced sterilisation of women and girls with disabilities, and call on the Australian Government to prohibit the practice as well as develop specific legislation prohibiting medical treatment and interventions of people with disabilities without their free and informed consent.

46.

In addition to the important analysis and condemnation of forced and coerced sterilisation of disabled women and girls by UN mechanisms, international medical bodies have now developed new protocols and calls for action to put an end to the practice of forced/involuntary sterilisation. In June 2011, the International Federation of Gynecology and Obstetrics (FIGO) released new Guidelines on Female Contraceptive Sterilization94 shoring up informed consent protocols and clearly delineating the ethical obligations of health practitioners to ensure that women, and they alone, are giving their voluntary and informed consent to undergo a surgical sterilisation. The FIGO Guidelines (see Appendix 1) clearly state that: ‘It is ethically inappropriate for healthcare providers to initiate judicial proceedings for sterilization of their patients, or to be witnesses in such proceedings inconsistently with Article 23(1) of the Convention on the Rights of Persons with Disabilities.’ Yet the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG), a member of FIGO, has recently asserted that: no method of menstrual regulation or sterilisation is perfect, and a small number of disabled girls or women may still have their best interests served by hysterectomy or sterilisation.95

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 32

BACKGROUND AND STATUS 47.

In September 2011, the World Medical Association (WMA) released a statement condemning the practice of forced and coerced sterilisation as a serious breach of medical ethics. WMA President, Dr. Wonchat Subhachaturas, called involuntary sterilisation “a misuse of medical expertise, a breach of medical ethics, and a clear violation of human rights.” On behalf of the WMA, he issued a call to “all physicians and health workers to urge their governments to prohibit this unacceptable practice.”96

48.

In October 2012, the International NGO Council on Violence against Children,97 classified ‘sterilisation of children with disabilities’ as a harmful practice based on tradition, culture, religion or superstition.98 It has urged States to prohibit the practice by law as a matter of urgency.

49.

In 2012, the World Health Organisation (WHO) commenced work on the development of a WHO Statement on Involuntary Sterilization,99 which addresses involuntary sterilisation of people with disabilities. The Statement will highlight the problem of involuntary sterilisation and will reaffirm the commitment of WHO to uphold human rights in the area of sexual and reproductive health. It will enable WHO to support Member States to ensure that law, policy and practice are in line with human rights standards and ethical principles and contribute to implementing best practices among policy-makers, professionals, and civil society. The Statement will be launched in the second quarter of 2013.



‘no method of menstrual regulation or sterilisation is perfect, and a small number of disabled girls or women may still have their best interests served by hysterectomy or sterilisation.’95

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 33

BACKGROUND AND STATUS 50.

The Global Stop Torture in Health Care Campaign100 has identified forced sterilisation as one of its three priority issues for international action.101 In doing so, it states: ‘Although sterilization may be carried out by individual health providers, it is ultimately the responsibility of governments to prevent such abuses from taking place. Governments must protect individuals from forced sterilization and guarantee all people’s right to the information and services they need to exercise full reproductive choice and autonomy.’



‘Although sterilization may be carried out by individual health providers, it is ultimately the responsibility of governments to prevent such abuses from taking place. Governments must protect individuals from forced sterilization and guarantee all people’s right to the information and services they need to exercise full reproductive choice and autonomy.’

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 34

RATIONALE

RATIONALE RATIONALE USED TO JUSTIFY FORCED STERILISATION IN AUSTRALIA 51.

Forced sterilisation is performed on young girls and women with disabilities for various purposes, including eugenics-based practices of population control, menstrual management and personal care, and pregnancy prevention (including pregnancy that results from sexual abuse).102 In Australia, the reasons used to justify forced sterilisations generally fall into four broad categories, all couched as being in the “best interests” of women and girls with disabilities: a) the genetic/eugenic argument; b) for the good of the state, community or family; c) incapacity for parenthood; and d) prevention of sexual abuse.

THE GENETIC/EUGENIC ARGUMENT 52.

This line of argument is based on the fear that disabled women will re/produce children with genetic ‘defects’. For example, in 2004, the Family Court of Australia authorised the sterilisation of a 12 year old intellectually disabled girl with Tuberous sclerosis, a genetic disorder with a 50% inheritance risk factor. Although one out of two people born with tuberous sclerosis will lead ‘normal’ lives with no apparent intellectual dysfunction, the Court accepted evidence from a medical specialist that sterilisation was in the best interests of the young girl because: “the result will be complete absence of menstruation and this will undoubtedly be of benefit to H who already appears to have substantial difficulties with cleanliness…….. As a by-product of an absence of her uterus H will never become pregnant. Given the genetic nature of her disorder and the 50% inheritance risk thereof, this would in my view be of great benefit to H.” 103



“the result will be complete absence of menstruation and this will undoubtedly be of benefit to H who already appears to have substantial difficulties with cleanliness…….. As a by-product of an absence of her uterus H will never become pregnant. Given the genetic nature of her disorder and the 50% inheritance risk thereof, this would in my view be of great benefit to H.” 103 DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 36

RATIONALE 53.

This reasoning is clearly grounded in eugenic ideology and in the broad views that society holds of disability as a burden, a personal tragedy or a medical problem, as evidenced by these recent examples of public responses to newspaper articles regarding sterilisation of disabled women and girls in Australia: “……Personally I think people with any medium level to high level disability should be completely sterilised to keep the gene pool clean.” 104 “The severity of disability needs to be considered, as well as the genetic likelihood of the disability being passed on.” 105 “The government shouldn’t have to support unwanted babies let alone disabled children having disabled children.” 106 “Considering that evolution is merely random mutations of DNA between generations with the result being that some will be stronger and more prone to survival while others will, unfortunately, be weaker and thus suffer a higher mortality rate it would appear irresponsible to allow a ‘profoundly disabled’ person to have offspring anyway.” 107 Someone I know worked in a mental institution and she told me that the disabled often have very high sexual urges and they often do the deed with each other and then fall pregnant. It apparently results in lots of abortions so sterilisation is certainly a good option.108 “If you have ever looked after those with a mental disability you would never let them have children - they will end up in care adding to the problem.” 109 “Sterilisation is a common sense approach to anyone not capable of independently looking after a child. Lets forget about the rights of mentally incapacitated adults and lets think about the rights of children. The rights to be born with as close to 100% genetic ability to be “normal”. The rights to have a “normal” parent(s). The right to be raised in a “normal” manner and to lead an independent and meaningful life that advantages society. There are way, way too many people on this earth already, to allow those that cannot independently raise children, to breed, is ludicrous.”110 “The sterilization is a very human solution for all mentally and physically disabled people in their early age. This would be an answer to prevent many disabled person from ongoing problems in their whole life. If I would asking to vote what to do with them, I wouldn’t hesitate to recommend the sterilization.” 111

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 37

RATIONALE 54.

The residue of this type of thinking continues to have the potential for profound and alarming consequences for girls and women with disabilities.112 As recently highlighted by Ms Rashida Mijooo, the UN Special Rapporteur on Violence against Women, its Causes and Consequences: Although society’s fear that women with disabilities will produce so-called “defective” children is for the most part groundless, such erroneous concerns have resulted in discrimination against women with disabilities from having children.113

55.

There is clear evidence to indicate that the causes of impairment are overwhelmingly social and environmental (including for example: war, poverty, environmental degradation, neglect in healthcare, poor workforce conditions, gender-based violence and harmful traditional practices)114 and only a small number are related to genetic causes.

56.

Sterilisation is not ‘a treatment of choice’ for non-disabled women and girls with genetic disorders.

FOR THE GOOD OF THE STATE, COMMUNITY OR FAMILY 57.

Arguments here centre on the ‘burden’ that disabled women and girls and their potentially disabled children place on the resources and services funded by the state and provided through the community. A related and very commonly used argument, is the added ‘burden of care’ that menstrual and contraceptive management places on families and carers.

58.

In a recent case, the Family Court of Australia authorised the sterilisation of an 11 year old girl with Rett Syndrome. The application was made by the young girl’s mother to prevent menstruation. No independent children’s lawyer was appointed to advocate for the girl, as the judge determined it would be of ‘no benefit’. In accepting “without hesitation” the evidence of Dr T, an Obstetrician and Gynaecologist, the judge said: “Undoubtedly and certainly of significant relevance is that there are hygiene issues which must fall to the responsibility of her mother because Angela cannot provide for herself….. the operation would certainly be a social improvement for Angela’s mother which in itself must improve the quality of Angela’s life.” 115

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 38

RATIONALE 59.

60.

The ‘burden’ of parents having to deal with menstrual management of their disabled daughters is often used as a valid justification when Australian Courts authorise the sterilisation of disabled females - even before the onset of puberty.116 For example, in authorising the sterilisation of a 12 year old girl in 2004, the Court accepted medical ‘evidence’ that caring for her was an “onerous responsibility” on her parents and that sterilisation would make the task of caring for her “somewhat less onerous”, including that it would “make it easier for her carers if they had one less medication to administer.” 117 In the case of Re Katie,118 the Court authorised the 15 year olds sterilisation at the onset of her menstruation, on the grounds that there would be ‘appreciable easing of the burden’ on the parents as primary carers: “It will lessen the physical burdens for the mother, in particular by decreasing the number of changes necessary in toileting, and quite possibly lessening the physical reactions, such as stiffening in body tone, which make Katie more difficult to handle during menstruation. It would lessen, for the parents, the risks of infection…..Katie’s emotional welfare is best served by her continuing to reside in the family and by the demands of her presence being lessened as much as possible, to maximise the ability of the family, in particular the mother, to cope with Katie’s needs. Thus the interests of Katie are inextricably linked with the ability of her parents to cope with the burdens of Katie’s care.”

61.

In late 2011, the Queensland Civil and Administrative Tribunal (QCAT) authorised the sterilisation of ‘HGL’, a ‘severely intellectually disabled’ 18 year old girl whose menstrual periods had commenced at the age of 17, which according to her parents, caused her ‘distress’. Although it was agreed that ‘the current hormone treatment is managing HGL’S menstruation’, a hysterectomy was authorised because: ‘there are risks that the medication will over time fail to achieve this effect and….HGL’s current impairments mean that she will not be a candidate for surgery indefinitely.’ 119

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 39

RATIONALE 62.

In the case of Re S120, a 12 year old ‘severely intellectually disabled girl’ who lived in an institution and who had not yet begun to menstruate, the Family Court granted authorisation for her to be sterilised because, according to the specialist paediatric surgeon arranged to carry out the operation: ‘it would be wiser to avoid problems rather than to wait and see if S copes with menstruation……..surely there is no need for her to suffer the problems that may arise with periodic menstruation’, which included ‘the possibility that she would develop a phobia of blood’. The judge agreed this was a ‘realistic and appropriate view’ and that ‘there is no point in the child going through the problems associated with menstruation if she is not ever to bear children’.

63.

In Re M, 121 the Family Court authorised the sterilisation of a 15 year old girl prior to the onset of menstruation upon the basis that such treatment was “necessary to prevent serious damage to the child’s health.” The rationale for this decision included that: the young girl’s mother and sister experienced ‘painful periods’ and “there is a very real risk that the same will happen to M”; that the young girl “played with her motions and played with herself” and this ‘behaviour’, coupled with menstruation, “could cause infections”. Additional reasons for the decision to sterilise M included that she was: “aggressive”; “strongwilled”; “stubborn”; had a “poor frustration tolerance”, was “unco-operative;” was “a loner” and had “few friends’’.

‘it would be wiser to avoid problems rather than to wait and see if S copes with menstruation……..surely there is no need for her to suffer the problems that may arise with periodic menstruation’, which included ‘the possibility that she would develop a phobia of blood’. The judge agreed this was a ‘realistic and appropriate view’ and that ‘there is no point in the child going through the problems associated with menstruation if she is not ever to bear children’.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 40

RATIONALE 64.

In yet another case of a young disabled girl aged 15 years who had yet to commence menstruation, sterilisation was authorised by the Family Court in support of her mother’s submission that menstruation ‘might induce a higher incidence of fits; and the sight of unexplained blood will lead to confusion and fear, which could lead to an increased incidence of fitting’. The Court also accepted the mother’s concern, which was supported by ‘medical experts’, that: ‘menstruation will be yet another hazard and perhaps mitigate against (her) chances of being adopted should the mother die.’ 122

65.

‘Bad and unruly behaviour’ associated with menstruation is another dimension in applications for, and authorisations of sterilisation of young disabled girls and women: “Dr Py. records that “staff” at the ward in which Sarah resides, have told him that she becomes a problem during her menstrual period as she has no concept of personal care, cleanliness or propriety.” 123 “Mrs M [residential care officer] said that S was the most difficult of the six children in the Villa for which she is responsible and that masturbation is a virtual constant activity of the child. It appears that if S is restrained from engaging in masturbation she reacts badly. Mrs M has difficulty in encouraging S to do basic tasks and described the child as being “among the worst” in that regard.” 124 “During the menstrual time, Katie grinds her teeth, throws tantrums, collapses her legs, she seems tired and this has caused her to miss part or whole school days……. She is extremely impatient at meal times……During the menstrual and pre-menstrual period, because of the changes to her temperament, Katie is not taken horse-riding.” 125



“Dr Py. records that “staff” at the ward in which Sarah resides, have told him that she becomes a problem during her menstrual period as she has no concept of personal care, cleanliness or propriety.” 123

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 41

RATIONALE 66.

In a 2011 application to the NSW Guardianship Tribunal, a specialist gynaecologist (Dr HJK) lodged an application to perform a sterilisation procedure on a 22 year old woman with Down Syndrome.126 In the application form Dr HJK recorded the proposed treatment, but he did not provide any details of the treatment, its consequences or provide details of complications likely to be associated with the procedure. He did record that Miss XTV has Down’s Syndrome and that “Patient becomes distressed and difficult to manage during menstruation”. The ‘behaviour management problems during menstruation’ identified by Miss XTV’s mother in the application, and supported by the gynaecologist, included that Miss XTV became ‘obsessive with possessions; exhibited anxiety at any change in circumstance and routine; regressed with self-help skills; and developed a phobia about barricades on upper floors of shopping centres’. Although the application was dismissed in 2012, the Tribunal stated: We take this opportunity to note that should the alternate procedure of the insertion of a Mirena IUCD not be carried out, or carried out but not prove effective, and/or other causes of Miss XTV’s behaviours be eliminated, the evidentiary onus required to be satisfied to give consent to endometrial ablation may be met. In those circumstances there is nothing to prevent a further application to the Tribunal for consent.

67.

In terms of the ‘burden’ on families of the care of girls and women with disabilities, lack of resources and appropriate education and support services, respite care, school and post-school options, see many families already struggling to manage the care of their girl or young woman with disabilities. Faced with the prospect of added personal care tasks in dealing with menstruation and in the limited availability or accessibility of specific reproductive health and training services (including those for menstrual management), families may well see sterilisation as the only option open to them.127 The denial of a young woman’s human rights through the performance of an irreversible medical intervention with long term physical and psychological health risks is wrongly seen as the most appropriate solution to the social problem of lack of services and support.128

68.

Evidence suggests however that menstrual and contraceptive concerns, even for women and girls with high support needs can be successfully met with approaches usually taken with non-disabled women and girls.129 Research has found that when parents and carers are given appropriate support and resources the issue of sterilisation loses potency.130

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 42

RATIONALE 69.

A diagnosis of intellectual disability does not by itself constitute a clinical reason for sterilisation. The onset of menstruation is the same in girls with and without intellectual disabilities, and girls with intellectual disabilities present with the same types of common menstrual problems as the rest of the young female population.131 Arguments for elimination of menstruation in girls and young women with disabilities are primarily about social taboos.132

70.

Sterilisation is not ‘a treatment of choice’ for non-disabled females who are approaching menstruation, who menstruate, or who experience menstrual problems. Like their non-disabled counterparts, women and girls with disabilities have the right to bodily integrity, the right to procreate, the right to sexual pleasure and expression, the right for their bodies to develop in a natural way, and the right to be parents.133

INCAPACITY FOR PARENTHOOD 71.

Australia has a history of removing children from their natural parents based on the personal characteristic of the parents, such as indigenous background or marital status. In Australia today, a parent with a disability is up to ten times more likely than other parents to have a child removed from their care.134 Courts and child protection authorities are removing children from their parents on the basis of the parent’s disability rather than actual neglect or abuse. A parent’s capacity to parent his or her child, even with full community support is not properly assessed:135 “My son was removed from my care when he was born by the department of child safety. They hadn’t assessed my abilities as a parent nor did they tell me they were going to take away my son before I gave birth. They didn’t trust me and said that they wanted to prevent me from harming my baby, even when I had done nothing wrong. No support has ever been provided to help me be a parent of my son. We got an independent assessment done and it showed that even though I have a mild intellectual impairment, my behavioural functioning is normal. Even now, I only see him every Friday and he stays overnight once a fortnight.” 136

72.

Widely held societal attitudes that disabled women cannot be effective parents mean there is pressure to prevent pregnancy in disabled women, particularly women with intellectual disabilities. Women with disabilities are typically seen as child-like, asexual or over-sexed, dependent, incompetent, passive, and genderless137 and therefore considered inadequate for the ‘nurturing, reproductive roles considered appropriate for women’.138 For women with intellectual disabilities, the label of intellectual disability per se is mistakenly taken for prima facie evidence of likely parental incapacity or risk of harm to the child.139 This is also the case for women with psychosocial impairments.140 Such incapacity is automatically deemed to be an irremediable deficiency in the parent such that it cannot be overcome.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 43

RATIONALE 73.

Incapacity for parenthood is a common theme in applications for and Court authorisations of sterilisation of disabled females in Australia: ‘It is clearly established that S is unfit to, and ought not, bear a child.’141 ‘Katie could not possibly care for a child.’ 142 ‘A pregnancy would be disastrous.’ 143 ‘It is clear that H has at least moderate intellectual disability……….she would be unable to care for a child if she were to become pregnant.’ 144 ‘It is understood and accepted that the child would never marry or enter into any relationship in which she would bear children. She is quite unable to understand the processes of conception and birth and would be quite unable to bear a child. Pregnancy would be most likely to have a highly detrimental effect upon her and should she become pregnant, for her own sake, her pregnancy would be terminated.’ 145 ‘If she were to be the victim of sexual assault, and to become pregnant, this would be a very complicated situation, both ethically and medically. The hysterectomy would remove the chance of an unwanted pregnancy and further medical complications associated with a pregnancy.’146



‘If she were to be the victim of sexual assault, and to become pregnant, this would be a very complicated situation, both ethically and medically. The hysterectomy would remove the chance of an unwanted pregnancy and further medical complications associated with a pregnancy.’146

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 44

RATIONALE 74.

There is ample evidence that many women with disabilities successfully parent happy children within our communities.147 There is no clear relationship between competence or intelligence and good parenting – in fact, more than six decades of research has demonstrated that intellectual disability per se is an unreliable predictor of parenting performance.148

INCAPACITY TO DEVELOP AND EVOLVE 75.

The determination of capacity is inextricably linked to the exercise of the right to autonomy and selfdetermination. To make a finding of incapacity results in the restriction of one of the most fundamental rights enshrined in law, the right to autonomy.149 Millions of people with disabilities are stripped of their legal capacity worldwide, due to stigma and discrimination, through judicial declaration of incompetency or merely by a doctor’s decision that the person “lacks capacity” to make a decision. Deprived of legal capacity, people are assigned a guardian or other substitute decision maker, whose consent is deemed sufficient to justify forced treatment.150

76.

Incapacity is often used as a valid justification for Court authorisation of sterilisation of disabled women and girls. Incapacity in this context, is considered to be a fixed state, with no consideration given to the possibility of capacity evolving over time: “Those who are severely intellectually disabled remain so for the rest of their lives”.151 “There is no prospect that she will ever show any improvement in her already severely retarded mental state.” 152 Katie would never be able to contribute to self-care during menstruation…… Katie is unable to understand re-production, contraception, pregnancy and birth and that inability is unlikely to change in the foreseeable future.153 Sarah is unable to understand reproduction, contraception and birth and that inability is permanent……her condition will not improve.154 ‘HGL is unlikely, in the foreseeable future, to have capacity for decisions about sterilisation.’ 155 ‘There has been no alteration in H’s capacity for eighteen months and it has been assessed that there will be no improvement in H in the future.’156

77.

Views such as these fail to acknowledge the fact that ‘incapacity’ can very often be a function of the environment and more often than not, a lack of support for the individual concerned. DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 45

RATIONALE 78.

In the case of Re Katie,157 her lack of capacity was a key consideration in the Family Court’s decision to approve her sterilisation at the age of 16. Katie was described as ‘being able to finger feed, drink out of a cup and use a spoon with assistance’ yet determined as not having ‘the cognitive capacity to understand what is required, nor does she have the motor skills necessary to take care of her needs, i.e. to change pads’. However, it was also stated that it was ‘likely that Katie will continue to make some slow progress in her development if able to participate fully in educational therapy programs. Failure to carry out the proposed surgery could significantly reduce her ability to participate in these programs.’ Paradoxically, Katie was sterilised because she had ‘lack of capacity to develop’ but also so that she might ‘develop capacity’.

79.

One of the key principles guiding the Convention on the Rights of Persons with Disabilities is ‘respect for the evolving capacities of children with disabilities’, a concept which should be seen as a positive and enabling process that supports the maturation, autonomy and self-expression of the child. Through this process, children progressively acquire knowledge, competencies and understanding. Research has shown that information, experience, environment, social and cultural expectations, and levels of support can dramatically impact the development of a child’s capacities to form a view.158

80.

It is evident however, that sterilisation is easier, quicker, and cheaper than providing the programs, services and supports to enable young disabled women and girls to ‘progressively acquire knowledge, competencies and understanding’ about their bodies, their sexuality, relationships, safety and their human rights: “the proposed operation would avoid the necessity of time-consuming and constantly repeated programmes to enable the child to acquire skills to manage her menstruation, thereby freeing her to learn important social skills which could only improve her quality of life and opportunities to lead a “normal” life.”159



“the proposed operation would avoid the necessity of time-consuming and constantly repeated programmes to enable the child to acquire skills to manage her menstruation, thereby freeing her to learn important social skills which could only improve her quality of life and opportunities to lead a “normal” life.”159 DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 46

RATIONALE 81.

The UN Special Rapporteur on Torture has recently re-iterated that the law should never distinguish between individuals on the basis of capacity or disability in order to permit sterilisation specifically of QFPQMFXJUIEJTBCJMJUJFT160 Yet in the 2009 case of Re BAH,161 a 14 year old disabled girl whose mother sought to have her sterilised prior to the onset of menstruation, the NSW Guardianship Tribunal stated: Ms BAH’s disability is clearly central to the Tribunal’s deliberations in this matter. But for Ms BAH’s intellectual disability, the Tribunal would not have given consideration to the proposed treatment.

PREVENTION OF SEXUAL ABUSE 82.

Sterilisation has been said to protect disabled women and girls from sexual abuse and the consequences of abuse.162 Indeed, ‘vulnerability to sexual abuse’ is a dominant theme in many of the applications seeking authorisation for sterilisation of disabled women and girls in Australia.163 In this context, ‘inappropriate behaviour’, and ‘good looks’ are considered major determinants of sexual activity or abuse.164

83.

For example, in the case of Re Katie,165 her ‘attractive looks’ were considered to make her more ‘vulnerable’ to sexual abuse, and formed part of the Court’s rationale for her to be sterilised at the aged of 16: “It is highly unlikely that Katie will ever have the capacity to understand and voluntarily enter into a sexual relationship..... It is however well documented that disabled children are particularly vulnerable to sexual abuse and Katie is quite an attractive girl.”



“It is highly unlikely that Katie will ever have the capacity to understand and voluntarily enter into a sexual relationship..... It is however well documented that disabled children are particularly vulnerable to sexual abuse and Katie is quite an attractive girl.”

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 47

RATIONALE 84.

Similarly, in a case166 where the Court authorised the sterilisation of a 14 year old girl prior to the onset of menstruation, the judge stated: “it is unlikely she will have any form of relationship involving sexual intercourse. She could, of course, be the victim of a sexual assault and with her normal physical development and attractive looks that cannot be discounted.

85.

In JLS v JES,167 where authorisation for sterilisation was sought for a 14 year old girl who was described as ‘extremely severely handicapped’, prevention of sexual abuse was a key factor in seeking the application. According to the Judge, the young girl’s mother ‘expressed concern at the possibility of the child becoming pregnant through sexual abuse while out of the plaintiff’s direct supervision, as would increasingly occur as she approaches adulthood. The mother expresses a moral opposition to the concept of abortion…..’ A number of ‘experts’ supporting the application identified risk of sexual abuse as ‘evidence’ of why the sterilisation should be authorised: “I do agree, especially as she is an attractive girl, that she is at great risk of pregnancy and also of pelvic infection as she develops sexual maturity.” <$POTVMUBOU/FVSPMPHJTU> “It would prevent a pregnancy, to the risk of which the child might become exposed in more social environments such as Respite Care, out of continual supervision by her mother. Having regard to her mental retardation she was incapable of communicating any symptoms relating to pregnancy. An epileptic episode during pregnancy would increase three or four times the risk of foetal abnormality.” <$POTVMUBOU0CTUFUSJDJBOBOE (ZOBFDPMPHJTU> ‘…it was unacceptable to have her exposed to the risk of becoming pregnant having regard to her mental retardation, epilepsy and condition generally.’ <$POTVMUBOU 0CTUFUSJDJBOBOE(ZOBFDPMPHJTU>

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 48

RATIONALE 86.

In other cases, the young girls’ ‘behaviour’ with men was a consideration in authorising their sterilisation prior to the onset of their menstruation: “Ever since Elizabeth was a very young child, she was prone to run to men. If her mother takes her out she will go to any man, including strangers. On many occasions in public when the mother has not been holding Elizabeth tightly, she has run over to a man who is a complete stranger and taken his arm. She shows no fear and would happily go off with any man. She has to be physically restrained from chasing after men in public and throwing her arms around them.” 168 “S is likely to wander….[she] has a preference when singling out an adult for attention for men over women and particularly for men with beards..….S is generally solitary by choice……[she] likes soft sticky textures and regularly engages in faecal smearing…….I have included the foregoing statements because they give something of an overall picture of the child. I would add that, if not common ground, it is clearly established that S is unfit to, and ought not, bear a child.” 169 “…since the onset of sexual maturity she displays an affectionate promiscuity which is the characteristic of women with intellectual disability.” 170

87.

In the case of Re S,171 sterilised at the age of 12 and described as having a ‘mental age of no greater than 1 year old’ with ‘no prospect of any improvement in her already severely retarded mental state’, the judge stated: ‘Although I agree that the risk of pregnancy, on its own, is not of sufficient likelihood as to indicate a need to submit her to a sterilisation procedure I would not dismiss the probability of sexual intercourse occurring’.



“…since the onset of sexual maturity she displays an affectionate promiscuity which is the characteristic of women with intellectual disability.” 170

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 49

RATIONALE 88.

Sterilisation as a ‘valid’ reason for prevention of sexual abuse also emerges as a strong theme in analysis of public commentary on the issue of sterilisation of disabled women and girls in Australia, as evidenced by these recent examples of public responses to newspaper articles on the issue: “My mother worked with profoundly retarded young adults some years ago and saw how easily several were ‘taken advantage of’ - she knew of three girls who were made pregnant by one repugnant ward assistant and they had to have abortions. I believe that all severely mentally retarded young females should be sterilised if nothing other than to protect them from assault - it does happen.” 172 “This happened to my sister who is profoundly disabled 15 years ago and was not the big deal that this seems to be now. have we gone backwards in 15 years. our decision to do this was less about menstral cycles and more about some sicko taking advantage of her and her having a child she was unable to look after.” 173 “It is also important to consider the possibility that this girl could be sexually assaulted and fall pregnant. If she cannot talk and is not able to communicate to anyone what has happened, her pregnancy may not be discovered until it is too late to consider options such as abortion. Surely this situation would be far more traumatic for Angela, as well as for her parents, than undergoing a hysterectomy.” 174 “Considering the possibility of some sicko taking advantage of this girl who could not give consent, and the possibility of pregnancy from such assault, as well as the easing of this child’s other suffering, this was a brave and very wise decision.” 175 “Certainly if it helps discomfort go for it and in any case surely a good idea to prevent an unwanted pregnancy at the hands of some other party. That would be an abomination for all.” 176

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 50

RATIONALE 89.

Research has demonstrated that rather than protecting against sexual abuse, forced sterilisation can increase vulnerability to sexual abuse.177 It is widely acknowledged that sexual abuse of women and girls with disabilities occurs at very high rates in our communities.178 A young woman who has been sterilised is less likely to be taught about sexuality or sexual abuse because she cannot become pregnant. Sterilisation can also inadvertently serve to cover up the sexual abuse of women with disabilities, since pregnancy is often the only clear evidence that sexual abuse has occurred. Others may know she has been sterilised and she may be seen as a safe target. On the other hand women who have been sterilised may also be assumed to be non-sexual and therefore not considered for sexual and reproductive health screening. 179

90.

*O 'BNJMZ$PVSU+VEHF +VTUJDF8BSOJDLSFKFDUFEBOBQQMJDBUJPO180 for sterilisation of Sarah, a 17 year old disabled girl whose parents had sought authorisation for her to be sterilised to prevent her being sexually abused (and potentially becoming pregnant) at a new residential facility she was due to move into. He acknowledged that the parents had “brought their application, at least in part, in reliance upon the views of ‘responsible professionals’”. In rejecting the application, Justice Warnick stated: ‘To make a decision in this case, in favour of sterilisation, would be virtually equivalent to establishing a policy that all females, with profound disabilities resembling those afflicting Sarah, should be sterilised. There is nothing substantial about the risk, nor clearly detrimental to Sarah about pregnancy, which justifies the interference with personal inviolability, unless it be that where there is any risk (as there must always be) sterilisation should occur. I cannot think that such an approach is consistent with human dignity, the fundamental nature of the right to personal inviolability, and the responsibility of the capable for the incapable.’

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 51

RATIONALE 91.

In relation to sterilisation as a justification to avoid the risk of pregnancy as a result of sexual abuse, Justice Brennan, in In re JWB [“Marion’s Case”],181 said, in part: “Depending on the circumstances, the use - or, a fortiori, the exploitation - of the sexual attributes of a female child may entail tragic consequences, yet the risk or even the likelihood of tragic consequences affords no justification for her sterilization. What difference does it make that the risk is occasioned by an intellectual disability?............. To accord in full measure the human dignity that is the due of every intellectually disabled girl, her right to retain her capacity to bear a child cannot be made contingent on her imposing no further burdens, causing no more anxiety or creating no further demands. If the law were to adopt a policy of permitting sterilization in order to avoid the imposition of burdens, the causing of anxiety and the creating of demands, the human rights which foster and protect human dignity in the powerless would lie in the gift of those who are empowered and the law would fail in its function of protecting the weak.” “Where it is desirable to avoid the risk of pregnancy, the risk may be avoidable by means which involve no invasion of the girl’s personal integrity. Those who are charged with responsibility for the care and control of an intellectually disabled girl (by which I mean a female child who is sexually mature) - whether parents, guardians or the staff of institutions - have a duty to ensure that the girl is not sexually exploited or abused. If her disability inclines her to sexual promiscuity, they have a duty to restrain her from exposing herself to exploitation. It is unacceptable that an authority be given for the girl’s sterilisation in order to lighten the burden of that duty, much less to allow for its neglect. In any event, though pregnancy be a possibility, sterilisation, once performed, is a certainty……….Such a situation bespeaks a failure of care, and sterilisation is not the remedy for the failure. Nor should it be forgotten that pregnancy and motherhood may have a significance for some intellectually disabled girls quite different from the significance attributed by other people. Though others may see her pregnancy and motherhood as a tragedy, she, in her world, may find in those events an enrichment of her life.”

92.

Sterilisation will never overcome vulnerability to sexual abuse. Sexual assault is a problem for all women, including young women with intellectual disabilities and it demonstrates the need for the development of targeted and gendered educational, protective behaviour, and violence prevention programs for disabled women and girls. Women and girls with disabilities, like all women and girls, have a human right to live free from violence, abuse, exploitation and neglect.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 52

RATIONALE THE ‘BEST INTEREST’ ARGUMENT 93.

Successive Australian Governments have continued to use the ‘best interest’ argument to justify the torture of women and girls with disabilities by forced sterilisation, asserting that sterilisation is only ever carried out as a ‘last resort’ and when it is in the girl or woman’s ‘best interests’. 182

94.

The best interest approach has, in effect, been used to perpetuate discriminatory attitudes against women and girls with disabilities, and has only served to facilitate the practice of forced sterilisation.183 When analysing the applications to Courts and Tribunals for sterilisation of disabled women and girls in Australia to date, it is clear that the best interest approach has in reality, very little to do with the young girl or woman, and more to do with the ‘best interests’ of others, particularly families and caregivers. “The interests of Katie are inextricably linked with the ability of her parents to cope with the burdens of Katie’s care.” 184 “This Court does not find itself in any doubt that the practical lessening of such burdens on the parents, the emotional and psychological relief coming to them from the expected removal, in a final sense, of problems in their daughter’s life, and the betterment of the whole of their family circumstances, can only result in a material and significant improvement in the present and long term welfare of the child.” 185 “The operation would certainly be a social improvement for Angela’s mother which in itself must improve the quality of Angela’s life.” 186 “There is evidence in the case which suggests that interests have been seriously affected by the long time and intense concentration by his parents on the need to provide special care for his sister……This is but another example of the requirement of assessing the child’s position, not in isolation but in the family context. It is most likely that relieved of the need, to implement, maintain and monitor the sort of programmes envisaged for the child if she does not undergo hysterectomy, his parents can increase and intensify their efforts to increase his quality of life and his psychological development.” 187

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 53

RATIONALE “It is probable that H’s parents, who clearly are charged with and undertake the day to day onerous responsibility of caring for H may find that task somewhat less onerous if H undergoes a hysterectomy…..The Court accepts that the sole motivation of the parents is the welfare of H. Even so, it is somewhat simplistic to ignore the reality that the parents undertaking the care of a child such as H ought not be obliged to shoulder difficulties and burdens beyond those which are needlessly onerous. The test is not the best interests of the parents but of H, but, assisting her parents to care for H must be seen as realistically enhancing the care H receives and corresponding enjoyment of life which she may expect.” 188 “Not only would S be unable to care appropriately for herself it would also be difficult for others to care for her as a result of menstruation.” 189



“It is probable that H’s parents, who clearly are charged with and undertake the day to day onerous responsibility of caring for H may find that task somewhat less onerous if H undergoes a hysterectomy…..The Court accepts that the sole motivation of the parents is the welfare of H. Even so, it is somewhat simplistic to ignore the reality that the parents undertaking the care of a child such as H ought not be obliged to shoulder difficulties and burdens beyond those which are needlessly onerous. The test is not the best interests of the parents but of H, but, assisting her parents to care for H must be seen as realistically enhancing the care H receives and corresponding enjoyment of life which she may expect.” 188

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 54

RATIONALE “While we’re not concerned so much about the abuse side of things now, if she ever went to a group home or any institution we just we want her safe. I don’t think there’s any guarantees, even though the hysterectomy wouldn’t necessarily stop abuse, it might stop the consequences of it, or possible consequences of it and we just feel as well that we’re getting that little bit older, Laura’s getting quite big, she’s hard to handle. She’s got a brother and sister and I don’t want to leave them the problems. I don’t want them to feel that they’ve got that problem later on, of having to be worried about that sort of thing, they’ve got their own lives to live”.190 “It is clear upon the evidence that, because of this strong and determined will in this child, all the more difficult because it is unreasoning and because of the child’s increasing strength and the fact that the mother is getting older, M will be harder and harder to deal with.” 191 95.

The UN Committee on the Rights of the Child (CRC) has made it clear that the principle of the ‘best interests of the child’ cannot be used to justify practices which conflict with the child’s human dignity and right to physical integrity: “The Committee emphasizes that the interpretation of a child’s best interests must be consistent with the whole Convention, including the obligation to protect children from all forms of violence. It cannot be used to justify practices, including corporal punishment and other forms of cruel or degrading punishment, which conflict with the child’s human dignity and right to physical integrity. An adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention.” 192

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 55

RATIONALE 96.

The UN Special Rapporteur on Torture has also made it clear that ‘best interest’ and ‘medical necessity’ are no justification for forced/involuntary sterilisation of disabled women and girls: 193 The doctrine of medical necessity continues to be an obstacle to protection from arbitrary abuses in health-care settings. It is therefore important to clarify that treatment provided in violation of the terms of the Convention on the Rights of Persons with Disabilities – either through coercion or discrimination – cannot be legitimate or justified under the medical necessity doctrine. The Special Rapporteur recognizes that there are unique challenges to stopping torture and ill-treatment in health-care settings due, among other things, to a perception that, while never justified, certain practices in health-care may be defended by the authorities on the grounds of administrative efficiency, behaviour modification or medical necessity….. The mandate has recognized that medical treatments of an intrusive and irreversible nature, when lacking a therapeutic purpose, may constitute torture or ill-treatment when enforced or administered without the free and informed consent of the person concerned. This is particularly the case when intrusive and irreversible, non-consensual treatments are performed on patients from marginalized groups, such as persons with disabilities, notwithstanding claims of good intentions or medical necessity. For example, the mandate has held that….. the administration of non-consensual medication or involuntary sterilization, often claimed as being a necessary treatment for the so-called best interest of the person concerned, when committed against persons with psychosocial disabilities, satisfies both intent and purpose required under the article 1 of the Convention against Torture, notwithstanding claims of “good intentions” by medical professionals.



The doctrine of medical necessity continues to be an obstacle to protection from arbitrary abuses in health-care settings. It is therefore important to clarify that treatment provided in violation of the terms of the Convention on the Rights of Persons with Disabilities – either through coercion or discrimination – cannot be legitimate or justified under the medical necessity doctrine. DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 56

RATIONALE 97.

In 1986 the Canadian Supreme Court ruled in Re Eve194 that a sterilisation could not be performed on someone who cannot give consent – that no one (not even the Court) can consent on their behalf. This resulted in a blanket prohibition of non-voluntary sterilisation. The court reasoned that it can never “safely be determined that a procedure such as sterilisation is for the benefit of the person considering the grave intrusion on their rights and the physical damage that ensues from the non-voluntary sterilisation without consent, when compared to the highly questionable advantages that can result.”

98.

In making judgements about best interests it is crucial then, that we are clear about whose best interests are really at stake.195 We need to be clear about whether ‘best interests’ is judged according to human rights principles or whether the judgement is about the ‘best compromise between the competing interests’ of parents, carers, service providers and policy makers. To really determine ‘best interest’ for women and girls with disabilities it is crucial to focus on the fact that a person will be subjected to an irreversible medical procedure with life-long consequences without free and informed consent.196

99.

Medical professionals are often very influential in the decision to sterilise disabled women and girls. The propensity of Courts and parents to value medical opinion above all else – and in many cases elevating opinions and assertions to the status of fact - has the effect of reducing the ‘best interests’ of disabled XPNFOBOEHJSMTUPUIFŌCFTUXBZTōPGDPOUSPMMJOHBOENBOBHJOH their unruly bodies and ‘behaviour’.197 Yet these judgements are made from a particular perspective which must be vigorously challenged – that the woman or girl with a disability is essentially the sum of her biology or her psychology and her human right to bodily integrity is less important than controlling her body and her behaviour.198 As former Justice Michael Kirby pointed out at a recent International Conference on Adult Guardianship: ‘the fact is that most of the judges charged with this task [determining authorisations for sterilisation of disabled girls and women] were atypical, privileged and elderly males. The rules therefore tended to reflect their gender, class, education, means and life experience.’ 199

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 57

THE IMPACT

THE IMPACT 100.

In Marion’s Case,200 Justice Brennan, said: Human dignity requires that the whole personality be respected: the right to physical integrity is a condition of human dignity but the gravity of any invasion of physical integrity depends on its effect not only on the body but also upon the mind and on selfperception. In assessing the significance of sterilization of a female child, it is erroneous to have regard only to the physical acts of the anaesthetist and surgeon…..and to the physiological consequences. Regard must also be had to the disturbance of the child’s mind and the emotional aftermath of the sterilization and a comparison must be made between her self-perception when sterilized and the perception she would have had of herself if she had been permitted to live with her natural functions intact.

101.

However, the blatant disregard for the long-term negative impact and effects of forced sterilisation on women and girls with disabilities is clearly evident in the cases that have proceeded to legal judgment in Australia, where, the opinion of the medical specialist is ‘authoritative’ and sterilisation is characterised as a ‘simple’ and ‘common’ procedure. In a technical sense it is portrayed as inconsequential and of minimum risk. In a social sense (from a medical perspective) it offers a final solution to a myriad of problems potentially encountered because of disability.201 The social and psychological effects on the disabled female are deemed irrelevant: “There is unlikely to be any psychological impact of the procedure on H as she has no understanding of the nature of the procedure.” 202 “The longer term consequences are less relevant despite the irreversibility of the procedure because as I have earlier mentioned, Angela is never going to have the benefits of a normal teenage and adult life.” 203 “There would be no long-term social or psychological effects of hysterectomy.” 204

102.

Crucially, the voices of the women and girls with disabilities who have been the subject of these applications, judgements, laws and debates, have not been heard.



“The longer term consequences are less relevant despite the irreversibility of the procedure because as I have earlier mentioned, Angela is never going to have the benefits of a normal teenage and adult life.” 203 DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 59

THE IMPACT 103.

It is widely recognised that whatever the context, forced sterilisation has long lasting physical and psychological effects, permanently robbing women of their reproductive capabilities and causing severe mental pain and suffering, extreme psychological trauma, including depression and grief.205 The removal of such a basic bodily function as the ability to reproduce seriously disrupts women’s physical well-being and violates their physical integrity and bodily autonomy. As highlighted by Sifris:206 In the context of sterilising people with intellectual disabilities, studies suggest that many people with an intellectual disability understand the effects of sterilisation, maintain negative feelings towards the procedure, and (as occurs in people without an intellectual disability) exhibit signs of ‘depression, sexual insecurity, symbolic castration and regret over loss of child-bearing ability.’ Further, the view has been expressed that most people with an intellectual disability ‘can understand the implications of sterilization’ and that ‘sterilizing mentally handicapped people [sic] against their will can produce serious and significant psychological damage.’ In addition, sterilisation of women with intellectual disabilities has also been associated with loss of self-esteem, increased anxiety, degraded status and perception of the self as deviant.

104. Women with disabilities have spoken207 about forced sterilisation as a life sentence, as loss and betrayal, and of the health effects they can anticipate: “I was devastated when my doctor advised me that the previous surgeon had done more than tie my tubes. He had actually removed parts of my reproductive system that could never be replaced……I was shocked and furious.” “Because I have had important parts of my body taken away it is hard to find out what is really going on in my body.” “We have the right to control what happens to our own bodies.”



“I was devastated when my doctor advised me that the previous surgeon had done more than tie my tubes. He had actually removed parts of my reproductive system that could never be replaced……I was shocked and furious.”

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 60

THE IMPACT “Because I will not go through obvious menopause, in my culture that means I have no marker for becoming an ‘elder’.” “Surgery of a healthy body is mutilation.” “I am…taking a big risk on behalf of myself and my family in speaking up. I would like to know what is being done for us who have had this done twenty or thirty years ago? I don’t have an intellectual disability and it was done before I started having a period. What research is being done to help us who were young children that went through this, and when we go through menopause? It can affect our health in the future. I think of this as my real disability – the physical one that you see isn’t real – the one I had happen to me when I was 12 is the main one and I don’t have anyone to turn to.” “It has resulted in loss of my identity as a woman, as a sexual being.” “I have been denied the same joys and aspirations as other women.” “It stops us from having children if we want to.” “I worry about the future health effects like osteoporosis and other problems.” “The fact that services are not there is no reason for sterilisation.” “Sterilisation takes my choice away.” “I’m angry.” “I want to experience a period.”



“Because I will not go through obvious menopause, in my culture that means I have no marker for becoming an ‘elder’.”

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 61



THE IMPACT “Sterilization is a terrible thing to do to a woman. They had no right to do that to me. They never ask you about it. They told me that it was just for my appendix and then they did that to me.” “If they’d told the truth and asked me, I would have shouted ‘No!’ My sterilisation makes me feel I’m less of a woman when I have sex because I’m not normal down there……. When I see other mums holding their babies, I look away and cry because I won’t ever know that happiness.” “Sterilisation takes away your womanhood.” “I do want to have children but I can’t now.” “I got sterilised at 18, my mum said I had to – she said that if I ever had a child, she’d probably have to help look after it. She said: “I went through hell bringing you up and I will not do it again”. It’s more than 30 years now since I was sterilised and the pain is still unspeakable. It is the biggest regret of my life.” “For me it has meant a denial of my womanhood.” “I was sterilised and I wasn’t ever told when I was getting it done. The specialist told mum about it but I didn’t know I’d had it done until I was 18.” “I have always had a fear of speaking out about it – it’s been very isolating.” “I want to help others who don’t have a voice, to stop it happening to them – I feel powerless to do that.” “I have been raped.”

“I got sterilised at 18, my mum said I had to – she said that “It is a basic disrespect of our beliefs in how we should live our lives.”

if I ever had a child, she’d probably have to help look after it. She said: “I went through hell bringing you up and I will not do it again”. It’s more than 30 years now since I was sterilised and the pain is still unspeakable. It is the biggest regret of my life.” DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 62

THE IMPACT “I will have no way of knowing about the onset of my menopause.” “I know it has resulted in hormone changes in my body that wouldn’t have happened otherwise.” “It can lead to the break-up of relationships.” “I was what I call, ‘socially sterilised’ – I had the operation when I was a young woman because growing up I had been brainwashed to believe that disabled women like me can’t be mothers. I would have loved to be a mother. There are of course, no proper words to describe the loss, the guilt, the regret and the pain I feel every day.” “Other people don’t understand what it means in your life and it’s very hard to explain that to people.” “Other women don’t understand what its like for us – it sets us apart from them.” “For me it is about living with loss.” “It really affects my self esteem.” “It has stopped me having a normal life.” “Its about loss of control.” “For me it has meant a loss of trust – especially of doctors – those who women with disabilities often have to place their trust.” “I have a blockage of emotions.”



“For me it has meant a loss of trust – especially of doctors – those who women with disabilities often have to place their trust.”

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 63

THE IMPACT “It’s a great emotional upheaval.” “I feel alone and isolated.” “The pain is hard to bear.” “I have a fear of not being seen as a sexual identity – of sexual rejection.” “I have feelings of rejection.” “There is no information available for us.” “There are not enough services or people to listen.” 105.

Women with disabilities have also spoken208 about what needs to happen to enable healing to take place for those already affected, and for safeguards to be put in place to prevent others from experiencing this form of torture and from being denied their fundamental human rights: “There needs to be better explanations for women.” “We need to be given more information about our body.” “We need to have information about the whole process and what it means so that we can make an informed choice.” “We need to build a data base on health issues specifically for women who have been sterilised.” “It time people started to listen! And do what we want.”



“We need to have information about the whole process and what it means so that we can make an informed choice.”

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 64

THE IMPACT “It’s absolutely necessary to empower women with disabilities to make decisions.” “Let us be in charge of our own bodies.” “Women with disabilities need to have more involvement in the investigation stage so we can say what we want.” “We need to start support groups for women who this has happened to.” “We have to encourage self-advocacy – help women with intellectual disability to say what they want in their lives.” “We have to provide individuals with proper support to make the right decision for them.” “Educate professionals especially doctors and support workers so that they understand how it can affect our lives.” “We must change doctors’ attitudes.” “It is important that we educate the appropriate people to listen to women with disabilities in the investigation process.” “We need to see a change in attitude.” “We have to publicise the issue through public seminars and debates.” “We must help services listen better to the issues for women with disabilities.” “We need to educate all the services that have a role to play in making this happen.”



“It is important that we educate the appropriate people to listen to women with disabilities in the investigation process.”

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 65

THE IMPACT “We need to educate the community, to get them to see it is about the lives of women with disabilities.” “We need to be changing education at all levels.” “We have to break the silence about what has happened.” “We must make sure the voices of women with disabilities are heard at international and UN conventions.” “We have to change the law so that it stops happening.” “We need to send a message to politicians that sterilisation is about women with disabilities and how they live their lives.” 106.

For women with disabilities, the issue of forced sterilisation encompasses much broader issues of reproductive health, including for example: support for choices and services in menstrual management, contraception, abortion, sexual health management and screening, pregnancy, birth, parenting, menopause, sexuality, violence prevention and more. Research has clearly shown that, particularly for women with intellectual disabilities, attitudes toward sexual expression remain restrictive. Women with disabilities express desires for intimate relationships but report limited opportunities and difficulty negotiating relationships. Sexual knowledge in women with disabilities, particularly those with intellectual disabilities, has been shown to be poor and access to education limited. In addition, laws addressing sexual exploitation may be interpreted as prohibition of relationships.209 Women with disabilities have spoken210 about the impact of all these issues on their lives, for example: “In (my institution) you were not allowed to be with a man. You got into trouble. It’s not right.” “Persons who reside in institutions are being denied their basic human rights to freedom, privacy and sexuality.”



“We need to send a message to politicians that sterilisation is about women with disabilities and how they live their lives.”

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 66

THE IMPACT “I’m not allowed to have a boyfriend.” “We want information about relationships and having babies.” “Is menstrual flow any more of a problem than incontinence?” “I have known of cases where girls have been given the wrong information by cruel nursing staff and have spent years thinking they are incapable of having intercourse, much less bearing a child.” “A strange man once tried to kiss me in a lift. I said “please don’t do that”. I should have hit him, or told him to fuck off, but I have had my disability all my life, and I have been taught well not to be angry when my personal space, my body, my emotional integrity have been violated. So I said “please don’t do that” and later I cried…..” “Disabled people are just not seen as sexual beings with sexual needs and feelings.” “Many women with disabilities who are raped are too scared to go to the police in case they will not be believed.” “People don’t tell us about sex.” “Jean lived in the dormitory next door to mine. She was going with her boyfriend, Simon, who lived in a separate part of the same institution and was sometimes permitted to go across the courtyard to visit him. One day, they were caught petting in a seldom-used back room and they were forbidden to see each other thereafter. They were both over the legal age of consent and were doing nothing wrong by normal social standards.”



“I have known of cases where girls have been given the wrong information by cruel nursing staff and have spent years thinking they are incapable of having intercourse, much less bearing a child.” DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 67

THE IMPACT “It seems that periods are sometimes suppressed for the convenience of care givers, support persons and services.” “If you go in a group home that’s run by like, a religious organisation, you’re not allowed to have a boy come over. You’re not allowed to even kiss a boy let alone have sex. If you wanted to have sex you would have to go maybe to the park or somewhere.” “There is a glaring lack of in-home assistance and support for families supporting a woman learning about menstruation.” “Having your period gives a context for others to decide why you have to be on contraceptives.” “Sexuality is not just sexual intercourse. It is much, much more than just the physical act of having sex. Our sexuality is as much a part of us as our clothes-sense, our favourite foods and our personal style. Our need to love and be loved is as vital to our wellbeing as our need to eat, drink and breathe. To deny our sexuality is to deny that we are whole human beings.” “Sexuality within institutional accommodation should not even be an issue. Privacy and freedom are not privileges to be granted or taken away. They are our basic human rights. Just as people who run the institutions would not appreciate their own sex life to be regulated by a stranger, nor do we. What we do in our own rooms, and who we do it with, is not the business of staff, administration the milkman, or anyone else.”



“Sexuality is not just sexual intercourse. It is much, much more than just the physical act of having sex. Our sexuality is as much a part of us as our clothes-sense, our favourite foods and our personal style. Our need to love and be loved is as vital to our wellbeing as our need to eat, drink and breathe. To deny our sexuality is to deny that we are whole human beings.” DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 68

VIOLATION

VIOLATION OF HUMAN RIGHTS FORCED STERILISATION AS A VIOLATION OF HUMAN RIGHTS 107.

Since 2005, United Nations treaty monitoring bodies have consistently and formally recommended that the Australian Government enact national legislation prohibiting, except where there is a serious threat to life or health, the use of sterilisation of girls, regardless of whether they have a disability, and of adult women with disabilities in the absence of their fully informed and free consent.211 Successive Australian Governments have to date, failed to do so, despite the current Government’s assertion that: Australia is proud of its historical role in the drafting and development of international human rights instruments. Government initiatives since 2007 demonstrate its commitment to engaging with the UN and affirm Australia’s longstanding commitment to the international protection of human rights…. The Government expects public sector officials to act consistently with international treaties to which Australia is a party….212

108.

The Australian Government is in violation of international human rights law by allowing women and girls with disabilities to be sterilised in the absence of their free and informed consent. Among the fundamental rights governments are required to respect, protect, and fulfill are: the right to be free from torture, and cruel, inhuman, or degrading treatment or punishment; the right to the highest attainable standard of physical and mental health; the right to life, liberty, and security of person; the right to equality; the right to non-discrimination; the right to be free from arbitrary interference with one’s privacy and family; and the right to marry and to found a family.213

109.

Forced sterilisation clearly breaches every international human rights treaty and declaration to which Australia is a party.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 70

VIOLATION OF HUMAN RIGHTS FORCED STERILISATION OF PERSONS WITH DISABILITIES VIOLATES THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES (CRPD) 110.

The Convention on the Rights of Persons with Disabilities (CRPD), ratified by Australia in 2008, offers the most comprehensive and authoritative set of standards on the rights of people with disabilities. Its fundamental purpose is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.214

111.

The CRPD mandates States Parties to recognise that persons with disabilities enjoy legal capacity on an equal basis with others. This means that an individual’s right to decision-making cannot be substituted by decision-making of a third party, but that each individual without exception has the right to make their own choices and to direct their own lives, whether in relation to living arrangements, medical treatment, or family relationships.

112.

Among other things, the CRPD also mandates States Parties to: protect persons with disabilities from violence, exploitation and abuse (including the gender-based aspects of such violations); ensure that persons with disabilities are not subjected to arbitrary or unlawful interference with their privacy and family, including in all matters relating to marriage, family, parenthood and relationships; guarantee persons with disabilities, including children, the right to retain their fertility; take measures to ensure women and girls enjoy the full and equal enjoyment of their human rights; prevent people with disabilities from being subject to torture, or cruel, inhuman or degrading treatment or punishment; prohibit involuntary treatment and involuntary confinement; and, ensure the right of people with disabilities to the highest attainable standard of health without discrimination.

113.

The Committee on the Rights of Persons with Disabilities215 has clearly identified that forced and coerced sterilisation of women and girls with disabilities (as well as discrimination in other areas of their reproductive rights) is in clear violation of multiple provisions of the CRPD.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 71

VIOLATION OF HUMAN RIGHTS 114.

In its Concluding Observations on Spain,216 the CRPD Committee expressed its concern that ‘persons with disabilities whose legal capacity is not recognized may be subjected to sterilization without their free and informed consent’. It urged the State party to abolish the administration of medical treatment, in particular sterilization, without the full and informed consent of the patient; and ensure that national law especially respects women’s rights under articles 23 and 25 of the Convention. The Committee also urged the State party to ensure that the informed consent of all persons with disabilities is secured on all matters relating to medical treatment; and made several recommendations regarding the need to address violence against women with disabilities and children.

115.

In its 2012 Concluding Observations on Peru,217 the CRPD Committee expressed its deep concern at the forced sterilisation of people with ‘mental disabilities’ and urged the State party to abolish administrative directives on forced sterilization of persons with disabilities. It also made strong recommendations for the State party to take action to replace regimes of substitute decision-making by supported decisionmaking, ‘which respects the person’s autonomy, will, and preferences’. The need to accelerate efforts to eradicate and prevent discrimination against women and girls with disabilities, was also recommended.

116.

In late September 2012, the CRPD Committee released its Concluding Observations on China, 218 expressing its deep concern at the practice of forced sterilization and forced abortion on women with disabilities without free and informed consent, and calling on the State party to revise its laws and policies in order to prohibit these practices. The Committee also made strong recommendations around the prevention of violence against disabled women and girls, in particular the incidents of women and girls with intellectual disabilities being subjected to sexual violence. In addition, the Committee urged the state party to adopt measures to repeal the laws, policies and practices which permit guardianship and trusteeship for adults and take legislative action to replace regimes of substituted decision-making by supported decision making.

117.

In its Concluding Observations on Hungary,219 in 2012, the CRPD Committee called upon the State party to take appropriate and urgent measures to protect persons with disabilities from forced sterilisation, to take appropriate measures to enable men and women with disabilities who are of marriageable age to marry and found a family, and to adopt measures to ensure that health care services are based on the free and informed consent of the person concerned. It also recommended that the State party take immediate steps to derogate guardianship in order to move from substitute decision-making to supported decision-making, including with respect to the individual’s right, on their own, to give and withdraw informed consent for medical treatment, to access justice, to vote, to marry, to work, and to choose their place of residence. The need to address and prevent multiple forms of discrimination of women and girls with disabilities, including violence and abuse, were also recommended.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 72

VIOLATION OF HUMAN RIGHTS 118.

In its Concluding Observations on Tunisia,220 the CRPD Committee expressed its concern the lack of clarity concerning the scope of legislation to protect persons with disabilities from being subjected to treatment without their free and informed consent, and specifically recommended the ‘State party incorporate into the law the abolition of surgery and treatment without the full and informed consent of the patient, and ensure that national law especially respects women’s rights under article 23 and 25 of the Convention.’ The Committee also recommended that the State party design and implement awareness-raising campaigns and education programmes throughout society….on women with disabilities in order to foster respect for their rights and dignity; combat stereotypes, prejudices and harmful practices; and promote awareness of their capabilities and contributions.

FORCED STERILISATION OF PERSONS WITH DISABILITIES VIOLATES THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 119.

Australia ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1989. CAT emphasises that gender is a key factor in implementation of the Convention.221 Discrimination plays a prominent role in an analysis of reproductive rights violations as forms of torture or ill-treatment because sex and gender bias commonly underlie such violations. The mandate has stated, with regard to a gender-sensitive definition of torture, that the purpose element is always fulfilled when it comes to gender-specific violence against women, in that such violence is inherently discriminatory and one of the possible purposes enumerated in the Convention is discrimination.222 The right to be free from torture and cruel, inhuman or degrading treatment or punishment carries with it non-derogable state obligations to prevent, punish, and redress violations of this right.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 73

VIOLATION OF HUMAN RIGHTS 120.

Forced sterilisation constitutes torture.223 The UN Special Rapporteur on Torture has clarified that forced sterilisation satisfies the definition of torture contained in Article 1 of the CAT,224 and has emphasised that forced sterilisation constitutes a crime against humanity when committed as part of a widespread or systematic attack directed against any civilian population.225 In February 2013, (as outlined earlier in this paper), the UN Special Rapporteur on Torture clarified that: Forced interventions [including involuntary sterilization], often wrongfully justified by theories of incapacity and therapeutic necessity inconsistent with the Convention on the Rights of Persons with Disabilities, are legitimized under national laws, and may enjoy wide public support as being in the alleged “best interest” of the person concerned. Nevertheless, to the extent that they inflict severe pain and suffering, they violate the absolute prohibition of torture and cruel, inhuman and degrading treatment.226

121.

In reviewing States parties compliance with CAT, the Committee Against Torture is increasingly recognising forced sterilisation and medical interventions on people with disabilities in the absence of their free and informed consent, as violations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.



Forced interventions [including involuntary sterilization], often wrongfully justified by theories of incapacity and therapeutic necessity inconsistent with the Convention on the Rights of Persons with Disabilities, are legitimized under national laws, and may enjoy wide public support as being in the alleged “best interest” of the person concerned. Nevertheless, to the extent that they inflict severe pain and suffering, they violate the absolute prohibition of torture and cruel, inhuman and degrading treatment.226

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 74

VIOLATION OF HUMAN RIGHTS 122.

In its 2013 Concluding Observations on Peru,227 the Committee Against Torture recommended that the State party accelerate all current investigations related to forced sterilization, initiate prompt, impartial and effective investigations of all similar cases and provide adequate redress to all victims of forced sterilization. In addition, it recommended that State party urgently repeal the suspended administrative decree which allows the forced sterilization of persons with mental disabilities.

123.

The Committee Against Torture’s Concluding Observations of the Czech Republic,228 in 2012, dealt in detail with the issue of forced sterilisation. It recommended that the State party investigate promptly, impartially and effectively all allegations of involuntary sterilization of women, extend the time limit for filing complaints, prosecute and punish the perpetrators and provide victims with fair and adequate redress, including adequate compensation and rehabilitation.

124.

In its 2009 Concluding Observations on Slovakia,229 the Committee Against Torture recommended that the State party take urgent measures to investigate promptly, impartially, thoroughly, and effectively, allegations of involuntary sterilisation of women, prosecute and punish the perpetrators, and provide the victims with fair and adequate compensation.

FORCED STERILISATION OF PERSONS WITH DISABILITIES VIOLATES THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW) 125.

Australia made a formal agreement to be legally bound by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1983, and in so doing, became legally obliged to respect, protect, promote and fulfil the right to non-discrimination for women and to ensure the achievement of equality between men and women. CEDAW requires States parties to take additional, special measures for women subjected to multiple forms of discrimination, including women and girls with disabilities. 230

126.

CEDAW specifically provides for a proper understanding of maternity as a social function, access to family planning information, and the elimination of discrimination against women in marriage and family relations. Furthermore, CEDAW mandates that women be provided the same rights to decide freely on the number and spacing of their children and to have access to the information, education and means to enable them to exercise those rights. 231

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 75

VIOLATION OF HUMAN RIGHTS 127.

The CEDAW Committee has clearly articulated the link between forced sterilisation and violation of the right to reproductive self-determination noting that ‘compulsory sterilization…adversely affects women’s physical and mental health, and infringes the right of women to decide on the number and spacing of their children’.232 In addition, the Committee characterises forced sterilisation as a form of violence against women, and directs States to ensure that forced sterilisations do not occur.233

128.

In its 2012 Concluding Observations on Chile,234 the CEDAW Committee expressed its concern about reported cases of involuntary sterilization of women, and recommended that the State party ensure that fully informed consent is systematically sought by medical personnel before sterilizations are performed, that practitioners performing sterilizations without such consent are sanctioned and that redress and financial compensation are available for women victims of non-consensual sterilization. The Committee also recommended that the State party provide adequate access to family planning services and contraceptives.

129.

The CEDAW Committee’s Concluding Observations on Jordan,235 in 2012, clearly detailed the Committee’s ongoing concern at the practice of forced sterilisation of women and girls with ‘mental disabilities’, as well as its concern at the absence of a comprehensive law protecting women with mental disabilities from forced sterilization. The Committee urged the State party to adopt a comprehensive law protecting women, in particular girls with mental disabilities, from forced sterilization, and to ensure that the State party intensify its efforts in providing social and health services support to families with girls and women with disabilities.

130.

In its 2012 Concluding Observations on Comoros,236 the CEDAW Committee recommended that the State party put in place a comprehensive strategy to eliminate harmful practices and stereotypes that discriminate against women, and that such a strategy should include concerted efforts to educate and raise public awareness about this subject.

131.

As highlighted elsewhere in this paper, in 2010, the CEDAW Committee expressed concern in its Concluding Observations on Australia237 at the ongoing practice of non-therapeutic sterilisations of women and girls with disabilities and recommended that the Australian Government enact national legislation prohibiting, except where there is a serious threat to life or health, the use of sterilisation of girls, regardless of whether they have a disability, and of adult women with disabilities in the absence of their fully informed and free consent.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 76

VIOLATION OF HUMAN RIGHTS 132.

In its Concluding Observations on the Czech Republic238 in 2010, the CEDAW Committee made detailed recommendations regarding forced sterilisation of women with disabilities. The Committee urged the State party to: adopt legislative changes clearly defining the requirements of free, prior and informed consent with regard to sterilizations, in accordance with relevant international standards, including a period of at least seven days between informing the patient about the nature of the sterilization, its permanent consequences, potential risks and available alternatives and the patient’s expression of her free, prior and informed consent; review the three-year time limit in the statute of limitations for bringing compensation claims in cases of coercive or non-consensual sterilizations in order to extend it and, as a minimum, ensure that such time limit starts from the time of discovery of the real significance and all consequences of the sterilization by the victim rather than the time of injury; consider establishing an ex gratia compensation procedure for victims of coercive or non-consensual sterilizations whose claims have lapsed; provide all victims with assistance to access their medical records; and investigate and punish illegal past practices of coercive or non-consensual sterilizations. The Committee further recommended that the State party adopt a law on women’s reproductive rights; that clarified that all interventions are performed only with the woman’s free, prior and informed consent. Mandatory training for all health professionals on women’s reproductive rights and related ethical standards was also recommended.

133.

In 2006, the CEDAW Committee issued a view finding Hungary in violation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), for its failure to protect the reproductive rights of Ms. Andrea Szijjarto, a Hungarian Romani woman was subjected to coerced sterilisation by medical staff at the public hospital in Fehérgyarmat.239 The CEDAW Committee found that the ‘failure of the State party, through the hospital personnel, to provide appropriate information and advice on family planning’ constituted a violation of Articles 10, 12, and 16 of CEDAW. Similarly, the State of Hungary was responsible for the hospital’s failure to obtain informed consent and the deprivation of the woman’s right to decide the number and spacing of her children in violation of CEDAW.240 Therefore, the CEDAW Committee held the State of Hungary responsible for an involuntary sterilisation procedure performed in one of its public hospitals. The Committee subsequently recommended that Hungary provide Ms. Szijjarto with appropriate compensation. More generally, the Committee recommended that Hungary: ‘take further measures to ensure that the relevant provisions of the Convention and the pertinent paragraphs of the Committee’s general recommendations Nos. 19, 21 and 24…are known and adhered to by all relevant health professionals; review domestic law on informed consent in sterilization cases and ensure conformity with international standards; and monitor health centres performing sterilizations so as to ensure fully informed consent is being given, with sanctions in place for breaches.’ The decision marks the first time that an international human rights body in an individual complaint has held a government accountable for failing to provide necessary information to a woman to enable her to give informed consent to a reproductive health procedure.241

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 77

VIOLATION OF HUMAN RIGHTS FORCED STERILISATION OF PERSONS WITH DISABILITIES VIOLATES THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) 134.

The International Covenant on Civil and Political Rights (ICCPR) ratified by Australia in 1980, commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, family rights, electoral rights and rights to due process and a fair trial. Article 3 implies that all human beings should enjoy the rights provided for in the Covenant, on an equal basis and in their totality.

135.

136.

137.

The Human Rights Committee, responsible for the monitoring of the ICCPR, has clarified to State parties that forced sterilisation is in contravention of Articles 7, 14, 17 and 24 of the ICCPR.242 More than 14 years ago, the Human Rights Committee identified the forced sterilisation of disabled women as being in in contravention of the ICCPR. In its 1999 Concluding Observations on Japan,243 the Committee expressed its regret that the law had not provided for a right of compensation to women with disabilities who were subjected to forced sterilization, and recommended that the necessary legal steps be taken in this regard. In its 2012 Concluding Observations on Lithuania,244 the Human Rights Committee expressed its concern at the potential negative consequences of the courts’ authority to authorise procedures such as abortion and sterilisation to be performed on disabled women deprived of their legal capacity.

In 2011, in its review of Slovakia’s245 report under the ICCPR, the Human Rights Committee stated its regret at the lack of information on concrete measures to eliminate forced sterilisation, and recommended the State Party ensure that all procedures are followed in obtaining the full and informed consent of women who seek sterilisation services. It further recommended that special training for health personnel aimed at raising awareness about the harmful effects of forced sterilization, be introduced.

138.

As outlined earlier in this paper, the Human Rights Council requires the Australian Government to address the issue of forced sterilisation in Australia’s upcoming review under the ICCPR.246 Specifically, the Human Rights Council has asked the Australian Government to: Please provide information on whether sterilization of women and girls, including those with disabilities, without their informed and free consent, continues to be practiced, and on steps taken to adopt legislation prohibiting such sterilisations.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 78

VIOLATION OF HUMAN RIGHTS FORCED STERILISATION OF PERSONS WITH DISABILITIES VIOLATES THE CONVENTION ON THE RIGHTS OF THE CHILD (CRC) 139.

Australia ratified the Convention on the Rights of the Child (CRC) in 1990. The CRC generally defines a child as any human being under the age of eighteen years, and requires States parties to ensure that all children within their jurisdiction enjoy all the rights enshrined in the Convention without discrimination of any kind. The CRC recognises that children with disabilities belong to one of the most marginalised groups of children, and that factors such as gender can increase this vulnerability.247 The CRC specifically recognises that: Girls with disabilities are often even more vulnerable to discrimination due to gender discrimination. In this context, States parties are requested to pay particular attention to girls with disabilities by taking the necessary measures, and when needed extra measures, in order to ensure that they are well protected, have access to all services and are fully included in society.248

140.

The Committee on the Rights of the Child has expressly identified forced sterilisation of girls with disabilities as a form of violence and clearly articulates that all forms of violence against children are unacceptable without exception.249 It has advised that State parties to the CRC are expected to prohibit by law the forced sterilisation of children with disabilities,250 and made it very clear that the principle of the “best interests of the child” cannot be used to justify practices which conflict with the child’s human dignity and right to physical integrity.251



Girls with disabilities are often even more vulnerable to discrimination due to gender discrimination. In this context, States parties are requested to pay particular attention to girls with disabilities by taking the necessary measures, and when needed extra measures, in order to ensure that they are well protected, have access to all services and are fully included in society.248

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 79

VIOLATION OF HUMAN RIGHTS 141.

In 2006, the Committee on the Rights of the Child expressed its deep concern about ‘the prevailing practice of forced sterilisation of children with disabilities, particularly girls with disabilities’, and emphasised that forced sterilisation ‘seriously violates the right of the child to her or his physical integrity and results in adverse life-long physical and mental health effects’.252

142.

In June 2012, the Committee on the Rights of the Child, in its Concluding Observations on Australia253 expressed its serious concern that the absence of legislation prohibiting non-therapeutic sterilisation of girls and women with disabilities is discriminatory and in contravention of the CRC. The Committee urged the State party to: ‘Enact non-discriminatory legislation that prohibits non-therapeutic sterilization of all children, regardless of disability; and ensure that when sterilisation that is strictly on therapeutic grounds does occur, that this be subject to the free and informed consent of children, including those with disabilities.’ Furthermore, the Committee clearly identified non-therapeutic sterilisation as a form of violence against girls and women, and recommended that the Australian Government develop and enforce strict guidelines to prevent the sterilisation of women and girls who are affected by disabilities and are unable to consent.

143.

In its Concluding Observations on Australia254 in 2005, the Committee on the Rights of the Child, recommended that Australia: ‘prohibit the sterilisation of children, with or without disabilities…’ 255

144.

In 1999, the Committee on the Rights of the Child expressed its regret that ‘forced sterilization of mentally disabled children is legal with parental consent’ in Austria,256 and recommended that existing legislation be reviewed in accordance with the provisions of the Convention, especially articles 3 and 12.

FORCED STERILISATION OF PERSONS WITH DISABILITIES VIOLATES THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (CESCR) 145.

The International Covenant on Economic, Social and Cultural Rights (CESCR) was ratified by Australia in 1975. The CESCR commits States Parties to work toward the granting of economic, social, and cultural rights to individuals, including labour rights and rights to health, education, and an adequate standard of living. The CESCR protects human rights that are fundamental to the dignity of every person. In particular, Article 3 of this Covenant provides for the equal right of men and women to the enjoyment of rights it articulates, and this is a mandatory and immediate obligation of States parties.257

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 80

VIOLATION OF HUMAN RIGHTS 146.

The Committee on Economic, Social and Cultural Rights (CESCR) has made it clear that forced sterilisation of girls and women with disabilities is in breach of Article 10 of the Convention on Economic, Social, and Cultural Rights: 258 ‘persons with disabilities must not be denied the opportunity to experience their sexuality, have sexual relationships and experience parenthood”. The needs and desires in question should be recognized and addressed in both the recreational and the procreational contexts. These rights are commonly denied to both men and women with disabilities worldwide. Both the sterilization of, and the performance of an abortion on, a woman with disabilities without her prior informed consent are serious violations of article 10 (2).’

147.

The Committee on Economic, Social and Cultural Rights (CESCR) has also made it clear that: Article 10 also implies, subject to the general principles of international human rights law, the right of persons with disabilities to marry and have their own family…… States parties should ensure that laws and social policies and practices do not impede the realization of these rights. Women with disabilities also have the right to protection and support in relation to motherhood and pregnancy.259



‘persons with disabilities must not be denied the opportunity to experience their sexuality, have sexual relationships and experience parenthood”. The needs and desires in question should be recognized and addressed in both the recreational and the procreational contexts. These rights are commonly denied to both men and women with disabilities worldwide. Both the sterilization of, and the performance of an abortion on, a woman with disabilities without her prior informed consent are serious violations of article 10 (2).’

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 81

VIOLATION OF HUMAN RIGHTS 148.

149.

The right to sexual and reproductive health is an integral component of the right to health. The CESCR emphasises aspects of the right to sexual and reproductive health in Article 12. The UN Special Rapporteurs on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, have made it very clear that States have an obligation to respect, protect and fulfil the right to health of all individuals, including those with disabilities, and have recognised that forced sterilisation of women and girls with disabilities is inherently inconsistent with their sexual and reproductive health rights and freedoms, violates their right to reproductive self-determination, physical integrity and security, and injures their physical and mental health.260 In 2009, the United Nations Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental health, re-iterated that the existence of a disability is not a lawful justification for any deprivation of liberty, including denial of informed consent. The Special Rapporteur made it clear that policies and legislation sanctioning non-consensual treatments lacking therapeutic purpose or aimed at correcting or alleviating a disability, including sterilisations, abortions, electro-convulsive therapy and unnecessarily invasive psychotropic therapy, violate the right to physical and mental integrity and may constitute torture and ill-treatment.261 He clarified that: ‘informed consent is not mere acceptance of a medical intervention, but a voluntary and sufficiently informed decision, protecting the right of the patient to be involved in medical decision-making, and assigning associated duties and obligations to health-care providers. Its ethical and legal normative justifications stem from its promotion of patient autonomy, self-determination, bodily integrity and well-being.’ States must provide persons with disabilities equal recognition of legal capacity, care on the basis of informed consent, and protection against non-consensual experimentation; as well as prohibit exploitation and respect physical and mental integrity.’ 262

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 82

VIOLATION OF HUMAN RIGHTS 150.

*O .S"OBOE(SPWFS 6/4QFDJBM3BQQPSUFVS JOIJTSFQPSUPOUIFJOUFSBDUJPOCFUXFFODSJNJOBMMBXTBOE other legal restrictions relating to sexual and reproductive health and the right to health, stated: ‘The use of……coercion by the State or non-State actors, such as in cases of forced sterilization, forced abortion, forced contraception and forced pregnancy has long been recognized as an unjustifiable form of State-sanctioned coercion and a violation of the right to health. Similarly, where the…… law is used as a tool by the State to regulate the conduct and decision-making of individuals in the context of the right to sexual and reproductive health the State coercively substitutes its will for that of the individual……………… the use by States of criminal and other legal restrictions to regulate sexual and reproductive health may represent serious violations of the right to health of affected persons and are ineffective as public health interventions. These laws must be immediately reconsidered. Their elimination is not subject to progressive realization since no corresponding resource burden, or a de minimis one, is associated with their elimination.’ 263



‘The use of……coercion by the State or non-State actors, such as in cases of forced sterilization, forced abortion, forced contraception and forced pregnancy has long been recognized as an unjustifiable form of State-sanctioned coercion and a violation of the right to health. Similarly, where the…… law is used as a tool by the State to regulate the conduct and decision-making of individuals in the context of the right to sexual and reproductive health the State coercively substitutes its will for that of the individual………………the use by States of criminal and other legal restrictions to regulate sexual and reproductive health may represent serious violations of the right to health of affected persons and are ineffective as public health interventions. These laws must be immediately reconsidered. Their elimination is not subject to progressive realization since no corresponding resource burden, or a de minimis one, is associated with their elimination.’ 263 DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 83

VIOLATION OF HUMAN RIGHTS FORCED STERILISATION OF PERSONS WITH DISABILITIES VIOLATES THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (ICERD) 151.

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) was one of the first human rights treaties to be adopted by the United Nations, and was ratified by Australia in 1975.264 As its title suggests, the ICERD commits its members to the elimination of racial discrimination and the promotion of understanding among all races.

152.

The Committee on the Elimination of All Forms of Racial Discrimination (CERD) pays special attention to cases where such multiple forms of discrimination are involved. Regarding the intersectionality of gender, CERD has emphasised that racial discrimination does not always affect women and men equally or in the same way, and certain forms of racial discrimination directly affect women - such as forced and coerced sterilisation of indigenous women,265 or sexual violation against women of particular racial or ethnic groups. At the same time, racial discrimination may have consequences where women are primarily or exclusively affected (e.g. racial bias-motivated rape). Against this backdrop the Committee has been enhancing its efforts to integrate a gender perspective into its work and also recommending that States parties provide disaggregated data with regard to the gender dimensions of racial discrimination as well as to take necessary actions in this regard.266

153.

In its Concluding Observations on Mexico267 in 2006, the Committee on the Elimination of All Forms of Racial Discrimination (CERD), expressed its concern at the alleged practice of forced sterilization indigenous men and women in Chiapas, Guerrero and Oaxaca, and urged the State party to take all necessary steps to put an end to practices of forced sterilization, and to impartially investigate, try and punish the perpetrators of such practices. It also recommended that the State party ensure that fair and effective remedies are available to the victims, including those for obtaining compensation.

154.

In its Concluding Observations on Slovakia268 in 2004, the ICERD Committee expressed its concern about reports of cases of sterilisation of Roma women without their full and informed consent. The Committee “strongly recommended” that the State party take all necessary measures to put an end to “this regrettable practice………..the State party should also ensure that just and effective remedies, including compensation and apology, are granted to the victims.”

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 84

VIOLATION OF HUMAN RIGHTS OTHER KEY INTERNATIONAL AND NATIONAL STANDARDS AND FRAMEWORKS 155.

The 1994 International Conference on Population and Development (ICPD) Programme of Action,269 affirmed that woman’s ability to access reproductive health and rights is cornerstone of her empowerment, and protects the right to decide freely and responsibly the number and spacing of one’s children. A total of 179 governments (including Australia) signed up to the ICPD Programme of Action which set out to, amongst other things, provide universal access to family planning and sexual and reproductive health services and reproductive rights. The programme of action and benchmarks added at the ICPD+5 review went on to inform the eight Millennium Development Goals (MDG’s),270 of which gender equality is central.

156.

The Beijing Declaration and Platform for Action (BPA) identifies forced sterilisation as an act of violence and reaffirms the rights of women, including women with disabilities, to found and maintain a family, to attain the highest standard of sexual and reproductive health, and to make decisions concerning reproduction free from discrimination, coercion, and violence.271 The commitment to the BPA was further reaffirmed by member states in the outcome document of the Twenty-third Special Session of the UN General Assembly272 in 2000. This meant that the Australian Government committed to further actions and initiatives to accelerate the implementation of the BPA, particularly in regard to addressing the needs of women and girls with disabilities.

157.

Biwako Plus Five,273 a supplement to the United Nations Biwako Millennium Framework for Action towards an Inclusive, Barrier-free and Rights based Society in Asia and the Pacific (BMF),274 (adopted by the Australian Government in 2002), specifically required Governments to, amongst other things: ‘take appropriate measures to address discrimination against women with disabilities in all matters, including those relating to marriage, family, parenthood and relationships, to ensure their full development, advancement and empowerment.’

158.

At the domestic level, forced sterilisation of women and girls with disabilities runs contrary to a number of national legislative and policy frameworks and strategies in areas (such as disability, child protection, family violence, human rights and women’s health).275 For example, forced sterilisation meets the definition of family violence as articulated in the Commonwealth Family Law Legislation.276 The Australian Law Reform Commission has clarified that forced sterilisation and abortion is a type of family violence experienced by people with disabilities.277

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 85

VIOLATION OF HUMAN RIGHTS OTHER LEGAL PRECEDENTS: FORCED AND COERCED STERILISATION AS A VIOLATION OF HUMAN RIGHTS 159.

The issue of forced sterilisation of women and girls is increasingly being recognised in the Courts as a violation of women’s fundamental human rights.

160.

In November 2012, the European Court of Human Rights ruled against Slovakia in a case of forced sterilization (I.G. and Others vs. Slovakia).278 The case was lodged with the European Court by three applicants, who were forcibly sterilised in Krompachy Hospital under different circumstances in 19992002. Two of the applicants were underage minors at the time of the interventions. The European Court confirmed that forced sterilization – sterilization without an informed consent - represents a serious interference into women’s fundamental human rights, guaranteed by the European Convention and other treaties. The European Court ruled in favour of the applicants the ordered the Slovak Government to pay compensation to the applicants and the reimbursement of their legal costs.

161.

In November 2011, the European Court of Human Rights delivered its judgement in the case of V.C. v. Slovakia.279 This case concerned a woman from Slovakia who was coercively sterilised in 2000 in the hospital in Prešov (eastern Slovakia). After unsuccessfully claiming her rights on national level, she recoursed to the European Court of Human Rights. The Court held that the sterilisation carried out without her informed consent violated her right not to be subject to torture or to inhuman or degrading treatment (Article 3 of the European Convention) and her right to respect for private and family life (Article 8). The Court noted that: “sterilization constitutes a major interference with a person’s reproductive health status” and “bears on manifold aspects of the individual’s personal integrity, including his or her physical and mental well-being and emotional, spiritual and family life.” 280 The Court held that Slovakia was to pay the applicant 31,000 euros (EUR) in respect of non-pecuniary damage and EUR 12,000 for costs and expenses.

162.

In July 2012, in a landmark judgment, the High Court in Windhoek found that the Namibian government had coercively sterilised three HIV-positive women in violation of their basic rights. The case, H.N. and Others v Government of the Republic of Namibia281 involved three HIV-positive women who sought to access pre-natal services at public hospitals in Namibia. The three women ranged in age from mid-20s to mid-40s when they were sterilised. All three were sterilised without their informed consent while accessing such services. Ruling in the women’s favour, the High Court held that obtaining consent from women when they were in severe pain or in labour did not constitute informed consent. The Court further found that failure to obtain the three women’s informed consent violated the women’s rights under common law. The women will be awarded damages, although the amount is still to be decided.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 86

VIOLATION OF HUMAN RIGHTS 163.

The issue of forced sterilisation is neither small nor new in Africa. Over 40 HIV-positive women who were allegedly sterilized against their will in Kenya are currently preparing to go to court to demand justice and possible compensation. National Gender and Equality Commission Chairperson, Winfred Lichuma who is championing the women’s cause, described what happened to the women as “atrocious an infringement of their human rights and contrary to medical ethics.” There are several similar cases pending before the courts in Zambia, South Africa, Malawi and Nambinia.282

164.

In late 2011, Peru’s chief prosecutor re-launched a criminal investigation into the forced sterilizations of thousands of poor and indigenous women, allegedly carried out by the government of disgraced former president Alberto Fujimori. The investigation centers on the case of Mamérita Mestanza, a 33-year-old mother of seven who died from complications from forced sterilization surgery. The case had been shelved in 2009 after it was decided that the statute of limitations had run out. But in November 2011 the office of Peru’s attorney general, José Peláez, informed the Inter-American Commission on Human Rights that it was reopening the case and reclassifying the sterilizations as a crime against humanity, effectively removing the time limit for a prosecution. In one of the cases that has so far come to court, Victoria Vigo, a now 49 year old woman who was forcibly sterilised in Piura in 1996, was eventually awarded $3,500 in compensation. During the trial the doctor argued that he had simply been obeying orders, and that the sterilization was official policy.283

165.

A current case before the Inter-American Commission on Human Rights (F.S. v. Chile) is seeking government accountability for violations of the sexual and reproductive rights of women living with HIV. The case centres on F.S., a young woman from a rural town in Chile, was forcibly sterilised without her knowledge or consent when she was just 20 years old because she is HIV-positive. The Centre for Reproductive Rights (litigating the case with its partner Vivo Positivo) asserts that: “the Chilean State has a responsibility to address the human rights violation that F.S. suffered, to provide reparations, and to adopt and enforce policies that guarantee women living with HIV the freedom to make reproductive health decisions without coercion.” 284

166.

On 12 December 2012, the International Federation for Human Rights (FIDH) and REDRESS285 filed a complaint against Uzbekistan before the UN Human Rights Committee, on behalf of Mrs Mutabar Tadjibayeva, who was nominated for the Nobel Peace Prize in 2008 for her work as a human rights defender. Mrs Tadjibayeva was forcibly sterilised after being imprisoned for her human rights activities in Uzbekistan. In bringing the case before the UN Human Rights Committee, the litigants are hoping to “help her receive the remedies she deserves from Uzbekistan for the grave damage and suffering caused by years of torture and ill-treatment”.286

167.

Until recently, Swedish law had required all transgender people to undergo sterilisation if they wanted to legally change their sex. In a decision on December 19 2012, the Stockholm Administrative Court of Appeal overturned the law, declaring it unconstitutional and in violation of the European Convention on Human Rights. Now, many of the estimated 500 people who have undergone forced sterilisation since the law was passed are demanding compensation.287

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 87

REDRESS AND JUSTICE

REDRESS AND TRANSITIONAL JUSTICE 168.

Forced sterilisation of women and girls with disabilities, and the inadequacy of Australian Governments’ responses to it, represent extremely grave violations of multiple human rights. The Australian Government is obliged to exercise due diligence to: • prevent the practice of forced and coerced sterilisation from taking place; • investigate promptly, impartially and effectively all cases of forced sterilisation of women and girls with disabilities; • remove any time limits for filing complaints; • prosecute and punish the perpetrators; and, • provide adequate redress to all victims of forced or coerced sterilisation. Meeting these obligations requires the Australian Government to take into account the marginalisation of disabled women and girls, whose rights are compromised due to deeply rooted power imbalances and structural inequalities, and to take all appropriate measures, including focused, gender-specific measures to ensure that disabled women and girls experience full and effective enjoyment of their human rights on an equal basis as others.

169.

In regard to ‘victims of forced or coerced sterilisation’, the United Nations has made it clear that in this context: victims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law.288

170.

The International Human Rights treaties to which Australia is a party, all clearly articulate the requirement for available, effective, independent and impartial remedies to be available to those whose rights have been violated under the various treaties. The Human Rights Committee has emphasised that such remedies are particularly urgent in respect of violations of the right to freedom from torture and cruel, inhuman and degrading treatment and punishment.289

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 89

REDRESS AND TRANSITIONAL JUSTICE 171.

Forced sterilisation constitutes torture.290 Article 14(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment specifies that States parties have a duty to ensure that victims of torture obtain redress and that they have ‘an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible’. The Special Rapporteur on 5PSUVSFIBTSFDFOUMZNBEFJUWFSZ clear that victims of torture must be provided with effective remedy and redress, including measures of reparation, satisfaction and guarantees of non-repetition as well as restitution, compensation and rehabilitation.291 The Convention on the Rights of the Child at Article 39 also clearly articulates the importance of rehabilitation for victims of torture: ‘States Parties shall take all appropriate measures to promote physical and psychological recovery and social integration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment………Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.’

172.

Therefore, redressing the harm done to women and girls with disabilities who have been sterilised in the absence of their free and informed consent requires multi-faceted responses. The right to redress and transitional justice292 is articulated as an integrated right that consists of measures of reparation, satisfaction and guarantees of non-repetition as well as compensation, rehabilitation and recovery.293



‘States Parties shall take all appropriate measures to promote physical and psychological recovery and social integration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment……… Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.’ DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 90

REDRESS AND TRANSITIONAL JUSTICE 173.

Critically, in the development and implementation of any measure of redress or transitional justice for women and girls with disabilities who have been forcibly sterilised (including for eg legislation, policies, services, programs, supports, and other measures) women and girls with disabilities (including through representative organisations where they exist), must be at the forefront of all consultative and decisionmaking processes.

SATISFACTION: AN OFFICIAL APOLOGY 174.

Discriminatory laws, policies and practices that allowed (and continue to allow) disabled women and girls to be forcibly sterilised have left, and will leave, legacies of personal pain and distress that will continue to reverberate long into the future. First and foremost, redress demands that Governments acknowledge the pervasive practice of forced and coerced sterilisation of disabled women and girls (through a full and public disclosure of the truth) - and issue an official apology to those affected (including public acknowledgement of the facts and acceptance of responsibility).294

175.

In 2000, the Canadian Government issued a national apology to the 703 people who were forcibly sterilised under that province’s Sexual Sterilisation Act.295 In 2002, the State of North Carolina issued a formal apology to the estimated 7,600 people forcibly sterilised in that State between 1929 and 1974.296

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 91

REDRESS AND TRANSITIONAL JUSTICE GUARANTEES OF NON-REPETITION – LAW REFORM 176.

The monitoring committees of the International Human Rights Treaties have made it clear that legislative reform is a critical component of redress for women and girls who have been sterilised in the absence of their free and informed consent. Legislative reform in this context includes, but is not restricted to: •



• •





the enactment of national legislation prohibiting, except where there is a serious threat to life, the use of sterilisation of girls, regardless of whether they have a disability, and of adult women with disabilities in the absence of their fully informed and free consent. Such legislation must criminalise the removal of a child or adult with a disability from the Country with the intention of having a forced sterilisation procedure performed;297 the enactment of national legislation that replaces regimes of substitute decision making for people with disabilities with supported decision-making which respects the persons autonomy, will and preferences;298 repealing any laws, policies and practices which permit guardianship and trusteeship for adults (and replacing regimes of substituted decision-making by supported decision making).299 ensuring that the requirement for full and informed consent in all interventions and treatments concerning people with disabilities is enshrined in relevant legal frameworks at national and state/ territory levels;300 ensuring that criteria that determine the grounds upon which treatment can be administered in the absence of free and informed consent is clarified in the law, and that no distinction between persons with or without disabilities is made; and,301 FOTVSJOHUIBUBOZMBXPSQPMJDZXIJDISFTUSJDUTJOBOZXBZ BEJTBCMFEXPNBOōTSJHIUUP full enjoyment of her sexual and reproductive health rights and freedoms, is amended as a matter of urgency. This includes laws, policies or programs that deny disabled women the right to found a family (including for eg: policies that deny access to assisted reproduction, adoption, surrogacy) and to maintain a family (eg: policies that enable removal of babies and children from parents with disabilities on the basis of parental disability).302

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 92

REDRESS AND TRANSITIONAL JUSTICE COMPENSATION 177.

Compensation is an important component of redress and transitional justice for women and girls who have been sterilised in the absence of their free and informed consent. Whilst it is recognised that financial compensation can never make up for the immense harm caused to the women and girls affected, it is a critical element in States accountability for those harms. Financial compensation has been awarded in a number of cases where girls and women with disabilities were sterilised in the absence of their free and informed consent.303

178.

In October 1989, Leilani Muir filed a lawsuit against the Alberta government for wrongfully classifying her as “feeble-minded,” which lead to her forced sterilisation. In 1995, the provincial Court of Queen’s Bench ruled in Muir’s favour, and awarded her $740,000 in damages, and another $230,000 in legal costs. Leilani Muir’s lawsuit was the first one to ever successfully sue the government for forced sterilisation.304

179.

In 2000, in a joint action suit that arose from the Leilani Muir case, the Alberta Government financially compensated 703 other defendants who were forcibly sterilised under that province’s Sexual Sterilisation Act.305

180.

In 1999, the Swedish Government finally compensated approximately 200 citizens - mostly female - who were forcibly sterilised between 1935 and 1975.306

181.

In North Carolina, Governor Beverly Perdue established the North Carolina Justice for Sterilization Victims Foundation307 in 2010 to provide justice and compensate victims who were forcibly sterilised by the State of North Carolina, under the former North Carolina Eugenics Board program. From 1929 until 1974, an estimated 7,600 North Carolinians, women and men, many of whom were disabled, were forcibly sterilised under the Program. In March 2011, Governor Perdue established a five-member Task Force308 to recommend possible methods or forms of compensation to those affected. The Task Force’s Final Report,309 released in 2012, recommended a package of compensation that: “provides a lump-sum financial payment < > and mental health services to living victims. The package also provides for the expansion of the N.C. Justice for Sterilization Victims Foundation and public education to serve as a deterrent against any future abuse of power by the government of North Carolina.”

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 93

REDRESS AND TRANSITIONAL JUSTICE REHABILITATION & RECOVERY 182.

Women and girls with disabilities who have been forcibly sterilised are entitled to a full range of rehabilitation and recovery measures. In this context, ‘rehabilitation and recovery’ must be understood holistically, recognising that measures would need to include for example: psychological, physical, health and medical care; legal and social services; economic empowerment; housing; education and employment; transport; access to justice; as well as the elements of political and moral rehabilitation.310 Importantly, rehabilitation and recovery measures should be tailored to each individual’s needs and particular situation and ensure active participation of the survivors and their allies. Moreover, as highlighted by Somasundaram:311 “it is necessary to consider the effects of torture and other violations on families, communities and society (collective trauma). Rehabilitation and recovery programmes should promote individual, family and social healing, recovery and reintegration.”

183.

Rehabilitation and recovery measures for women and girls with disabilities who have been forcibly sterilised, must also be understood as not merely a form of reparation, but also as an explicit right under Article 26 of the Convention on the Rights of Persons With Disabilities (CRPD).312



“it is necessary to consider the effects of torture and other violations on families, communities and society (collective trauma). Rehabilitation and recovery programmes should promote individual, family and social healing, recovery and reintegration.”

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 94

REDRESS AND TRANSITIONAL JUSTICE PROMOTING THE SEXUAL AND REPRODUCTIVE HEALTH RIGHTS OF WOMEN AND GIRLS WITH DISABILITIES 184.

Reproductive rights and freedoms rest on the recognition of the basic rights of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so. It also includes the right to make decisions regarding reproduction free of discrimination, coercion and violence.313 For women and girls with disabilities, reproductive rights and freedoms encompass for example: the right to bodily integrity and bodily autonomy, the right to procreate, the right to sexual pleasure and expression, the right for their bodies to develop in a normal way, the right to sex education, to informed consent regarding birth control, to terminate a pregnancy, to choose to be a parent, to access reproductive information, resources, medical care, services, and support; the right to experience and express their sexuality; the right to experience love, intimacy, sexual identity; the right to privacy, and the right to be free from interference.314

185.

Yet, as highlighted earlier in this Submission, no group has ever been as severely restricted, or negatively treated, in respect of their reproductive rights and freedoms, as women and girls with disabilities.315 The practice of forced sterilisation is itself part of a broader pattern of denial of human and reproductive rights of Australian disabled women and girls which also includes systematic exclusion from appropriate reproductive health care and sexual health screening, forced contraception and/or limited contraceptive choices, a focus on menstrual suppression, poorly managed pregnancy and birth, selective or coerced abortion and the denial of rights to parenting.316 These practices are framed within traditional social attitudes that continue to characterise disability as a personal tragedy, a burden and/or a matter for medical management and rehabilitation.317

186.

Whilst there are exceptions,318 there appear to be very few specific, targeted initiatives for women and girls with disabilities in Australia regarding a rights based approach to sexual and reproductive health. Where they exist, the majority of initiatives focusing on disability, sexuality and reproductive rights – are not gendered, focus largely on people with intellectual disabilities, tend to overlook the sexual and reproductive health needs of other women and girls with disabilities, and appear to be primarily targeted at service providers and/or parents and carers.319

187.

It is outside the scope of this Submission to address the wide-ranging and extensive raft of actions required to promoting the sexual and reproductive health rights of women and girls with disabilities. It is however, clearly an area that requires urgent and intensive attention, in consultation with women and girls with disabilities and their allies.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 95

CONCLUSION

CONCLUSION This Submission from WWDA to the Senate Inquiry into the involuntary or coerced sterilisation of people with disabilities in Australia, establishes beyond doubt, that forced and coerced sterilisation of women and girls with disabilities is a form of torture – a heinous, inhuman practice which violates multiple human rights, and clearly breaches every international human rights treaty to which Australia is a party. For decades, uninterested and apathetic Australian Governments have been complicit in allowing this form of torture to be perpetrated against women and girls with disabilities, indifferent to the devastating and life-long effects it has on some of our countries most marginalised and excluded citizens. This Submission has provided an extensive amount of evidence which warrants the Australian Government stop procrastinating on this issue, and act immediately and decisively to put an end to the barbaric practice that is forced sterilisation. In so doing, it must acknowledge and take full responsibility for the wrongs that have been done to those affected, including formally apologising for the discriminatory actions, policies, culture and attitudes that result in forced and coerced sterilisation and that acknowledges, on behalf of the nation, the immense harm done to those who have been forcibly sterilised and experienced other violations of their reproductive rights. In addition, the Australian Government must do everything in its power to not only enable redress and justice for all those affected by forced and coerced sterilisation, but also take all measures necessary, including focused, gender-specific measures, to ensure that disabled women and girls experience full and effective enjoyment of all their human rights on an equal basis as others.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 97

FOOTNOTES DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 98

FOOTNOTES 1

For more detailed information on Women With Disabilities Australia (WWDA), go to: http://www.wwda.org.au

2

See WWDA’s Strategic Plan 2010 – 2015 at: http://wwda.org.au/stratplan.htm

3

See: On The Record - A Report on the 1990 STAR Conference on Sterilisation: ‘My Body, My Mind, My Choice’. Edited by Fiona Strahan, CoEditor Lois Brudenell. Available at: http://www.wwda.org.au/record.htm NB: The graphic used above is taken from the On The Record Report.

4

Commonwealth of Australia (2009) A Stronger, Fairer Australia: National Statement on Social Inclusion. Department of the Prime Minister and Cabinet, Canberra; McClelland, R. in Commonwealth of Australia (2010) Australia’s Human Rights Framework, Attorney-General’s Department, Canberra; Australian Government Australian Values Statement, Department of Immigration & Citizenship, available online at: http://www.immi.gov.au/living-in-australia/values/statement/long/ Commonwealth of Australia (2007) Life in Australia; Department of Immigration & Citizenship, available online at: http://www.immi.gov.au/living-in-australia/values/book/english/lia_english_full.pdf

5

Roos, P. (1975) Psychological Impact of Sterilization on the Individual; Law and Psychology Review, Issue 45, pp.45-54.

6

‘Forced/involuntary sterilisation’ refers to the performance of a procedure which results in sterilisation in the absence of the free and informed consent of the individual who undergoes the procedure - including instances in which sterilisation has been authorised by a third party, without that individual’s consent. Coerced sterilisation occurs when financial or other incentives, misinformation, misrepresentation, undue influences, pressure, and/or intimidation tactics are used to compel an individual to undergo the procedure. Coercion includes conditions of duress such as fatigue or stress. Undue influences include situations in which the person concerned perceives there may be an unpleasant consequence associated with refusal of consent. ‘Non-therapeutic sterilisation’ has been defined as sterilisation for a purpose other than to ‘treat some malfunction or disease’: Secretary, Department of Health and Community Services v JWB and SMB, 1992, 175 CLR 218; 106 ALR 385. For further discussion, see for example: Méndez, Juan. E, (2013) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN General Assembly; UN.Doc A/HRC/22/53; Dowse, L. & Frohmader, C. (2001) Moving Forward: Sterilisation and Reproductive Health of Women and Girls with Disabilities, A Report on the National Project conducted by Women with Disabilities Australia (WWDA), Canberra. See also: Brady, S., Briton, J., & Grover, S. (2001) The Sterilisation of Girls and Young Women in Australia: Issues and Progress. A report commissioned by the Federal Sex Discrimination Commissioner and the Disability Discrimination Commissioner; Human Rights and Equal Opportunity Commission, Sydney, Australia. Available at: www.wwda. org.au/brady2.htm; See also: WWDA, Human Rights Watch (HRW), Open Society Foundations, and the International Disability Alliance (IDA) (2011) Sterilization of Women and Girls with Disabilities: A Briefing Paper. Available at: http://www.wwda.org.au/Sterilization_Disability_Briefing_ Paper_October2011.pdf

7

Centre for Reproductive Rights, European Disability Forum, InterRights, International Disability Alliance and the Mental Disability Advocacy Centre (2011) Written Comments Submitted in the European Court of Human Rights: Joelle Gauer and Others [Applicant] Against France [Respondent], 16 August 2011. See also: Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.

8

The United Nations Special Rapporteurs on Violence Against Women have asserted that forced sterilisation is a method of medical control of a woman’s fertility. It violates a woman’s physical integrity and security and constitutes violence against women. See: Manjoo, Rashida (2012) Report of the Special Rapporteur on violence against women, its causes and consequences; UN General Assembly; UN Doc. A/67/227; and also Radhika Coomaraswamy (1999), Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences: Policies and practices that impact women’s reproductive rights and contribute to, cause or constitute violence against women  UI4FTT

&$/"EE 



9

Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit., Nowak, M. (2008) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; UN General Assembly, UN Doc. A/HRC/7/3; Committee on the Rights of the Child (2011) General Comment No. 13: Article 19: The right of the child to freedom from all forms of violence; UN Doc. CRC/C/GC/13.

10

International NGO Council on Violence against Children (October 2012) Violating Children’s Rights: Harmful practices based on tradition, culture, religion or superstition. Accessed online October 2012 at: http://www.crin.org/docs/InCo_Report_15Oct.pdf

11

A State’s obligation to prevent torture applies not only to public officials, such as law enforcement agents, but also to doctors, health-care professionals and social workers, including those working in private hospitals, other institutions and detention centres. As underlined by the Committee against Torture, the prohibition of torture must be enforced in all types of institutions and States must exercise due diligence to prevent, investigate, prosecute and punish violations by non-State officials or private actors. See: Méndez, Juan. E, (2013) UN.Doc A/ HRC/22/53, Op Cit.

12

See: Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit., Nowak, M. (2008) UN Doc. A/HRC/7/3; Op Cit.,

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 99

FOOTNOTES 13

“Jus cogens, the literal meaning of which is “compelling law,” is the technical term given to those norms of general international law that are argued as hierarchically superior. These are a set of rules, which are peremptory in nature and from which no derogation is allowed under any circumstances. The doctrine of international jus cogens was developed under a strong influence of natural law concepts, which maintain that states cannot be absolutely free in establishing their contractual relations. States were obliged to respect certain fundamental principles deeply rooted in the international community. The power of a state to make treaties is subdued when it confronts a supercustomary norm of jus cogens. In other words, jus cogens are rules, which correspond to the fundamental norm of international public policy and in which cannot be altered unless a subsequent norm of the same standard is established. This means that the position of the rules of jus cogens is hierarchically superior compared to other ordinary rules of international law.” Taken from: Hossain, K. (2005) The Concept of Jus Cogens and the Obligation Under the U.N. Charter. Santa Clara Journal of International Law, Vol. 3, pp.72-98. As detailed in Prosecutor v. Furundzija “The jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community. States are obliged not only to prohibit and punish torture, but also prevent its occurrence and consequently, are bound to put in place all those measures that may pre-empt the perpetration of torture. See: International human rights law not only prohibits torture (as well as any inhuman and degrading treatment) but also prohibits (a) the failure to adopt the national measures necessary for implementing the prohibition and (b) the maintenance in force or passage of laws which are contrary to the prohibition. See International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Furundzija, Case IT95-17/1-T; Judgement, 10 December 1998.

14

Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit., See also: Sifris, R. (2010) Conceptualising involuntary Sterilisation as ‘Severe Pain or Suffering for the Purposes of Torture Discourse. Netherlands Quarterly of Human Rights, Vol.28/4, pp.523-547.

15

Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.,

16

Sifris, R. (2010) Op Cit.

17

Ibid.

18

Centre for Reproductive Rights et al, Op Cit., Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit., Nowak, M. (2008) UN Doc. A/HRC/7/3; Op Cit.,

19

Ibid.

20

Committee on the Rights of the Child; Consideration of reports submitted by States parties under article 44 of the Convention; Concluding observations: Australia; Sixtieth session, 29 May–15 June 2012; CRC/C/AUS/CO/4; UN General Assembly Human Rights Council (2011) Draft report of the Working Group on the Universal Periodic Review: Australia +BOVBSZ ")3$8(-5IF final document will be issued under the symbol A/HRC/17/10; Committee on the Elimination of Discrimination against Women (2010) Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia. CEDAW Forty-sixth session, 12 – 30 July 2010. CEDAW/C/AUS/CO/7; Committee on the Rights of the Child, Fortieth Session, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Australia, CRC/C/15/Add.268, 20 October 2005, paras 45, 46 (e).

21

Manjoo, Rashida (2012) UN Doc. A/67/227, Op Cit.

22

Dowse, L. and Frohmader, C. (2001) Op Cit.

23

Dowse, L. (2004) ‘Moving Forward or Losing Ground? The Sterilisation of Women and Girls with Disabilities in Australia’. Paper presented to Disabled Peoples’ International (DPI) World Summit, Winnipeg, September 8-10, 2004. Available online at: http://www.wwda.org.au/steril3. htm ; Steele, L. (2008) Making sense of the Family Court’s decisions on the non-therapeutic sterilisation of girls with intellectual disability; Australian Journal of Family Law, Vol.22, No.1.; Prilleltensky, O. (2003) A Ramp to Motherhood: The Experiences of Mothers with Physical Disabilities. Sexuality and Disability, Vol. 21, No. 1, pp. 21-47.

24

An extensive amount of this work is available on WWDA’s website. See: http://www.wwda.org.au/sterilise.htm

25

Universal Declaration of Human Rights; proclaimed by the United Nations General Assembly on 10 December 1948 General Assembly resolution 217 A (III).

26

Such a Task Force must include women with disabilities in its membership, and be chaired by a woman with a disability.

27

See for eg: The Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation. Available at: http://www.redress.org/ downloads/publications/Nairobi%20Principles%20on%20Women%20and%20Girls.pdf

28

This includes laws, policies or programs that deny disabled women the right to found a family (including for eg: policies that deny access to assisted reproduction, adoption, surrogacy) and to maintain a family (eg: policies that enable removal of babies and children from parents with disabilities on the basis of parental disability).

29

This happens in two main ways: a) the child is removed by child protection authorities and placed in foster or kinship care; and b) a Court, under the Family Law Act, may order that a child be raised by the other parent who does not have a disability or by members of the child’s extended family. See: Victorian Office of the Public Advocate (OPA) (2012) OPA Position Statement: The removal of children from their parent with a disability. http://www.publicadvocate.vic.gov.au/research/302/

30

Through the Looking Glass (TLG) is a national disability community based non-profit organization providing research, training, and services for families in which a child, parent or grandparent has a disability or medical issue. TLG includes the National Center for Parents with Disabilities and their Families which provides an extensive range of services and support for parents with disabilities. TLG is nationally recognised for designing and fabricating baby care equipment for parents and other caregivers with disabilities, as well as studying the impact of this equipment on parenting. An adaptive equipment hire service is just one of the many services available. See: http://www. lookingglass.org/

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 100

FOOTNOTES 31

For more information see: http://www.ahpra.gov.au

32

Grover, A., (2009) Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. UN General Assembly, UN Doc. A/64/272.

33

Sterilisation which is performed in an emergency situation for life-saving purposes, like any life-saving procedure, is not considered to be forced sterilisation. See: Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.

34

Centre for Reproductive Rights et al (2011) Op Cit. See also: Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.

35

Dowse, L. and Frohmader, C. (2001) Op Cit.

36

Women With Disabilities Australia (WWDA), Human Rights Watch (HRW), Open Society Foundations, & International Disability Alliance (IDA)(2011) Sterilization of Women and Girls with Disabilities: A Briefing Paper (November). Available online at: http://www.wwda.org.au/ Sterilization_Disability_Briefing_Paper_October2011.pdf See also: Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.

37

Brady, S. (2001) The sterilisation of girls and young women with intellectual disabilities in Australia: An audit of Family Court and Guardianship Tribunal cases between 1992-1998. Available online at: www.wwda.org.au/brady2001.htm

38

See: Commonwealth of Australia (1994) Sterilisation and Other Medical Procedures on Children. A report to the Attorney-General prepared by the Family Law Council. Available at: http://www.ag.gov.au/Documents/sterilisation-and-other-medical-procedures.htm See also: See also: Brady, S., Briton, J., & Grover, S. (2001) Op Cit.

39

Grover, A. (2011) Interim report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. United Nations General Assembly; UN Doc. A/66/254.

40

Frohmader, C. & Meekosha, H. (2012) Recognition, respect and rights: Women with disabilities in a globalised world. In Disability and Social Theory, Edited by Dan Goodley, Bill Hughes and Lennard Davis, London: Palgrave Macmillan.

41

Online response to The Australian Newspaper article: Family Court lets couple sterilise disabled daughter; By Caroline Overington, March 09, 2010. Response posted by Sterilise Please at 10:10 AM March 09, 2010. Accessed online March 2010 at: http://www.news.com.au/nationalold/family-court-lets-couple-sterilise-disabled-daughter/story-e6frfkvr-1225838469430

42

Online response to The Australian Newspaper article: Family Court lets couple sterilise disabled daughter; By Caroline Overington, March 09, 2010. Response posted by Kika at 9:47 AM March 09, 2010. Accessed online March 2010 at: http://www.news.com.au/national-old/familycourt-lets-couple-sterilise-disabled-daughter/story-e6frfkvr-1225838469430

43

Online response to The Australian Newspaper article: Family Court lets couple sterilise disabled daughter; By Caroline Overington, March 09, 2010. Response posted by soap box dude at 11:13 AM March 09, 2010. Accessed online March 2010 at: http://www.news.com.au/nationalold/family-court-lets-couple-sterilise-disabled-daughter/story-e6frfkvr-1225838469430

44

Morse, F. (2013) Colin Brewer Cornwall Councillor Says ‘Disabled Children Should Be Put Down’. The Huffington Post, 27/02/2013. Accessed online February 2013 at: http://www.huffingtonpost.co.uk/2013/02/27/cornwall-councillor-colin-brewer-disabled-children-put-down_n_2771826. html?utm_hp_ref=uk

45

Cooke, E., et al, cited in Dowse, L. & Frohmader, C. (2001) Op Cit.

46

Goldhar, J. cited in Dowse, L. & Frohmader, C. (2001) Op Cit.

 %FQBSUNFOUPG)FBMUIBOE$PNNVOJUZ4FSWJDFTW+8#BOE4.# .BSJPOōT$BTF <>)$"  $-3 .BZ "Uhttp:// www.austlii.edu.au/au/cases/cth/high_ct/175clr218.html

47

48

‘Non-therapeutic sterilisation’ is sterilisation for a purpose other than to ‘treat some malfunction or disease’: Secretary, Department of Health and Community Services v JWB and SMB, 1992, 175 CLR 218; 106 ALR 385.

49

Dowse, L. (2004) Op Cit.

50

Jones, M. and Basser Marks, L. (2000) Valuing People through Law: Whatever Happened to Marion? In M. Jones and L. A. Basser Marks (eds) Explorations on Law and Disability in Australia. Sydney, Federation Press.

51

Dowse, L. and Frohmader, C. (2001) Op Cit.

52

Standing Committee of Attorneys-General (SCAG) (2004) Issues Paper on the Non-Therapeutic Sterilisation of Minors with a DecisionMaking Disability. Available online at: www.wwda.org.au/scagpap1.htm

53

Dowse, L. and Frohmader, C. (2001) Op Cit.

54

Transcript from 2003 Four Corners (ABC TV) Documentary ‘Walk in Our Shoes’. Available online at: http://www.wwda.org.au/4corners.htm

55

The Standing Committee of Attorneys-General (SCAG) was 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. In 2011 the SCAG was re-named the Standing Council on Law and Justice (SCLJ).

56

Standing Committee of Attorneys-General (SCAG) Working Group (2006) Draft 17: Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006. Available at: www.wwda.org.au/sterbill06.pdf

57

Standing Committee of Attorneys-General (SCAG) Working Group (2006) Issues Paper on the Sterilisation of Intellectually Disabled Minors. Available at: www.wwda.org.au/scagpap2.htm

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 101

FOOTNOTES 58

Standing Committee of Attorneys-General (SCAG) Working Group (2006) Draft 17: Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006. Available at: www.wwda.org.au/sterbill06.pdf A number of Submissions provided to the SCAG Working Party in response to the Draft Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006, are available on WWDA’s website at: http:// www.wwda.org.au/steriladv07.htm

59

Standing Committee of Attorneys-General (SCAG) Communique 28 March 2008.

60

Ibid.

61

Correspondence to WWDA from WA Attorney-General Christian Porter MLA, 18 June 2009.

62

Australian Government (2009) Response to the United Nations (UNESCAP) Questionnaire for Governments on Implementation of the Beijing Declaration and Platform for Action (BPFA) and the outcomes of the twenty-third special session of the General Assembly (2000). Accessed online February 2010 at: www.unescap.org/ESID/GAD/Issues/Beijing+15/Responds_to_Questionnaire/Australia.pdf<4FFQBHF>

63

Australian Government (2006) Sterilisation of Women and Young Girls with an Intellectual Disability - Report to the Senate. Tabled by the Minister for Family and Community Services and the Minister Assisting the Prime Minister on the Status of Women, December 6, 2000. Available online at: www.wwda.org.au/senate.htm

64

Hon Robert McClelland (Attorney-General) Correspondence to Women With Disabilities Australia (WWDA), 27 August, 2009.

65

Brady, S. and Grover, S. (1997) The Sterilisation of Girls and Young Women in Australia - A legal, medical and social context. Report commissioned by the Federal Disability Discrimination Commissioner for the Human Rights and Equal Opportunity Commission, December 1997. Available online at: http://www.wwda.org.au/brady.htm

66

Australian Government (2009) Response to the United Nations (UNESCAP) Op Cit.

67

Ibid.

68

Correspondence from WWDA to Hon Robert McClelland, Attorney General, February 24, 2010.

 4FFGPSFYBNQMF3F"OHFMB<>'BN$" 'FCSVBSZ )(- /P <>2$"5" 4FQUFNCFS  Gardner, J. (2003) cited in Transcript from 2003 Four Corners (ABC TV) Op Cit; Nicholson, Justice Alastair (2003) cited in Transcript from 2003 Four Corners (ABC TV) Op Cit; Australian Human Rights Commission (2012) The Involuntary or Coerced Sterilisation of People with Disabilities in Australia, Australian Human Rights Commission Submission to the Senate Community Affairs References Committee; , also: Shepherd, T. (2013) South Australian disability advocates term forced hysterectomies as torture. The Advertiser, February 28, 2013. Accessed online February 2013 at: http://www.adelaidenow.com.au/news/south-australia/south-australian-disability-advocates-term-forced-hysterectomies-astorture/story-e6frea83-1226587191569

69

70

Transcript from 2003 Four Corners (ABC TV) Op Cit.

71

Transcript from 2003 Four Corners (ABC TV) Op Cit.

72

Ibid.

73

Australian Government (2008) Fourth Report under the Convention on the Rights of the Child: Australia, October 2008, 159, p31. Accessed online August 2009 at: http://www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandantidiscrimination_ReportsundertheConventionontheRights oftheChild

74

WWDA’s formal complaint is available online at: http://wwda.org.au/WWDA_Submission_SR2011.pdf

75

Anand Grover, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; and Rashida Manjoo, Special Rapporteur on violence against women, its causes and consequences. See Appendix 2.

76

Committee on the Rights of the Child; Consideration of reports submitted by States parties under article 44 of the Convention; Concluding observations: Australia; Sixtieth session, 29 May–15 June 2012; CRC/C/AUS/CO/4; UN General Assembly Human Rights Council (2011) Draft report of the Working Group on the Universal Periodic Review: Australia +BOVBSZ ")3$8(-5IF final document will be issued under the symbol A/HRC/17/10; Committee on the Elimination of Discrimination against Women (2010) Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia. CEDAW Forty-sixth session, 12 – 30 July 2010. CEDAW/C/AUS/CO/7; Committee on the Rights of the Child, Fortieth Session, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Australia, CRC/C/15/Add.268, 20 October 2005, paras 45, 46 (e).

77

Committee on the Rights of the Child; UN Doc. CRC/C/AUS/CO/4.

78

Committee on the Rights of the Child; UN Doc. CRC/C/AUS/4.

79

The Universal Periodic Review (UPR) is a process undertaken by the United Nations and involves the review of the human rights records of the 192 Member States once every four years. The UPR provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations. The ultimate aim of the Review is to improve the human rights situation in all countries and address human rights violations wherever they occur. For more information see: http://www.ohchr.org/en/hrbodies/upr/pages/uprmain.aspx

80

UN General Assembly Human Rights Council (2011) UN Doc A/HRC/17/10, Op Cit.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 102

FOOTNOTES On 10 December 2012, International Human Rights Day, the Australian Government released its National Human Rights Action Plan. In releasing the Plan, the then Federal Attorney General, Hon Nicola Roxon MP, stated that: ‘This action plan explains in detail how Australia will implement the recommendations accepted during its Universal Periodic Review at the United Nations in 2011.’ See for eg: Commonwealth of Australia (2012) Australia’s National Human Rights Action Plan 2012. Accessed online 10 December 2012 at: http://www. ag.gov.au/Humanrightsandantidiscrimination/Australiashumanrightsframework/Pages/NationalHumanRightsActionPlan.aspx See also: The Hon Nicola Roxon MP, Attorney-General & Minister for Emergency Management, Media Release ‘National Human Rights Action Plan Released’, 10 December 2012.

81

82

Committee on the Elimination of Discrimination against Women (2010) UN Doc. CEDAW/C/AUS/CO/7, Op Cit.

83

Australian Government (2012) ‘Responses by Australia to the recommendations contained in the concluding observations of the Committee following the examination of the combined sixth and seventh periodic report of Australia on 20 July 2010.’ Accessed February 2013 at: http://www2.ohchr.org/english/bodies/cedaw/docs/CEDAW.C.AUL.CO.7.Add.1.pdf

84

The CEDAW Committee made two specific recommendations for actions on violence against women and Aboriginal and Torres Strait Islander women, in its Concluding Observations on Australia and requested an update on progress at the 2-year mark, prior to a full review in 2014. The Australian Government was required to report back to the CEDAW committee on its progress on these two areas by July 2012.

85

Manjoo, Rashida (2012) UN Doc. A/67/227, Op Cit.

86

UN Convention on the Rights of the Child (CRC)(2004) Consideration of Reports Submitted By States Parties Under Article 44 of the Convention; Second and third periodic reports of States parties due in 1998 and 2003:Australia; 29 December 2004; CRC/C/129/Add.4. UN Committee on the Rights of the Child, UN Doc. CRC/C/15/Add.268, Op Cit.

87

 $3$(FOFSBM$PNNFOU/PTUBUFT‘The Committee is deeply concerned about the prevailing practice of forced sterilisation of children with disabilities, particularly girls with disabilities. This practice, which still exists, seriously violates the right of the child to her or his physical integrity and results in adverse life-long physical and mental health effects. Therefore, the Committee urges States parties to prohibit by law the forced sterilisation of children on grounds of disability.’ See: Committee on the Rights of the Child (CRC), General Comment No. 9 (2006): The rights of children with disabilities, 27 February 2007, UN Doc.CRC/C/GC/9.

88

89

Since Australia was last reviewed in 2009, the Human Rights Committee has developed a new optional process for the review of states, known as the List of Issues Prior to Reporting (LOIPR). The Human Rights Committee develops a LOIPR on the basis of previous Concluding Observations and information provided by the Office of the High Commissioner on Human Rights (OHCHR), the Universal Periodic Review (UPR), the UN Special Procedures, NGOs and National Human Rights Institutions. The LOIPR on Australia was adopted by the Human Rights Committee at its 106th session in late 2012.

90

Human Rights Committee, International Covenant on Civil and Political Rights; List of issues prior to the submission of the sixth periodic report of Australia (CCPR/C/AUS/6), adopted by the Committee at its 106th session (15 October–2 November 2012); UN Doc No. CCPR/C/ AUS/Q/6; 9 November 2012.

91

See: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Session9.aspx

92

The Australian Civil Society CRPD Shadow Report is available at: http://www.disabilityrightsnow.org.au/node/15

93

See Disability Council International’s 2013 Independent Review of Australia’s initial state party report (CRPD/C/AUS/1) available at: http:// www.ohchr.org/EN/HRBodies/CRPD/Pages/Session9.aspx; See also Australian Civil Society CRPD Shadow Report, also available at: http://www. ohchr.org/EN/HRBodies/CRPD/Pages/Session9.aspx

94

FIGO (International Federation of Gynecology and Obstetrics), Female Contraceptive Sterilization. Available at: http://www.wwda.org.au/ FIGOGuidelines2011.pdf See also Appendix 1.

95

Shepherd, T. (2013) South Australian disability advocates term forced hysterectomies as torture. The Advertiser, February 28, 2013. Accessed online February 2013 at: http://www.adelaidenow.com.au/news/south-australia/south-australian-disability-advocates-term-forced-hysterectomiesas-torture/story-e6frea83-1226587191569

96

World Medical Association (WMA) in conjunction with the International Federation of Health and Human Rights Organizations (IFHHRO) (2011) Global Bodies call for end to Forced Sterilisation: Press Release, 5 September 2011. Available at: http://www.wwda.org.au/sterilWMA2011. htm

97

The International NGO Council on Violence Against Children was formed in 2007 to support strong and effective follow-up to the UN Study on Violence against Children. See: http://www.crin.org/violence/NGOs/

98

International NGO Council on Violence against Children (October 2012) Violating Children’s Rights: Harmful practices based on tradition, culture, religion or superstition. Available online at: http://www.crin.org/docs/InCo_Report_15Oct.pdf

99

In recent months, WHO led a broad and inclusive consultation process which included: 12 September 2012: a meeting with governments and civil society during the Conference of States Parties in New York. After the consultation, participants were requested to comment on the Statement and twenty responses were received; 27 October 2012: a consultation with people with intellectual disabilities at the Global Forum of Inclusion International in Washington DC; Further consultation with people with intellectual disabilities on a plain language version of the Statement; 15-16 October 2012: an expert consultation held in Geneva to discuss the Statement in detail. As a result of these inputs, the proposed Statement has been strengthened. Other UN agencies are now reviewing the Statement and assessing how they may be able to support its implementation. See: http://www.who.int/disabilities/media/news/2012/14_11/en/index.html

100

The Global Stop Torture in Health Care Campaign is an alliance of international health and human rights organisations working together to put an end to the abuse of individuals in health settings. It is co-ordinated by the Open Society Foundations. See: http://www.facebook.com/ StopTortureInHealthCare DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 103

FOOTNOTES 101

See: http://www.facebook.com/StopTortureInHealthCare

102

Women With Disabilities Australia (WWDA), Human Rights Watch (HRW), Open Society Foundations, & International Disability Alliance (IDA) (2011) Op Cit. See also: Brady, S., Briton, J., & Grover, S. (2001), Op Cit.

 3F)<>'BN$" .BZ

103

104

Online response to The Australian Newspaper article: Family Court lets couple sterilise disabled daughter; By Caroline Overington, March 09, 2010. Comment 70 of 162 posted at 10:14 AM March 09, 2010. Accessed online March 2010 at: http://www.news.com.au/national-old/ family-court-lets-couple-sterilise-disabled-daughter/story-e6frfkvr-1225838469430

105

Online response to The Advertiser article ‘The International Day of Disability sheds light on the murky world of disability’; Dec 2, 2012. Response posted by Sarah at 9:53 AM December 03, 2012. Accessed December 2012 at: http://www.adelaidenow.com.au/news/opinion/theinternational-day-of-disability-sheds-light-on-the-murky-world-of-disability-writes-ali-carle/story-e6freai3-1226528397995

106

Online response to The Australian Newspaper article: Family Court lets couple sterilise disabled daughter; By Caroline Overington, March 09, 2010. Response posted by Nicki of Brisbane at 8:43 AM March 09, 2010. Accessed online March 2010 at: http://www.news.com.au/ national-old/family-court-lets-couple-sterilise-disabled-daughter/story-e6frfkvr-1225838469430

107

Online response to The Australian Newspaper article: Family Court lets couple sterilise disabled daughter; By Caroline Overington, March 09, 2010. Response posted by James at 3:52 AM March 09, 2010. Accessed online March 2010 at: http://www.news.com.au/national-old/ family-court-lets-couple-sterilise-disabled-daughter/story-e6frfkvr-1225838469430

108

Online response to The Australian Newspaper article: Family Court lets couple sterilise disabled daughter; By Caroline Overington, March 09, 2010. Response posted by Ben of Sydney at 12:13 PM March 09, 2010. Accessed online March 2010 at: http://www.news.com.au/nationalold/family-court-lets-couple-sterilise-disabled-daughter/story-e6frfkvr-1225838469430

109

Online response to News article ‘Mother tells senate inquiry that sterilising her disabled daughter was a blessing’. Response posted by Jo at 7:11 PM December 03, 2012. Accessed online December 2012 at: http://www.news.com.au/lifestyle/parenting/sterilisation-was-a-blessingmother/story-fnet085v-1226529050764

110

Online response to The Advertiser News article ‘The International Day of Disability sheds light on the murky world of disability’. Response posted by Earl Grey at 10:20 PM December 02, 2012. Accessed online December 2012 at: http://www.adelaidenow.com.au/news/opinion/theinternational-day-of-disability-sheds-light-on-the-murky-world-of-disability-writes-ali-carle/story-e6freai3-1226528397995

111

Online response to The Australian Newspaper article: Family Court lets couple sterilise disabled daughter; By Caroline Overington, March 09, 2010. Response posted by ‘mother of one in WA’ at 4:01 PM March 09, 2010. Accessed online March 2010 at: http://www.news.com.au/ national-old/family-court-lets-couple-sterilise-disabled-daughter/story-e6frfkvr-1225838469430

112

Brady, S. and Grover, S. (1997) Op Cit.

113

Manjoo, Rashida (2012) UN Doc. A/67/227, Op Cit.

114

Frohmader, C. and Meekosha, H. (2012) Op Cit.

 3F"OHFMB<>'BN$" 'FCSVBSZ

115

 #FUXFFOUIF"UUPSOFZ(FOFSBMPG2VFFOTMBOEBOE1BSFOUT3F4<>'BN$"  '-$'BN-S$IJMESFO  November 1989)

116

 3F)<>'BN$" .BZ

117

Re Katie FamCA 130 (30 November 1995)

118

 )(- /P <>2$"5" 4FQUFNCFS 

119

 #FUXFFOUIF"UUPSOFZ(FOFSBMPG2VFFOTMBOEBOE1BSFOUT3F4<>'BN$"  '-$'BN-S$IJMESFO  November 1989)

120

 3F. "O*OGBOU <>'BN$" "QSJM

121

 3F&MJ[BCFUI4VJU<>'BN$" .BZ

122

Between: L and GM Applicants and MM Respondent and the Director-General Department of Family Services and Aboriginal and Islander "ŢBJST3FTQPOEFOU*OUFSWFOFS<>'BN$"  '-$'BN-S'BNJMZ-BX /PWFNCFS

123

 #FUXFFOUIF"UUPSOFZ(FOFSBMPG2VFFOTMBOEBOE1BSFOUT3F4<>'BN$"  '-$'BN-S$IJMESFO  November 1989)

124

Re Katie FamCA 130 (30 November 1995)

125

 957<>/48(5 'FCSVBSZ

126 127

Dowse, L. and Frohmader, C. (2001) Op Cit. See also: Dowse, L. (2004) Op Cit.

128

Dowse, L. and Frohmader, C. (2001) Op Cit.

129

Dowse, L. (2004) Op Cit. See also: Brady, S. & Grover, S. (1997) Op Cit.; Jones M. & Basser Marks L. (1997) Female and Disabled: A Human Rights Perspective on Law and Medicine in K. Petersen (ed) Intersections: Women on Law, Medicine and Technology Aldershot, Dartmouth: 49-71.

130

Dowse, L. and Frohmader, C. (2001) Op Cit.

131

Brady, S. and Grover, S. (1997) Op Cit. DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 104

FOOTNOTES 132

Ibid. See also: Steele, L. (2008) Op Cit.; Brady, S., Briton, J. and Grover, S. (2001) Op Cit.

133

Women With Disabilities Australia (WWDA) (2007) Policy & Position Paper: The Development of Legislation to Authorise Procedures for the Sterilisation of Children with Intellectual Disabilities. Available at: http://www.wwda.org.au/polpapster07.htm See also: New South Wales Council for Intellectual Disability (2006) Submission on the Draft Model Bill to regulate the sterilisation of children with an intellectual disability. Available online at: http://www.wwda.org.au/sternswcid06.htm; Intellectual Disability Rights Service (IDRS) (2006) Submission on the Draft Model Bill to regulate the sterilisation of children with an intellectual disability. Available online at: http://www.wwda.org.au/sterirds06. htm

134

This happens in two main ways: a) the child is removed by child protection authorities and placed in foster or kinship care; and b) a Court, under the Family Law Act, may order that a child be raised by the other parent who does not have a disability or by members of the child’s extended family. See: Victorian Office of the Public Advocate (OPA) (2012) OPA Position Statement: The removal of children from their parent with a disability. http://www.publicadvocate.vic.gov.au/research/302/

135

Victorian Office of the Public Advocate (OPA) (2012) OPA Position Statement: The removal of children from their parent with a disability. http://www.publicadvocate.vic.gov.au/research/302/

136

Cited in: Cocks, K. (2012) Human Rights of Parents with Intellectual Disability. Speech by Queensland Anti-Discrimination Commissioner, to the Bold Network and QUT Symposium Realising the Dreams and Hopes of Parents with Intellectual Disability held at QUT Gardens Point, Brisbane City on Monday, 19 November 2012. Accessed online February 2013 at: http://www.adcq.qld.gov.au/Speeches/Parents_withIntellectual_Disability.html

137

In Women With Disabilities Australia (WWDA) (2009) Parenting Issues for Women with Disabilities in Australia: A Policy Paper. WWDA, Rosny Park, Tasmania. Available online at: http://www.wwda.org.au/subs2006.htm

138

Ibid.

139

Ibid.

140

For example, in 2007, the Victorian Law Reform Commission (VLRC) released its final report on Assisted Reproductive Technology (ART) and adoption. The VLRC had been commissioned by the Victorian Government to enquire into and report on the desirability and feasibility of changes to the Infertility Treatment Act 1995<7JD>BOEUIFAdoption Act 1984<7JD>UPFYQBOEFMJHJCJMJUZDSJUFSJBJOSFTQFDUPGBMMPSBOZ forms of assisted reproduction and adoption (VLRC 2007). In relation to access to assisted reproductive technology, the VLRC decided “not to include impairment or disability as one of the grounds on which discrimination in relation to access to ART should be prohibited. This is because in some cases there is a nexus between disability and risk of harm to a child (for example, some forms of severe mental illness). Such a nexus does not exist in relation to marital status or sexual orientation. This does not mean that people with a disability or impairment should be refused treatment, but that in some cases a different approach is justified. Such an approach should involve making enquiries about any potential risk to the health and wellbeing of a prospective child” See: Victorian Law Reform Commission (VLRC) (2007) Assisted Reproductive Technology & Adoption: Final Report. Victorian Law Reform Commission, Melbourne, Victoria.

 #FUXFFOUIF"UUPSOFZ(FOFSBMPG2VFFOTMBOEBOE1BSFOUT3F4<>'BN$"  '-$'BN-S$IJMESFO  November 1989)

141

Re Katie FamCA 130 (30 November 1995)

142

 3F"OHFMB<>'BN$" 'FCSVBSZ

143

 3F)<>'BN$" .BZ

144

 3F"5FFOBHFS<>'BN$" /PWFNCFS

145

 3F)<>'BN$" .BZ

146 147

See for example: Sheerin, F. (1998) Parents with learning disabilities: a review of the literature. Journal of Advanced Nursing; Vol.28, No.1, pp.126-133; Osfield, S. (2012) ‘This girl has special needs and one day dreams of being a mum. Does anyone have the right to stop her having a baby?’ In marie claire Magazine, June 2012; Llewellyn, G. (1993) Parents with Intellectual Disability: Facts, Fallacies and Professional Responsibilities Community Bulletin 17 (1), 10 - 19.

148

WWDA (2009) Parenting Issues for Women with Disabilities in Australia: A Policy Paper, Op Cit.

149

Law Reform Commission (Ireland) (2011) Sexual Offences and Capacity to Consent. A Consultation Paper. Law Reform Commission, Dublin.

150

Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.

 #FUXFFOUIF"UUPSOFZ(FOFSBMPG2VFFOTMBOEBOE1BSFOUT3F4<>'BN$"  '-$'BN-S$IJMESFO  November 1989)

151

Ibid.

152 153

Re Katie FamCA 130 (30 November 1995)

154

Between: L and GM Applicants and MM Respondent and the Director-General Department of Family Services and Aboriginal and Islander "ŢBJST3FTQPOEFOU*OUFSWFOFS<>'BN$"  '-$'BN-S'BNJMZ-BX /PWFNCFS

 )(- /P <>2$"5" 4FQUFNCFS

155

 3F)<>'BN$" .BZ

156 157

Re Katie FamCA 130 (30 November 1995)

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 105

FOOTNOTES Office of the High Commissioner for Human Rights (undated) WORKING GROUP 4 - Evolving capacities as an enabling principle in practice. Accessed online February 2013 at: www2.ohchr.org/english/bodies/crc/docs/20th/BackDocWG4.doc

158

 3F"5FFOBHFS<>'BN$" /PWFNCFS

159

160

Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.

 #")<>/48(5 +VMZ

161

162

Jones M. & Basser Marks L. (1997) Op Cit.

163

Between: L and GM Applicants and MM Respondent and the Director-General Department of Family Services and Aboriginal and Islander "ŢBJST3FTQPOEFOU*OUFSWFOFS<>'BN$"  '-$'BN-S'BNJMZ-BX /PWFNCFS

164

Brady, S. (2001) Op Cit.

165

Re Katie FamCA 130 (30 November 1995)  3F"5FFOBHFS<>'BN$" /PWFNCFS

166

 +-4W+&4<>/484$ +VOF

167

 3F&MJ[BCFUI4VJU<>'BN$" .BZ

168

 #FUXFFOUIF"UUPSOFZ(FOFSBMPG2VFFOTMBOEBOE1BSFOUT3F4<>'BN$"  '-$'BN-S$IJMESFO  November 1989) Re Katie FamCA 130 (30 November 1995)

169

Cited in Brady, S. (2001) Op Cit.

170

 #FUXFFOUIF"UUPSOFZ(FOFSBMPG2VFFOTMBOEBOE1BSFOUT3F4<>'BN$"  '-$'BN-S$IJMESFO  November 1989) Re Katie FamCA 130 (30 November 1995)

171

172

Online response to News article ‘Parents win permission to sterilise their profoundly disabled 11-year-old daughter’. Response posted by MissCulture 11/3/2010. Accessed online March 2010 at: http://www.dailymail.co.uk/news/article-1256806/Australian-court-allows-parentssterilise-11-year-old-daughter.html

173

Online response to The Australian Newspaper article: Family Court lets couple sterilise disabled daughter; By Caroline Overington, March 09, 2010. Response posted by AD of Syd at 11:30 AM March 09, 2010. Accessed online March 2010 at: http://www.news.com.au/national-old/ family-court-lets-couple-sterilise-disabled-daughter/story-e6frfkvr-1225838469430

174

Online response to The Australian Newspaper article: Family Court lets couple sterilise disabled daughter; By Caroline Overington, March 09, 2010. Response posted by Millie at 10:06 AM March 09, 2010. Accessed online March 2010 at: http://www.news.com.au/national-old/ family-court-lets-couple-sterilise-disabled-daughter/story-e6frfkvr-1225838469430

175

Online response to The Australian Newspaper article: Family Court lets couple sterilise disabled daughter; By Caroline Overington, March 09, 2010. Response posted by OddMaude at 5:08 AM March 09, 2010. Accessed online March 2010 at: http://www.news.com.au/national-old/ family-court-lets-couple-sterilise-disabled-daughter/story-e6frfkvr-1225838469430

176

Online response to The Australian Newspaper article: Family Court lets couple sterilise disabled daughter; By Caroline Overington, March 09, 2010. Response posted by james of metford nsw at 10:38 AM March 09, 2010. Accessed online March 2010 at: http://www.news.com.au/ national-old/family-court-lets-couple-sterilise-disabled-daughter/story-e6frfkvr-1225838469430

177

Sobsey, D. & Doe, T. (1991) cited in Dowse, L. and Frohmader, C. (2001) Op Cit.

178

Women With Disabilities Australia (2011) Submission to the Preparation Phase of the UN Analytical Study on Violence against Women and Girls with Disabilities (A/HRC/RES/17/11). Available online at: http://www.wwda.org.au/viol2011.htm

179

Dowse, L. and Frohmader, C. (2001) Op Cit. See also: Dowse, L. (2004) Op Cit.

180

Between: L and GM Applicants and MM Respondent and the Director-General Department of Family Services and Aboriginal and Islander "ŢBJST3FTQPOEFOU*OUFSWFOFS<>'BN$"  '-$'BN-S'BNJMZ-BX /PWFNCFS

 %FQBSUNFOUPG)FBMUI$PNNVOJUZ4FSWJDFTW+8#4.# ŏ.BSJPOōT$BTFŐ <>)$"  $-3 .BZ

181

182

See the Australian Government’s response to the UN Special Rapporteurs (at Appendix 3).

183

Centre for Reproductive Rights et al (2011) Op Cit.

184

Re Katie FamCA 130 (30 November 1995)

 3F"5FFOBHFS<>'BN$" /PWFNCFS

185

 3F"OHFMB<>'BN$" 'FCSVBSZ

186

 3F"5FFOBHFS<>'BN$" /PWFNCFS

187

 3F)<>'BN$" .BZ

188

 #FUXFFOUIF"UUPSOFZ(FOFSBMPG2VFFOTMBOEBOE1BSFOUT3F4<>'BN$"  '-$'BN-S$IJMESFO  November 1989)

189

190

Cited in Transcript from 2003 Four Corners (ABC TV) Op Cit.

 3F. "O*OGBOU <>'BN$" "QSJM 

191

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 106

FOOTNOTES  $3$$PNNJUUFF(FOFSBM$PNNFOU/PTUBUFT“The Committee emphasizes that the interpretation of a child’s best interests must be consistent with the whole Convention, including the obligation to protect children from all forms of violence. It cannot be used to justify practices, including corporal punishment and other forms of cruel or degrading punishment, which conflict with the child’s human dignity and right to physical integrity. An adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention.” See: UN Committee on the Rights of the Child (CRC), General comment No. 13 (2011): Article 19: The right of the child to freedom from all forms of violence, 17 February 2011, CRC/C/GC/13

192

Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.

193

 & .ST W&WF <>4$34FFBUhttp://www.canlii.org/en/ca/scc/doc/1986/1986canlii36/1986canlii36.html

194

Dowse, L. and Frohmader, C. (2001) Op Cit. See also: Dowse, L. (2004) Op Cit.

195 196

Ibid.

197

Ibid. See also: Brady, S. (2001) Op Cit.

198

Dowse, L. and Frohmader, C. (2001) Op Cit.

199

Honourable Michael Kirby (2012) Adult Guardianship: Law, Autonomy and Sexuality. Paper presented at the Second World Congress on Adult Guardianship, Melbourne, Australia, 15 October 2012.  %FQBSUNFOUPG)FBMUI$PNNVOJUZ4FSWJDFTW+8#4.# ŏ.BSJPOōT$BTFŐ <>)$"  $-3 .BZ

200

Brady, S. (2001) Op Cit.

201

 3F)<>'BN$" .BZ

202

 3F"OHFMB<>'BN$" 'FCSVBSZ

203

204

Re Katie FamCA 130 (30 November 1995)

205

Cited in: Center for Reproductive Rights (2010) Reproductive Rights Violations as Torture and Cruel, Inhuman, or Degrading Treatment or Punishment: A Critical Human Rights Analysis; Center for Reproductive Rights, New York. See also: Steele, L. (2008) Op Cit., Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.; Manjoo, Rashida (2012) UN Doc. A/67/227, Op Cit.; Radhika Coomaraswamy (1999), UN Doc. E/CN.4/1999/68/Add.4, Op Cit.; Brown, W. (2012) The Word on Women - Forced sterilization and the Millennium Development Goals. Accessed online January 2013 at: http://www.trust.org/trustlaw/blogs/the-word-on-women/forced-sterilization-and-the-millennium-developmentgoals; African Gender and Media Initiative (2012) Robbed of Choice: Forced and Coerced Sterilization experiences of Women Living with HIV in Kenya; Accessed online January 2013 at: http://kelinkenya.org/wp-content/uploads/2010/10/Report-on-Robbed-Of-Choice-Forced-andCoerced-Sterilization-Experiences-of-Women-Living-with-HIV-in-Kenya.pdf; Nair, P. (2011) Litigating Against Forced Sterilization if HIV-Positive Women: Recent Developments in Chile and Namibia. Harvard Human Rights Journal, Vol.23, pp.223-231.

206

Sifris, R. (2010) Op Cit.

207

Dowse, L. & Frohmader, C. (2001) Op Cit.; Transcript from 2003 Four Corners (ABC TV), Op Cit., WWDA (2009) Submission to the Australian NGO Beijing+15 Review (September 2009), available on line at: http://www.wwda.org.au/WWDABeijingSub0909.pdf; Osfield, S. (2012) Op Cit., Sifris, R. (2010) Op Cit., Strahan, F. (1990) On The Record - A Report on the 1990 STAR Conference on Sterilisation: ‘My Body, My Mind, My Choice’. Edited by Fiona Strahan, Co-Editor Lois Brudenell. Available at: http://www.wwda.org.au/record.htm; Personal stories communicated to WWDA by members.

208

Dowse, L. & Frohmader, C. (2001) Op Cit.; Strahan, F. (1990) Op Cit; Personal stories communicated to WWDA by members; Women with Disabilities Feminist Collective (undated) Women and Disability - An Issue. A Collection of writings by women with disabilities.

209

Eastgate, G., Scheermeyer, E., van Driel, M. & Lennox, N. (2012) Intellectual disability, sexuality and sexual abuse prevention: A study of family members and support workers. Australian Family Physician Vol. 41, No. 3, pp. 135-139.

210

Dowse, L. & Frohmader, C. (2001) Op Cit.; Strahan, F. (1990) Op Cit; Personal stories communicated to WWDA by members; Women with Disabilities Feminist Collective (undated) Women and Disability - An Issue. A Collection of writings by women with disabilities.

211

Committee on the Rights of the Child; Consideration of reports submitted by States parties under article 44 of the Convention; Concluding observations: Australia; Sixtieth session, 29 May–15 June 2012; CRC/C/AUS/CO/4; UN General Assembly Human Rights Council (2011) Draft report of the Working Group on the Universal Periodic Review: Australia +BOVBSZ ")3$8(-5IF final document will be issued under the symbol A/HRC/17/10; Committee on the Elimination of Discrimination against Women (2010) Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia. CEDAW Forty-sixth session, 12 – 30 July 2010. CEDAW/C/AUS/CO/7; Committee on the Rights of the Child, Fortieth Session, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Australia, CRC/C/15/Add.268, 20 October 2005, paras 45, 46 (e).

212

Australian Government (2012) Draft 5th Report by Australia on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment For the period 1 January 2008 to 30 June 2012; Attorney-General’s Department, Canberra.

213

Open Society Foundations and the Stop Torture In Health Care Campaign (2011) Against Her Will: Forced and Coerced Sterilisation of Women Worldwide.

214

The CRPD is underpinned by a ‘human rights’ model of disability (which upholds persons with disabilities as equal and active subjects of their rights) and guiding principles and values, which include respect for inherent dignity, autonomy, including the freedom to make one’s own choices, independence, non-discrimination, full and effective participation in society, respect for difference, and equality of opportunity.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 107

FOOTNOTES 215

The Committee on the Rights of Persons with Disabilities (CRPD) is the body of independent experts which monitors implementation of the Convention by the States Parties. All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially within two years of accepting the Convention and thereafter every four years. The Committee examines each report and shall make such suggestions and general recommendations on the report as it may consider appropriate and shall forward these to the State Party concerned. The Optional Protocol to the Convention gives the Committee competence to examine individual complaints with regard to alleged violations of the Convention by States parties to the Protocol. The Committee meets in Geneva and normally holds two sessions per year. See: http://www.ohchr.org/en/hrbodies/crpd/pages/crpdindex.aspx

216

Committee on the Rights of Persons with Disabilities; Concluding observations of the Committee on the Rights of Persons with Disabilities: Spain. UN Doc. No: CRPD/C/ESP/CO/1; 19 October 2011.

217

Committee on the Rights of Persons with Disabilities; Concluding observations of the Committee on the Rights of Persons with Disabilities: Peru. UN Doc. No: CRPD/C/PER/CO/1; 9 May 2012.

218

Committee on the Rights of Persons with Disabilities; Concluding observations of the Committee on the Rights of Persons with Disabilities: China. UN Doc. No: CRPD/C/CHN/CO/1; 27 September 2012.

219

Committee on the Rights of Persons with Disabilities; Concluding observations of the Committee on the Rights of Persons with Disabilities: Hungary. UN Doc. No: CRPD/C/HUN/CO/1; 27 September 2012.

220

Committee on the Rights of Persons with Disabilities; Concluding observations of the Committee on the Rights of Persons with Disabilities: Tunisia. UN Doc. No: CRPD/C/TUN/CO/1; 13 May 2011.

221

Committee Against Torture (CAT), General Comment No. 2: Implementation of Article 2 by States Parties, 24 January 2008, UN Doc. CAT/C/ GC/2.

222

Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.

223

See: Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit., Nowak, M. (2008) UN Doc. A/HRC/7/3; Op Cit.

224

Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.

225

Nowak, M. (2008) UN Doc. A/HRC/7/3; Op Cit.

226

Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.

227

Committee against Torture; Concluding observations on the combined fifth and sixth periodic reports of Peru, adopted by the Committee at its forty-ninth session (29 October - 23 November 2012). UN Doc. No: CAT/C/PER/CO/5-6; 21 January 2013.

228

Committee against Torture; Concluding observations of the Committee against Torture: Czech Republic. UN Doc. No: CAT/C/CZE/CO/4-5; 13 July 2012.

229

Committee Against Torture; Concluding Observations: Slovakia, UN Doc. No: CAT/C/SVK/CO/2; 17 December 2009.

230

In relation to women with disabilities, CEDAW requires governments to specifically report on measures taken to ensure that disabled women can enjoy all economic, social, cultural, civil and political rights. See: UN High Commissioner for Refugees (2009) Displacement, Statelessness and Questions of Gender Equality under the Convention on the Elimination of All Forms of Discrimination against Women, August 2009, PPLAS/2009/02, available at: http://www.unhcr.org/refworld/docid/4a8aa8bd2.html

231

Grover, A. (2011) Interim report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. United Nations General Assembly; UN Doc. A/66/254.

232

Committee on the Elimination of Discrimination against Women. General Recommendation 19. Violence against women Article 16. Eleventh Session, 1992, contained in UN Doc A/47/38.

233

Ibid.

234

Committee on the Elimination of Discrimination against Women; Concluding observations on the fifth and sixth periodic reports of Chile, adopted by the Committee at its fifty-third session (1–19 October 2012); UN Doc. CEDAW/C/CHL/CO/5-6; 12 November 2012.

235

Committee on the Elimination of Discrimination against Women; Concluding observations: Jordan. UN Doc. CEDAW/C/JOR/CO/5; 23 March 2012.

236

Committee on the Elimination of Discrimination against Women; Concluding observations: Comoros. UN Doc. CEDAW/C/COM/CO/1-4; 24 October 2012.

237

Committee on the Elimination of Discrimination against Women (2010) Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia. CEDAW Forty-sixth session, 12 – 30 July 2010. CEDAW/C/AUS/CO/7.

238

Committee on the Elimination of Discrimination against Women; Concluding observations: Czech Republic. UN Doc. CEDAW/C/CZE/CO/5; 10 November 2010.

239

Committee on the Elimination of Discrimination against Women; Views: Communication No. 4/2004; Ms. Andrea Szijjarto v Hungary; UN Doc. CEDAW/C/36/D/4/2004 (29 August 2006)

240

Sifris, R. (2010) Op Cit.

241

Zampas, C. & Lamackova (2011) Forced and coerced sterilization of women in Europe. International Journal of Gynecology and Obstetrics, Vol. 114; pp. 163–166.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 108

FOOTNOTES 242

See: Human Rights Committee (2000) International Covenant on Civil and Political Rights (CCPR), General Comment No. 28: Equality of rights between men and women .BSDI $$13$3FW"EE 

243

General Assembly; Report of the Human Rights Committee, Volume 1; Official Records, Fifty-Fourth Session; Supplement No.40, A/54/40; para. 173.

244

Human Rights Committee; Concluding observations: Lithuania; adopted by the Human Rights Committee at its 105th session, 9-27 July 2012; CCPR/C/SR.2916.

245

Human Rights Committee; Concluding observations: Slovakia; Adopted by the Human Rights Committee at its 101st session 14 March-1 April 2011; CCPR/C/SVK/CO/3; 20 April 2011.

246

Human Rights Committee, International Covenant on Civil and Political Rights; List of issues prior to the submission of the sixth periodic report of Australia (CCPR/C/AUS/6), adopted by the Committee at its 106th session (15 October–2 November 2012); UN Doc No. CCPR/C/ AUS/Q/6; 9 November 2012.

247

Committee on the Rights of the Child (CRC), General Comment No. 9 (2006): The rights of children with disabilities, 27 February 2007, CRC/C/GC/9, available at: http://www.unhcr.org/refworld/docid/461b93f72.html

248

Ibid.

249

Committee on the Rights of the Child (CRC), General comment No. 13 (2011): Article 19: The right of the child to freedom from all forms of violence 'FCSVBSZ $3$$($

250

CRC Committee General Comment No.9

251

CRC Committee General Comment No. 13TUBUFTŏ5IF$PNNJUUFFFNQIBTJ[FTUIBUUIFJOUFSQSFUBUJPOPGBDIJMEōTCFTUJOUFSFTUT must be consistent with the whole Convention, including the obligation to protect children from all forms of violence. It cannot be used to justify practices, including corporal punishment and other forms of cruel or degrading punishment, which conflict with the child’s human dignity and right to physical integrity. An adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention.”

252

Committee on the Rights of the Child, General Comment No 9 (2006): The Rights of Children with Disabilities, UN Doc CRC/C/GC/9 (2007). See: http://www.ohchr.org/english/bodies/crc/comments.htm

253

Committee on the Rights of the Child; UN Doc. CRC/C/AUS/CO/4, Op Cit.

254

Ibid.

255

Committee on the Rights of the Child, UN Doc. CRC/C/15/Add.268, Op Cit.

256

Committee on the Rights of the Child, Concluding observations: Austria; UN Doc. CRC/C/15/Add.98; 29-01-1999.

257

UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), 14 December 1990, UN Doc. E/1991/23, available at: http://www.unhcr.org/refworld/docid/4538838e10.html

258

Committee on Economic, Social and Cultural Rights (CESCR) (1994) General Comment No. 5: Persons with disabilities, 9 December 1994, UN Doc. E/1995/22.; See also: Committee on Economic, Social and Cultural Rights; Concluding Observations of the Committee on Economic, Social and Cultural Rights: Brazil. UN Doc. E/C.12/1/Add.87.; 05/23/2003.

259

CESCR General Comment No.5, Op Cit.

260

See: Hunt, P. (2005) Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, paras. 4850, UN Doc. E/CN.4/2005/51 (Feb. 11, 2005); See also: Grover, A. (2011) UN Doc. A/66/254, Op Cit.; Grover, A. (2009) UN Doc. A/64/272, Op Cit.

261

Special Rapporteur Anand Grover also clarified that: ‘Informed consent invokes several elements of human rights that are indivisible, interdependent and interrelated. In addition to the right to health, these include the right to self-determination, freedom from discrimination, freedom from non-consensual experimentation, security and dignity of the human person, recognition before the law, freedom of thought and expression and reproductive self-determination. All States parties to the International Covenant on Economic, Social and Cultural Rights have a legal obligation not to interfere with the rights conferred under the Covenant, including the right to health. Safeguarding an individual’s ability to exercise informed consent in health, and protecting individuals against abuses (including those associated with traditional practices) is fundamental to protecting these rights.’ Grover, A. (2009) UN Doc. A/64/272, Op Cit.

262

Grover, A. (2009) UN Doc. A/64/272, Op Cit.

263

Grover, A. (2011). UN Doc. No: A/66/254, Op Cit.

264

From 2007 until December 2010, the Northern Territory Intervention (NTI) legislation suspended the operation of Australia’s legal protection from racial discrimination, the Racial Discrimination Act 1975 (Cth) (RDA), to acts done under, or for the purposes of, the NTI. See: http:// www.hrlrc.org.au/files/Fact-Sheet-2-NT-Intervention.pdf

265

As far back as 1999, the CERD Committee was identifying forced sterilisation of women belonging to indigenous communities as a matter of great concern. See for eg: Committee on the Elimination of Racial Discrimination; Concluding observations of the Committee on the Elimination of Racial Discrimination: Peru; UN Doc. CERD/C/304/Add.69

266

Shirane, D. (2011) ICERD and CERD: A Guide for Civil Society Actors. International Movement Against All Forms of Discrimination and Racism (IMADR); IMADR Geneva Office, Switzerland. DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 109

FOOTNOTES 267

Committee on the Elimination of Racial Discrimination; Concluding observations of the Committee on the Elimination of Racial Discrimination: Mexico; UN Doc. CERD/C/MEX/CO/15; 4 April 2006.

268

Committee on the Elimination of Racial Discrimination; Concluding observations of the Committee on the Elimination of Racial Discrimination: Slovakia; UN Doc. CERD/C/65/CO/7; 10 December 2004.

269

International Conference on Population and Development (ICPD) Programme of Action, Summary of the Programme of Action. See: http:// www.un.org/ecosocdev/geninfo/populatin/icpd.htm

270

The MDGs serve as a time-bound, achievable blueprint for reducing poverty and improving lives agreed to by all countries and all leading development institutions. They guide and focus development priorities for governments, donors and practitioner agencies worldwide. For more information go to: http://www.un.org/millenniumgoals/

271

The need for special protections guaranteeing a woman’s right to informed consent is reinforced by the Beijing Declaration. Any requirement for preliminary authorisation by a third party is a violation of a woman’s autonomy. See: United Nations, The Beijing Declaration and the Platform for Action: Fourth World Conference on Women, Beijing, China, 4-15 September 1995; A/CONF.177/20/Add.1.; See also: Grover, A. (2009) UN Doc. A/64/272, Op Cit.

272

United Nations General Assembly (2000) Resolution adopted by the General Assembly: Further actions and initiatives to implement the Beijing Declaration and Platform for Action. Twenty-third special session, UN Doc. A/RES/S-23/3

273

United Nations Economic and Social Commission for Asia and the Pacific (ESCAP) (2007) Biwako Plus Five: Further Efforts Towards an Inclusive, Barrier-Free and Rights-Based Society for Persons with Disabilities in Asia and the Pacific. As adopted by the High-level Intergovernmental Meeting on the Midpoint Review of the Asian and Pacific Decade of Disabled Persons, 2003-2012, on 21 September 2007. UN Doc. E/ESCAP/APDDP(2)/2.

274

United Nations Economic and Social Commission for Asia and the Pacific (ESCAP) (2002) Biwako Millennium Framework for Action towards an Inclusive, Barrier-free and Rights based Society in Asia and the Pacific. UN Doc. E/ESCAP/APDDP/4/Rev.1.

275

See for eg: The National Disability Strategy (NDS); National Disability Insurance Scheme (NDIS); National Plan to Reduce Violence against Women and their Children 2010-2022; Australia’s Human Rights Framework; National Women’s Health Policy (NWHP); National Framework for Protecting Australia’s Children 2009–2020

276

See: Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011;

277

Australian Law Reform Commission (2012) Family Violence and Commonwealth Laws—People with Disability. Access online December 2012 at: http://www.alrc.gov.au/CFV-disability

278

European Court of Human Rights; I.G. and Others v. Slovakia; (Application no. 15966/04); Judgement, Strasbourg; 13 November 2012.

279

European Court of Human Rights, case of V. C. v Slovakia, Application No 18968/07 (judgement delivered on 8 November 2011).

280

Centre for Reproductive Rights (17 September 2012) Correspondence to the United Nations Committee on the Elimination of Discrimination against Women; Re: Supplementary Information on Chile, scheduled for review by the U.N. Committee on the Elimination of Discrimination against Women during its 53rd session (October 2012). Accessed online January 2013 at: http://www2.ohchr.org/english/bodies/cedaw/docs/ ngos/CentroDeDerechosReproductivos_ForTheSession_Chile_CEDAW53.pdf

281

See: Southern Africa Litigation Centre (30 July 2012) Namibia: High Court Finds Govt Coercively Sterilised HIV Positive Women. Accessed on line August 2012 at: http://allafrica.com/stories/201207301026.html

282

Kibira, H. (23 August 2012) Kenya: Women Seek Justice Over Sterilisation. The Star. Accessed online January 2013 at: http://allafrica.com/ stories/201208240201.html

283

Tegel, S. (November 8, 2011) Peru: forced sterilization cases reopened. The Global Post; Accessed online January 2013 at: http://www. globalpost.com/dispatch/news/regions/americas/111107/peru-abuse-cases-reopened

284

Sepúlveda, L. (25 July 2012) Forced Sterilization Preys on Women with HIV-AIDs. In Women’s ENews. Accessed online January 2013 at: http://womensenews.org/story/hivaids/120726/forced-sterilization-preys-women-hiv-aids#.UTbOQDCnB8E See also: F.S. V Chile at: http:// reproductiverights.org/en/lbs-fs-vs-chile

285

REDRESS is an organisation founded by a British torture survivor in 1992. Since then, it has consistently fought for the rights of torture survivors and their families in the UK and abroad. See: www.redress.org

286

International Federation for Human Rights (FIDH) and REDRESS (27 February 2013) Nobel Prize nominee and human rights defender Mutabar Tadjibayeva files key complaint against Uzbek government for forcible sterilisation and torture. Accessed online February 2013 at: http://www.redress.org/downloads/PressreleaseMutabar-270213.pdf

287

Nelson, R. (14 January 2013) Transgender People in Sweden No Longer Face Forced Sterilization. TIME Newsfeed, Accessed February 2013 at: http://newsfeed.time.com/2013/01/14/transgender-people-in-sweden-no-longer-face-forced-sterilization/; See also: Cussins, J. (25 January 2013) Sweden Repeals Forced Sterilization for Transgender People. Accessed February 2013 at: http://www.psychologytoday.com/blog/ genetic-crossroads/201301/sweden-repeals-forced-sterilization-transgender-people

288

United Nations General Assembly (2006) Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. UN Doc. A/RES/60/147. See also: Office of the United Nations High Commissioner for Human Rights and the International Bar Association (2003) Human Rights In The Administration Of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers. Professional Training Series No. 9; OHCHR, Geneva.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 110

FOOTNOTES 289

See UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, 2200A (XXI) United Nations, Treaty Series, vol. 999, p. 171; also Office of the United Nations High Commissioner for Human Rights and the International Bar Association (2003) Op Cit.

290

Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit., Nowak, M. (2008) UN Doc. A/HRC/7/3; Op Cit.

291

Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.

292

‘Transitional justice’ refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses. The different elements of a comprehensive transitional justice policy are not parts of a random list, but rather, are related to one another practically and conceptually. The core elements are: Criminal prosecutions, particularly those that address perpetrators considered to be the most responsible; Reparations, through which governments recognise and take steps to address the harms suffered. Such initiatives often have material elements (such as cash payments or health services) as well as symbolic aspects (such as public apologies or day of remembrance); Institutional reform of abusive state institutions such as armed forces, police and courts, to dismantle—by appropriate means—the structural machinery of abuses and prevent recurrence of serious human rights abuses and impunity; Truth commissions or other means to investigate and report on systematic patterns of abuse, recommend changes and help understand the underlying causes of serious human rights violations. For more information see: http://ictj.org/about/transitional-justice

293

REDRESS (February 2013) What is reparation? Challenges and avenues to reparation for survivors of sexual violence, accessed online February 2013 at: http://www.unhcr.org/refworld/docid/5134a9df2.html

294

See Potts, H. (undated) Accountability and the Right to the Highest Attainable Standard of Health. Human Rights Centre, University of Essex, UK.

295

Dowse, L. & Frohmader, C. (2001) Op Cit.

296

Goldschmidt, D. (January 10th, 2012) North Carolina task force recommends $50,000 for sterilization victims. InAmerica; Accessed online February 2013 at: http://inamerica.blogs.cnn.com/2012/01/10/north-carolina-to-decide-how-much-to-compensate-victims-of-forced-sterilization/

297

Committee on the Elimination of Discrimination against Women (2010) UN Doc. CEDAW/C/AUS/CO/7, Op Cit. See also: Australian Human Rights Commission (2012) The Involuntary or Coerced Sterilisation of People with Disabilities in Australia, Australian Human Rights Commission Submission to the Senate Community Affairs References Committee.

298

Committee on the Rights of Persons with Disabilities; Concluding observations of the Committee on the Rights of Persons with Disabilities: Peru. UN Doc. CRPD/C/PER/CO/1; 9 May 2012.

299

Committee on the Rights of Persons with Disabilities; Concluding observations of the Committee on the Rights of Persons with Disabilities: China. UN Doc. CRPD/C/CHN/CO/1; 27 September 2012.

300

Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.,

301

Méndez, Juan. E, (2013) UN.Doc A/HRC/22/53, Op Cit.,

302

Grover, A. (2009) UN Doc. A/64/272, Op Cit.

303

European Court of Human Rights; I.G. and Others v. Slovakia; (Application no. 15966/04); Judgement, Strasbourg; 13 November 2012. European Court of Human Rights, case of V. C. v Slovakia, Application No 18968/07 (judgement delivered on 8 November 2011). Centre for Reproductive Rights (17 September 2012) Correspondence to the United Nations Committee on the Elimination of Discrimination against Women; Re: Supplementary Information on Chile, scheduled for review by the U.N. Committee on the Elimination of Discrimination against Women during its 53rd session (October 2012). Accessed online January 2013 at: http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/ CentroDeDerechosReproductivos_ForTheSession_Chile_CEDAW53.pdf See: Southern Africa Litigation Centre (30 July 2012) Namibia: High Court Finds Govt Coercively Sterilised HIV Positive Women. Accessed on line August 2012 at: http://allafrica.com/stories/201207301026. html; Tegel, S. (November 8, 2011) Peru: forced sterilization cases reopened. The Global Post; Accessed online January 2013 at: http://www. globalpost.com/dispatch/news/regions/americas/111107/peru-abuse-cases-reopened

304

The Aquinas Program: Truth in Society 2008-2009, Leilani Muir and the Alberta Government, accessed online February 2013 at: http:// people.stu.ca/~truth/0809/reports/eugenics.pdf; See also: Leilani Muir successfully sues Alberta govt for wrongful sterilization, The Current, Monday, November 14, 2011. Accessed online February 2013 at: http://www.cbc.ca/thecurrent/episode/2011/11/14/leilani-muir-successfully-suesalberta-govt-for-wrongful-sterilization/

305

Dowse, L. & Frohmader, C. (2001) Op Cit.

306

Pasulka, N. (January 25, 2012) Forced Sterilization for Transgender People in Sweden. Accessed online at: http://www.motherjones.com/mixedmedia/2012/01/sweden-still-forcing-sterilization

307

For more information on the North Carolina Justice for Sterilization Victims Foundation, go to: http://www.sterilizationvictims.nc.gov/

308

North Carolina Justice for Sterilization Victims Foundation, ‘Governor’s Task Force to Determine the Method of Compensation for Victims of North Carolina’s Eugenics Board’. Accessed online February 2013 at: http://www.sterilizationvictims.nc.gov/taskforce.aspx

309

Governor’s Task Force to Determine the Method of Compensation for Victims of North Carolina’s Eugenics Board (2012) Final Report to the Governor of the State of North Carolina; Pursuant to Executive Order 83; Accessed on line January 2013 at: http://www.sterilizationvictims. nc.gov/documents/FinalReport-GovernorsEugenicsCompensationTaskForce.pdf

310

REDRESS (September 2010) Rehabilitation as a Form of Reparation: Opportunites and Challenges Workshop Report, Accessed online February 2013 at: http://www.redress.org/downloads/publications/Report_of_the_Expert_Seminar_on_Rehabilitation_October_2010.pdf

311

Somasundaram, D., cited in REDRESS (September 2010) Rehabilitation as a Form of Reparation: Opportunites and Challenges Workshop Report, Accessed online February 2013 at: http://www.redress.org/downloads/publications/Report_of_the_Expert_Seminar_on_Rehabilitation_ October_2010.pdf DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 111

FOOTNOTES 312

CRPD Article 26 (Habilitation and rehabilitation) states: 1. States Parties shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. To that end, States Parties shall organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services, in such a way that these services and programmes: (a) Begin at the earliest possible stage, and are based on the multidisciplinary assessment of individual needs and strengths; (b) Support participation and inclusion in the community and all aspects of society, are voluntary, and are available to persons with disabilities as close as possible to their own communities, including in rural areas.

313

2.

States Parties shall promote the development of initial and continuing training for professionals and staff working in habilitation and rehabilitation services.

3.

tates Parties shall promote the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation.

UN General Assembly (2000) Further actions and initiatives to implement the Beijing Declaration and Platform for Action. Resolution BEPQUFECZUIF(FOFSBM"TTFNCMZ4"3&44

314

Women With Disabilities Australia (WWDA) (2009) Parenting Issues for Women with Disabilities in Australia: A Policy Paper. OpCit.

315

Manjoo, Rashida (2012) UN Doc. A/67/227, Op Cit.

316

Dowse, L. and Frohmader, C. (2001) Op Cit.

317

Dowse, L. (2004) ‘Moving Forward or Losing Ground? The Sterilisation of Women and Girls with Disabilities in Australia’. Paper presented to Disabled Peoples’ International (DPI) World Summit, Winnipeg, September 8-10, 2004. Available online at: http://www.wwda.org.au/steril3. htm ; Steele, L. (2008) Making sense of the Family Court’s decisions on the non-therapeutic sterilisation of girls with intellectual disability; Australian Journal of Family Law, Vol.22, No.1.; Prilleltensky, O. (2003) A Ramp to Motherhood: The Experiences of Mothers with Physical Disabilities. Sexuality and Disability, Vol. 21, No. 1, pp. 21-47.

318

See for example: the Sexuality Education Counselling and Consultancy Agency (SECCA) in Western Australia, provides education and training workshops which are able to be customised. One example is the ‘Menstrual Management, Personal Hygiene & Sexual Health’ Training Workshop which aims to ‘provide participants with strategies to teach women with a disability, their carers and other health professionals a positive approach to menstruation’. SECCA also provides a one-on-one specialist counselling and education service in the area of human relationships and sexuality to people who have a disability, their family and significant carers.

319

Women With Disabilities Australia (2011) Submission to the Preparation Phase of the UN Analytical Study on Violence against Women and Girls with Disabilities (A/HRC/RES/17/11). Available online at: http://www.wwda.org.au/viol2011.htm

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 112

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA

APPENDICES

DEHUMANISED ‘DEHUMANISED: THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA’ WWDA Submission to the Senate Inquiry into the involuntary or coerced sterilisation of people with disabilities in Australia By Carolyn Frohmader for Women With Disabilities Australia (WWDA) © Women With Disabilities Australia (WWDA) March 2013 ISBN 978-0-9876035-0-0 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced without written permission from Women With Disabilities Australia (WWDA). All possible care has been taken in the preparation of the information contained in this document. WWDA disclaims any liability for the accuracy and sufficiency of the information and under no circumstances shall be liable in negligence or otherwise in or arising out of the preparation or supply of any of the information aforesaid. This publication has been prepared by Women with Disabilities Australia Inc. for the Australian Government, represented by the Department of Families, Housing, Community Services and Indigenous Affairs. The views expressed in this publication are those of Women with Disabilities Australia Inc. and do not necessarily represent the views of the Australian Government. ABOUT WOMEN WITH DISABILITIES AUSTRALIA (WWDA) Women With Disabilities Australia (WWDA)1 is the peak non-government organisation (NGO) for women with all types of disabilities in Australia. WWDA is run by women with disabilities, for women with disabilities, and represents more than 2 million disabled women in Australia. WWDA’s work is grounded in a rights based framework which links gender and disability issues to a full range of civil, political, economic, social and cultural rights. Promoting the reproductive rights of women and girls with disabilities, along with promoting their rights to freedom from violence and exploitation, and to freedom from torture or cruel, inhuman or degrading treatment are key policy priorities of WWDA.2 WOMEN WITH DISABILITIES AUSTRALIA (WWDA) PO Box 605, Rosny Park 7018 Tasmania, Australia Ph +61 3 62448288 Fax +61 3 62448255 Email [email protected] Web www.wwda.org.au Facebook www.facebook.com/WWDA.Australia Winner, National Human Rights Award 2001 Winner, National Violence Prevention Award 1999 Winner, Tasmanian Women’s Safety Award 2008 Certificate of Merit, Australian Crime & Violence Prevention Awards 2008 Nominee, French Republic’s Human Rights Prize 2003 Nominee, UN Millennium Peace Prize for Women 2000

CONTENTS

Appendices

4

FIGO Guidelines on Female Contraceptive Sterilisation

5

Letter to the Australian Government from the UN Special Rapporteurs

8

Responses from the Australian Government to the UN Special Rapporteurs

11

Senate Inquiry Terms of Reference

41

Footnotes

42

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 3

APPENDICES

APPENDIX 1 FIGO GUIDELINES

FEMALE CONTRACEPTIVE STERILIZATION BACKGROUND 1.

Human rights include the right of individuals to control and decide on matters of their own sexuality and reproductive health, free from coercion, discrimination and violence. This includes the right to decide whether and when to have children, and the means to exercise this right.

2.

Surgical sterilization is a widely used method of contraception. An ethical requirement is that performance be preceded by the patient’s informed and freely given consent, obtained in compliance with the Guidelines Regarding Informed Consent ( 2007) and on Confidentiality (2005). Information for consent includes, for instance, that sterilization should be considered irreversible, that alternatives exist such as reversible forms of family planning, that life circumstances may change, causing a person later to regret consenting to sterilization, and that procedures have a very low but significant failure rate.

3.

Methods of sterilization generally include tubal ligation or other methods of tubal occlusion. Hysterectomy is inappropriate solely for sterilization, because of disproportionate risks and costs.

4.

Once an informed choice has been freely made, barriers to surgical sterilization should be minimised. In particular: a) sterilization should be made available to any person of adult age; b) no minimum or maximum number of children may be used as a criterion for access; c) a partner’s consent must not be required, although patients should be encouraged to include their partners in counseling; d) physicians whose beliefs oppose participation in sterilization should comply with the Ethical Guidelines on Conscientious Objection (2005).

5.

Evidence exists, including by governmental admission and apology, of a long history of forced and otherwise non-consensual sterilizations of women, including Roma women in Europe and women with disabilities. Reports have documented the coerced sterilization of women living with HIV/AIDS in Africa and Latin America. Fears remain that ethnic and racial minority, HIV-positive, low-income and drug-using women, women with disabilities and other vulnerable women around the world, are still being sterilized without their own freely-given, adequately informed consent.

6.

Medical practitioners must recognize that, under human rights provisions and their own professional codes of conduct, it is unethical and in violation of human rights for them to perform procedures for prevention of future pregnancy on women who have not freely requested such procedures, or who have not previously given their free and informed consent. This is so even if such procedures are recommended as being in the women’s own health interests.

7.

Only women themselves can give ethically valid consent to their own sterilization. Family members including husbands, parents, legal guardians, medical practitioners and, for instance, government or other public officers, cannot consent on any woman’s or girl’s behalf.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 5

APPENDIX 1 FIGO GUIDELINES

8.

Women’s consent to sterilization should not be made a condition of access to medical care, such as HIV/ AIDS treatment, natural or cesarean delivery, or abortion, or of any benefit such as medical insurance, social assistance, employment or release from an institution. In addition, consent to sterilization should not be requested when women may be vulnerable, such as when requesting termination of pregnancy, going into labor or in the aftermath of delivery.

9.

Further, it is unethical for medical practitioners to perform sterilization procedures within a government program or strategy that does not include voluntary consent to sterilization.

10.

Sterilization for prevention of future pregnancy cannot be ethically justified on grounds of medical emergency. Even if a future pregnancy may endanger a woman’s life or health, she will not become pregnant immediately, and therefore must be given the time and support she needs to consider her choice. Her informed decision must be respected, even if it is considered liable to be harmful to her health.

11.

As for all non-emergency medical procedures, women should be adequately informed of the risks and benefits of any proposed procedure and of its alternatives. It must be explained that sterilization must be considered a permanent, irreversible procedure that prevents future pregnancy, and that non-permanent alternative treatments exist. It must also be emphasized that sterilization does not provide protection from sexually transmitted infections. Women must be advised about and offered follow-up examinations and care after any procedure they accept.

12.

All information must be provided in language, both spoken and written, that the women understand, and in an accessible format such as sign language, Braille and plain, non-technical language appropriate to the individual woman’s needs. The physician performing sterilization has the responsibility of ensuring that the patient has been properly counseled regarding the risks and benefits of the procedure and its alternatives.

13.

The U.N. Convention on the Rights of Persons with Disabilities includes recognition “that women and girls with disabilities are often at greater risk … of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation”. Accordingly, Article 23(1) imposes the duty “to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that: a)

The right of all persons with disabilities who are of marriageable age to marry and to found a family … is recognized;

b)

The rights…to decide freely and responsibly on the number and spacing of their children …are recognized, and the means necessary to enable them to exercise these rights are provided;

c)

Persons with disabilities, including children, retain their fertility on an equal basis with others”.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 6

APPENDIX 1 FIGO GUIDELINES

RECOMMENDATIONS 1.

No woman may be sterilized without her own, previously-given informed consent, with no coercion, pressure or undue inducement by healthcare providers or institutions.

2.

Women considering sterilization must be given information of their options in the language in which they communicate and understand, through translation if necessary, in an accessible format and plain, non-technical language appropriate to the individual woman‘s needs. Women should also be provided with information on non-permanent options for contraception. Misconceptions about prevention of sexually transmitted diseases (STDs) including HIV by sterilization need to be addressed with appropriate counseling about STDs.

3.

Sterilization for prevention of future pregnancy is not an emergency procedure. It does not justify departure from the general principles of free and informed consent. Therefore, the needs of each woman must be accommodated, including being given the time and support she needs, while not under pressure, in pain, or dependent on medical care, to consider the explanation she has received of what permanent sterilization entails and to make her choice known.

4.

Consent to sterilization must not be made a condition of receipt of any other medical care, such as HIV/AIDS treatment, assistance in natural or cesarean delivery, medical termination of pregnancy, or of any benefit such as employment, release from an institution, public or private medical insurance, or social assistance.

5.

Forced sterilization constitutes an act of violence, whether committed by individual practitioners or under institutional or governmental policies. Healthcare providers have an ethical response in accordance with the guideline on Violence Against Women (2007).

6.

It is ethically inappropriate for healthcare providers to initiate judicial proceedings for sterilization of their patients, or to be witnesses in such proceedings inconsistently with Article 23(1) of the Convention on the Rights of Persons with Disabilities.

7.

At a public policy level, the medical profession has a duty to be a voice of reason and compassion, pointing out when legislative, regulatory or legal measures interfere with personal choice and appropriate medical care.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 7

APPENDIX 2 LETTER TO THE AUSTRALIAN GOVERNMENT FROM THE UNITED NATIONS SPECIAL RAPPORTEURS Goa, March 2011 NATIONS UNIES HAUT COMMISSARIAT DES NATIONS UNIES AUX DROITS DE L’HOMME

UNITED NATIONS OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS

PROCEDURES SPECIALES DU CONSEIL DES DROITS DE L’HOMME

SPECIAL PROCEDURES OF THE HUMAN RIGHTS COUNCIL

Mandates of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the Special Rapporteur on violence against women, its causes and consequences

REFERENCE: AL Health (2002-7) G/SO 214 (89-15) AUS 2/2011 18 July 2011

Excellency, We have the honour to address you in our capacities as Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and Special Rapporteur on violence against women, its causes and consequences pursuant to General Assembly resolution 60/251 and to Human Rights Council resolutions 15/22 and 16/7. In this connection, we would like to bring to the attention of your Excellency’s Government information we have received concerning the alleged ongoing practice of non-therapeutic, forced sterilization of girls and women with disabilities in Australia. According to the information received: It is alleged that non-therapeutic, forced sterilization is performed on young girls and women with disabilities for various purposes, including pregnancy prevention, population control, menstrual management and personal care. Reportedly, non-therapeutic sterilization is sterilization for a purpose other than to treat some malfunction or disease, and it refers to procedures carried out in circumstances that do not involve a serious threat to the health or life of the individuals. Forced sterilization refers to sterilization that has occurred in the absence of the individual’s consent. It is also alleged that cases of non-therapeutic, forced sterilization of girls have occurred in greater numbers than those formally authorized by courts and tribunals. It is further alleged that the existing State and Territory legislation and federal court mechanisms have not adequately addressed non-therapeutic, forced sterilizations of young girls with disabilities, in particular with regard to preventing such children from being taken out of Australia for sterilization procedures elsewhere. While we do not wish to prejudge the accuracy of these allegations, we would appreciate information from your Government on the steps taken by the competent authorities with a view to ensuring the right to the highest attainable standard of health of girls and women with disabilities. This right is enshrined, inter alia, in Article 12 of the International Covenant on Economic, Social and standard of mental and physical health. This includes an obligation on the part of all States parties to ensure that health facilities, goods and services are accessible to everyone, especially the most vulnerable or marginalized sections of the population, without discrimination. In that connection, General Comment No. 14 of the Committee on Economic, Social and Cultural Rights elucidates

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 8

APPENDIX 2 LETTER TO THE AUSTRALIAN GOVERNMENT FROM THE UNITED NATIONS SPECIAL RAPPORTEURS that the right to health contains both freedoms and entitlements and holds that “the freedoms include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation” (para. 8). I would also like to refer your Excellency’s Government to General Comment No. 5 of the Committee, which holds that “Women with disabilities also have the right to protection and support in relation to motherhood and pregnancy…Both the sterilization of, and the performance of an abortion on, a woman with disabilities without her prior informed consent are serious violations of article 10 (2) [of the International Covenant on Economic, Social and Cultural Rights]” (para.30). We would like to draw the attention of your Excellency’s Government to Article 17 of the Convention on the Rights of or her physical and mental integrity on an equal basis with others”. We would also like to refer your Excellency’s Government to Article 23 of the Convention, which holds that “States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that: (…) The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized.” Furthermore, we would like to draw the attention of your Excellency’s Government to Article 24 of the Convention on the of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health”. I would also like to refer your Excellency’s Government to General Comment No.9 of the Committee of the Rights of the Child which states: “The Committee is deeply concerned about the prevailing practice of forced sterilisation of children with disabilities, particularly girls with disabilities. This practice, which still exists, seriously violates the right of the child to her or his physical integrity and results in adverse life-long physical and mental health effects. Therefore, the Committee urges States parties to prohibit by law the forced sterilisation of children on grounds of disability.” We would also like to refer your Excellency’s Government to General Recommendation No. 18 of the Committee on the Elimination of Discrimination against Women, which recommends that “States parties [to the Convention in the Elimination of reports, and on measures taken to deal with their particular situation, including special measures to ensure that they have equal access to education and employment, health services and social security, and to ensure that they can participate in all areas of social and cultural life”. In that context, I would like to note paragraph 43 of the Concluding observations of the Committee on the Elimination of Discriminations against Women (CEDAW/C/AUL/CO/7, 30.07.2010) which recommended that Australia “enact national legislation prohibiting, except where there is a serious threat to life or health, the use of sterilization of girls, regardless of whether they have a disability, and of adult women with disabilities in the absence of their fully informed and free consent”. Finally, we deem it appropriate to make reference to Commission on Human Rights Resolution 2005/41 on the Elimination on Violence against women, which provides that women should be empowered to protect themselves against violence and, in this regard, stresses that women have the right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence. In this context, we would also like to draw your attention to the Platform for Action of the Beijing World Conference on Women and the Programme of individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 9

APPENDIX 2 LETTER TO THE AUSTRALIAN GOVERNMENT FROM THE UNITED NATIONS SPECIAL RAPPORTEURS We urge your Excellency’s Government to take all necessary measures to ensure the protection and full enjoyment of the right to the highest attainable standard of health for girls and women with disabilities in accordance with international standards. It is our responsibility under the mandate provided by the Human Rights Council to seek to clarify all cases brought to my attention regarding the right to health. Since we are expected to report on these cases to the Council, we would be grateful for your cooperation in addressing the following matters: 1.

Are the facts alleged in the above summary of the case accurate?

2.

Please provide details of any actions to prevent further non-therapeutic, forced sterilization of girls and women with disabilities?

3.

Please provide details of any actions to sanction medical staff carrying out illegal non-therapeutic, forced sterilizations of girls and women with disabilities. Please provide details, and where available the results, of any investigation and judicial or other inquiries carried out in relation to such cases. If no inquiries have been made, or if they have been inconclusive, please explain why.

4.

Please provide details of any actions to ensure that reparation, including compensation and rehabilitation, is provided to those girls and women with disabilities who may have been forcibly sterilized?

5.

Please provide details of any actions to ensure that informed consent requirements are adequately implemented for all medical interventions with regard to children and persons with disabilities?

6.

What measures are being taken to ensure the enjoyment of the right to health of girls and women with disabilities?

that will be submitted to the Human Rights Council for its consideration. Please accept, Excellency, the assurances of our highest consideration.

Anand Grover Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health Rashida Manjoo Special Rapporteur on violence against women, its causes and consequences

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 10

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS

Note Number: 108/2011

Commissioner for Human Rights, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the Special Rapporteur on violence against women, its causes and consequences. The Australian Government has the honour to refer to the Special Rapporteurs’ letter of 18 July 2011 requesting the Australian Government’s observations on the alleged practice of non-therapeutic, forced sterilisation of girls and women with disabilities in Australia. The Australian Government is currently considering the information and questions contained in the letter. The Government is consulting with relevant stakeholders, including state and territory governments, and will provide a full response by 17 October 2011.

High Commissioner for Human Rights and the Special Rapporteurs the assurances of its highest consideration.

Geneva 12 August 2011

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 11

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS

Note Number: 127/2011 for Human Rights, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the Special Rapporteur on violence against women, its causes and consequences. The Australian Government has the honour to refer to the Special Rapporteurs’ letter of 18 July 2011 requesting the Government’s response regarding the alleged practice of non-therapeutic, forced sterilisation of girls and women with disabilities in Australia. The Australian Government has the further honour to refer to its correspondence of 12 August 2011, in which the Special Rapporteurs were informed that a response would be provided by the Australian Government by 17 October 2011. The Australian Government is currently considering the information and questions contained in the letter of 18 July 2011. The Commonwealth Attorney-General’s Department is in the process of compiling a detailed Australian Government response to this request for information. The Australian Government regrets that in order to ensure the Australian Government’s response to this request is as comprehensive as possible, further consultation with the State and Territory governments is required, and consequently it is unlikely that this consultation will be completed before the earlier indicated date for submission of 17 October 2011. The Australian Government is committed to upholding its international obligations and would prefer to take more time to ensure an accurate and fully considered response can be prepared on this important topic.

2011.

Commissioner for Human Rights and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the Special Rapporteur on violence against women, its causes and consequences.

Australian Permanent Mission to the UN Chemin des Fins 2 – Case Postale 102 – 1211 Geneve 19 Tel. 022 799 91 00 Fax 022 799 91 75

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 12

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS

Note number: 185/2011 The Australian Permanent Mission to the United Nations in Geneva presents its compliments High Commissioner for Human Rights, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the Special Rapporteur on violence against women, its causes and consequences. The Australian Government has the honour to refer to the Special Rapporteurs’ letter of 18 July 2011 requesting the Government’s response regarding the alleged practice of non-therapeutic, forced sterilisation of girls and women with disabilities in Australia. The Australian Government has the further honour to enclose, for the Special Rapporteurs’ consideration, its response to the issues raised in that letter. The Australian Permanent Mission to the United Nations avails itself of this opportunity to High Commissioner for Human Rights and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the Special Rapporteur on violence against women, its causes and consequences.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 13

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS UNITED NATIONS OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS SPECIAL RAPPORTEURS’ REQUEST FOR INFORMATION ALLEGATIONS OF NON-THERAPEUTIC FORCED STERILISATION OF GIRLS AND WOMEN WITH DISABILITIES IN AUSTRALIA Australia is party to the Convention on the Rights of Persons with Disabilities (CRPD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child (CRC). The Australian Government welcomes the Special Rapporteurs’ interest in Australian law and practice concerning sterilisation. Australia has recently submitted its initial report under the CRPD and, as that report notes, persons with disabilities are highly valued members of Australian communities and workplaces and make a positive contribution to Australian society. Moreover, the Australian Government is committed to improving and enriching the lives of all women to enable them to participate equally in all aspects of Australian life. The Australian Government notes that the issue of Australian practices in relation to sterilisation of people with disabilities was raised in the course of Australia’s recent Human Rights Universal Periodic Review (UPR).1 In response to concerns expressed internationally and domestically, the then Commonwealth Attorney-General undertook to initiate further discussions with State and Territory counterparts on this issue. This consultation is ongoing at this time.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 14

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS 1. ARE THE FACTS ALLEGED IN THE SUMMARY OF THE CASE ACCURATE? The Australian Government is committed to respecting the human rights of all persons with disabilities, including their right to personal integrity and reproductive rights. Sterilisation is a serious and irreversible procedure. Many people choose sterilisation as a method for controlling their fertility, but sterilisation can have significant physical and psychological consequences for those who undergo it. Sterilisations should never be carried out in the absence of a person’s free and informed consent where that person is capable of making the decision, including where a person requires support to make that decision. The Government takes its international human rights obligations seriously and has noted the concerns raised domestically and internationally regarding Australia’s approach to sterilisation of children and adults with disabilities. The former Attorney-General has asked the Attorney General’s Department to consider options for reform in this area and has undertaken to raise this issue with State and Territory counterparts. This work will form part of the Government’s National Human Rights Action Plan, the draft of which was launched to coincide with International Human Rights Day, 10 December 2011. Under current laws, for children and adults who have an impaired capacity to consent and are unable to make an independent decision about whether to undergo a sterilisation procedure, Australian laws provide for authorisation by a court or guardianship tribunal. These laws are designed to protect the rights of those involved and to ensure procedures are authorised only where they are in the person’s best interests. Detail of the different laws governing sterilisation in Australia is set out below, however, broadly, in all Australian jurisdictions the authorisation of a court or tribunal is required in cases where a sterilisation procedure is not considered to be clearly therapeutic (the requirements vary between jurisdictions but would include, for example, surgery to remove a cancer). This is a greater protection than is applied for most other medical treatments, recognising the serious nature of sterilisation procedures and the possible challenges for carers to objectively determine what is in the person’s best interests. Courts and tribunals hear a range of evidence; often including the views of the person concerned, medical evidence and evidence from carers. In many cases, an independent advocate is appointed to represent the person’s interests to the court or tribunal. Appointment of an independent advocate is usually a matter for the Court or Tribunal to decide. Sterilisations are authorised only where they are the last resort, as less invasive options have failed or are inappropriate, and where they are in the person’s best interests. A review conducted at the behest of the Standing Committee of Attorney General’s (SCAG), the national ministerial council made up of the Australian Attorney-General and the State and Territory Attorneys-General, indicated in 2006 that sterilisations of children with an intellectual disability had declined significantly since Australia’s 1997 country report to the Committee on the Elimination of All Forms of Discrimination Against Women. Evidence also indicated that alternatives to surgical procedures to manage the menstruation and contraceptive needs of girls and women with disabilities are increasingly available and seem to be successful in the most part. The Australian Government recognises that the issues faced by children and women with disabilities and their parents and carers in these situations are sensitive, and that members of the community have strong concerns about children and women with disabilities being subjected to medical procedures which result in sterilisation. DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 15

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS The Australian Government would be very concerned if concrete evidence were made available that demonstrated that current mechanisms were not adequately protecting girls and women with disabilities, or that cases of sterilisation that are unlawful without court or tribunal authorisation had occurred in greater numbers than those formally authorised. The Australian Government would also be concerned if children with disabilities were being taken out of Australia for sterilisation procedures elsewhere that would be unlawful without court or tribunal authorisation in Australia. However the Australian Government is unaware of any such evidence at this time.

2. PLEASE PROVIDE DETAILS OF ANY ACTIONS TO PREVENT FURTHER NON THERAPEUTIC, FORCED STERILISATION OF GIRLS AND WOMEN WITH DISABILITIES. The Australian Government recognises the right of persons with disabilities to retain their fertility on an equal basis with others. Given its serious consequences sterilisation (of a child or of an adult with a disability who is unable to give consent), that is not performed to cure a disease or correct some malfunction, may only be authorised by a court or tribunal as a measure of last resort. In many cases, an independent advocate is appointed to represent the person’s interests to the court or tribunal.

A NATIONAL APPROACH? Australia is a federation with nine separate jurisdictions, the Commonwealth or federal jurisdiction and eight State and Territory jurisdictions. The 2006 SCAG review considered model legislation on a nationally consistent approach, which would have applied to the authorisation procedures required for the lawful sterilisation of minors across all the jurisdictions. After deliberation and the review of findings presented by a working group, it was decided that there would be limited benefit in developing such model legislation at that point in time. SCAG agreed instead to review State and Territory arrangements to ensure that all tribunals, or bodies with the power to make orders concerning the sterilisation of minors with an intellectual disability, are required to be satisfied before such an order is made that all less invasive alternatives to sterilisation are inappropriate or have been tried and found to be unsuccessful. Subsequently, across the jurisdictions the legal framework currently applied to prevent unnecessary sterilisation of children and of women who are unable to independently consent differs. In 2011 the then Commonwealth Attorney-General undertook to initiate further discussions with State and Territory counterparts on this issue. These discussions are ongoing at this time and may influence future change to the Federal, State and Territory legal frameworks. In the interim, the following information outlines the current requirements in each jurisdiction.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 16

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS

COMMONWEALTH JURISDICTION At the federal level, the Family Court of Australia (Family Court) has jurisdiction under the Family Law Act 1975 to make orders relating to the welfare of children, such as to authorise special medical procedures for children, including sterilisation that is not to treat a disease or correct some malfunction. The Family Court has a general welfare jurisdiction that enables the court to give consent to special medical procedures in place of the parents where the consent required is outside the bounds of parental authority. When considering a request the court must regard the child’s best interests as the paramount consideration in these decisions. The following information outlines the approach taken by the courts in such cases. Parent or guardian consent to sterilisation will be sufficient only where sterilisation is a by-product of surgery appropriately carried out to treat a malfunction or disease. In addition, a medical practitioner can lawfully carry out a sterilisation procedure in emergency situations, that is, where the procedure is necessary to save a person’s life or to prevent serious damage to that person’s health. Where a child cannot consent due to a lack of maturity or a disability, court or tribunal approval is required for serious medical procedures including sterilisation. The Family Court is empowered to make such decisions, and in doing so is required to treat the best interests of the child as the paramount consideration

MARION’S CASE The High Court of Australia (HCA) established the framework for authorisation of sterilisation of children in Australia in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992),2 on appeal from the Family Court. This appeal considered the processes required to authorise procedures that would render a 14 year old girl with intellectual disabilities infertile but prevent menstruation, pregnancy and hormonal fluxes and consequently reduce psychological and behavioural problems. A majority judgement held that children who have a sufficient understanding and intelligence to enable them to understand fully what is proposed are capable of giving (or withholding) informed consent. The majority also held that where a child is insufficiently mature to give consent on his or her own behalf then, as a general rule, his or her parents or guardian have lawful authority to consent to medical treatment of the child, provided that the treatment is in the child’s best interests. The HCA acknowledged the uncertainty in the term ‘therapeutic’, but defined it to mean sterilisation that is ‘a by-product of surgery appropriately carried out to treat some malfunction or disease.’ The majority found that the parental power to consent to a sterilisation procedure is limited to circumstances in which sterilisation is therapeutic in this sense, because sterilisation ‘requires invasive, irreversible and major surgery.’ Accordingly, only a court or tribunal, that has a relevant welfare jurisdiction, has the power to authorise sterilisation procedures that are not carried out as a by-product of surgery appropriately carried out to treat some malfunction or disease. The majority went on to provide guidance on the issues a court should consider when asked to give authorisation for such sterilisation and held that the court must decide ‘whether, in the circumstances of the case, [authorisation of sterilisation] is in the best interests of the child’ (the ‘best interests test’). The HCA noted that within that context, sterilisation can only be authorised where other procedures or

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 17

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS treatments are or have proved to be inadequate, have failed, or will not ‘alleviate the situation so that the child can lead a life in keeping with his or her needs and capacities.’ Thus, a best interest test is applied by the Family Court throughout Australia when determining whether to authorise the sterilisation of a minor (Marion’s Case). The Family Law Rules 2004 set out evidence that must be considered in applying the best interests test. Additional details on these Rules are provided below. In addition, Family Court may appoint an independent children’s lawyer to represent the child’s best interests.

ANGELA’S CASE An recent example of the application of the Family Law Rules and the test in Marion’s Case can be found in Re Angela (Special Medical Procedure), where the Family court authorised the performance of a hysterectomy on an eleven year old girl with a decision making disability.3 Angela suffered from heavy menstrual bleeding and was anaemic. She also had epileptic seizures around the time of menstruation and menstruation brought pain, fatigue and hygiene discomfort. The judge found that Angela would ‘never be in a position to make a decision about her own welfare’. Overall the judge was satisfied in this case that sterilisation was a last resort treatment that would contribute to an improvement in Angela’s quality of life. The Family Court decided not to appoint an independent children’s lawyer in this case.

MEDICARE BENEFITS In addition to the legal framework set up at the Commonwealth level to assess applications for sterilisation, there are additional protections provided through the regulations of the Medicare Benefits Schedule (MBS). Through the MBS, the Australian Government facilitates universal access to allied health, general practice and specialist medical services by subsidising fee-for-service care. No Medicare benefits are payable for services which are provided in contravention of Commonwealth or State and Territory laws. Medicare benefits are only payable for sterilisation procedures that are clinically relevant professional services as defined in Section 3(1) of the Health Insurance Act 1973. Section 3(1) states that a clinically relevant service must be provided by a medical practitioner in accordance with accepted medical practice. The MBS does not provide any specific information on the sterilisation of the girls or women with disabilities, however, the following information is provided in relation to the sterilisation of minors: •

It is unlawful throughout Australia to conduct a sterilisation procedure on a minor which is not a byproduct of surgery appropriately carried out to treat malfunction or disease (e.g. malignancies of the reproductive tract) unless legal authorisation has been obtained.



Practitioners are liable to be subject to criminal and civil action if such a sterilisation procedure is performed on a minor (a person under 18 years of age) which is not authorised by the Family Court or another court or tribunal with jurisdiction to give such authorisation.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 18

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS STATE AND TERRITORY JURISDICTIONS In addition, the various Australian States and Territories have developed their own procedures for authorising the sterilisation of children and adults who do not have the capacity to consent on their own behalf. All States and Territories have their own procedures for adults, however New South Wales, Queensland, South Australia and Tasmania also have provisions for children. These procedures operate concurrently to the Family Court procedure for authorising sterilisations in the best interests of the child. The following information outlines the current legal requirements in various jurisdictions:

VICTORIA Victorian legislation provides that involuntary treatments such as sterilisations and abortions can only be carried out by order of the Victorian Civil and Administrative Tribunal (VCAT). Under the Victorian Guardianship and Administration Act 1986 a ‘special procedure’ is defined to include: ‘any procedure that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out’; ‘termination of pregnancy’; and ‘any removal of tissue for the purposes of transplantation to another person’. The Guardianship and Administration Act 1986 sets out the manner in which the VCAT may consent to the performance of a ‘special procedure’ where the person in question is unable to give consent and the procedure would be in the patient’s best interests. This Act only applies to a person who is aged 18 years of over. The Victorian Office of the Public Advocate (OPA) must be given notice of any application and is entitled to participate in the case. The OPA’s role in these applications is to assist VCAT to make a decision that is in a person’s best interests by gathering information about the person’s disability and their ability to make decisions about the proposed special procedure. The OPA is also occasionally involved as an amicus curiae, and sometimes even as a party, in Family Court cases where medical treatment decisions concerning children are being considered. A decision of the Tribunal is reviewable by the superior courts. The Guardianship and Administration Act 1986 provides quite severe penalties for any medical practitioner who carries out a special procedure without having obtained the proper consent. While the Guardianship and Administration Act 1986 is currently being reviewed by the Victorian Law Reform Commission, there is no indication at present that the Commission will make any recommendations to reform the provisions relating to obtaining consent for forced sterilisations and abortion.4

NEW SOUTH WALES In NSW, two different legal regimes are in place to govern the sterilisation of children and adults. For children aged under 16, the provisions contained within section 175 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) apply. For people aged 16 and over who are incapable of giving consent to medical treatment, the regime under the Guardianship Act 1987 (NSW) applies. Under section 175(1) of the Care and Protection Act 1998, it is an offence to carry out special medical treatment on a child that is not in accordance with the provisions of this section. Special medical treatment includes DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 19

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS non-therapeutic sterilisation, that is, medical treatment that is intended, or is reasonably likely to render a person permanently infertile. Section 175(2) of this Act provides that non-therapeutic sterilisation may only be performed in an emergency to save the child’s life or prevent serious damage to health, or with the approval of the Guardianship Tribunal which must apply similar criteria when determining whether to give consent. A person under 16 is entitled to be legally represented in proceedings before the Guardianship Tribunal. This representation is available free of charge through Legal Aid, with no means or merit tests applied. Under the provisions of the Guardianship Act 1987, only the Guardianship Tribunal can consent to ‘special treatment’ of a person aged over 16 who is incapable of giving consent. Special treatment is defined to include ‘any treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out.’ Two exceptions apply under the provisions this Act: (a) The guardian of a patient may also consent to the carrying out of continuing or further special treatment if the Tribunal has previously given consent to the carrying out of the treatment and has authorised the guardian to give consent to the continuation of that treatment or to further treatment of a similar nature. (b) If the medical practitioner carrying out or supervising the treatment considers the treatment is necessary, as a matter of urgency to save the patient’s life or to prevent serious damage to the patient’s health. The Guardianship Act 1987 requires that the Tribunal must not consent to the carrying out of the treatment unless it is satisfied that it is the most appropriate form of treatment for promoting and maintaining the patient’s health and well-being. Further, the Tribunal must not give consent to special treatment unless it is satisfied that the treatment is necessary to save the patient’s life or to prevent serious damage to the patient’s health. The combined effect ofthe Children and Young Persons (Care and Protection) Act 1998 and the Guardianship Act 1987 is that no person under 16, regardless of competence, nor persons over 16 who are incapable of giving consent, can consent to a non-therapeutic sterilisation. Under this legal framework, it is beyond the scope of parents’ or guardians’ powers to consent on behalf of a child. Significant penalties of imprisonment for up to 7 years apply to persons who carry out unauthorised sterilisations under both Acts. Decisions of the Tribunal about sterilisation or termination can be appealed to the Supreme Court of NSW which has the power to review such decisions and to set them aside or to make orders in substitution if it thinks fit.

WESTERN AUSTRALIA In Western Australia, there is no specific legislation concerning the sterilisation of children. At common law, a child is capable of giving informed consent to medical treatment, including therapeutic and non-therapeutic sterilisation, when he or she is sufficiently mature and intelligent to understand fully the implications of the treatment proposed. Where a particular child, whether because of intellectual disability, or simply youth or immaturity, is incapable of giving a valid consent, then his or her parents (or other guardians) are authorised to consent to medical treatment, including therapeutic sterilisation. However, court authorisation is necessary for non-therapeutic sterilisation (Marion’s Case). The criterion to be applied by a court with the necessary jurisdiction, is whether carrying out the procedure is in the best interests of the child. DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 20

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS The Western Australian Guardianship and Administration Act 1990 requires that the consent of the State Administrative Tribunal is obtained for an adult with a decision-making disability who lacks capacity to give or refuse consent to sterilisation. A person has a right of appeal to the Supreme Court or Court of Appeal, and sterilisation is not able to proceed until all rights have been exhausted. Following the conclusion of any appeals, the treating doctor must have written consent from both the State Administrative Tribunal and the guardian. In Western Australian, a therapeutic sterilisation (in very general terms) is a sterilisation which is the incidental result of surgery or treatment appropriately carried out to cure a disease or treat an injury whereas nontherapeutic sterilisation involves surgery or treatment carried out for the purpose of rendering the person infertile. In relation to adults, the Guardianship and Administration Act 1990 places limitations on the sterilisation of persons who are under guardianship and lack the capacity to consent to treatment. Under the Guardianship and Administration Act 1990, a person is prohibited from carrying out or taking part in any procedure for the sterilisation of a represented person, unless both the guardian and the State Administrative Tribunal have provided written consent to the sterilisation and all rights of appeal have lapsed or have been exhausted. The Tribunal may only consent to the sterilisation of a represented person if it is satisfied that it is in the best interests of that person. In addition to the guardianship provisions, the Guardianship and Administration Act 1990 also provides that a person responsible (i.e. partner, closest adult relative or friend, or unpaid primary care provider) for a patient who is unable to make reasonable judgments in respect of any treatment proposed, cannot consent to the sterilisation of the patient. A civil action in trespass and a criminal prosecution for assault may be brought against a health professional if medical treatment is given without consent. However, section 259 of the Western Australian Criminal Code Act 1913 removes criminal responsibility for the administration in good faith of medical treatment for a person’s benefit if the treatment is reasonable, having regard to the person’s state at the time and to all the circumstances of the case. King Edward Memorial Hospital (KEMH) is Western Australia’s public tertiary maternity, neonatal and gynaecological hospital. KEMH medical staff follow RANZCOG guidelines and refer cases where appropriate to the State Guardianship Board via the hospital’s social work department. These generally include those patients requiring therapeutic sterilisation such as hysterectomy for menorrhagia The Western Australian Health Hospital Morbidity Data System does not record any cases that are coded as nontherapeutic sterilisation in combination with a disability code. This includes both private and public hospital data.

QUEENSLAND In Queensland where a health service or treatment is provided without a person’s consent, the provider of the service may be liable to a criminal or civil prosecution. Where an adult has impaired capacity, a comprehensive substitute decision-making regime is established to provide the consent. For special health matters, such as a termination of pregnancy, sterilisation, removal of tissue while the adult is still alive, and participation in special medical research or experimental health care, only a Tribunal may provide consent for such a health matter and only in specified circumstances. These circumstances ensure that the adult’s rights and interests are protected.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 21

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS Queensland, like NSW, has an independent expert tribunal and separate legal representation of the child is provided by legal aid at no cost to the child. In Queensland, the Tribunal may consent to sterilisation of a child where: •

it is medically necessary;



the child is likely to be sexually active and there is no reasonable method of contraception;



the female child has menstruation problems and sterilisation is the only practicable way of overcoming the problems.

Further, the sterilisation cannot be reasonably postponed and must otherwise be in the child’s best interests. The Queensland medico-legal fraternity is well aware of the precedent set in Marion’s Case. The requirement for permanent surgical sterilisation to deal with issues of fertility and menstrual problems in women with disabilities has been virtually eliminated by the availability of long acting, reversible implants referred to in the Royal Australian and New Zealand College of Obstetrics and Gynaecology (RANZCOG) Guidelines, see page 20.

SOUTH AUSTRALIA The South Australian Guardianship and Administration Act 1993 has provision to approve sterilisations where by reason of their mental incapacity (defined as: inability to look after his or her own health, safety or welfare...as a result of damage to, or any illness, disorder, imperfect or delayed development, impairment or deterioration of the brain or mind, or any physical illness or condition that renders the person unable to communicate his or her intentions or wishes) the person is deemed to be unable to make the decision for themselves. Section 5 of the Guardianship and Administration Act 1993 allows certain relatives to provide consent for medical or dental treatment , unless the treatment is defined as a ‘prescribed treatment,’ which is treatment that must not be carried out without the written consent of the South Australian Guardianship Board. Under the Guardianship and Administration Act 1993 ‘prescribed treatment’ includes medical treatments such as sterilisation and termination of pregnancy. In order for the South Australian Guardianship Board to approve ‘prescribed treatment’ it must satisfy the criteria in section 61. The criteria include non-therapeutic treatment such as: •

No method of contraception that could ... reasonably be expected to be successfully applied; (Section 61(2)).



Cessation of her menstrual cycle would be in her best interests (Section 61(2)).

TASMANIA The Guardianship and Administration Act 1995 provides a comprehensive and flexible statutory scheme for the authorisation and approval of medical and dental treatment for persons with a disability who are incapable of giving or refusing consent to treatment. The Guardianship and Administration Act 1995 gives authority for the ‘person responsible’, who may be a spouse, carer or close friend of the person unable to give consent, to provide a substitute consent. However, the Guardianship and Administration Board (the Board) must consent to some types of very serious treatments, such as sterilisation. DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 22

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS The Guardianship and Administration Act 1995 defines sterilisation as ‘any treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out’ and makes it a special treatment under section 3. The Board’s jurisdiction to deal with applications to consent to special treatment is provided by sections 44, 45 and 46 of the Guardianship and Administration Act 1995. The Board’s jurisdiction usually extends only to adults with disability, however in the area of sterilisation, the Board is the only body who may consent to this treatment for any person with a disability, including minors. In giving consent, the Board must observe the principles set out in Section 6 of the Guardianship and Administration Act 1995 which states: ‘...a function or power conferred, or duty imposed, by this Act is to be performed so that (c) the means which is the least restrictive of a person’s freedom of decision and action asis possible in the circumstances is adopted; and (d) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and (e) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect. Section 45 of the Guardianship and Administration Act 1995 sets out the following conditions upon which the Board may grant consent: 1. On hearing an application for its consent to the carrying out of medical or dental treatment the Board may consent to the carrying out of the medical or dental treatment if it is satisfied that(a) the medical or dental treatment is otherwise lawful; and (b) that person is incapable of giving consent; and (c) the medical or dental treatment would be in the best interests of that person. 2. For the purposes of determining whether any medical or dental treatment would be in the best interests of a person to whom this Part applies, matters to be taken into account by the Board include(a) the wishes of that person, so far as they can be ascertained; and (b) the consequences to that person if the proposed treatment is not carried out; and (c) any alternative treatment available to that person; and (d) whether the proposed treatment can be postponed on the ground that better treatment may become available and whether that person is likely to become capable of consenting to the treatment; and (e) in the case of transplantation of tissue, the relationship between the 2 persons concerned; and (f) any other matters prescribed by the regulations.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 23

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS AUSTRALIAN CAPITAL TERRITORY The ACT Government does not support non-therapeutic, forced sterilisation on young girls and women with disabilities. The Canberra Hospital does, however, recognise the need where these young girls and women become extremely distressed with the management of their menstrual cycle, to implement appropriate medication management that may inhibit or decrease their symptoms related to menstruation, with their consent or their carers’ consent. The ACT Power of Attorney Act 2006 can appoint power of attorney to make medical decisions in the event that an individual loses capacity. Under this Act, an adult can grant another adult an enduring power of attorney to make decisions for a person with impaired decision-making capacity, as defined by this Act. Individuals to whom a power of attorney has been granted may not exercise power in relation to ‘special health care matters’. Special health care matters are defined by Section 37 of this Act to be: (a)

removal of non-regenerative tissue from the principal while alive for donation to someone else;

(b)

sterilisation of the principal if the principal is, or is reasonably likely to be, fertile;

(c)

termination of the principal’s pregnancy;

(d)

participation in medical research or experimental health care;

(e)

treatment for mental illness;

(f)

electroconvulsive therapy or psychiatric surgery;

(g)

health care prescribed by regulation.

If a person cannot give their own consent (i.e. if they have an ‘impaired decision making ability’) for a prescribed treatment, an ACT Civil and Administrative Tribunal (ACAT) order is required. The law applicable to ACT adult residents unable to provide informed medical consent is the Guardianship and Management of Property Act 1991. Under this Act, sterilisations and other matters are referred to as prescribed medical procedures and such medical determinations may only be made by the ACAT. ACAT is required to give consideration to the following: (a)

the procedure is otherwise lawful; and

(b)

the person is not competent to give consent and is not likely to become competent in the foreseeable future; and

(c)

The procedure would be in the person’s best interests; and

(d)

The person, the guardian and any other person whom the ACAT considers should have notice of the proposed procedure are aware of the application for consent.

In addition, for prescribed medical procedures including sterilisation, legislation requires that: 1.

The ACAT must appoint the person’s guardian, or the public advocate or some other independent person, to represent the person in relation to the hearing relating to the consent.

2.

In deciding whether a particular procedure would be in the person’s best interests, the matters that the ACAT must take into account include:

(a)

The wishes of the person, so far as they can be ascertained; and

(b)

What would happen if it were not carried out; and

(c)

What alternative treatments are available; and DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 24

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS (d)

Whether it can be postponed because better treatments may become available; and

(e)

For a transplantation of tissue-the relationship between the 2 people and other matters.

Compulsory treatment and intervention can only be used when the legislation is satisfied either under the Crimes Act or the Mental Health (Treatment and Care) Act. Safeguards include criteria-based treatment and intervention, the capacity to review decisions, transparency in decision making, and the statutory requirement for periodic review, procedural fairness mechanisms, and the person to whom the compulsory measures are taken being afforded representation. Oversight agencies, such as the Public Advocate, also play a role in educating the community about special medical procedures and the legal requirements that must be followed, and about the rights of all girls and women, particularly girls and women who are unable to provide informed medical consent.

NORTHERN TERRITORY In the NT sterilisation procedures are governed by two separate systems; one for adults and one for children. ADULTS NT legislation does allow for sterilisation to be carried out however only in a situation where the consent of the court is obtained. Section 21(2) of the Adult Guardianship Act (NT) provides that a medical practitioner or dentist must not carry out a ‘major medical procedure’ on a ‘represented person’ unless the consent of the court has been obtained. A ‘represented person’ is an adult in respect of whom an adult guardianship order is in effect. An adult guardianship order is only made under section 15 of the Adult Guardianship Act if the court is satisfied the person is under an intellectual disability and in need of an adult guardian. Medical procedures relating to contraception or the termination of a pregnancy, are defined as ‘major medical procedures’ under section 21(4)(b) of the Adult Guardianship Act. Section 21(8) of the Adult Guardianship Act provides that the court must be satisfied that the sterilisation procedure would be in ‘the best interests’ of the represented person before making the order. The currently used ‘best interest’ test is the common law test formulated by the Family Court in Marion ‘s Case. Under section 21(8) if the court is satisfied on hearing an application under this section that it would be in the best interest of the represented person, it may, by order, consent to the major medical procedure. The Court, in considering whether to make an order for a major medical procedure to be undertaken, will take into account the best interests of the adult. The court must also ascertain the wishes of the represented person as far as is reasonably possible (section 21(6)). Section 21(7) of the Adult Guardianship Act provides that, subject to section 21(8)- the ‘best interest’ test, if the court is satisfied that the represented person understands the nature of the proposed major medical procedure and is capable of giving or refusing consent to that procedure, the court shall give effect to the represented person’s wishes.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 25

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS CHILDREN Where a child is incapable of giving consent (due to an intellectual disability or immaturity), the NT follows the common law as laid down by the HCA in Marion’s Case. Only the Family Court may give consent for a child to undergo sterilisation for non-therapeutic purposes (i.e. otherwise than as a by-product of surgery appropriately carried out to treat a malfunction or disease). EMERGENCIES Under the Emergency Medical Operations Act (NT) there is no need for authorisation if a medical practitioner believes that waiting for authorisation, to carry out the procedure from the courts, would be harmful to the patient or result in the death of the patient. Similarly the Adult Guardianship Act provides that section 21 does not apply in respect of any medical or dental procedure carried out on any person in an emergency where the medical or dental procedure appears necessary to save the life of that person. It is noted that: •

Section 60 of the Mental Health and Related Services Act (NT) prohibits sterilisation as a treatment for those suffering from a mental illness or mental disturbance.



Section 64 of the Mental Health and Related Services Act provides that a major medical procedure cannot be performed on a person who is an involuntary patient or subject to a community management order unless the Mental Health Review Tribunal has given its approval. Separate legal representation is also provided at no cost to a person who appears before the Tribunal.

3. PLEASE PROVIDE DETAILS OF ANY ACTIONS TO SANCTION MEDICAL STAFF CARRYING OUT ILLEGAL NONTHERAPEUTIC, FORCED STERILISATIONS OF GIRLS AND WOMEN WITH DISABILITIES, AND WHERE AVAILABLE, THE RESULTS OF ANY INVESTIGATION AND JUDICIAL OR OTHER INQUIRIES CARRIED OUT IN RELATION TO SUCH CASES. IF NO INQUIRIES HAVE BEEN MADE, OR IF THEY HAVE BEEN INCONCLUSIVE, PLEASE EXPLAIN WHY. The Australian Government is not aware of any recent evidence concerning sterilisations of girls or women with disabilities that have been carried out in contravention of Australian law. Also, the 2006 SCAG review concluded that sterilisations of children with an intellectual disability had declined significantly in Australia since 1997. If such evidence were presented the Australian Government would be very concerned.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 26

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS CURRENT AVENUES FOR SANCTION Under Australian law generally, there are a range of regulations and protections to ensure that medical practitioners are appropriately sanctioned in the event of a medical procedure being carried out in a manner that contravenes the law or disregards the rights of patients

SANCTIONS OF MEDICAL PRACTITIONERS Medical practitioners in Australia are required to be registered by the Medical Board of Australia (MBA), in accordance with the Health Practitioner Regulation National Law Act 2009 (National Law) as adopted in each State or Territory. The MBA is responsible for regulating the practice of the medical profession by registering practitioners, developing professional practice standards, overseeing the assessment of the skills of overseas trained practitioners and managing notifications and complaints against practitioners. The MBA is supported in its role by the Australian Health Practitioner Regulation Agency (AHPRA), an independent statutory agency. The MBA has issued a code of conduct for doctors in Australia, entitled Good Medical Practice: A Code of Conduct for Doctors in Australia. This code articulates the ethical and professional conduct expected of all practitioners and has been developed to be consistent with the Declaration of Geneva and the International code of Medical Ethics, issued by the World Medical Association. Where a medical practitioner’s behaviour departs from the code of conduct, the MBA may take action against the practitioner. This action may take the form of cancelling the practitioner’s registration, cautioning the practitioner, requiring an undertaking, placing conditions on the practitioner’s registration or referring the matter to the health complaints entity in the relevant State or Territory. Where the MBA considers that a practitioner’s conduct constitutes professional misconduct, the matter must be referred to a responsible tribunal in the relevant State or Territory. A tribunal may impose a range of sanctions, including suspension or cancellation of the practitioner’s registration. All tribunal outcomes are made available to the public online at: Members of the public may report concerns about a medical practitioner’s professional conduct to AHPRA. In addition, other health professionals regulated by the National Law, and employers of medical practitioners, are required to report a reasonable belief that a medical practitioner has placed the public at risk by practising in a way that significantly departs from accepted professional standards. The exception to this is that health professionals in WA are not bound by mandatory notification if the health professional in question is a client or patient, however they may still volunteer the information. The notification process can be found in full detail online at: .

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 27

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS MEDICARE AUSTRALIA AND INAPPROPRIATE PRACTICE The Australian Government’s Department of Human Services’ (DHS) objective is to make sure payment of Medicare benefits is correctly made for services properly rendered. DHS operates a Health Provider Compliance function. The Health Provider Compliance function is responsible for preventing, detecting and investigating fraud and inappropriate practice. Health Provider Compliance works with the health industry to: •

ensure the correct benefits are claimed for properly rendered services, and



prevent and detect fraud and inappropriate practice with respect to claiming of benefits.

Health Provider Compliance applies a balance of education and compliance strategies to meet the requirements for the Health Insurance Act 1973, National Health Act 1953, and the Medicare Australia Act 1973. IfDHS became aware of a claim made for a service that was ineligible for payment of benefits due to an unlawful act, then DHS may take the following actions: •

recover incorrectly paid benefits



request the Director of Professional Services Review to review the provision of services under Medicare by the practitioner



refer the matter to Australian Health Practitioner Regulation Agency (AHPRA), and



refer the matter to the State or Australian Federal police in the relevant jurisdiction.

STATE AND TERRITORY SANCTIONS In addition, in each of the States and Territories there are a number of schemes and systems which protect the rights of individuals by imposing sanctions where medical practitioners act inappropriately. For example, the national Health Practitioner Registration and Accreditation Scheme (which is enacted in Victoria through the Health Practitioner National Law (Victoria) Act 2009 provides the means for sanctions against registered health practitioners who act illegally or unprofessionally. The Victorian Government does not know if any procedures involving the sterilisation of girls and women with disabilities have been the subject of investigations or actions by the scheme.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 28

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS 4. PLEASE PROVIDE DETAILS OF ANY ACTIONS TO ENSURE THAT REPARATION, INCLUDING COMPENSATION AND REHABILITATION, IS PROVIDED TO THOSE GIRLS AND WOMEN WITH DISABILITIES WHO MAY HAVE BEEN FORCIBLY STERILISED. As noted above, Australian Government is not aware of any recent evidence concerning sterilisations of girls or women with disabilities that have been carried out in contravention of Australian law. However, were such allegations to be proven, generally there are a number of avenues for redress under Australian law.

CURRENT AVENUES FOR REDRESS Compensation can generally be sought in Australia through four different avenues. Victims can: •

receive a court-ordered payment from an offender as part of a criminal penalty after conviction, or



issue proceedings for civil damages.

In the current context, under Commonwealth, State and Territory laws there are a range of statutory and common-law criminal and civil offences which deal with unauthorised medical procedures and medical negligence.5 In Victoria, for example, the Guardianship and Administration Act 1986 (VIC) provides quite severe penalties, including up to two years imprisonment and 240 penalty units (one penalty unit is $122.14), for any medical practitioner who carries out a special procedure without having obtained the proper consent. At the request of the previous Attorney-General, the Attorney-General’s Department is considering options for reform of the Australian legal framework around sterilisation procedures. The creation of sanctions for unauthorised or inappropriate sterilisations, and options for redress girls and women with disabilities who may have been sterilised without their informed consent, or the consent of a court or tribunal, is an issue under consideration. These issues will be raised these issues during discussions with States and Territories.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 29

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS 5. PLEASE PROVIDE DETAILS OF ANY ACTIONS TO ENSURE THAT INFORMED CONSENT REQUIREMENTS ARE ADEQUATELY IMPLEMENTED FOR ALL MEDICAL INTERVENTIONS WITH REGARD TO CHILDREN AND PERSONS WITH DISABILITIES. INFORMED CONSENT There are a number of resources available in Australia to ensure that informed consent requirements are adequately implemented for medical interventions. The discussions of the HCA in Marion’s Case regarding the limits of parental authority, consent and medical interventions for children with disabilities have been considered and referenced by judicial officers in both sterilisation and other (non-sterilisation) cases to assist in their assessment of the consent requirements for medical interventions more broadly.6 In many cases the appointment, at the Court’s discretion, of an independent advocate also helps to ensure that the interests of children or adults who cannot provide informed consent are directly represented alongside the wishes of their families or carers. The States and Territories have also developed statutory frameworks to ensure that an individual’s wishes are a primary consideration in decisions made about their health. In the State of Victoria, for example, the Guardianship and Administration Act 1986 expressly provides that it is the intent of the Victorian Parliament that any decision or action taken under that Act is the least restrictive of a person’s freedom of decision and action; that the best interests of the person are promoted; and the wishes of the person are given effect to wherever possible. To give effect to these principles Victorian Office ofthe Public Advocate (OPA) publishes a Practice Guideline to assist OPA staff in dealing with applications for special procedures. The Guideline sets out the legal framework surrounding special procedures and the evidentiary requirements to establish the capacity of the person, the medical need for the procedure, what less restrictive alternatives are available and have been tried, the wishes of the person and what is in their best interests. In addition, both the Victorian Civil and Administrative Tribunal (VCAT) and OPA as public authorities are required to give proper consideration to and act compatibly with the relevant human rights set out in the Charter of Human Rights and Responsibilities Act 2006 (VIC). This means when considering applications for special procedures OPA and VCAT must have regard to: •

Recognition and equality before the law as this right deals with discrimination.



Protection from torture, and cruel, inhuman or degrading treatment as this deals with consent to medical treatment.



Protection of families may be relevant to a person being able to have a family.



Right to a fair hearing - ensuring that the person with the disability is properly heard at any hearing about the special procedure.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 30

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS A number of Australian governments also produce guidance materials for non-legal practitioners. The Queensland Government for example, publishes Health Policy Statements advising medical professionals and the public of their rights and obligations - this includes the operation of informed consent requirements in relation to children and persons with disabilities.7 In addition, there is also a wide variety of relevant guidance materials prepared by advisory groups, professional associations and non-government organisations, all of which assist in educating relevant professionals about the informed consent requirements so that they are adequately implemented.

THE AUSTRALIAN MEDICAL ASSOCIATION (AMA) As the peak organisation representing the medical profession, the AMA develops policy solutions and provides responses to a broad range of health and medical issues of ongoing importance to Australia. The AMA has produced guidelines on a number of topics that stress the importance of informed consent, including but not limited to the AMA Code of Ethics - 2004 (Editorially Revised 2006), and Guidelines on topics including Informed Financial Consent and Human Genetic Issues.8

GUIDANCE ON STERILISATION In addition to resources which assist with upholding informed consent requirements generally, there are also a number of resources to assist persons involved in applications for sterilisation.

THE FAMILY LAW RULES Guidance for judges in the Family Court can be found in the Family Law Rules 2004 which make special provision in relation to applications for authorisation of a medical procedure. In particular, Rule 4.09(1) provides that ‘if a Medical Procedure Application is filed, evidence must be given to satisfy the court that the proposed medical procedure is in the best interests of the child.’ Further, Rule 4.09(2) requires, under the heading ‘Evidence supporting application,’ that the evidence a court should consider in such cases: ‘...must include evidence from a medical, psychological or other relevant expert witness that establishes the following: (a)

the exact nature and purpose of the proposed medical procedure;

(b)

the particular condition of the child for which the procedure is required;

(c)

the likely long-term physical, social and psychological effects on the child: i. if the procedure is carried out; and ii.if the procedure is not carried out;

(d)

the nature and degree of any risk to the child from the procedure;

(e)

if alternative and less invasive treatment is available -the reason the procedure is recommended instead of the alternative treatments;

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 31

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS (f)

that the procedure is necessary for the welfare of the child;

(g)

if the child is capable of making an informed decision about the procedure -whether the child agrees to the procedure;

(h)

if the child is incapable of making an informed decision about the procedure-that the child: i. is currently incapable of making an informed decision; and ii.is unlikely to develop sufficiently to be able to make an informed decision within the time in which the procedure should be carried out, or within the foreseeable future;

(i)

whether the child’s parents or carer agree to the procedure.’

Together with the HCA’s decision in Marion’s Case, these Rules provide guidance as to the factors the Family Court should consider when determining whether it is in the best interests of a child to authorise the performance of a sterilisation procedure on that child.

THE AUSTRALIAN GUARDIANSHIP AND ADMINISTRATION COUNCIL (AGAC) The AGAC provides a national forum for State and Territory agencies that protect adults with a decision-making disability through adult guardianship and administration. In May 2009, the AGAC issued the Protocol for Special Medical Procedures (Sterilisation), which assists the various guardianship tribunals to exercise their decision-making power to promote consistency across jurisdictions when dealing with an application for the sterilisation of a person. The Protocol, which is periodically reviewed, explains that: 1.1

‘In all States and Territories of Australia, sterilisation is considered to be such an invasive and irreversible procedure, that where a person cannot give a valid consent to the procedure, an entity such as the Family Court, a state supreme court or guardianship tribunal is the only authority that can provide consent. Further, because of the invasive and irreversible nature of the procedure, the law in all States and Territories provides that, unlike many other medical procedures, a person’s normal substitute decision maker for medical and dental treatment cannot make the decision about sterilisation.

1.2

For adults with impaired decision-making abilities, consent to the procedure was, and is, given or refused by the State or Territory tribunals that deal with capacity, guardianship and administration issues.

1.3

For children, the question of sterilisation is a matter for the Family Court of Australia, however the tribunals of four States also have this jurisdiction.

The Protocol specifically notes that it is intended to assist all persons including ‘applicants, potential applicants, relevant professionals and members of the public in understanding the decision-making process and what is required of them in bringing, or objecting to an application to sterilise a person.’9

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 32

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS RANZCOG GUIDELINES The Royal Australian and New Zealand College of Obstetrics and Gynaecology (RANZCOG), whose primary role is to train and accredit doctors in the specialities of obstetrics and gynaecology, have produced guidelines on ‘Sterilisation procedures for women with an intellectual disability’ (C-Gyn 10). The RANZCOG guidelines state the following: •

In addressing the issues of fertility control for women with an intellectual disability, the least restrictive option and approaches which are similar to those one would consider for women of the same age but without intellectual disability, are the most appropriate.



Reversible methods such as long acting reversible contraceptive implants (e.g. Implanon or Mirena) should be considered in preference to irreversible surgical options.



The administration of treatment to a woman with intellectual disabilities must be in accordance with the current law and guardianship provisions of the relevant jurisdictions.10

GUIDANCE ON THE RIGHTS OF PATIENTS The Australian jurisdictions also have a detailed system that sets out the rights of health care patients regardless of the medical issue they are experiencing.

THE AUSTRALIAN CHARTER OF HEALTHCARE RIGHTS The Australian Commission on Safety and Quality in Health Care (the Health Care Commission) identified a need for a national Charter of patient rights in 2007, in order to build trust in the healthcare system and assist the development of mature and balanced relationships between patients and providers based on a shared understanding of their rights and responsibilities. Following extensive consultation, the Health Care Commission developed the Australian Charter of Healthcare Rights (the Charter). The Charter was endorsed by Australian Health Ministers in July 2008.11 The purpose of the Charter is to provide information about the rights of patients and consumers to underpin the provision of safe and high quality care, and to support a shared understanding of the rights of people receiving care. The Charter applies in all health care settings including public hospitals, general practice and other ambulatory care environments. Although each State and Territory has existing patient charters, the national Charter addresses jurisdictional variations and is uniformly applicable in all settings in which healthcare is delivered.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 33

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS The Charter specifies the key rights of patients and consumers when seeking or receiving health care services. These are: safety, respect, communication, participation, privacy, comment and access. Briefly, the key rights of respect, communication and participation explicitly state that patients have the right to be: •

shown respect, dignity and consideration. The care provided shows respect to the patient, their culture, beliefs, values and personal characteristics



informed about services, treatment, options and costs in a clear and open way. The patient receives open, timely and appropriate communication about their health care in a way that they can understand, and



included in decisions and choices about their care.

Under the National Health Reform Agreement, signed on 2 August 2011, all States and Territories have agreed the following requirements in relation to patients’ rights: •

to prepare and distribute a Public Patients’ Hospital Charter (the Charter), in appropriate community languages to users of public hospital services



to maintain complaints bodies independent of the public hospital system to resolve complaints made by eligible persons about the provision of public hospital services received by them



to develop the Charter in appropriate community languages and forms to ensure it is accessible to people with disabilities and from non-English speaking backgrounds



to develop and implement strategies for distributing the Charter to public hospital service users and carers



to adhere to the Charter



the Charter will be promoted and made publicly available whenever public hospital services are provided, and



the Charter will set out a statement of the rights and responsibilities of consumers and public hospitals in the provision of public hospital services in States and the mechanisms available for user participation in public hospital services.12

6. WHAT MEASURES ARE BEING TAKEN TO ENSURE THE ENJOYMENT OF THE RIGHT TO HEALTH OF GIRLS AND WOMEN WITH DISABILITIES? The Australian Government has a strong commitment to initiatives that improve the health and wellbeing of people with disabilities, including girls and women, both domestically and internationally. The following initiatives, whilst more broadly targeted at improving the enjoyment of all rights of persons with disabilities, contribute significantly to the enjoyment of the right to health of girls and women with disabilities.

THE NATIONAL DISABILITY STRATEGY Australia has developed a comprehensive national action framework that aims to improve the lives of people with disability, promote participation, and create a more inclusive society.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 34

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS The National Disability Strategy 2010-2020 (the NDS) was launched by the Australian Government on 18 March 2011. This represents the first time in Australia’s history that all levels of governments have committed to a unified, national approach to improving the lives of people with disability, their families and carers. The NDS’s ten-year framework will guide public policy across governments and aims to bring about changes to all mainstream services and programs, as well as community infrastructure, to ensure they are accessible and responsive to the needs of people with disability. This change is important to ensure that people with disability have the same opportunities as other Australians -a quality education, good health, economic security, a job where possible, access to buildings and transport, and strong social networks and supports. The NDS will also be an important mechanism to ensure that the principles underpinning the CRPD are incorporated into policies, services and programs affecting people with disability, their families and carers. The NDS acknowledges that people with a long-term disability are among the most disadvantaged and invisible groups in our community, with comparatively poor health status and a health system that often fails to meet their needs. This includes people with an intellectual disability, as well as people with other long-term physical and mental conditions, whether present at birth or acquired later in life. These poorer health outcomes include aspects of health that are unrelated to the specific health conditions associated with their disability. Consequently, one of the central outcomes of the NDS is to ensure that people with disability attain the highest possible health and wellbeing outcomes throughout their lives. The NDS commits to a range of Areas for Future Action designed to achieve this outcome. These action areas focus on: •

improving the interface between disability services and key health services in local communities



strengthening the continuity and coordination of care



addressing issues specific to people with disability as part of key national health strategies, such as dental, nutrition, mental health, and sexual and reproductive health programs, and



ensuring informal and supported decision makers are part of the preventive, diagnostic and treatment programs where appropriate, always ensuring the rights of the individual are respected and protected.

While the NDS aims to improve the lives of all Australians with disability, it recognises that people with disability have specific needs based on their personal circumstances, including the type and level of support required, gender, age, education, sexuality, and ethnic or cultural background. In particular, it recognises that gender can significantly impact on the experience of disability and women and girls with disability often face different challenges by reason of their gender.13

NATIONAL WOMEN’S HEALTH POLICY 2010 The National Women’s Health Policy 2010 (the Policy), released in December 2010, aims to provide a framework to improve the health and wellbeing of all women in Australia, especially those at the greatest risk of poor health, through addressing particular health issues, focusing on the social determinants of health inequities and encouraging the health system to be more responsive to women.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 35

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS The Policy was developed through an extensive consultation process with a wide range of key women organisations, including Women With Disabilities Australia (WWDA), the peak organisation for women with all types of disabilities in Australia. The Policy identifies women with disabilities as being one of the groups which are at greater risk of poor health as health is determined by a broad range of social, cultural, environmental, economic factors, as well as the genetic and biological factors. The Policy seeks to understand health within its social context and is based on a gendered approach that is inclusive of a social view of health, and accounts for the diversity in women’s experiences. The social model of health acknowledges the complex ways that the context of a woman’s life- including her gender, age, socio-economic status, ethnicity, sexuality, disability and geography- might shape her health outcomes; access to health care; experiences of health, wellbeing and illness; and even her death. Addressing these social determinants is a fundamental step towards reducing health inequalities.

NATIONAL HEALTH REFORM To ensure that the health system is more responsive to the needs of individuals and local communities, the Australian Government is establishing a coordinating network of primary health care organisations called Medicare Locals. Medicare Locals comprise a major component of the Government’s National Health Reform agenda, and are critical to supporting and driving improvements in primary health care for both patients and health care providers. Medicare Locals will provide all patients with increased access to information regarding services available in their local area and make it easier for patients to navigate their local health care system. Medicare Locals will support primary health care professionals and organisations to identify and address local health care needs, and improve the delivery of integrated primary health care services. As they develop, each Medicare Local will develop plans for its particular population and its health needs, including preventive health activities. Primary health care providers will work with Medicare Locals to incorporate women’s health into the implementation of initiatives to improve the prevention and management of disease in general practice and primary health care.

The Australian Government also supports women’s acute care health services by contributing to the funding of Australia’s public hospitals which are administered by the State and Territory Governments. These public hospitals include eleven large hospitals dedicated to the provision of services to women and/or children.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 36

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS The reforms, agreed to by the Council of Australian Governments (COAG) in February, were finalised on 2 August 2011. This Agreement will invest an extra $19.8 billion in public hospitals through to 2019-20, rising to a total extra $175 billion to 2029-30 matched by tough national standards. In this way, the Agreement will benefit women by funding the provision of better public hospital services, including those delivered by the eleven dedicated women and children’s hospitals. Further opportunities for implementing the National Women’s Health Policy 2010 will be considered in the context of National Health Reform.

THE NATIONAL DISABILITY INSURANCE SCHEME (NDIS) On 10 August 2011 the Prime Minister released the Productivity Commission’s14 final report into care and support for people with disability. The Government asked the Productivity Commission to examine reform of disability support services because the Australian Government believes that the system we have today is not delivering the kind of care and support Australians expect for people with disability. The Productivity Commission has recommended a NDIS that would entitle all Australians to support in the event of significant disability. The Productivity Commission has also recommended a separate National Injury Insurance Scheme (NIIS) to provide no-fault insurance for anyone who suffers a catastrophic injury. The Productivity Commission made clear in its report that there is a lot of work ahead to prepare for a trial of a scheme in 2014. The Australian Government shares the vision of the Productivity Commission for a system that provides people with disability with the care and support they need over the course of their lifetime. The Commonwealth Government has started work- with States and Territories that are principally responsible for funding and delivering disability support services -to fundamentally reform disability care and support. Work is underway to lay the foundations which are essential for the launch of a National Disability Insurance Scheme. This includes working with the States and Territories to: •

Develop common assessment tools, so people’s eligibility for support can be assessed fairly and consistently, based on their level of need.



Put in place service and quality standards, so that people with disability can expect high quality support irrespective of what disability they have or how they acquired it.



Build workforce capacity so we have more trained staff to support people with disabilities.15

THE NATIONAL STRATEGY FOR YOUNG AUSTRALIANS The National Strategy for Young Australians sets out the Australian Government’s vision for young people ‘to grow up safe, healthy, happy and resilient and to have the opportunities and skills they need to learn, work, engage in community life and influence decisions that affect them.’ The National Strategy for Young Australians will help guide future Australian Government policies and initiatives for young people, including consideration of groups at risk such as young people with a disability, those with mental health issues and young people exiting care.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 37

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS SPECIALISED SERVICES The Commonwealth, State and Territory governments work together to deliver a wide range of specialist disability services for Australians, including girls and women, through the National Disability Agreement (NDA). Under the NDA, the Commonwealth Government has responsibility for employment and income support payments such as Disability Support Pension. Other specialist services are the responsibility of State and Territory governments. Specialist disability services are accessed by Australian women and men on an equal basis, and are based on functional needs rather than diagnosis. From 1 January 2009 to 30 June 2015, the Commonwealth Government will be providing around $7.6 billion in funding to the State and Territory governments for increased and improved specialist disability services such as supported accommodation, targeted support and respite. The Agreement means that in 2014-2015, the Commonwealth Government’s contribution will be around $1.4 billion, compared to $620 million in 2006-07.

RECOGNITION AND SUPPORT FOR CARERS The Australian Government recognises the very important role played by Australians who are the carers of girls and women with disabilities. Following public consultation, in August 2011 the Australian Government launched, the National Carer Strategy (NCS). The NCS represents the Australian Government’s long term commitment to carers. It will guide future reforms, and it builds on reforms the Government is already delivering to better support carers. There is wide appreciation in the community that the majority of carers who support girls and women with disabilities are women. The Australian Government has adopted several recent initiatives to ensure improved support to carers; and hence to ensure improved enjoyment of the right to health of girls and women with disabilities. The Australian Government has also recently put in place legislation that formally recognises the role of carers, Carer Recognition Act 2010.

SUPPORT FOR NON-GOVERNMENT ORGANISATIONS FOR PEOPLE WITH DISABILITY The Australian Government is committed to encouraging participation in and working with non-governmental organisations, peak bodies and associations including those that have a focus on people with disability. These peak bodies represent many types of disabilities, as well as the interests of particular demographic groups of people with disability, for example children and women. These bodies consult with people with disability and draw on the resources of their member organisations to provide the Australian Government with the perspective of the people with disability they represent. Engagement with these bodies is essential to ensuring that people with disability are consulted and involved in decision-making processes concerning issues relating to people with disability. This includes health issues. Government support for non-government organisations, whilst more broadly targeted, contributes significantly to the enjoyment of the right to health of girls and women with disabilities.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 38

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS THE ANNUAL NON-GOVERNMENT ORGANISATION (NGO) FORUM Recognising the important role played by non-governmental organisations and as part of Australia’s Human Rights Framework, an Australian Government NGO Forum on Human Rights is hosted annually by the Commonwealth Attorney-General and the Minister for Foreign Affairs and Trade. The NGO Forum is a key opportunity for comprehensive dialogue on a range of domestic and international human rights issues, including health issues, between the Australian Government and civil society.

CONSULTATION WITH WOMEN WITH DISABILITIES ON ISSUES THAT AFFECT THEM The Australian Government provides funds WWDA, the peak body representing women with disabilities in Australia. WWDA is funded to contribute to government policies about disability issues affecting Australian families and communities, to carry information between the Government and the community on social policy issues and to represent the views of its constituents. WWDA’s work is grounded in a human rights based framework which links gender and disability issues to a full range of civil, political, economic, social and cultural rights. This rights based approach recognises that equal treatment, equal opportunity, and nondiscrimination provide for inclusive opportunities for women and girls with disabilities in society. WWDA also seeks to create greater awareness among governments and other relevant institutions of their obligations to fulfil, respect, protect and promote human rights and to support and empower women with disabilities, both individually and collectively, to claim their rights. The Australian Government also funds six National Women’s Alliances, which work collaboratively to provide informed and representative advice to government on policy development and implementation relevant to the diverse views and circumstances of women. WWDA is an active member organisation of both the Equality Rights Alliance and the Economic Security for Women Alliance

STATE AND TERRITORY EXAMPLES OF MEASURES TO ENSURE THE RIGHT TO HEALTH Provided below is an example of some of the wide range of projects and programs being implemented by State and Territory Governments that also aim to improve the health and wellbeing of people with disabilities, including girls and women. This information is intended to supplement the information about the federal initiatives listed above, and provide a ‘case study’ of the important work being done by State and Territory Governments to advance and protect the human rights of people with disabilities.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 39

APPENDIX 3 RESPONSES FROM THE AUSTRALIAN GOVERNMENT TO THE UNITED NATIONS SPECIAL RAPPORTEURS VICTORIA The Disability Services Division (DSD), of the Victorian Department of Human Services is working to increase the capacity of both the disability service and the family violence sectors to respond to family violence for women with a disability. This includes the Disability and Family Violence Crisis Response initiative which will assist women with a disability experiencing family violence who may require immediate disability support to access specialist family violence services while exploring longer term housing and support options. Short term funding will be available to meet immediate needs where required. In addition, DSD has been working with the Department of Health to improve the outcomes for people with a disability. In particular there has been a focus on strengthening the communication and working relationship between regional Disability Services and Health Services. The aim is to ensure that people with a disability are assisted via pathways to the most suitable forms of health and disability support. The first Victorian population health survey in relation to people with an intellectual disability report was released in October 2011. This report represents a significant step forward in understanding the health and well being of Victorians with an intellectual disability. Its findings will better inform decisions about the priorities and health interventions aimed at this vulnerable group. A key finding from the report was that Victorian women with an intellectual disability were less likely to have mammograms and Pap Tests, compared with women in the general population. To address this issue, a grant has been made available to the Cancer Council of Victoria to increase cancer screening participation of women with an intellectual disability. In addition to these specific programs, there are external organisations that have a role in monitoring disability service providers to protect and promote the rights of people with a disability. They include: •

Victorian Public Advocate, Including the Community Visitors Program.



Disability Services Commissioner (independent complaints body).



Office of the Senior Practitioner (monitoring restrictive interventions).



National abuse and neglect hotline.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 40

APPENDIX 4 TERMS OF REFERENCE

On 20 September 2012 the Senate referred the matter of involuntary or coerced sterilisation of people with disabilities in Australia to the Senate Community Affairs Committee for inquiry and report by 24 April 2013. The Terms of Reference for the Inquiry are: 1. The involuntary or coerced sterilisation of people with disabilities in Australia, including: (a)

the types of sterilisation practices that are used, including treatments that prevent menstruation or reproduction, and exclusion or limitation of access to sexual health, contraceptive or family planning services;

(b)

the prevalence of these sterilisation practices and how they are recorded across different state and territory jurisdictions;

(c)

the different legal, regulatory and policy frameworks and practices across the Commonwealth, states and territories, and action to date on the harmonisation of regimes;

(d)

whether current legal, regulatory and policy frameworks provide adequate: (i)

steps to determine the wishes of a person with a disability,

(ii)

steps to determine an individual’s capacity to provide free and informed consent,

(iii)

steps to ensure independent representation in applications for sterilisation procedures where the subject of the application is deemed unable to provide free and informed consent, and

(iv)

application of a ‘best interest test’ as it relates to sterilisation and reproductive rights;

(e)

the impacts of sterilisation of people with disabilities;

(f)

Australia’s compliance with its international obligations as they apply to sterilisation of people with disabilities;

(g)

the factors that lead to sterilisation procedures being sought by others for people with disabilities, including:

(h)

(v)

the availability and effectiveness of services and programs to support people with disabilities in managing their reproductive and sexual health needs, and whether there are measures in place to ensure that these are available on a non-discriminatory basis,

(vi)

the availability and effectiveness of educational resources for medical practitioners, guardians, carers and people with a disability around the consequences of sterilisation, and

(vii)

medical practitioners, guardians and carers’ knowledge of and access to services and programs to support people with disabilities in managing their reproductive and sexual health needs; and

any other related matters.

2. Current practices and policies relating to the involuntary or coerced sterilisation of intersex people, including: (a) sexual health and reproductive issues; and (b) the impacts on intersex people.

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 41

FOOTNOTES

FOOTNOTES APPENDIX FOOTNOTES 1

The Text of UPR recommendation P- 86.39 is available online at: http://www.upr-info.org/IMG/pdf/recommendations_to_australia_2011. pdf

2

175 CLR 218

3

[2010] FamCA 98

4

More information on the Victorian Law Reform Commission review of Guardianship is available online at: http://www.lawreform.vic.gov.au/ wps/wcm/connect/justlib/Law+Reform/Home/Current+Projects/Guardianship

5

See for example legislation including but not limited to: the Criminal Code Act 1995 (Cth), the Civil Liability Act 2002 (NSW), and the Wrongs Act 1958 (VIC). See also common-law authorities including but not limited to Rogers v Whitaker (1992) 175 CLR 479, and Chappel v Hart [1998] HCA 55.

6

See for example Re: Baby D (No. 2) [2011] FamCA 176

7

For a copy see the Queensland Health website at .

8

For more information see the AMA website- .

9

A copy of the Protocol is available on the AGAC website at:

10

A copy of these guidelines is available online at .

11

A copy of a supporting document developed by the Health Care Commission outlining the roles and responsibilities under the Charter is at Attachment 1.

12

Attachment 2 gives details of Australian and state and territory specific charters of health care rights with specific information in relation to informed consent for care/treatment.

13

More information about the NDS is available at: .

14

The Productivity Commission is the Australian Government’s independent research and advisory body on a range of economic, social and environmental issues affecting the welfare of Australians. Its role, expressed simply, is to help governments make better policies in the long term interest of the Australian community. More information about the Productivity Commission is available at: .

15

More information about the NDIS and NHS is available at: .

DEHUMANISED THE FORCED STERILISATION OF WOMEN AND GIRLS WITH DISABILITIES IN AUSTRALIA 43

    IN  THE  COUNTY  COURT  OF  VICTORIA  

  Revised   Not  Restricted   Suitable  for  Publication  

   

AT MELBOURNE CRIMINAL  DIVISION   Case  No.  CR-­‐13-­‐00419    

DIRECTOR OF PUBLIC PROSECUTIONS v VINOD JOHNNY KUMAR   -­‐-­‐-­‐     JUDGE:   WHERE  HELD:   DATE  OF  HEARING:   DATE  OF  SENTENCE:   CASE  MAY  BE  CITED  AS:   MEDIUM  NEUTRAL  CITATION:    

HER  HONOUR  JUDGE  HAMPEL     Melbourne   6  November  2013   20  November  2013   DPP  v  Kumar   [2013]  VCC       REASONS  FOR  SENTENCE   -­‐-­‐-­‐  

Subject:     Catchwords:       Legislation  Cited:   Cases  Cited:     Sentence:      

          -­‐-­‐-­‐  

  APPEARANCES:     For  the  DPP     For  the  Accused    

Counsel  

Solicitors  

Dr  N.  Rogers  SC     Mr  P.  Kilduff  

Office  of  Public  Prosecutions     Robert  Stary  Lawyers  

   

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

!Undefined Bookmark, I

 

HER HONOUR:  

1. Vinod Johnny Kumar, on 21 March 2012 you were charged with multiple counts of rape and other sexual offences alleged to have been committed by you on a number of profoundly disabled people who were in your care at supported accommodation provided by Yooralla. You denied those charges. A year later, in March 2013, three days into a contested committal and whilst the third of the complainants was undergoing cross-examination, you instructed your counsel to offer pleas of guilty to all charges. After receiving advice, orally and in writing from your lawyers about the significance and consequences of entering guilty pleas, and signing an acknowledgement you had received and understood that advice, there was no further cross-examination of witnesses, and you entered pleas of guilty to all charges. You were then committed to this court for the matter to proceed by way of guilty plea. 2. On 17 April this year you were arraigned in this court and pleaded guilty to the same charges you had pleaded guilty to at committal, namely eight charges of rape, two of sexual penetration and one of indecent act on a person with a cognitive impairment committed by a worker at a facility designed to meet her needs, and one charge of indecent assault. 3. Four months later on 19 August 2013, you applied for leave before Her Honour Judge Sexton to withdraw your guilty pleas and to proceed to trial on all charges. You gave evidence you pleaded guilty because you thought you would receive a substantially reduced sentence, and as you had since become aware that the sentence was likely to be significantly higher than what you had thought, you wished to proceed to trial. On 18 September 2013, Her Honour Judge Sexton refused the application to withdraw the guilty pleas, and refused your subsequent application for certification, a necessary step if you were to institute an interlocutory appeal to the Court of Appeal. You applied to the Court of Appeal nonetheless for a review of the refusal to certify. 4. Her Honour Judge Sexton’s findings of fact were not challenged in the Court of Appeal.

Her Honour was satisfied that you had been carefully and properly

   

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   1

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

advised by your lawyers before the entry of pleas of guilty when committed by the magistrate to this court, and again before being arraigned on the same charges in this court about the effect of entering guilty pleas.

She was satisfied on the

evidence that your pleas of guilty were unequivocal, and that you understood that by pleading guilty, you were making a true admission of guilt. 5. As the Court of Appeal confirmed, she correctly applied the principles in the High Court decisions of Meissner 1 and Maxwell, 2 namely that a plea of guilty constitutes an admission of all of the elements of an offence, and that is so whether the plea is entered because of a belief or recognition of guilt, or for other reasons, including to avoid worry, inconvenience, expense, or publicity, to protect family or friends, or in the hope of obtaining a more lenient sentence. Because a plea of guilty is taken to be a true admission of guilt, it will not be set aside unless it could be shown that a miscarriage of justice would occur if it were allowed to stand. Her Honour Judge Sexton found that your belief about the length of the likely sentence to be imposed was a self-induced misconception. Your lawyers had not suggested a sentence of the order that you thought might be imposed. Your belief about the likely length of sentence if you pleaded guilty was based purely on your own supposition, uninfluenced by anything they had said or done. 6. On 18 October 2013 the Court of Appeal, comprising Weinberg and Coghlan JJA and Lasry AJA heard and dismissed your application, holding there was no error in Her Honour Judge Sexton’s decision, refusing leave to change your pleas. 7. Her Honour found, correctly as the Court of Appeal held, that a realisation a selfinduced belief about the likely length of sentence was wrong did not render your considered decision to plead guilty one which, if allowed to stand, would amount to a miscarriage of justice. 8. The effect of that was to hold you to the guilty pleas that you had entered, and the matter was set down for a plea hearing on 6 November 2013. On that day, you filed an affidavit containing a bald denial of the offences. 9. The prosecution presented a detailed summary of the evidence contained in the depositions in respect of the charges. It was unchallenged by you, save for that                                                                                                                           1 2

       

Meissner  v  R  (1995)  184  CLR  132.   Maxwell  v  R  (1996)  184  CLR  501.  

   

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   2

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

bald denial I have referred to. 10. Having taken into account the evidence contained in the depositions, and your affidavit denying the offences, and the materials placed before Her Honour Judge Sexton and the Court of Appeal, I am satisfied beyond reasonable doubt the circumstances of the offending is as set out in the prosecution summary relied upon in the plea hearing. 11. The evidence I accept therefore establishes that the 12 offences to which you had pleaded guilty were committed by you on four people who, because of their severe levels of physical or intellectual impairment, required assistance for the most basic activities of daily living. They all lived in supported accommodation with 24 hour care, provided by Yooralla. Three of your victims lived together in a house which accommodated a total of six residents. The other victim lived in a nearby house which also had six residents. 12. In March 2009 you had begun working on a casual basis for Yooralla as a disability support worker.

In August 2011 you were counselled, following two

reported instances of inappropriate behaviour. One involved use of inappropriate language to a staff member.

The other was more serious, and involved

inappropriate, sexualised behaviour with a resident, namely twisting the nipple of a male resident. You were told you would no longer be working at a particular residence, I think the one where that resident lived. 13. Nonetheless, Yooralla continued to employ you as a casual employee. In late 2011, only months after having been counselled, you applied for a permanent position, but according to the prosecution summary, you were unsuccessful because of what was described as “rumours” of inappropriate behaviour with residents and staff. Despite that, it continued to engage you on a casual basis, but working practically full time hours, and you were often rostered on at times when you would be the only support worker at a residence.

This, then, is the

background I am satisfied of against which the offending occurred. 14. Charges 1 to 4 are all charges of raping a woman who I shall call Ruth.3 Ruth has cerebral palsy resulting in spastic quadriplegia. She is confined to a motorised wheelchair. She is unable to speak but able to communicate with gestures and                                                                                                                           3

   

A  pseudonym.  

   

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   3

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

spelling out words on her wheelchair tray, although she has trouble controlling her hand to point to the letters.

She has some vocalisations that can be slowly

understood by those who are familiar with her. She has been assessed as having borderline intellectual capacity and is vision impaired. 15. Ruth requires full assistance with toileting, feeding, showering and other personal care. She requires manual handling and must be hoisted from her bed to her chair. She must also be hoisted into a commode chair for toilet and showering. She was 40 at the time of the offending. All of the acts that I am about to recount occurred when you were the only person on duty in her home.

All occurred

between October 2011 and mid-January 2012. 16. Between those dates, on each of the occasions you gave Ruth a shower or put her to bed, that is about 20 times, you penetrated her vagina with your fingers. On occasions, you would also touch her breasts. Sometimes you would laugh while you were sexually assaulting her in this manner. You did not wear gloves as you were supposed to when showering a resident. This conduct is relied upon as uncharged acts. 17. In mid-January 2012, you committed the rape the subject of Charge 1. It is a discrete act of digital penetration of Ruth’s vagina. On this occasion, Ruth said, it went on for longer, five minutes she estimates, instead of two. You also touched her breasts, laughed, and called her a whore. 18. Charge 2 is rape using an object, a bottle containing hair product, to penetrate Ruth’s vagina. You made Ruth lick the bottle before penetrating her with it, and taunted her, saying she would not be able to say what you had done, as well as comparing the size of your penis to the size of the bottle, and speaking of the effect on her were you to penetrate her with your penis.

This charge is

representative of like conduct occurring approximately ten times. 19. Charge 3 is also a charge of rape using an object. All staff were required to use a pager, which was activated when residents rang the bell by their bed. You put the pager clip in Ruth’s vagina and placed the pager between her legs, then made her ring her bell, which caused the pager to vibrate.

Again, this charge is

representative of like conduct occurring approximately ten times. 20. The final charge again is a discrete act of rape which occurred on the night of the    

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   4

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

residents' 2011 Christmas party. You showered Ruth, speaking to her in a sexual way, and then penetrated her vagina with your fingers. She said it was really painful.

You told her to stop moving around, when, as you well knew, her

movements were involuntary, the product of the cerebral palsy from which she suffers. You told her to behave herself, accused her of acting like a whore, a tart and a slag. You also touched her on her breasts. She told you to stop but you did not. 21. The offending against Ruth stopped in mid-January 2012, about six weeks before you were sacked. Ruth did not tell anyone about it whilst you were employed at her residence because she was scared of you and afraid you might hurt her. She said she thought you would be angry with her if she complained about your conduct. She described you as being aggressive, bossy and a bully. 22. Charges 5 to 8 are all charges of raping a woman who I shall call Jacqueline.4 Jacqueline suffers from cerebral palsy and is confined to a wheelchair. She has also been diagnosed with depression with psychotic tendencies which emerged in 1993 when she began to hear voices. She has not heard voices for many years. She also suffers from congenital scoliosis of the back and Buerger’s disease, a disease involving acute inflammation and thrombosis of the arteries and veins in her feet. Jacqueline requires full time care in the same manner as Ruth. She too was 40. She lived in the same residence as Ruth. Until November 2011 you had not acted improperly towards her. On an occasion in November you made a deeply offensive comment to her, telling her to clean her cunt. She reported you to another staff member.

It was after this that the sexual offending against her

began. 23. Charge 5 is one of rape by digital penetration. As with Ruth, this occurred when you were showering Jacqueline.

You did not wear work gloves as you were

supposed to. She said to you “what are you doing? Stop that please". You did not stop instead saying “don’t you like this? You know you do". This charge is representative of like conduct on 10 to 12 occasions. Jacqueline said you would often say to her before you penetrated her “you want it, I know you do”. You implied she was a prostitute, suggesting she wanted money in return for what you                                                                                                                           4

   

A  pseudonym.  

   

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   5

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

were doing to her. At times you would call her a whore or other pejorative names. She would say to you “please don’t do it anymore". You would promise not to do it again, but continued to do so. She said you would often place your hand over her mouth so she could not call out. 24. Jacqueline said that almost every time you were rostered on you would, as she described it, harass her with comments such as “I’m doing a night shift. You won’t get much sleep. I’ll wake you up and have my way with you all night. I feel horny. I’ve got something that wants to come and say hello, do you want to see it". You called her names, and caused her deep distress by threatening to put her pet bird on the barbecue.

She called it harassment.

Properly speaking it is a cruel

demonstration to her by you of her powerlessness, subjecting her to debasing and degrading words and conduct, and cruel threats to sexually assault her when you had her at your mercy. 25. Charge 6 is a charge of penile anal rape.

On an occasion when you were

showering Jacqueline and she was suspended in the hoist, you digitally penetrated her and then attempted to insert your penis into her anus. You moved her to her bedroom and whilst still in the hoist again attempted to insert your penis into her anus. You lowered her into her bed and placed her on her side. She is unable to change position in bed. You again tried to penetrate her anus with your penis and were again unsuccessful. You rolled her over onto her stomach, a position in which she never lies, and this time succeeded in a anally penetrating her with your penis. 26. Charge 7 is a charge of penile vaginal rape. It occurred on an occasion when you had put Jacqueline into her bed for the night. You then penetrated her, continuing until you ejaculated. She remonstrated with you, telling you you were hurting her. When you finished you said to her “if you tell anyone about this I could lose my job. If you say anything I’m just going to say that it was consensual the whole way". 27. Charge 8 is a charge of penetrating Jacqueline’s mouth with your penis. She needed to go to the toilet. Once the hoist had been used to place her on the toilet she was able to be left alone. She would use her pager to buzz when she had finished. Instead of leaving her alone until she paged you, you entered the toilet on three separate occasions, saying to her “have you finished yet? I’m feeling that    

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   6

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

way again. Do you want to see it? It’s only you and me here. You’ll regret it if you don’t”. On the third occasion you asked her for oral sex. You pushed your penis into her mouth, and then complained, saying she was biting you. You instructed her to open her mouth wider so you could get it all in. She told you she could not do it anymore but you ignored her, instead forcing her head forward and down onto your penis. When you had finished you simply left her there. 28. Jacqueline remained in the toilet for an hour and a half until your shift finished and the night staff arrived. The following day when you were again on duty she told you that she had stayed in the toilet so long because she did not know what to do, that she did not want you to come and get her off the toilet even though she had finished. 29. Jacqueline did not complain to anyone at the time. She did not think she would be believed as it was her word against yours. She did however say to the team leader on a number of occasions, and to other carers, that she did not want you to assist her, saying that you were rude and bossy. 30. Charges 9 to 11 concern a woman who I shall call Kimberley.5 Kimberley suffers from cerebral palsy as a result of hypoxic brain injury at birth. She is difficult to understand without the assistance of a person who is familiar with her.

Her

visuomotor ability is impaired. She suffers from depression and has a history of epilepsy. She has a cognitive impairment such that she falls within the definition of s.50 of the Crimes Act 1958. She also requires full time care in a similar manner to Ruth and Jacqueline. Kimberley was 38. 31. She lived in a different house to the one that Jacqueline and Ruth were in. The acts the subject of these charges occurred on a single occasion, 21 December 2011.

You had taken Kimberley to the toilet, pulling her pants down and

transferring her to a commode chair which was then placed over the toilet. As was customary she was left there with a towel covering her genitals. She could not wipe herself, and she would call out when she was ready to be wiped, and redressed. On this occasion, she called out when she was finished and ready to be assisted out of the toilet. You came in and placed your hand over her mouth and your finger to your lips, telling her to be quiet. You exposed your penis to her and                                                                                                                           5

   

A  pseudonym.  

   

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   7

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

tried to grab her hand but she pulled away. 32. You then wiped her, but in the course of wiping her bottom you inserted your ungloved finger into her anus.

It is that that constitutes Charge 9 of sexual

penetration. You then penetrated her vagina with your fingers, saying to her “I know you want to do it”. It is that that constitutes Charge 10 of sexual penetration. You then took Kimberley back to her room and transferred her from the commode chair back to her wheelchair. Her pants were still down. You then stood Kimberly up against you and rubbed her vagina against your jeans. It is this that constitutes Charge 11 of indecent act. 33. Later that day Kimberley needed to go to the toilet again. You took her to the toilet and back to her room when she had finished. Back in her room your hand moved towards her vagina and she said “don’t do that”. 34. About an hour later you came back to her room and apologised for your behaviour. You said “don’t tell anyone about it or my mum will drop dead". You offered to give her money. She asked you to ring her counsellor. You told her she could tell her counsellor and nobody else. You threatened to come back an hour later and go to bed with her. 35. Kimberley may be intellectually impaired but she knew what you were doing was wrong and she did not want you to touch her. She had pulled her hand away when you first exposed your penis to her and tried to grab her hand. She said that when you penetrated her vagina, that she had wanted to swear at you and tell you to "fuck off", but it is a measure of her level of cognitive functioning that she felt unable to say that because there was a rule against swearing in the residence. 36. You, however, must have been aware that there was a risk that Kimberley would complain. You told another resident a false story: that you had said something rude to Kimberley, that you were going to apologise to her, and that Kimberly had falsely alleged that you had showed your private parts to her. Kimberley spoke to that same resident later that evening and told him that you had shown your private parts to her and touched her where you should not have.

That resident told

Kimberley she should tell someone in authority. 37. Meanwhile, you left a note for the team leader at the residence who was due on duty the following morning. You gave a more detailed version of the false story    

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   8

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

you had told Kimberley’s co-resident about saying something rude to Kimberley. You alleged that you had apologised to Kimberley but that she had sworn at you, which you said had so upset you that you were unable to concentrate at work. You asked the team leader to call you. 38. The team leader appeared to accept your story, because she immediately went and remonstrated with Kimberley for swearing in breach of the house rules. Kimberley was crying when she went into her room, but the team leader did not ask her why before she remonstrated with her, and told her that her behaviour with a staff member had been inappropriate. It is a measure of Kimberley’s strength, or maybe of the impact that your behaviour had had on her, that despite the unfairness of the team leader reprimanding her without first ascertaining her side of the story, that Kimberly immediately responded to the remonstration by alleging that you had touched her private parts and exposed yourself to her. 39. Unfortunately for Kimberley, the Yooralla response was less than adequate. Kimberley’s complaint was described in a client incident report as “a sexual harassment allegation made by Kimberley against casual staff member Johnny Kumar". 40. Kimberley was taken to the police station but when she said she did not want to have a medical examination and did not want to make a statement until she had spoken to her sister she was returned to the residence. These concerns of hers about not being subjected to a medical examination and wanting to speak to her sister before speaking to the police, appear to me to be reasonable concerns given her level of intellectual disability and what she said had happened to her. Although Kimberley’s sister was told of the allegations that same day and came that day to see her, it appears no attempt was made to follow up and to take a statement from Kimberley or to launch a formal police complaint or investigation after Kimberley had, as she had wanted to, spoken to her sister. It was not until a report was made to police in respect of other residents that Kimberley’s complaint was followed up. 41. Meanwhile, you were stood down and three weeks later attended a meeting with Yooralla senior management.

You maintained the false account that you had

given your team leader and in fact demanded better support from management    

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   9

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

when faced with residents breaching the code of conduct by swearing. Management decided that Kimberly’s allegation was not substantiated as you denied it and there were no independent witnesses. You were given a formal warning and allowed to return to work the following day. The warning was not in respect of Kimberley's allegation, but in respect of the way you described your conduct. You apparently had not filled in an incident report properly or reported the matter properly and on your own account you had made an inappropriate comment to Kimberley. 42. You were rostered to work shifts at the residence where Jacqueline and Ruth lived. Two weeks after your return to work, Jacqueline told another carer that she did not want you to shower or toilet her. Ruth then said the same. They both said you were rude and bossy. You were asked to apologise to Jacqueline and Ruth for your rudeness and you did so. Jacqueline in response said “you know why I don’t want you to toilet me”. She maintained, despite the apology, that she did not want you to bathe or toilet her. It was only after that that the sexual assaults on Jacqueline stopped. 43. It was after the formal warning that I have just referred to following the complaint by Kimberley, and just before Jacqueline made her disclosure, that the event the subject of Charge 12 occurred. 44. Charge 12 concerns a man who I shall call Phillip.6 Phillip, who was 27 at the time, has cerebral palsy and has an intellectual functioning in the borderline range. He walks with the aid of a walking frame. He has limited ability to speak. He is able to say basic words such as yes, no, and can say greetings and name food items. His speech is unmodulated and loud.

He mostly uses a light writer to

communicate where he types letters into a machine which then sounds out or speaks out what he has written. Phillip lived in the same residence as Jacqueline and Ruth. 45. In mid-February 2012, Phillip had been out for the day, and when he returned you locked him out of the residence and teased him when he tried to gain admission. Every time he knocked on the door or rang the bell, you would open it and then close it in his face. Eventually you let him in and, as he walked down the hall, you                                                                                                                           6

   

A  pseudonym.  

   

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   10

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

walked behind him repeatedly pulling his pants down, exposing the top cleft of his buttocks and saying “oh your pants are falling down here they go again". Philip kept pulling his pants up and trying to get away.

This was witnessed by

Jacqueline. 46. It was about a month after you had been told to apologise to Jacqueline and Ruth for your rudeness, and about two weeks after you treated Phillip in this way that Jacqueline made a disclosure to people she could trust about what you had done to her. 47. Coincidentally, at the same time you made some inappropriate comments about the residents and a staff member to a co-worker.

Amongst other things you

described the residents as “easy” and volunteered to this co-worker that you had put your pager between Ruth’s legs. Still nothing was done to investigate or to protect the residents. 48. Matters came to a head a short time later when the staff member about whom you had made an inappropriate comment to a co-worker complained about your sexual harassment of her. Consistently with the manner in which you had sought to preempt matters after Kimberley had remonstrated with you for sexually assaulting her, you gave notice, stating as your reason unhappiness about the way you were being treated. 49. It was not until your resignation became effective that further disclosures were made by the residents to other Yooralla staff and it was following that that the police were contacted and a formal investigation commenced. 50. On 21 March 2012, about a month after your resignation, you were arrested and interviewed.

You denied any wrongdoing in that interview and in the further

interview that was conducted with you in August 2012 following the receipt of further complaints by the police about your conduct. 51. Victim impact statements were provided by all four victims. Philip used his lightbox to read his victim impact statement himself.

In doing so he provided a very

powerful indication of how vulnerable he and the other complainants were. Each of them articulated in their victim impact statements that they knew that what you were doing was wrong, and that they did not want to be touched and abused by you in the way they were. They were unable, by reason of their disability, to    

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   11

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

escape, and unable, by reason of their disability, to vocalise their lack of consent, or to call for help.

However their disabilities did not extend to a failure to

appreciate that what you were doing was wrong. Each of them in their own way articulated the sense of violation and powerlessness they felt, and each expressed the same range of responses that we in the courts are only too used to hearing from victims of sexual assault: anger, shame, guilt, fear and powerlessness. As Dr Rogers said in the course of the plea, each of your victims were trapped within their own bodies. 52. This is offending of the greatest order and greatest gravity. It was a gross breach of trust. You were employed as a carer for these people whose vulnerability was increased because of the physical and intellectual disabilities they suffered. They were powerless to defend themselves or to physically remonstrate with you. So far as the charges of penile penetration are concerned, there is the added aggravating feature that you did not use a condom. 53. This was not opportunistic or spontaneous offending. Except perhaps in the case of Philip, it was clear that you were careful to choose your time and place, when you were the only person on duty and when your three female victims were at their most vulnerable. The offending against them occurred in the bathroom where they were dependent upon you for toileting, or at least for assistance onto and off the toilet, or in their bedrooms where again they were dependent upon you because they could not move without assistance. 54. The objective gravity of your offending is very high. The language you used to all three female victims as you sexually assaulted them was disparaging, degrading and belittling, and indicates a serious disrespect for their dignity, their rights and their autonomy. It is impossible on the materials before me to know whether it is indicative of a more pervasive misogyny, or was confined to a contemptuous disrespect for these three profoundly disabled women. 55. Although the offending so far as Philip is concerned may have been more spontaneous, it was also very cruel. He was, because of his limited mobility and his need to use a walking frame, unable to get away from you or to stop you doing what you did. That you did it to him in public in front of somebody else clearly added to the sense of humiliation and powerlessness.    

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   12

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

56. It is clear therefore that, subject to considerations personal to you, denunciation, deterrence both general and specific, and protection of the community are significant sentencing considerations in determining what is the just punishment for this offending.

No civilised community can countenance such abuse of the

disabled for whom the whole community has a responsibility to care. Disabled people are entitled to have their dignity respected, to feel safe in their homes and safe with those who are entrusted with their care. The people who have had to take responsibility for making the decisions to place them in care, or to assist the disabled people to make such a decision, should be able to trust that they are safe and that they will be safe in care.

The parents, families and friends of your

disabled victims and of disabled people generally should be able to feel that they are safe and will be treated at all times with dignity and respect. Those who breach that trust in the manner that you have must understand that their conduct will be condemned, and that they will be sternly punished. 57. Dealing then with matters personal to you.

You are 31, and first arrived in

Australia in early 2007, aged 25. By the end of that year you had completed a Certificate IV in English and a Diploma in Community Welfare Work. After a short return to India, you came back to Australia in 2008. In March 2009 you began working at Yooralla on a casual basis. You continued to be employed by Yooralla until you resigned in February 2012. Following your arrest in March 2012 you have been remanded in custody. Since your remand it has been discovered that your visa had expired. Your right to remain in Australia is therefore uncertain, and I am told you have expressed a desire to return to India on the expiration of your sentence. 58. You have no other convictions in this country. As your counsel acknowledged, it was in part the absence of convictions which enabled you to obtain the employment which you exploited so shamelessly and, in the circumstances, past good character or evidence of it by absence of previous convictions does not carry as much weight as it may in other cases. 59. You told your counsel Mr Kilduff that you were born in the Punjab in India to a wealthy family, sent to a boarding school at the age of six, and had almost no contact with your family for the next ten years. You said that you had misbehaved    

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   13

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

at school, and as punishment your father made you stay at school during the holidays. I was told you then spent a year in the cadets, which you enjoyed, and where you excelled at shooting, before being recruited at the age of 16 into an elite secret military force, where you remained for a year. You reported you wanted to train as a fighter pilot, but that your father insisted you undertake a homeopathic medicine course in New Delhi. You completed that course in four years and at the age of 21 were ordered to return to military service. You reported you were posted to Kashmir, where you narrowly escaped death when a landmine blew up. At the age of 25, I was told, you were dismissed after you were court martialled following an incident where you shot some terrorists. 60. I was told you had met a young woman when studying in New Delhi, who you wanted to marry. She too, you said, came from a wealthy family, but her parents did not approve of your marriage. Whilst you were in military service, she was diagnosed with leukaemia and, if I understood correctly, that apparently brought the relationship to an end. After your military service ended, your father arranged a marriage for you, but you refused to accept the bride chosen for you. As a result, your father disowned you and it was then that you came to Australia. 61. After obtaining your diploma in 2007, you returned to India for two weeks before returning to Australia and have been here ever since. In June 2012, after your remand in custody, your parents and brother were murdered in India by a sniper. You believe it was a case of mistaken identity and that you were the actual target. The only family therefore left in India is a sister. 62. I have no way of knowing whether this quite remarkable account of your circumstances is a truthful one. If true, you have had little experience of family life or family relationships, and have little family support to call on. Nothing was put to suggest that any of this bears on the assessment of your moral culpability, or on the weight to be given to deterrence, or, save for the matters that I have mentioned - that is, lack of family support - to hardship in custody. 63. I must sentence you therefore on the basis that you are a 31 year old man born overseas with no family or friends here and little family support in India to fall back on. Imprisonment will be more onerous for you than for a person who is supported by family and friends.    

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   14

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

64. Your pleas of guilty have utilitarian value and I reduce the sentence otherwise appropriate on that basis. As your counsel acknowledged, the pleas do not in the circumstances provide evidence of remorse, and there is no other evidence before me indicating remorse. 65. As was acknowledged, the seriousness of the offences calls for a substantial term of imprisonment. In determining the appropriate sentences for each charge, I have imposed higher sentences for the representative charges.

The charges

concerning Kimberley carry a lesser maximum than those concerning Ruth and Jacqueline. They are bad examples of their type, and so bear a proportionately higher relationship to the maximum sentence than do the sentences I have fixed for the charges concerning Ruth and Jacqueline. Although each of the charges concerning Kimberley occurred as part of a single episode, there should in my view be a degree of cumulation between them because of the discrete acts involved. The sentence for the charge concerning Philip reflects its less invasive but nonetheless degrading nature. I have sought to impose periods of partial cumulation which reflects the totality of the offending concerning each victim, and reflects the totality of the overall criminality. 66. Although I know nothing of your reasons for committing these offences and no material has been put before me which bears on the risk of reoffending or your prospects for rehabilitation, I will fix a non-parole period which will allow for the prospect of supervised release at a time when those matters may be better able to be assessed. 67. You come to be sentenced as a serious sexual offender in respect of Charges 3 to 12.

I accept the prosecution submission it is not necessary to impose a

disproportionate sentence to achieve the paramount sentencing consideration of protection of the community that flows from that serious sexual offender declaration. 68. Can you now please stand. 69. Vinod Johnny Kumar, on the 12 charges to which you have pleaded guilty, you are convicted. 70. On Charge 1, you are sentenced to be imprisoned for a period of six years. On Charge 2, you are sentenced to be imprisoned for a period of eight years. On    

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   15

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

Charge 3, you are sentenced to be imprisoned for a period of eight years. On Charge 4, you are sentenced to be imprisoned for a period of six years. On Charge 5, you are sentenced to be imprisoned for a period of eight years. On Charge 6, you are sentenced to be imprisoned for a period of six years. On Charge 7, you are sentenced to be imprisoned for a period of six years. On Charge 8, you are sentenced to be imprisoned for a period of six years. On Charge 9, you are sentenced to be imprisoned for a period of five years. On Charge 10, you are sentenced to be imprisoned for a period of five years. On Charge 11, you are sentenced to be imprisoned for a period of two years and six months. On Charge 12, you are sentenced to be imprisoned for a period of one year. 71. I declare that the sentence on Charge 2 of eight years is the base sentence and I make the following cumulation orders. On Charge 1, six months cumulative upon the base sentence and the other partial cumulation orders. Charge 3, one year. Charge 4, six months. Charge 5, three years and six months. Charge 6, six months. Charge 7, six months. Charge 8, six months. Charge 9, one year. Charge 10, one year. Charge 11, six months. Charge 12, six months. That makes a total effective sentence of 18 years and I fix a period of 15 years as the time you must serve before being eligible for parole. 72. I declare pursuant to s.6AAA of the Sentencing Act, that but for your pleas of guilty, I would have sentenced you to be imprisoned for a period of 24 years and I would have fixed a period of 21 years as the time that you would have had to have served before being eligible for parole. 73. I declare that you have spent 609 days in pre-sentence detention and direct that that be reckoned as part of the sentence already served. 74. Pursuant to the Sex Offender Registration Act 2004, the nature of these offences requires to report for life. 75. I have been asked to make a forensic sample order and I propose to do so. That requires you to make that by way of provision of a buccal sample. That requires you to provide a sample from a rubbing on the inside of your mouth. If you do not cooperate in the provision of that sample, then the police are authorised to use reasonable force and it is at least likely that they will use the more invasive method    

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   16

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

of obtaining that sample, namely the taking of a blood sample. Do you understand that? 76. OFFENDER: Yes. 77. HER HONOUR: I have been asked to make a disposal order in respect of the hair product bottle and I will make that order. I am required to have the reporting conditions under the Sex Offender Registration Act provided to you and I will ask my associate to give those reporting conditions now to Mr Kilduff and for him to give them to you. You are asked to sign a receipt acknowledging that you have received those reporting conditions. You are not required to sign the receipt. The court record will note in any event that you have been given the notice of reporting conditions. Whilst that is being done, Dr Rogers, can you check the arithmetic and make sure that it is correct? 78. MR KILDUFF: I have checked mine, Your Honour - - 79. HER HONOUR: You have checked the arithmetic and that is - you are satisfied it is correct? 80. MR KILDUFF: Yes. 81. HER HONOUR: Thank you, Mr Kilduff. 82. DR ROGERS: I have checked that and it appears to be correct. 83. HER HONOUR: Thank you. You are actually required to leave those reporting conditions with him, not take them yourself. 84. MR KILDUFF: I was going to take them down to him, Your Honour? I was going to go and see him after this. 85. HER HONOUR: My understanding under the Act is that I have got to make sure they are physically handed to him in my presence. 86. MR KILDUFF: I will do that, Your Honour. 87. HER HONOUR: Thank you. I note that the receipt has been signed. Any further orders? 88. COUNSEL No, Your Honour. 89. HER HONOUR: Thank you. Remove Mr Kumar please. 90. - -  

   

VICTORIAN  GOVERNMENT  REPORTING  SERVICE   17

565 Lonsdale Street, Melbourne - Telephone: 9603 2403  

STOP THE VIOLENCE

REPORT OF THE PROCEEDINGS AND OUTCOMES NATIONAL SYMPOSIUM ON VIOLENCE AGAINST WOMEN AND GIRLS WITH DISABILITIES SYDNEY, AUSTRALIA 25 OCTOBER 2013

WOMEN WITH DISABILITIES AUSTRALIA (WWDA)

PEOPLE WITH DISABILITY AUSTRALIA (PWDA)

THE UNIVERSITY OF NEW SOUTH WALES (UNSW)

PO BOX 605 ROSNY PARK TASMANIA 7018 AUSTRALIA

52 PITT ST REDFERN NSW 2016 AUSTRALIA

SYDNEY NSW 2052 AUSTRALIA

T +61 (3) 6244 8288

T +61 (2) 9370 3100

T +61 (2) 9385 2608

F +61 (3) 6244 8255

F +61 (2) 9318 1372

F +61 (2) 9385 1040

E [email protected]

E [email protected]

E [email protected]

Funded by the Australian Government Department of Social Services

CONTENTS ABBREVIATIONS

4

INTRODUCTION

5

MESSAGE FROM THE PRIME MINISTER, THE HON TONY ABBOTT MP

6

OPENING ADDRESS BY THE HON MICHAELIA CASH, MINISTER ASSISTING THE PRIME MINISTER FOR WOMEN

7

INTRODUCTORY REMARKS BY MS ELIZABETH BRODERICK, PROJECT STEERING GROUP CHAIR AND SEX DISCRIMINATION COMMISSIONER, AUSTRALIAN HUMAN RIGHTS COMMISSION

11

MESSAGE FROM MS KARIN SWIFT, PRESIDENT OF WOMEN WITH DISABILITIES AUSTRALIA

13

PROCEEDINGS OF THE NATIONAL SYMPOSIUM

16

Program

17

Plenary 1: Key Issues in Violence and Women and Girls with Disabilities

18

Plenary 2: Challenges and Opportunities for Change

19

Working Group Sessions

21

OUTCOMES OF THE NATIONAL SYMPOSIUM: FUTURE DIRECTIONS

22

Area 1: Information, Education and Capacity Building for Women and Girls with Disabilities

22

Area 2: Awareness Raising for the Broader Community

23

Area 3: Education and Training for Service Providers

24

Area 4: Service Sector Development and Reform

25

Area 5: Legislation, National Agreements and Policy Frameworks

26

Area 6: Evidence Gathering, Research and Development

27

Area 7: Establishment and Development of the Virtual Centre for the Prevention of Violence Against Women and Girls with Disabilities

28

Area 8: Establishment of a National Women with Disabilities Expert Panel on the Prevention of Violence Against Women and Girls with Disabilities APPENDICES

30 31

Communiqué from the National Symposium…….

31

About the Stop The Violence Project

34

National Symposium Attendees

35

ABBREVIATIONS AHRC

Australian Human Rights Commission

AHRC

Australian Human Rights Commission

CALD

Culturally and Linguistically Diverse

CEDAW

Convention on the Elimination of Discrimination Against Women

COAG

Council of Australian Governments

CSW

Commission on the Status of Women

ECG

Expert Consultative Group

EDAC

Ethnic Disability Advocacy Centre

LGBTQI

Lesbian, Gay, Bisexual, Transgendered, Queer and Inter-sex

NCAS

National Community Attitudes Survey

NCE

National Centre of Excellence

NDIS

National Disability Insurance Scheme

NDISRG

National Disability Insurance Scheme Reference Group

NDS

National Disability Services

NPIP

National Plan Implementation Plan

PIC

Project Implementation Committee

PSG

Project Steering Group

PSS

Personal Safety Survey

PWDA

People with Disability Australia

STVP

Stop the Violence Project

UNSW

University of New South Wales

WWDA

Women With Disabilities Australia

ABOUT THIS PAPER

STOP THE VIOLENCE OUTCOMES REPORT 4

INTRODUCTION The one-day National Symposium on Violence against Women and Girls with Disabilities was held at the Australian Human Rights Commission, Sydney on Friday 25 October 2013. The National Symposium was part of the activities of the Stop the Violence Project (STVP) funded by the Australian Government Department of Social Services and implemented by Women With Disabilities Australia (WWDA). The purpose of the National Symposium was to engage high-level stakeholders and decision-makers to address issues of violence against women and girls with disabilities in Australia in order to develop measures for longer term sustainability for change relating to the National Plan to Reduce Violence against Women and their Children, 2010-2022. The National Symposium sought to foster collaborative approaches to policy development by strengthening cross-sector relationships and leadership for sustaining change in the identification and implementation of better practice models to prevent violence against women and girls with disabilities.

The aims of the National Symposium were: •

to raise awareness of the issue of violence against women and girls with disabilities;



to engage high level stakeholders and decision-makers in moving forward to address violence against women and girls with disabilities;



to discuss issues identified by the evidence gathering exercise for the STVP;



to promote, canvass and consult on good policy and practice measures and models;



to promote cross-sector collaborative relationships for systems integration;



to share information on what works and what doesn’t work; and



to provide leadership for sustaining change in the identification and implementation of better practice models of policy, program, service system development and responses which will prevent violence against women and girls with disabilities.

The National Symposium provided an interactive forum for exchange of ideas and information on key thematic areas and mechanisms for preventing and addressing violence against women and girls with disabilities in Australia.

STOP THE VIOLENCE OUTCOMES REPORT 5

PRIME MINISTER

MESSAGE FROM THE PRIME MINISTER STOP THE VIOLENCE NATIONAL SYMPOSIUM Violence against women and girls is utterly unacceptable. It is unacceptable in Australia and unacceptable across the world. The Stop the Violence National Symposium is confronting the serious issue of violence against women and girls. In particular it will focus on confronting violence against women and girls with disabilities. The Symposium is also promoting the National Plan to Reduce Violence against Women and their Children. I am working with my colleague and Minister Assisting for Women, Senator the Hon Michaelia Cash, to ensure the National Plan is implemented, is effective and supports our most vulnerable. I congratulate Women With Disabilities Australia, People With Disability Australia and the University of New South Wales for your work on the Stop the Violence Project and for organising this event. I send my best wishes for a successful event.

The Hon Tony Abbott MP Prime Minister of Australia 22 October 2013

STOP THE VIOLENCE OUTCOMES REPORT 6

OPENING ADDRESS BY THE HON MICHAELIA CASH MINISTER ASSISTING THE PRIME MINISTER FOR WOMEN Ladies and gentlemen, friends, all - Good morning. It is an honour to be here on behalf of the Prime Minister to give the opening address to the ‘Stop The Violence’ National Symposium. Donna, thank you for your welcome to country. I too would like to acknowledge the traditional owners on whose land we meet today, the Gadigal people, and pay my respects to their Elders past and present. May I commence by acknowledging our special guests here today. The first is a dear friend of mine, Liz Broderick. Liz, what can I say about you other than you are amazing. You are a true champion of women’s rights, and you are also a true champion in relation to stopping the violence against women and children and in particular, against women and children with disabilities. I think the fact that so many people are here today is a testament of exactly what you have achieved. To Karin Swift, President of Women with Disabilities Australia, I am humbled by your ongoing championing of the reduction of violence, in particular, in relation to women and children with disabilities. As part of the Australian delegation to the Commission on the Status of Women, earlier this year, you were one of the stand-out figures who made a huge difference, with your presence, and with what you said - Thank you Karin. And of course, a man who does not need any introduction because he is so fantastic in this area, our Disability Discrimination Commissioner - Mr Graeme Innes - who has literally spent his life dedicated to advocating for people with disabilities, but in particular, in relation to women with disabilities. Graeme it is always fantastic to be in the same room as you. It is so good to see you.

Carolyn said to me earlier, ‘Michaelia we’ve got a really, really special group of people here today. They are people who are so committed to this cause that they are not just here to listen. This is a hand-picked group who are going to get down and do a lot of work today, and make sure that at the end of this National Symposium you have some fantastic policy ideas to bring back to Government.’ So, congratulations to each and every one of you. It’s a recognition of your work and dedication that you have been chosen to be here today. Ladies and gentlemen, violence against women and girls with disabilities is a serious issue. We all know that it is a basic right for women and girls to feel safe in all aspects of their lives. We all know, however, that the unfortunate truth still is, and the statistics tell us, that one in three women don’t experience that basic right that so many of us take for granted. There is the woman who dreads every weekend, waiting for her husband’s alcohol-fuelled rage to drive her and her children into hiding in different parts of the house, wondering if and when they are going to be able to come out. There is the pregnant woman who doesn’t know when her boyfriend is next going to punch her. There is the woman who is wheel-chair bound and if she falls from her chair her husband doesn’t tell her carers, he doesn’t take her to the doctor or the hospital and he doesn’t get her checked. There is the woman who has a disability as a direct result of her abuse. At just sixteen years old her boyfriend almost bashed her to death by repeatedly stomping and kicking her head. He beat her so badly she suffered a severe brain injury and was in in a coma for four months.

Can I also make a very special mention of each and every one of you who have given up your time to be here today.

STOP THE VIOLENCE OUTCOMES REPORT 7

The bad news about those stories is that I didn’t make them up for today. As you all know, they are real-life situations that I am merely relating to you, but which highlight why this national symposium is so very, very important. Each of those women has a different experience. The stories are different. But there is one common thread that links each and every one of those stories, and that is that those stories are completely, totally and utterly, in 2013, unacceptable.

I can personally assure you that you have a true champion in Prime Minister, Tony Abbott. He is dedicated to improving the lives of women and girls. That’s a statement that I can stand up here and make. If I was you I would be saying ‘Well hold on Michaelia. What do you have to actually back up that statement?’ Well, let me tell you. Many people don’t know that in his private life he has been a long-time supporter of The Manly Women’s Centre in his electorate of Warringah.

The firm commitment of Tony Abbott our Prime Minister, and our Government, is that it is not acceptable for violence against women and children to be secreted away behind closed doors.

Many of you would have heard about the ‘Pollie Pedal’ that our Prime Minister sets off on every year. Whilst yes, he is a dedicated cyclist and he loves every minute of this, there is a reason he actually does the ‘Pollie Pedal’. It’s his way of raising funds for charity - he and group of dedicated politicians have raised a lot of money for The Manly Women’s Shelter. They have raised in excess of $350,000 over the years and I’m proud to say that Margie Abbott is a formal patron of the Manly Women’s Shelter. I hope this gives you some indication that it is a life-long dedication of our PM to just quietly go about ensuring that there are resources for these types of places.

Violence against women must be acknowledged. Violence against women must be addressed. Violence against women must be eliminated. Ladies and gentlemen, in relation to the Abbott Government’s commitment in this area, it is a long-held passion of the Prime Minister, his wife Margie, and myself, that we work towards eliminating violence against women and children. The Coalition Government’s long term commitment in this area was evidenced under the former Howard Government. Many of you would know from working with the former Howard Government, we committed $75.7 million dollars to the Women’s Safety Agenda and you would remember it addressed four main priority themes. In particular, we became a world leader in relation to the Women’s Safety Agenda, with the ‘Violence Against Women - Australia Says No’ campaign. That really did put this particular cause front and centre in the minds of all Australians. It sent an unequivocal message to the community, and one which I really hope you have been able to build on: that violence against women and girls, and violence generally, in society, is unacceptable. We are back in government, and my pledge to you is that we will now build on what previous Coalition governments have done in this space.

In relation to the National Plan, many of you whom I had the opportunity of meeting with when I was the Shadow Parliamentary Secretary would know that I am 110 per cent committed to the implementation of the National Plan. We are now at the end of the first phase of the National Plan. I am very excited that it is a Coalition Government that is going to be given the opportunity of launching phase two of the National Plan next year. We have made some great progress under phase one. However, there is still work to do. The Prime Minister and I are committed to working with each and every one of you to ensure that the next phase of the National Plan ensures that we take a step-up in reducing violence against women and children. One of the areas that I am personally passionate about, and have spoken with the Prime Minister in terms of ‘where do you want to see a coalition government going?’ is very much in the area of primary prevention.

STOP THE VIOLENCE OUTCOMES REPORT 8

We all know the statistics in relation to the violence against women and children, it costs our economy $13.6 billion dollars a year, and according to all of the analysis if we don’t do something about it that figure is only going to rise. We all know the shocking statistics of violence against women and if we truly want to address this we really need to start looking at a real focus on primary prevention. The White Ribbon Day Parliamentary Breakfast at Parliament House, which I hope to see some of you at, does a fantastic job in ensuring that people understand that women’s problems are men’s problems as well. Men are unfortunately, more often than not, the perpetrators of violence against women. It’s wonderful to see so many men here today, because it means that you are truly committed to ensuring that this is something that stops. In relation to White Ribbon, I was very proud that one of our election commitments is an additional 1 million dollars to The White Ribbon Campaign over four years. We believe that this is muchneeded funding that will ensure that they can continue with their very, very targeted approach to ensuring that men understand it is not acceptable to be a perpetrator of violence, but also, to work with those thousands of men who have taken the pledge. Our Prime Minister Tony Abbott took the pledge some time ago. The pledge, as he said: ‘We cannot rest until we entirely eliminate violence against women. Violence is never, ever acceptable as a way of settling disputes. It is particularly unacceptable when it is employed against people who are inherently vulnerable.’ And, as we all know this a message that each Australian, but in particular, each boy and girl in Australia needs to grow up understanding. It’s only when you convince the next generation that violence is unacceptable, that we will have true cultural change, and we will be so many steps closer to ensuring that we live in a society where violence against women and children is eliminated.

In relation to evidence building, I am a believer, as you all are, in evidence-based policy. The Coalition will be proudly supporting The National Centre of Excellence, which is now up and running, and in fact our Foreign Minister Julie Bishop, highlighted the NCE at a meeting with the US Secretary of State, John Kerry, just a few weeks after the election. We look forward to working with the team at the NCE to ensure that the current gap between research and practical steps is bought together, and I think that’s a great step forward. We are all here today to recognise the very particular needs of women with disabilities who experience violence. It’s a fact, we all know it, that women with disabilities are more vulnerable to violence than other women. Many women with a disability face additional problems in accessing appropriate support, and we all know the reality is that fewer have the option of escaping violence. We also hear, very disappointingly, of too many stories of violence within supported care and residential care facilities. Again, completely, totally and utterly unacceptable. Karin, I know you did a great job, as I said earlier, in relation to CSW in New York earlier this year, and I know that it was because of your efforts that this topic was something that was spoken about at an international level by Australia and by an Australian delegate in Karin, and I truly believe that this has well and truly raised the profile of this internationally. So again, well done Karin! I want to assure you that the Government is very proud of the work that each and every one of you do in the non-governmental sector to ensure that there is a reduction, and hopefully eventually, a complete elimination of violence against women and children, and in particular, violence against women with disabilities. I don’t underestimate how hard it is for each and every one of you, as it is always the way in this space, there is always a limited pool of resources, but please don’t underestimate the work you do. Please don’t underestimate the value of that work for us as your politicians, when formulating policy that will make a real difference in the lives of effected women. STOP THE VIOLENCE OUTCOMES REPORT 9

In closing I would like to read, a message from the Prime Minister, who could not be with us today. ‘Violence against women and girls is utterly unacceptable. It is unacceptable in Australia and unacceptable across the world. The Stop the Violence National Symposium is confronting the serious issue of violence against women and girls. In particular it will focus on confronting violence against women and girls with disabilities. The Symposium is also promoting the National Plan to Reduce Violence against Women and their Children. I am working with my colleague and Minister Assisting for Women, Senator the Hon Michaelia Cash, to ensure the National Plan is implemented, is effective and supports our most vulnerable. I congratulate Women With Disabilities Australia, People With Disability Australia and the University of New South Wales for your work on the Stop the Violence Project and for organising this event. I send my best wishes for a successful event.’ And on that note again, it is an honour and it is a privilege for me to be here today and to have been given this very, very humbling opportunity to open your conference. Enjoy the day.

STOP THE VIOLENCE OUTCOMES REPORT 10

INTRODUCTORY REMARKS BY MS ELIZABETH BRODERICK PROJECT STEERING GROUP CHAIR AND SEX DISCRIMINATION COMMISSIONER, AUSTRALIAN HUMAN RIGHTS COMMISSION Thank you so much, Senator Cash for coming along today, for showing such deep commitment to the work that is happening here. Just like you, all of us here feel deeply about combating violence against women with disabilities. It is great to have your support and the Prime Minister’s support for the initiatives, the evidence gathering and the sharing of best practice that will happen throughout the day today, and I really look forward to continuing to work with you over the next period on these really important issues. I want to acknowledge the Traditional Owners of the land we are meeting on, the Gadigal people of the Eora Nationa and pay my respects to their Elders past and present. I wish to also acknowledge the Assistant Minister for Social Services, Senator Mitch Fifield, who sends his sincere apologies and best wishes for the event. I know from his work, while in opposition, that he is a strong supporter of strategies to ensure that people with disability, and particularly women and girls can enjoy the same rights as everyone else and I know Graeme Innes would support me in saying what a strong supporter he is in this particular area because as we know women and girls with disability face considerable discrimination and violence across all regions of the world, not just here in Australia. It was really brought home to me just in the last couple of weeks when I went to the World Bank. I sit on their Gender Advisory Board and we have been looking once again at the key issue of violence against women and girls and particularly women with disabilities. I was interested to learn that violence against women and girls is at epidemic levels across the world today. For the first time the number of women and girls living with violence is higher than the number of malnourished people in the world. So, most importantly, also at the global level, it is identified that violence against women and girls is probably the major impediment to them contributing fully to society, to improvements in society and improvements in our economy.

So we deeply care about the human rights case here today. But if that is not enough to get you over the line, the fact is that all women should have the right to contribute fully to a positive society – a society that benefits everyone and, indeed, a vibrant and strong economy. That is the main message, and the message that we will hear today, and that is why it is so important to take the violence out of the private sphere and put it right up on the public agenda. That is what we are doing today; by understanding the evidence base, by actually starting to get the hard data out into the public sphere we can debate it, we can deliberate and share about leading strategies to take this forward. The Committee on the Rights of Persons with Disability in its recent review of Australia, recommended in its Concluding Observations that “Australia include a more comprehensive consideration of women with disabilities in public programs and policies on the prevention of gender based violence, particularly so as to ensure access for women with disabilities to an effective integrated response system”. I think that is what we found in the work that we have done and the discussions that we have had up until now. There is good work being done, but it is done in pockets, and we need to bring that together, and we need to ensure that it is part of the mainstream service delivery response in Australia for women affected by violence. The National Plan to Reduce Violence against Women and their Children recognises that. The National Plan focuses on primary prevention. It is great to hear the Minister talk about a focus on primary prevention. But the National Plan also recognises that women and girls with disabilities experience higher levels of domestic and family violence and sexual assault, that they have high levels of unmet needs in terms of access to

STOP THE VIOLENCE OUTCOMES REPORT 11

domestic violence and sexual assault services and related community support services. Further, increasing the community’s understanding of the complexity and nature of these issue and how they play out for women with disabilities is also very important. So what we need is some targeted measures to ensure that women with disabilities can participate fully and equally in Australian society, that they can enjoy their human rights to the same extent as everyone else. The Stop the Violence Project is overseen by Women With Disabilities Australia, People with Disability Australia and University of New South Wales. In particular I want to acknowledge Karin and Carolyn and all the amazing women from WWDA who are here today and I have to absolutely agree with the Minister. It is so wonderful when I go into CSW each year and I travel with representatives from WWDA, just what powerful advocates you are on the global stage. It is Australia that has helped put these issues on the global agenda and I feel so very proud about that. Therese Sands of People with Disability Australia who is here with us has done such great work from that organisation. Also, the University of New South Wales has done an amazing job in gathering the evidence, in developing the survey and engaging with stakeholders and making sure that today the right people are in the room. As Chair of the Steering Group, I want to welcome you all to the Symposium today. I feel very honoured to be a part of this and I know that this is just the beginning of the conversation and action that will take place. Today we will come together, we will share the best practice, we will collaborate across sectors and identify measures for reform. And I look forward to engaging in that discussion with everyone today.

STOP THE VIOLENCE OUTCOMES REPORT 12

MESSAGE FROM MS KARIN SWIFT PRESIDENT OF WOMEN WITH DISABILITIES AUSTRALIA I would like to start by reminding you that Australia is a Member State of the United Nations. Our country is a signatory to seven core international treaties and several other instruments that create clear obligations in relation to gender equality and disability rights. By signing and ratifying these international agreements, Australia has committed to take all measures, including targeted, genderspecific measures to ensure that women and girls with disabilities can realise and experience their rights and freedoms. However, let us be very clear: Australia has failed to ensure women and girls with disabilities benefit from these provisions and commitments. Instead, systemic prejudice, discrimination, apathy and indifference continues to result in widespread denial, and violation of, our most basic rights and freedoms – including our right to live free from violence. Although we experience many of the same forms of violence that all women experience, when gender and disability intersect, violence has unique causes, takes on unique forms and results in unique consequences.1 We also experience forms of violence that are particular to our situation of social disadvantage, cultural devaluation and increased dependency on others. Poverty, race, ethnicity, religion, language and other identity status or life experiences can further increase our risk of violence.2 Compared to non-disabled women, we experience violence at significantly 1

2 3 4 5

6

7 8

higher rates, more frequently, for longer, in more ways, and by more perpetrators, yet policies, programs and services for us either do not exist, are extremely limited, or simply just exclude us.3 We experience alarmingly high rates of multiple forms of violence from a range of perpetrators, including physical, psychological and sexual violence; financial abuse, neglect, social isolation, entrapment, degradation, trafficking, detention, forced sterilisation and psychiatric treatment, forced contraception and forced abortion, denial of health care, including exclusion from sexual and reproductive health care services, to name just a few.4 We are twice as likely to experience domestic/ family violence as non-disabled women, are likely to experience this violence over a longer period of time and suffer more serious injuries as a result.5 We are raped and sexually assaulted at a rate of at least two times greater than other women.6 More than 70 per cent of us have been victims of violent sexual encounters at some time in our lives.7 More than a quarter of rape cases reported by females in Australia are perpetrated against women with disabilities.8 And it is estimated that between 50 - 70 per cent of women with psychosocial disabilities in Australia have experienced past physical or sexual abuse, including child sexual assault.9 For example, a recent Victorian study

Frohmader, C. & Ortoleva, S. (2013) The Sexual and Reproductive Rights of Women and Girls with Disabilities: Issues Paper., Prepared for the ICPD Beyond 14 International Conference on Human Rights, The Hague, Available online at: http://www.wwda.org.au/issues_paper_srr_ women_and_girls_with_disabilities_final.pdf. Dowse, L., Soldatic, K., Didi, A., Frohmader, C. and van Toorn, G. (2013) Stop the Violence: Addressing Violence Against Women and Girls with Disabilities in Australia. Background Paper. Hobart: Women with Disabilities Australia. Frohmader, C. (2011) Submission to the UN Analytical Study on Violence against Women and Girls with Disabilities, Prepared for Women With Disabilities Australia (WWDA), http://www.wwda.org.au/WWDASubUNStudyViolenceWWDDec2011.pdf. Frohmader, C. & Ortoleva, S. (2013) OpCit., International Network of Women with Disabilities (2011) Violence Against Women with Disabilities. Barbara Faye Waxman Fiduccia Papers on Women and Girls with Disabilities, Center for Women Policy Studies. National Council to Reduce Violence against Women and their Children, ‘Background Paper to Time For Action: The National Council’s Plan for Australia to Reduce Violence Against Women and their Children, 2009–2021’ (Background Paper, Department of Families, Housing, Community Services and Indigenous Affairs, March 2009). See for eg: United Nations General Assembly (2012) Thematic study on the issue of violence against women and girls and disability, Report of the Office of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/20/5; See also: WWDA (2007b) ‘Forgotten Sisters - A global review of violence against women with disabilities’, WWDA, Rosny Park, Tasmania. Stimpson & Best; cited in Elman, A. (2005) Confronting the Sexual Abuse of Women with Disabilities. Harrisburg, PA: VAWnet, a project of the National Resource Center on Domestic Violence/Pennsylvania Coalition Against Domestic Violence. See for eg: Reported from Victorian study in Frohmader, C. (2011) OpCit.

STOP THE VIOLENCE OUTCOMES REPORT 13

found that 45 per cent of women in psychiatric hospitals had been sexually assaulted, 67per cent had been sexually harassed and 85 per cent felt unsafe.10 Women and girls with disabilities who live in institutions experience, and are at significant risk of violence. For many, violence is a day to day reality of their lives and frequently involves sustained and multiple episodes. Yet violence perpetrated against women and girls with disabilities in institutions is rarely characterised as domestic violence and rarely are domestic violence related interventions deployed to deal with this type of violence.11 For many women with disabilities in Australia, identification and recognition that violence in their lives is a problem or a crime remains a significant issue. They may have difficulties in recognising, defining and describing the violence; have limited awareness of strategies to prevent and manage it; and lack the confidence to seek help and support. Those who do seek support often find themselves on a referral roundabout without ever finding a pathway to safety.12 Many women with disabilities remain in violent and abusive relationships and environments simply because they have no other option. Typically, most women with disabilities do not report the violence perpetrated against them. We often lack access to legal protection, and law enforcement officials and the legal community are ill-equipped to address the violence. Our testimony is often not viewed as credible by the courts; and we are not privy to the same information available to non-disabled women. The lack of appropriate, available, accessible and affordable services, programs and support is a major factor that increases and contributes to violence against us.

Successive Australian Governments have conceded that violence against women with disabilities in Australia is ‘widespread’; that we are extraordinarily vulnerable to violence and abuse, and that we experience significant barriers in accessing services and support. Yet violence against women and girls with disabilities still remains largely outside the public debate and policy responses to violence against women. We therefore urge the newly elected Abbott Government to take up the recommendations from the Committee on the Rights of Persons with Disabilities without delay, and we look forward to engaging with the Government on their implementation. The primary response to addressing violence against women in Australia, including women with disabilities, is through the twelve year National Plan to Reduce Violence against Women and their Children 2010-2022, and its National and Jurisdictional Implementation Plans. However, In relation to addressing violence against women and girls with disabilities, the National Plan has limitations, in that there is little emphasis on girls with disabilities, it focuses only on domestic/family violence and sexual assault and fails to address the multiple forms of violence that women and girls with disabilities experience. In addition, although Aboriginal and Torres Strait Islander women are included in the National Plan and other mainstream strategies, there are no clear provisions which address violence and abuse of Aboriginal and Torres Strait Islander women with disabilities, and this remains an unaddressed area of public policy and service provision. A similar situation exists for culturally and linguistically diverse (CALD) women with disabilities. The Stop the Violence Project (STVP), which has brought us together here today, is a positive first step in laying the groundwork for improved service

Victorian Women and Mental Health Network, ‘Nowhere to be Safe: Women’s Experiences of Mixed-Sex Psychiatric Wards’ (Report, April 2008) pp. 4–5. 10 Victorian Mental Illness Awareness Council, Zero Tolerance for Sexual Assault: A Safe Admission for Women (2013). 11 Frohmader, C. & Swift, K. (2012) Opening minds & opening doors: Reconceptualising ‘domestic violence’ to be inclusive of women with disabilities in institutions. [email protected], Vol. 11, No. 2, pp. 7-8. Available at: http://www.noviolence.com.au/ public/reader/readerdec2012.pdf. 12 Dowse, L. et al. OpCit.

9

STOP THE VIOLENCE OUTCOMES REPORT 14

provision for women and girls with disabilities who are experiencing, or at risk of violence. It is one of a number of projects funded by the Commonwealth Government under the National Plan to Reduce Violence Against Women and their Children 20102022 (National Plan). The STVP is overseen by Women With Disabilities Australia (WWDA), the peak non-government organisation for women with all types of disabilities in Australia and implemented in conjunction with the University of New South Wales and People with Disabilities Australia. The STVP emerged from WWDA’s long standing commitment to addressing one of the most pressing issues for its membership: violence against women and girls with disabilities in Australia. The objective of the STVP is to identify structural issues to improve service responses to women and girls with disabilities experiencing or at risk of domestic and family violence. It investigates and identifies gaps and good practice models for improvement of services. Through stakeholder engagement, consultations and a nation-wide survey, the project lays the groundwork for improved service provision by building an evidence base for future reforms so that the service system is more responsive to the needs of women and girls with disabilities who are affected by violence. The evidence gathered from the STVP are presented and discussed at the National Symposium.

I would like to take this opportunity as President of WWDA, to pay tribute to our CEO, Carolyn Frohmader, who for more than 16 years has worked tirelessly to promote the rights of women and girls with disabilities, particularly their right to bodily integrity and to live free from violence, exploitation and abuse. It would be remiss of me as WWDA President, not to publicly state that WWDA is an organisation of only one paid employee – Carolyn – and we carry out our critically acclaimed work nationally and internationally on a total operating budget of only $163,000 per year. I thank Carolyn for the dedication, commitment and incredibly long hours she has worked over many years to advance the rights and freedoms of women and girls with disabilities. Thank you and I hope that we can all engage with the process and work together with us to Stop the Violence.

The challenge however, will be to ensure that this initiative is adequately resourced and sustained through the life of the National Plan. We must now ensure implementation, coordination and monitoring of the key reforms the STVP has identified, and further develop initiatives that address the multiple forms of violence that women and girls with disabilities experience.

STOP THE VIOLENCE OUTCOMES REPORT 15

PROCEEDINGS OF THE NATIONAL SYMPOSIUM The Stop the Violence National Symposium on Violence against Women and Girls with Disabilities was held on Friday 25 October 2013 at the Australian Human Rights Commission in Sydney. The National Symposium was attended by 58 participants including women with disabilities, key stakeholders and decision makers in the government and non-government sector, as well as experts and academics working in the field of disability and violence against women. The National Symposium, the first of its kind to be conducted in Australia, was designed to foster active participation and discussions to identify good policy and practice measures for reform across different sectors so that women and girls with disabilities can escape violence and be able to live with dignity and respect, participating fully and equally in Australian society. The National Symposium consisted of two plenary and panel discussion sessions followed by eight simultaneous working group discussions which addressed key emerging issues and mechanisms for directing good policy and practice emerging from the project followed by presentations and discussions at a plenary session. These issues, as set out in the Stop the Violence: Addressing Violence Against Women and Girls with Disabilities in Australia. Discussion Paper included:



Information, Education and Capacity Building for Women and Girls with Disabilities;



Awareness Raising for the Broader Community;



Education and Training for Service Providers;



Service Sector Development and Reform;



Legislation, National Agreements and Policy Frameworks;



Evidence Gathering, Research and Development;



Establishment and Development of the Virtual Centre for the Prevention of Violence Against Women and Girls with Disabilities; and



Establishment of a National Expert Panel on the Prevention of Violence Against Women and Girls with Disabilities;

Further information about the National Symposium, including the Stop the Violence: Addressing Violence Against Women and Girls with Disabilities in Australia. Background Paper, the Stop the Violence: Addressing Violence Against Women and Girls with Disabilities in Australia. Discussion Paper, presentation podcasts and transcripts and including this Report of Proceedings and Outcomes are available on the STVP website www.stvp.org.au

STOP THE VIOLENCE OUTCOMES REPORT 16

PROGRAM FRIDAY 25 OCTOBER 2013 TIME

SESSION

9:30am

Registration

10:00am 10:05am 10:20am 10:25am

10:35am

Welcome to the country Ms Donna Ingram, Metropolitan Local Aboriginal Land Council Opening Address Senator the Hon Michaelia Cash, Minister Assisting the Prime Minister for Women Introductory Remarks and Goals for the Day Ms Elizabeth Broderick, Project Steering Group Chair and Sex Discrimination Commissioner, AHRC Plenary 1: Key Issues in Violence and Women & Girls with Disabilities Chair: Ms Elizabeth Broderick, PSG Chair & Sex Discrimination Commissioner, AHRC Introduction to the Issue: Ms Karin Swift, President, WWDA Panel Discussion: Ms Gayle Rankin, Chairperson, First Peoples Disability Network, South Australia Ms Nihal Iscel, Ethnic Disability Advocacy Centre, Western Australia Ms Janice Slattery, Member, Reinforce Self-Advocacy, Victoria Ms Margie Charlesworth, Vice-President, WWDA

10:55am

Discussion from the floor

11:10am

Break

11:30am

11:40am

Plenary 2: Challenges and Opportunities for Change Chair: Mr Graeme Innes, Disability Discrimination Commissioner, AHRC Introduction to the Issues: Mr Graeme Innes, Disability Discrimination Commissioner, AHRC Panel Discussion: Ms Debbie Kilroy, CEO, Sisters Inside Dr Gabrielle Drake, Lecturer, University of Western Sydney Dr Leanne Dowse, Senior Researcher STVP, University of New South Wales

12:00pm

Discussion from the floor

12:15pm

Lunch

1:00pm

Working Group Session Group 1: Information, Education and Capacity Building for Women and Girls with Disabilities Group 2: Awareness Raising for the Broader Community Group 3: Education and Training for Service Providers Group 4: Service Sector Development and Reform Group 5: Legislation, National Agreements and Policy Frameworks Group 6: Evidence Gathering, Research and Development Group 7: Establishment and Development of the Virtual Centre for the Prevention of Violence Against Women and Girls with Disabilities Group 8: Establishment of a National Expert Panel on the Prevention of Violence Against Women and Girls with Disabilities

2:15pm

Break

2:25pm

Plenary: Feedback from Groups

4:10pm

Summary

4:25pm 4:35pm 4:45pm

Communiqué from the Symposium Ms Therese Sands, PWDA Closing Remarks Ms Elizabeth Broderick, Project Steering Group Chair and Sex Discrimination Commissioner, AHRC Close

STOP THE VIOLENCE OUTCOMES REPORT 17

PLENARY 1 KEY ISSUES IN VIOLENCE AND WOMEN AND GIRLS WITH DISABILITIES ELIZABETH BRODERICK – CHAIR Sex Discrimination Commissioner of the Australian Human Rights Commission chaired the first panel discussion of the National Symposium on key issues in violence against women and girls with disabilities.

KARIN SWIFT – INTRODUCTION TO THE ISSUES The President of WWDA, Karen provided an introduction to the issues of violence against women and girls with disabilities in Australia. Karin highlighted the systemic prejudices, discrimination, apathy and indifference which continue to result in widespread denial and violation of basic rights and freedoms of women and girls with disabilities to live free from violence. She explained that women and girls with disabilities experienced alarmingly high rates of multiple forms of violence from a range of perpetrators, including physical, psychological and sexual violence; financial abuse, neglect, social isolation, entrapment, degradation, trafficking, detention, forced sterilisation and psychiatric treatment, forced contraception and forced abortion, denial of health care, including exclusion from sexual and reproductive health care services. Karin expressed regret at Australia’s failure to ensure that women and girls with disabilities benefit from the provisions and commitments of international treaties and instruments that their country it is party to, and called on the Government to implement adequately resourced and sustained initiatives that address the multiple forms of violence that women and girls with disabilities experience.

PANEL DISCUSSION Gayle Rankine, a Ngarrindjeri woman from South Australia, Gayle is the Chairperson of First Peoples Disability Network (Australia). Gayle’s presentation highlighted her personal experiences of violence and her regret that violence is a norm in Australian society in 2013. She identified the need to educate men on issues of violence against women in order for men to understand and acknowledge that it is not culturally acceptable to perpetrate violence against women and girls. Also of concern Gayle cited high rates of sexual abuse within institutions and the lack of support networks in remote communities across Australia. Nihal Iscel is the Manager of Advocacy Services at the Ethnic Disability Advocacy Centre (EDAC) in Western Australia. Nihal explained that many women with disabilities from non-English speaking backgrounds experiencing violence encountered barriers in accessing services due to language issues and lack of knowledge of available services. Nihal identified that in some cultural contexts disability is perceived negatively and women with disabilities are devalued, resulting in their exploitation. She highlighted the need for increased awareness among women and girls with disabilities from CALD communities about resources and services that could assist them to escape from violence and exploitation. She called on the Government to provide additional resources to address this need. Janice Slattery is from Reinforce self-advocacy group in Melbourne and describes herself as a wife, self-advocate, and a woman with an intellectual disability. Janice highlighted her own personal experiences and the long time it took for people to accept that a woman with an intellectual disability can be a strong, independent person, able to take care of herself. She explained that society often viewed such women as exploitable and emphasised the need for advocacy so that the community viewed women with intellectual disabilities also as people having equal rights.

STOP THE VIOLENCE OUTCOMES REPORT 18

Margie Charlesworth is Vice-President of WWDA. Her presentation highlighted the ways women with communication disabilities are stripped of their legal capacity and denied justice on the basis that if their words are unclear they should not trusted. Margie called for the development of mechanisms that can enable women and girls with communication issues to have equal access to the justice system and equal recognition before the law. She also highlighted the need to educate women and girls with communication difficulties in ways to realise their rights, to have their voices heard and their rights upheld.

DISCUSSION The presentations from the panel members were followed by clarifications, comments and discussions from the floor which highlighted: •

the lack of data collection on violence against women with disabilities in Indigenous communities; and



the issue of foetal alcohol spectrum disorder (FASD) and the complexities it raised to recognition as a disability, and its impacts on mothers.

PLENARY 2 CHALLENGES AND OPPORTUNITIES FOR CHANGE GRAEME INNES – CHAIR AND INTRODUCTION TO THE ISSUES Disability Discrimination Commissioner of the Australian Human Rights Commission chaired the second panel discussion and provided an introduction on the challenges and opportunities for change, outlining the gaps in the current legislative, policy and service frameworks that impact on violence prevention and response for women and girls with disabilities.  He explained that these gaps arise because the intersection between gender and disability is generally not taken into account in legislative and policy frameworks, and because legislative and policy frameworks generally lack a human rights context in relation to the human rights treaties ratified by Australia.  This effectively meant that violence prevention and response strategies are piecemeal, inconsistent and often did not include protections and responses for women and girls with disabilities.  Graeme also suggested that, as had been discussed in the Access to Justice consultations, the use of different definitions of what constitutes ‘violence’ across different jurisdictions, and the focus of the Disability Service Standards and the NDIS Act on ‘abuse and neglect’ rather than ‘violence,’ tended to minimise the severity of crimes perpetrated against people with disabilities and trivialised serious crimes to ‘administrative infringements’ or ‘management issues’. Debbie Kilroy is a former prisoner and the CEO of Sisters Inside - an independent community organisation in Brisbane that advocates for the human rights of criminalised women. Debbie’s presentation highlighted the systemic violence experienced by women in prisons and in residential care facilities. She suggested that law and policy alone cannot address violence against women as often laws designed to protect women also lead to their increased arrests, based on their

STOP THE VIOLENCE OUTCOMES REPORT 19

‘reactive violence’ to domestic abuse situations. This results in a false picture in data that seem to suggest that women are becoming more violent. She also spoke about the difficulties faced by women with disabilities within the prison system as they are not allowed access to their carers. Gabrielle Drake is a lecturer in Social Work at the University of Western Sydney. In her presentation, Gabrielle highlighted the challenges faced by women with disabilities who live in boarding houses and psychiatric institutions. She highlighted that some women with disabilities prefer to live on the streets rather than face the violence and intimidation experienced in some boarding houses. Gabrielle also explained the need for researchers to address definitions of ‘homelessness’ and ‘houselessness’ in Australia and emphasised the importance of allowing women with disabilities to set the research agenda and for other researchers to work as co-researchers to identify targeted strategies to stop violence against women with disabilities. Leanne Dowse is an academic and researcher in Social Research and Policy at the University of New South Wales and leader of the Stop the Violence Project team at UNSW. Leanne’s presentation outlined the evidence gathering process for the STVP and highlighted that this was the first of its kind in Australia. Leanne suggested that given the high response rate to the national survey from across all jurisdictions and sectors, it provides findings that are representative and significant nationally. The evidence suggests a lack of a common, shared understanding of good policy and practice service provision to address issues of violence against women and girls with disabilities. She also highlighted the six key areas that were identified through the research as requiring attention, including recognising violence, responding to violence, inclusion and participation of women with disabilities, sector development, cross-sector collaboration and data capture and use. Leanne also explained that even though there are pockets of good policy and practice, overall it appears that there is an inadequate service response in Australia to issues of violence against women and girls with disabilities.

DISCUSSION The presentations from the panel members were followed by questions and discussions from the floor. The discussions centred on: •

structural and systemic barriers which women with disabilities face, particularly around pursuing appropriate opportunities and action for redress;



increased susceptibility to violence due to confluence of disability discrimination, stigmatisation and exclusion;



additional issues women with disabilities face due to housing inaccessibility, relationships of support within varying housing arrangements such as supported housing and accommodation, group homes, boarding houses, etc.; homelessness and much more; and



the role of the National Disability Insurance Scheme and the development of mechanisms within the scheme to recognise the high degree of susceptibility to violence from a range of parties for women with disabilities.

STOP THE VIOLENCE OUTCOMES REPORT 20

WORKING GROUP SESSIONS The participants of the National Symposium were pre-assigned to eight Working Groups, representing eight key areas for enhancing good policy and practice emerging from the evidence base gathered for the Stop the Violence Project. The eight areas were: Group 1

Information, Education and Capacity Building for Women and Girls with Disabilities

Group 2 Awareness Raising for the Broader Community Group 3 Education and Training for Service Providers Group 4 Service Sector Development and Reform Group 5 Legislation, National Agreements and Policy Frameworks Group 6 Evidence Gathering, Research and Development

The Working Group discussions were moderated by a Chair assigned to each group, who was assisted by a scribe to capture the discussions and agreed final statements from the groups. Each group presented their suggested discussions and recommendations for action to the Symposium for discussion and agreement. The focus of the National Symposium was on the outcomes of the research, so not all aspects of the very rich discussions in the Working Groups could be incorporated into key areas for action for this report. This discussion demonstrated the enthusiasm of participants to engage fully with and offer feedback on the materials. The discussions provided one of the first opportunities for a very diverse group of experts to come together to discuss issues relevant to violence against women and girls with disabilities. The following section presents the Principles/ Mechanisms, Strategies and Possible Areas of Action identified and debated by the Working Groups and agreed to in the Symposium summary discussion.

Group 7 Establishing and Development of a Virtual Centre for the Prevention of Violence Against Women and Girls with Disabilities Group 8 Establishment of a National Expert Panel on the Prevention of Violence Against Women and Girls with Disabilities.

STOP THE VIOLENCE OUTCOMES REPORT 21

OUTCOMES OF THE NATIONAL SYMPOSIUM FUTURE DIRECTIONS A synthesis of the survey findings, consultations with women with disabilities, research literature and legislative and policy mapping resulted in six key thematic areas plus two possible future mechanisms to support the development of good policy and the provision of good practice in service provision to address and prevent violence against women and girls with disabilities.

building for particularly at risk groups including Indigenous women with disabilities; CALD women with disabilities; women with disabilities who reside in congregate settings, including supported accommodation, mental health facilities, disability and aged-care facilities and correctional settings. 1.D

Current disability services policy and the National Disability Insurance Scheme (NDIS) as it is progressively introduced, identifies violence against women and girls with disabilities as a priority at the level of individual service provider organisations.

1.E

Women and girls with disabilities take part in relevant human rights forums as UN delegates.

AREA 1 INFORMATION, EDUCATION AND CAPACITY BUILDING FOR WOMEN AND GIRLS WITH DISABILITIES PRINCIPLE Commonwealth, State/Territory and Local governments provide enabling environments so that women and girls with disabilities are empowered to identify, disclose, substantiate and escape from violence.

POSSIBLE AREAS OF ACTION 1.1

Provide human rights education and training for women and girls with disabilities at national, state/territory, regional and local levels so that women and girls with disabilities are informed and educated to recognise what constitutes violence, including the types and extent of violence perpetrated against them.

1.2

Develop capacity of individuals and of disabled women’s organisations, groups and networks to address all forms of violence perpetrated against them. This could be achieved through a National Women With Disabilities Grants Program that provides funding for activities that respond to the particular needs and circumstances of women and girls with disabilities and ensure participation at all levels of decision making and at all stages of the designing, implementation, monitoring and evaluation of policies, programs and services affecting women and girls with disabilities.

STRATEGIES 1.A

Women and girls with disabilities are provided support to be informed and educated, within a human rights framework, to recognise violence perpetrated against them, including the types and extent of this violence.

1.B

Women with disabilities and their organisations, groups and networks are supported to promote appropriate policy and practice responses to all forms of violence perpetrated against them across relevant health, human and justice contexts.

1.C

In addition to mainstream supports, specific support and information addresses education and capacity

STOP THE VIOLENCE OUTCOMES REPORT 22

1.3

Build the capacity of WWDA by reviewing and increasing annual funding ($168,000) provided by the Australian Government including staffing levels (1 EFT).

AREA 2 AWARENESS RAISING FOR THE BROADER COMMUNITY

1.4

Develop specific information, education and capacity building strategies for Indigenous women with disabilities, CALD women with disabilities, and women with disabilities in institutions.

PRINCIPLE

1.5

A national database of accessible crisis accommodation services is developed, which details levels of accessibility for women with disabilities, (and/or women with children with disabilities) experiencing or at risk of violence.

1.6

The National Centre for Excellence includes representation of women with disabilities on its governance and advisory structures.

1.7

Representative organisations are supported and resourced on an ongoing formal basis to provide delegates with information and material to assist women with disabilities undertaking systemic advocacy work within Australia and internationally.

The rights of all women and girls with disabilities to live free from violence and the fear of violence in all aspects of their lives are understood by the broader community.

STRATEGIES 2.A

Universal, targeted and sustained community campaigns raise awareness of the rights of women and girls with disabilities, and are conducted to prevent violence against women and girls with disabilities before it occurs.

2.B

Awareness campaigns to highlight that perpetration of violence against women and girls with disabilities is a crime and to incorporate information on pathways to safety as part of the campaign.

2.C

Campaign messages and information are disseminated in formats that are inclusive of and accessible to women with disabilities experiencing or at risk of violence.

POSSIBLE AREAS OF ACTION 2.1

All policies and practices need to emphasise equality as a general principle.

2.2

Effective awareness raising campaigns would lead to increased demand for existing services. Therefore, the services need to be adequately resourced to ensure that pathways to safety are available.

STOP THE VIOLENCE OUTCOMES REPORT 23

2.3

2.4

Awareness raising campaigns should piggyback on state/territory prevention media campaigns, inducing social media marketing campaigns. They should also include images of diversity caveat (for example, CALD and Indigenous) and intended and unintended consequences.

AREA 3 EDUCATION AND TRAINING FOR SERVICE PROVIDERS

The National Foundation on the Prevention of Violence Against Women to include prevention work specific to violence against women with disabilities.

Organisations across all relevant service sectors are supported to work within a human rights framework which treats all clients with dignity and respect, recognises the presence of violence in the lives of women with disability, and enables all staff to receive induction and training that is tailored to their position around intersecting issues of violence, gender and disability.

PRINCIPLE

STRATEGIES 3.A

Organisations across all relevant service sectors undertake education and training to foster a culture of understanding and recognition of violence against women and girls with disabilities and use this understanding to inform their strategic approach to capacity building.

3.B

Competency based training on human rights and the intersection of disability, gender and violence provided for personnel working within the disability service sector.

3.C

Workforce training includes consideration of the specific intersectional experiences of disability, gender and violence, in the context of Indigeneity, cultural diversity, and other dimensions of social disadvantage.

3.D

Justice and legal workforce training be strengthened to recognise and support disclosure and redress particularly in relation to issues of family and domestic violence.

STOP THE VIOLENCE OUTCOMES REPORT 24

POSSIBLE AREAS OF ACTION 3.1

3.2

3.3

3.4

3.5

Health Workforce Australia works with professional health industry bodies to develop and implement disability, gender and human rights specific curriculum components to assist in the training of health practitioners. Core training units that can be reorganised and utilised to develop a skills set around gender-based violence against women with disabilities could be developed under the Industry Skills Council. All front line personnel working within the National Disability Insurance Scheme, particularly local area coordinators and planners be required by the National Disability Insurance Agency to undertake professional training on human rights and the intersection of disability, gender and violence. Staff training programs and cross sector collaborative frameworks are built into quality assurance and assessment systems established federally under the National Disability Insurance Scheme and in line with National Disability Standards. Family/Domestic Violence and Sexual Assault Training Programs for professionals, including police, working in the family law system (such as the AVERT Family Violence Training Program and the Family Law Detection of Overall Risk Screen (DOORS) Framework) could be strengthened by including information on gender, disability and violence in all components, including the ‘Responding to Diversity’ component.

AREA 4 SERVICE SECTOR DEVELOPMENT AND REFORM PRINCIPLE All government, community and for-profit service sectors are developed to be inclusive of women and girls with disabilities and their concerns.

STRATEGIES 4.A

Women with disabilities perform a leadership role in governance and advisory, policy and service structures, including decisions concerning service sector development and reform.

4.B

Services work together in bringing about a change in culture and attitudes within organisations, and use this process to drive improvements to policies, protocols and practices in responding to violence against women and girls with disabilities.

4.C

When policies and procedures are developed, specific consideration is given to addressing the diverse needs and circumstances of women and girls with disabilities.

POSSIBLE AREAS OF ACTION 4.1

Establish clear measurable targets or quotas for women with disabilities in leadership positions across government, community and for-profit sectors, ensuring that organisations and participants are sufficiently resourced to enact this leadership.

4.2

Mandatory requirement of representation of women with disabilities in service-level governance and advisory of all services operating under National Disability Insurance Scheme regulatory framework.

STOP THE VIOLENCE OUTCOMES REPORT 25

AREA 5 LEGISLATION, NATIONAL AGREEMENTS AND POLICY FRAMEWORKS

POSSIBLE AREAS OF ACTION 5.1

Commonwealth/State/Territory legislation be reviewed to recognise all forms of violence against women and girls perpetrated in all settings, including institutional and congregate care settings, recognise the right of people with disabilities to live free from violence, abuse, exploitation and neglect.

5.2

Commonwealth/State/Territory legislation on family law and domestic and family violence acknowledge the particular impact of domestic and family violence on marginalised and vulnerable groups of people with disabilities, including Indigenous persons, LGBTQI persons, those from a CALD background, and older persons.

5.3

Commonwealth/State/Territory Family/ Domestic Violence Legislation could contain consistent, comprehensive definition of family/domestic violence which includes the broadest possible definition of acts of family violence and relationships within which family violence occurs.

5.4

COAG agrees on three key performance measures that state governments report on, as required by relevant Implementation Plans established in each jurisdiction under the National Plan to Reduce Violence Against Women and their Children 20102022 and the National Disability Strategy 2010-2020. Performance measures should pertain to quality of life outcomes, given that these outcomes are also indicative of overall vulnerability to violence, (for example, education, active labour market participation, income).

PRINCIPLE Legislation, national agreements and policy are directed within a human rights framework so that they actively prevent violence; enact legislative responses that respond effectively to violence; force service systems to respond effectively to varying forms of violence; prevent further harm following entry into the service system; and enable women with disabilities to respond to violence perpetrated against them as active agents.

STRATEGIES 5.A

Commonwealth/State/Territory legislation gives effect to Australia’s obligations under ratified human rights treaties.

5.B

Policy frameworks facilitate a co-ordinated cross-sector approach across disability and violence against women sectors.

5.C

Reporting measures to track progress on violence against women and girls with disabilities are included in relevant Implementation Plans and their jurisdictional operationalisation against for example the National Plan to Reduce Violence Against Women and their Children 2010-2022 and the National Disability Strategy 2010-2020 which commits all Australian governments to continue to consider measures to reduce violence, abuse and neglect of people with disability through all mainstream and disability-specific policies, programs and services over the life of the strategy.

5.D

Justice sector facilitates access for women and girls with disabilities experiencing or at risk of violence.

STOP THE VIOLENCE OUTCOMES REPORT 26

AREA 6 EVIDENCE GATHERING, RESEARCH AND DEVELOPMENT

POSSIBLE AREAS OF ACTION 6.1

The National Centre of Excellence develops the National Research Agenda and includes as a priority research area, addressing violence against women and girls with disabilities. This includes prioritising initiatives which are informed by the findings and outcomes of the Stop the Violence Project and which improve policy and integrated service delivery in preventing and responding to, violence against women and girls with disabilities.

6.2

Existing service funding arrangements are restructured to enable the collection, collation and availability of data on the use of relevant services by women and girls with disabilities faced with violence for the purposes of service development.

6.3

Relevant national surveys such as the National Community Attitudes Survey (NCAS) and the National Personal Safety Survey (PSS) include disability and gender specific indicators and provide disaggregated data in reporting.

6.4

The National Gender Equality Indicators Australia are strengthened by including disaggregated reporting and by developing specific disability indicators for each of the six key domains (Economic security, Education, Health, Work and family balance, Safety and justice, and Democracy, governance and citizenship).

6.5

A national women with disabilities Expert Panel is established and resourced to advise the ABS on future development of the National Personal Safety Survey and the National Community Attitudes Survey and other relevant national, State/Territory data collection processes.

PRINCIPLE National data definitions and collection methods capture the forms, types and frequency of violence experienced by women and girls with disabilities, and are utilised to promote research and development. Definitions of violence should reflect those set out in International Human Rights Treaties, in particular, the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). STRATEGIES 6.A

Violence against women and girls with disabilities is recognised as a key area for future research and policy development. This research agenda could be situated and developed within the National Centre for Excellence, and would benefit from partnership agreements with disability and violence sector organisations and other national data collection agencies.

6.B

Data on the use of relevant services by women and girls with disabilities faced with violence is collected, collated and made available to inform future policy work for strategic improvement of services.

6.C

A National Women with Disabilities Expert Panel with diverse representation of women with disabilities be established to inform relevant agencies on the development of data collection strategies across all pertinent areas of policy and service delivery.

6.D

Information on violence against women and girls with disabilities in Australia is incorporated in reporting to human rights treaty bodies, universal periodic reviews, reports and recommendations of the UN Commission on the Status of Women, reporting to special rapporteurs, and within the post-2015 development framework.

STOP THE VIOLENCE OUTCOMES REPORT 27

6.6

Recognising, responding to, and preventing violence against women and girls with disabilities is integrated throughout the National Evaluation Framework to be developed for the National Plan to Reduce Violence against Women and their Children 2010-2022. Women with disabilities are represented on any advisory/ reference structures established to oversee development of the National Evaluation Framework.

6.7

As part of the review of the National Disability Agreement, agreement from Council of Australian Governments is sought that data on violence experienced by people with disabilities be collected by all disability services, and this data be disaggregated according to gender, context where violence occurred, and the perpetrator of violence.

6.8

The National Disability Strategy could pick up indicators of violence against people with disability that are disaggregated according to gender, context where violence occurred, and the perpetrator of violence. The National Disability Strategy includes indicators of violence against people with disability that are disaggregated according to gender, context where violence occurred, and the perpetrator of violence.

AREA 7 ESTABLISHMENT AND DEVELOPMENT OF THE VIRTUAL CENTRE FOR THE PREVENTION OF VIOLENCE AGAINST WOMEN AND GIRLS WITH DISABILITIES MECHANISM Symposium participants proposed that a Virtual Centre for the Prevention of Violence Against Women and Girls with Disabilities be established to function as an online ‘one stop’ resource designed to serve and meet the needs of a wide range of users, including women with disabilities; policymakers; front line service providers; researchers; program developers; legislators; academics; teachers; students; the broader community and more. It would have international applicability and serve as model for other countries in their efforts to promote the rights of women and girls with disabilities to live free from violence, abuse, neglect and exploitation as part of Australia’s international human rights obligations. The Virtual Centre would foster and support evidence-based approaches to more efficiently and effectively design, implement, monitor and evaluate initiatives to prevent and respond to violence against women and girls with disabilities.

STRATEGIES 7.A

The Virtual Centre could encompass the following elements:



Principles and guidelines for good practice approaches to violence against women and girls with disabilities;



Promising and/or good practice models and approaches in legislation, policy, program and service responses;



Leading tools and evidence on what works to address violence against women and girls with disabilities;

STOP THE VIOLENCE OUTCOMES REPORT 28



A compendium of contemporary resource materials available worldwide;



Models, responses and approaches to support engagement and participation of women and girls with disabilities;



A repository of historical information and resources;



Human rights conventions, instruments, declarations and reference materials relating to gender, disability, violence and intersectionality;



Scholarly, academic, and other research sources;



Sources of expertise;



Interactive spaces for communication and collaboration; and



The UN Knowledge Centre on Violence Against Women is a model with international standing on which the Virtual Centre could be modelled.

7.B

To ensure continued development, longevity and sustainability, the Virtual Centre for the Prevention of Violence Against Women and Girls with Disabilities could be housed within the National Centre of Excellence, supported by a technical, administrative and support team that maintains and updates the Virtual Centre, overseen by an Expert Panel made up of women with disabilities and selected key stakeholders. The Virtual Centre could be developed utilising a Content Management System (CMS) platform, with site accessibility being a key principle in design and usability.

POSSIBLE AREAS OF ACTION 7.1

Map the range of public, private and community organisations that could act as partners and potential partners in the development and sustainability of the Virtual Centre (for example, the National Centre for Excellence, the National Foundation for the Prevention of Violence Against Women, the National Disability Insurance Agency, and the National Disability Research Agenda).

7.2

Explore State/Territory governments’ contribution to the establishment of the Virtual Centre.

7.3

The National Centre for Excellence considers embedding the Virtual Centre within its future research priorities (write formally to the boards of the National Centre for Excellence, the National Foundation for the Prevention of Violence Against Women and the National Disability Insurance Agency to promote the concept).

7.4

Explore opportunities to resource the sourcing of the Virtual Centre under the second stage of the National Plan to Reduce Violence against Women and their Children 2010-2022 and through the NDIS workforce development fund.

7.5

Ensure that women with disabilities drive the development of the Virtual Centre, taking leadership roles within advisory and governance structures, and that the Centre remains accessible to women with disabilities in all required formats.

STOP THE VIOLENCE OUTCOMES REPORT 29

AREA 8 ESTABLISHMENT OF A NATIONAL WOMEN WITH DISABILITIES EXPERT PANEL ON THE PREVENTION OF VIOLENCE AGAINST WOMEN AND GIRLS WITH DISABILITIES

STRATEGY 8.A

MECHANISM A National Women with Disabilities Expert Panel on the Prevention of Violence Against Women and Girls with Disabilities, including representation of women with disabilities, could provide high level strategic direction to build an effective, integrated legislative, policy, program and service response to address and prevent violence against women and girls with disabilities. It could: •

develop, drive and monitor the key strategies for action under the six key areas of reform;



have a direct link to relevant national reference groups and panels such as the previous government’s National Plan Implementation Panel (NPIP) and the National Disability Strategy Implementation Reference Group (NDSIRG);



establish priority key strategies for reform;



determine responsibility and resource implications for the key strategies for reform; and



provide advice on data collection.

An appropriate national expert panel could be appointed under the second stage of the National Plan to Reduce Violence against Women and their Children 2010-2022 to provide high level strategic direction to build an effective, integrated legislative, policy, program and service response to address and prevent violence against women and girls with disabilities (for example, under the former government’s NPIP).

POSSIBLE AREAS OF ACTION 8.1

The National Disability Strategy (NDS) pick up indicators of violence against people with disability that are disaggregated according to gender, context where violence occurred, and the perpetrator of violence.

8.2

As part of the review of the National Disability Agreement, seek agreement from Council of Australian Governments that data on violence experienced by people with disabilities is collected by all disability services, and this data be disaggregated according to gender, context where violence occurred, and the perpetrator of violence.

8.3

The composition of the Women with Disabilities Expert Panel includes representation from Women With Disabilities Australia, the National Centre of Excellence, the Foundation to Prevent Violence Against Women and their Children, governments, community agencies, and representation of women with cognitive impairments.

8.4

Advocate for the continuation of the Select Council on Women’s Issues (SCWI) to provide strong leadership for states and territories to work collaboratively to improve policy and programs to assist in reducing family violence against women and girls with disabilities as a key priority in the Second Action Plan. STOP THE VIOLENCE OUTCOMES REPORT 30

APPENDICES COMMUNIQUÉ FROM THE NATIONAL SYMPOSIUM

STOP THE VIOLENCE PROJECT (STVP) NATIONAL SYMPOSIUM COMMUNIQUÉ — VIOLENCE PREVENTION AND RESPONSE FOR WOMEN AND GIRLS WITH DISABILITIES On 25 October 2013, the Minister Assisting the Prime Minister for Women, Senator the Hon Michaelia Cash opened the Stop the Violence Project (STVP) National Symposium — violence prevention and response for women and girls with disabilities. The National Symposium was hosted by Sex Discrimination Commissioner and Chair of the Stop the Violence Project Steering Group, Ms Elizabeth Broderick. The need for targeted measures to address violence against women and girls with disabilities, in order for them to participate as full and equal citizens in Australian society, has been identified as a priority in the National Plan to Reduce Violence against Women and their Children 2010-2022. The National Plan recognises that in Australia, women and girls with disabilities experience high levels of domestic and family violence and sexual assault, and have high unmet needs in terms of access to domestic violence, sexual assault and related community services. In her opening address, Minister Cash delivered a message from the Prime Minister, the Hon Tony Abbott MP:

“Violence against women and girls is utterly unacceptable. It is unacceptable in Australia and unacceptable across the world. The Stop the Violence National Symposium is confronting the serious issue of violence against women and girls. In particular it will focus on confronting violence against women and girls with disabilities. The Symposium is also promoting the National Plan to Reduce Violence against Women and their Children. I am working with my colleague and Minister Assisting for Women, Senator the Hon Michaelia Cash, to ensure the National Plan is implemented, is effective and supports our most vulnerable. I congratulate Women With Disabilities Australia, People With Disability Australia and the University of New South Wales for your work on the Stop the Violence Project and for organising this event. I send my best wishes for a successful event.” Minister Cash also stated: “We are all here today to recognise the very particular needs of women with disabilities who experience violence. It’s a fact, we all know it, that women with disabilities are more vulnerable to violence than other women. Many women with a disability face additional problems in accessing appropriate support, and we all know the reality is that fewer have the option of escaping violence. We also hear, very disappointingly, of too many stories of violence within supported care and residential care facilities. Again, completely, totally and utterly unacceptable….”

STOP THE VIOLENCE OUTCOMES REPORT 31

“…In relation to the National Plan, many of you whom I had the opportunity of meeting with when I was the Shadow Parliamentary Secretary would know that I am 110 per cent committed to the implementation of the National Plan. We are now at the end of the first phase of the National Plan… We have made some great progress under phase one. However, there is still work to do. The Prime Minister and I are committed to working with each and every one of you to ensure that the next phase of the National Plan ensures that we take a step-up in reducing violence against women and children.” Commissioner Broderick warmly welcomed the commitment to National Plan implementation made by the Prime Minister and Minister Cash. She highlighted the recent recommendation made by the United Nations Committee on the Rights of Persons with Disabilities “that Australia should include a more comprehensive consideration of women with disabilities in public programs and policies on the prevention of gender based violence, particularly so as to ensure access for women with disabilities to an effective integrated response system”. The first plenary session of the National Symposium outlined the key issues in violence and women and girls with disabilities. President of Women With Disabilities Australia (WWDA), Ms Karin Swift provided an introduction to the issue, providing information on the higher prevalence of all forms violence experienced by women with disability, and stating that “when gender and disability intersect, violence has unique causes, takes on unique forms and results in unique consequences”. As part of a panel, four women with disabilities presented on their experience and knowledge of the diverse and unique ways that violence occurs and affects women and girls with disabilities: •

Ms Gayle Rankine, Chairperson of First Peoples Disability Network (FPDN) highlighted the lack of support and protection and the greater risks for Indigenous women with disability in urban, rural and remote settings.



Ms Nihal Iscel, Advocacy Manager, Ethnic Disability Advocacy Centre WA outlined issues for women with disability from non-English speaking and culturally and linguistically diverse backgrounds.



Ms Janice Slattery, Self-Advocate and Peer Educator and Researcher discussed issues for women with intellectual disability and the research and training she conducts in this area.



Ms Margie Charlesworth, Vice-President of WWDA spoke about barriers to accessing justice for women with communication impairments, who are often not believed or viewed as credible.

The second plenary of the National Symposium outlined the challenges and opportunities for change, and was introduced by Disability Discrimination Commissioner, Mr Graeme Innes. Commissioner Innes outlined the gaps in both the current legislative and policy frameworks that focus on disability and those that focus on the prevention of violence against women. These gaps largely arise “because the intersection between gender and disability is generally not taken into account… and because legislative and policy frameworks lack a human rights context in relation to the human rights treaties that Australia has ratified”. The second panel was made up of researchers, practitioners and advocates, who provided an overview of key gaps in a range of service systems, including disability, mental health and justice service systems. Ms Debbie Kilroy, CEO of Sisters Inside discussed the specific risks of violence and the barriers embedded in the justice system for women with disabilities, and presented disturbing examples of situations experienced by women with disabilities.

STOP THE VIOLENCE OUTCOMES REPORT 32

Dr Gabrielle Drake, lecturer and researcher at the University of Western Sydney described the appalling situation experienced by women with disabilities living in boarding houses in NSW, and the daily risks of violence they experience in these institutional settings. Dr Leanne Dowse, Senior Researcher at UNSW for the STVP outlined the evidence gathering process, the key areas identified for further action and the implications of the findings for good policy and practice. In the afternoon, participants worked in preassigned groups to identify key issues, measures and actions to address the eight key areas emerging from the evidence base: •

Establishment and Development of the Virtual Centre for the Prevention of Violence Against Women and Girls with Disabilities



Establishment of a National High Level Inter-Agency Taskforce on the Prevention of Violence Against Women and Girls with Disabilities



Evidence Gathering, Research and Development



Information, Education and Capacity Building for Women and Girls with Disabilities



Awareness Raising for the Broader Community



Education and Training for Service Providers



Service Sector Development and Reform



Legislation, National Agreements and Policy Frameworks.

The information obtained from workshops will inform the principles, strategies and actions needed to ensure effective violence prevention and response for women and girls with disabilities. These will be outlined in the National Symposium Report of Proceedings and Outcomes to be provided to the Department of Social Services, and publicly released in December 2013. Commissioner Broderick closed the National Symposium, thanking participants for their commitment and hard work throughout the day: “The National Symposium enabled experts from a broad range of policy and service sectors to assist in identifying measures for cross-sector service system reform. However, this is only the beginning of discussion on this important issue, and the day’s deliberations have given a sound platform for further work and improvements for women and girls with disabilities who experience, or are at risk of violence. We need to ensure that this sound platform is part of phase two of the National Plan, as this is critical to ensure that violence prevention and response is inclusive of women and girls with disabilities.” Further information about the National Symposium, including the Background Paper, Discussion Paper, presentation podcasts and transcripts and the Report of Proceedings and Outcomes are available on the STVP website, www.stvp.org.au

STOP THE VIOLENCE OUTCOMES REPORT 33

ABOUT THE STOP THE VIOLENCE PROJECT The STVP is being undertaken by Women with Disabilities Australia (WWDA) with support from People with Disability Australia (PWDA) and the University of New South Wales (UNSW). It has been funded by the Department of Social Services (DSS) through its National Plan to Reduce Violence against Women and their Children 2010-2022. The STVP also aligns with the National Disability Strategy 2010-2020 (NDS), which was formally endorsed by the Council of Australian Governments (COAG) on 13 February 2011.

Ms Stephanie Gotlib Children with Disability Australia Ms Julie Oberin / Ms Taryn Champion Australian Women Against Violence Alliance Ms Cassandra Goldie Australian Council of Social Services Ms Annie Parkinson Women With Disabilities Australia Ms Therese Sands People with Disability Australia

The STVP is overseen by a Project Steering Group (PSG), which is chaired by Ms Elizabeth Broderick, Sex Discrimination Commissioner at the Australian Human Rights Commission. The other members of the PSG are:

Dr Leanne Dowse The University of New South Wales

Ms Julia Braybrooks Women NSW

Queensland is not represented on the PSG, but is participating in out-of-session discussions and activities. The Queensland point of contact for the STVP is the Violence Prevention Team, Department of Communities, Child Safety and Disability Services.

Ms Vanessa Swan Office for Women (South Australia) Ms Mary Bereux Office of Women’s Affairs, Dept. of Human Services (Victoria) Ms Rebecca Moles Dept. of Premier and Cabinet (Tasmania) Ms Fiona Baker Office for Women (Australian Capital Territory)

Dr Karen Soldatic The University of New South Wales

The STVP is based on the vision and foundational work of Ms Carolyn Frohmader, Executive Director, Women With Disabilities Australia. The PSG Secretariat can be contacted by email, [email protected]

Ms Suzanne Everingham Office of Women’s Advancement (Northern Territory) Ms Wendy Murray Disability Services Commission (Western Australia) Ms Philippa Angley National Disability Services

STOP THE VIOLENCE OUTCOMES REPORT 34

NATIONAL SYMPOSIUM ATTENDEES Ministers 1

Senator the Hon Michaelia Cash

Minister Assisting the Prime Minister for Women

Project Steering Group (PSG)

Organisation

2

Elizabeth Broderick (PSG Chair)

Sex Discrimination Commissioner Australian Human Rights Commission

3

Annie Parkinson

Former President Women With Disabilities Australia

4

Vanessa Swan

Director Office for Women (SA)

5

Fiona Baker

Manger ACT Office for Women

6

Rebecca Moles

Manger – Policy Dept. of Premier and Cabinet (TAS)

7

Julia Braybrooks on behalf of Sarah Squire

Policy Officer Women NSW

8

Julie Oberin

Chair Australian Women Against Violence Alliance

9

Philippa Angley

National Policy Manager National Disability Services

10

Cassandra Goldie

CEO Australian Council of Social Services

Expert Consultative Group (ECG)

Organisation

11

Alison Aggarwal

Principal Adviser, Sex Discrimination Team Australian Human Rights Commission

12

Margaret Camilleri

Honorary Associate Researcher University of Ballarat

13

Margie Charlesworth

Vice President Women With Disabilities Australia

14

Samantha Connor

Coordinator Disability Clothesline

15

Gabrielle Drake

Lecturer University of Western Sydney

16

Maeve Dunnett

Trainer Insideout Disability Awareness

17

Fiona Given

Independent Consultant

18

Keran Howe

Coordinator Women With Disabilities Victoria

19

Nihal Iscel

Manager of Advocacy Services Ethnic Disability Advocacy Centre

20

Karen Jordan

Independent consultant

21

Debbie Kilroy

CEO Sister Inside

STOP THE VIOLENCE OUTCOMES REPORT 35

22

Gayle Rankine

Chair First People’s Disability Network Australia

23

Christina Ricci

Disability Rights Team Australian Human Rights Commission

24

Christina Ryan

General Manager Advocacy for Inclusion

25

Karin Swift

President Women With Disabilities Australia

Project Implementation Committee (PIC)

Organisation

26

Carolyn Frohmader

Executive Director Women With Disabilities Australia

27

Leanne Dowse

Senior Lecturer University of NSW

28

Karen Soldatic

Lecturer University of NSW

29

Therese Sands

Co- Chief Executive Director People With Disability Australia

30

Wendi Wicks

STVP Project Manager People With Disability Australia

31

Aminath Didi

STVP Project Coordinator University of NSW

32

Georgia van Toorn

Research Assistant University of NSW

33

Peter Darby

Information and Project Liaison Officer People With Disability Australia

Project Support

Organisation

34

Jess Cadwallader

Advocacy Projects Officer People With Disability Australia

35

Jennifer Jones

Australian Human Rights Commission

36

Emily Maguire

Australian Human Rights Commission

Other Expert Stakeholders

Organisation

37

James Bannister

Senior Sector Development Officer National Disability Services

38

Jennifer Clarke

Policy Officer Homelessness Australia

39

Anna Cody

Chair Community Legal Centres NSW

40

Mary Durkin

Health Disability and Community Services Commissioner ACT Human Rights Commission

41

Jennifer Ellis

Member of the South Western Sydney Institute of Domestic and Family Violence Skilled Development Strategy Team South Western Sydney Institute of TAFE NSW STOP THE VIOLENCE OUTCOMES REPORT 36

42

Patsie Frawley

Research Fellow LaTrobe University

43

Selina Getley

Manager, Policy and Projects Foundation to Prevent Violence against Women and their Children

44

Louise Glanville

Acting Deputy Secretary, Strategic Policy and Coordination Group Attorney-General’s Department

45

Jen Hargrave

Policy Officer Women with Disabilities Victoria

46

Graeme Innes

Disability Discrimination Commissioner Australian Human Rights Commission

47

Evan Lewis

Group Manager Department of Social Services

48

Liz Little

Chair National Association of Services Against Sexual Violence

49

Joslene Mazel

Board Member National Centre of Excellence

50

Magdelena McGuire

Research and Policy Officer Office of the Public Advocate Victoria

51

Leigh Michel

ASD Specialist

52

Sandy Miller

Deputy Chairperson National Aboriginal and Torres Strait Islander Women’s Alliance

53

Clare Morton

Director Department of Justice Victoria

54

Brad Petry

Director of the National Centre for Crime and Justice Statistics Australian Bureau of Statistics

55

Janice Slattery

Individual Self-Advocate/Peer Educator and Researcher

56

Lorna Sullivan

Director Disability ACT

57

Jolanta Willington

Branch Manager Department of Social Services

58

Karen Willis

Executive Officer NSW Rape Crisis Centre

STOP THE VIOLENCE OUTCOMES REPORT 37

Submission to the UN Analytical Study on Violence against Women With Disabilities DECEMBER 2011

PUBLISHING INFORMATION S u b m i ssion to the P re parat i on P hase of the U N A n alytical Study on Violence against Wo me n and G i rl s w i th D i sab ilit ies ( A/ H R C /RES/17/11) By Caro lyn Fro h m a d e r fo r Wo m e n W i t h D i s a b i l i t i e s A u s t r a l i a ( WWDA) © Wo m en W i t h D i s abi li t i es Au s t rali a (WW DA ) D e ce m b e r 2 0 1 1 T his work i s co p y r i g h t . A p a r t f ro m a n y u s e a s p e r m i t t e d u n d e r the Copyri g h t A c t 1 9 6 8, n o p a r t m a y b e re p ro d u ce d w i t h o u t written pe r m i s s i o n f ro m Wo m e n W i t h D i s a b i l i t i e s A u s t r a l i a (WWDA). A l l p o s s i b l e c a re h a s b e e n t a ke n i n t h e p re p a r at i o n of the inform at i o n co n t a i n e d i n t h i s d o c u m e n t . W W DA d i s c l a i m s any liabilit y fo r t h e a cc u r a c y a n d s u f f i c i e n c y of t h e i nfo r m at i o n and under n o c i rc u m s t a n ce s s h a l l b e l i a b l e i n n e g l i g e n ce o r otherwise i n o r a r i s i n g o u t of t h e p re p ar at i o n o r s u p p l y of a n y of the inform at i o n afo re s a i d .

CONTACT DETAILS Wo m en W i t h D i s a b i l i t i e s A u s t r al i a ( W W DA ) PO Box 605, Ros n y P ark 70 1 8 TASMANI A , AU ST RA L IA Ph: +61 3 6 2448 2 8 8 Fax : + 6 1 3 6 2448 2 5 5 Em ail: wwd [email protected] wwd a. org. au We b: www.w w d a. org . a u WWDA o n Fa ce b o o k : http: //www. f acebook. com / pages / Wom e n - W it h - D is a b il it ie s Australia-W W DA / 2 0 2 0 8 1 3 9 3 1 5 3 8 9 4 Winner, Nat i on al H u m an R i g h t s Award 20 0 1 Winner, Nat i on al Vi olen ce P reve n t i on Aw a rd 1 9 9 9 Winner, Ta s m an i an Wom en ’ s Safet y Awa rd 20 0 8 Cer tificate of Meri t , Au s t rali an C ri m e & V io l e n ce P re v e n t i o n Awards 20 0 8 No m inee, Fre n c h Rep u b l i c ’ s Hu m an R i g h t s P r ize 20 0 3 No m inee, UN Mi llen n i u m Peace Pri ze fo r Wo m e n 20 0 0

CONTENTS I n t rod uc t io n

4

Dat a a n d s tati s ti cs

6

Le gi s l at i on and po l i ci e s

14

Pre v e n t i o n and pro te cti o n

23

Pros e c ut i on and pu ni s hme nt

33

Recovery, re h abi l i tati o n an d s o c i al re i n te g r ati o n

40

Appe n d i x 1 : P ro j e cts o n vi o l e nce ag ai ns t wo me n w i t h d i s a b i l i ti e s 19 9 0-2 010

42

Appe n d i x 2 : D e fi ni ti o ns of ‘fami l y vi o l e nce ’ i n l e g i s l ati o n

48

En d n ot e s

67

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

3

INTRODUCTION 1.

Women With Disabilities Australia (WWDA)1 is the peak non-government organisation (NGO) for women with all types of disabilities in Australia. WWDA is run by women with disabilities, for women with disabilities, and represents more than 2 million disabled women in Australia. WWDA’s work is grounded in a rights based framework which links gender and disability issues to a full range of civil, political, economic, social and cultural rights. Promoting the rights of women with disabilities to freedom from violence, exploitation and abuse and to freedom from torture or cruel, inhuman or degrading treatment are key policy priorities of WWDA.2

2.

Australia is a country that prides itself on ideals which include a fair go for everyone, freedom and dignity of the individual, equality of men and women, equality of opportunity, freedom from discrimination, and the right of its citizens to participate fully in the economic, political and social life of the nation.3 However, these entitlements remain a distant goal for women with disabilities. In Australia today, women with disabilities are not given a ‘fair go’, they are denied the most fundamental rights and freedoms, they are not treated with dignity and respect, they remain profoundly more disadvantaged than their male counterparts; are systematically denied opportunity in every aspect of society; experience multiple forms of discrimination, and widespread, serious violation of their human rights. They remain largely ignored in national policies and laws, and their issues and needs are often overlooked within broader government programs and services. Negative stereotypes from both a gender and disability perspective further compound the exclusion of women with disabilities from support services, social and economic opportunities and participation in civic and community life. The deep-rooted exclusion experienced by women with disabilities in Australia continues unabated due in part to the dearth of information available on its extent or impact, and the apathy of successive Governments in acknowledging the need for such information.4

3.

4.

Violence against women with disabilities remains a key factor that undermines the ability of disabled women to participate as full and equal citizens in Australian society. Violence against women with disabilities is an intersectional category dealing with both genderbased and disability-based violence. The confluence of these two factors results in an extremely high risk of violence against women with disabilities.5 6 In Australia, women with disabilities experience high levels of domestic/family violence and sexual assault, and have high levels of unmet needs in terms of access to domestic violence, sexual assault and related community support services. It is now widely acknowledged that compared to non-disabled women, women with disabilities are at greater risk of severe forms of intimate partner violence; they experience violence at significantly higher rates, more frequently, for longer, in more ways, and by more perpetrators; they have considerably fewer pathways to safety, and are less likely to report experiences of violence - yet programs and services for this group either do not exist or are extremely limited. In Australia, responses to violence against women with disabilities have traditionally been characterised by limited recognition by governments and the service sector of the nature and extent of the problem; inadequate research; incomplete or partial response structures, and scarce resources to support advocacy in the area.7 8 9 The duty of Governments to respect, protect, fulfil and promote human rights with regard to violence against women includes the responsibility to prevent, investigate and prosecute all forms of, and protect all women from such violence and to hold perpetrators accountable.10 The responsibility of the Australian Government to address violence against women and girls with disabilities is explicitly delineated in a number of the human rights treaties it has ratified, particularly the Convention on the Rights of Persons with Disabilities (CRPD).11 Article 16 of the CRPD (Freedom from exploitation, violence and abuse) requires states to ensure that people with disabilities are not subject to any form of exploitation, violence or abuse; requires states to protect women, children and older people with disabilities from gender and age aggravated exploitation, violence and abuse; requires states to institute measures to ensure the detection, investigation and prosecution of exploitation, abuse and neglect of people with disabilities and to promote

the physical and psychological recovery and social reintegration of victims. 5.

The obligation to respect, protect and fulfil women with disabilities’ right to freedom from violence, exploitation and abuse and to freedom from torture and other cruel, inhuman or degrading treatment or punishment, clearly requires Australian Governments to do much more than merely abstain from taking measures which might have a negative impact on women with disabilities. The obligation in the case of women and girls with disabilities is to take positive action to reduce structural disadvantages and to give appropriate preferential treatment to women with disabilities in order to ensure that they enjoy all human rights. This invariably means that additional resources will need to be made available for this purpose and that a wide range of specially tailored measures will be required.12

6.

This Submission from Women With Disabilities Australia (WWDA) to the preparation phase of the UN Analytical Study on Violence Against Women and Girls with Disabilities, aims to provide an overview of the legislation, regulatory frameworks, policy, administrative procedures, services and support available within Australia to prevent and address violence against women and girls with disabilities. WWDA acknowledges that, due to time and resource constraints, this Paper does not provide a complete and detailed analysis of all mechanisms and programs across Australia’s eight States and Territories. However, the information provided in this Paper does clearly demonstrate that there have been, and remain, significant systemic failures in legislation, regulatory frameworks, policy, administrative procedures, availability and accessibility of services and support, to prevent and address the epidemic that is violence against women and girls with disabilities. Underlying these systemic failures is an entrenched culture throughout all levels of Australian society that devalues, stereotypes and discriminates against women and girls with disabilities, and invariably perpetuates and legitimises not only the multiple forms of violence perpetrated against them, but also the failure of governments to recognise and take action on the issue.

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

5

DATA AND STATISTICS Have studies/research been conducted on the prevalence, nature, causes and impact of violence against women and girls with disabilities in different settings (family/home, work-place, medical institutions, schools, etc.?). What forms of disability and violence do they cover? 7.

To date, there have been no national studies or research conducted to establish the prevalence, extent, nature, causes and impact of on violence against women and girls with disabilities in different settings. There is no data collection in Australia on violence against women with disabilities.

8.

For more than a decade, WWDA has called on successive Australian Governments to commission and resource nationwide research to ascertain the prevalence, extent, nature, causes and impact of violence against women with disabilities.13 14 15The need for such research has been widely documented across a range of sectors for a number of years. 16 17 18 19 The critical need for Governments to accelerate their efforts in research and data collection in relation to violence against women with disabilities has also recently been re-iterated by the United Nations Human Rights Council.20

9.

The Australian Government concedes that violence against women with disabilities in Australia is ‘widespread’.21 As recently as 24 October 2011, the Federal Minister for the Status of Women, Kate Ellis acknowledged that women with disabilities, particularly intellectual disabilities, are extraordinarily vulnerable to violence and abuse. She stated: “We don’t know the full extent, but we do know (women with disabilities) are massively over-represented in the statistics of women in Australia who are subjected to violence. We know that women with disabilities, particularly intellectual disabilities, can be

extraordinarily vulnerable and we also know there are issues around reporting and around knowing where to turn for assistance and how to avoid those sorts of relationships.” 22 10. The most immediate and apparent finding in researching and analysing violence against women with disabilities in Australia, is the limited information available on any aspect of the issue. The neglect in research of women with disabilities generally has been highlighted by the United Nations Committee on the Elimination of All forms of Discrimination Against Women (CEDAW), in both its 2006 and 2010 assessments of the Australian Government’s implementation of the Convention.23 24 In its 2010 Concluding Comments, the CEDAW Committee made very strong recommendations regarding the need for urgent action by Australian governments in relation to women with disabilities, including the need to: Undertake a comprehensive assessment of the situation of women with disabilities in Australia; Address the abuse and violence experienced by women with disabilities living in institutions or supported accommodation; Adopt urgent measures to ensure that women with disabilities are better represented in decisionmaking and leadership positions; Enact national legislation prohibiting forced sterilisation of women and girls with disabilities. 11. The main indicators available to date about violence against women in Australia, come from the 1996 Australian Bureau of Statistics (ABS) Women’s Safety Survey25 which gathered information about women’s experiences of violence, and the 2005 ABS Personal Safety Survey (PSS),26 which collected information about both women’s and men’s experiences of violence. Both the ABS Surveys (1996, 2005) have been criticised for their limitations in providing a sufficiently comprehensive picture of violence against women.27 28 29 12. In 2004, WWDA, along with several other national disability organisations, wrote to the [then] Australian Government strongly advocating the need for the 2005 PSS to include data collection on violence against women with disabilities, 30 31 and calling for

further qualitative studies to expand on the Survey results, including information about women with disabilities. In response, the Government declined to act on this recommendation, suggesting that a sample size of 12,000 women ‘may still be too small to gain accurate prevalence estimates of women with a disability who have also experienced violence’.32 A further reason given related to survey methodology: ‘as women are most at risk of experiencing violence from someone known to them, we are aware of the sensitivities involved in surveying women with disabilities about their experience(s) of violence in the presence of a carer, who in some circumstances may be the perpetrator of violence’ (Flanagan 2004).33 13. The next national Personal Safety Survey is due to be conducted in 2012, although this is yet to be confirmed. The potential 2012 PSS would build the evidence base on the nature, extent and characteristics of women’s and men’s experiences of violence in Australia. Although the next PSS will contain a disability module, the Australian Bureau of Statistics (ABS) has acknowledged that ‘it is likely that estimates for people with disabilities will be underestimated’.34 Limitations of the 2012 PSS in relation to capturing data on violence against women with disabilities include: the PSS is conducted via personal interview in the respondent’s home, with a small number of interviews occurring by telephone. Eliciting good data about experiences of violence depends on the respondent clearly understanding the questions being asked, their ability to respond and the interview being able to occur in private. People with disabilities who do not meet these criteria will be ‘un-selected’ from the PSS. the PSS will not include residents of special dwellings (eg: boarding houses, institutions). 14. A potential source of some statistical data on violence against women with disabilities may be available through the National Disability Abuse and Neglect Hotline35 (the ‘Hotline’). The Hotline is an Australiawide telephone hotline for reporting abuse and neglect of people with disabilities, is fully funded by the Australian Government,36 and operated on behalf of the Government by a national peak disability organisation. Its primary target group are people with disabilities who use Commonwealth, State or Territory

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

7

DATA AND STATISTICS

provided or funded disability services. Notifications of abuse and neglect are referred to relevant complaint bodies for their resolution. Statistical and other data from the Hotline is provided to the Government, however, none of this data or information is available to the public. WWDA understands that the data is disaggregated by gender, however it is unclear how the Australian Government uses the data it collects. There is no legislative base for the Hotline and it therefore has no statutory functions, powers and immunities.37 It has no investigative powers, no power to compel any other agency to investigate a complaint, and no power to formally review complaint investigation processes and outcomes. The Hotline does not have any systemic investigation, inquiry or review powers, and is unable to initiate action at its own motion.38 There is a clear lack of transparency relating to outcomes of notifications; there are a number of service types which are excluded from its mandate (such as licenced boarding houses), and definitions which set the scope of its work fail to incorporate a domestic context.39 Although the Hotline offers potential as a mechanism in detecting, reporting and responding to violence against women with disabilities, in its current form it is severely limited.

Government Research Initiatives 15. There have been minimal research studies initiated by Australian Governments on violence against women with disabilities. 16. In 1990, the Australian Government established a National Committee on Violence Against Women (NCVAW) to ‘initiate research, coordinate community education and act as a forum for national consideration of legal, policy and program issues’.40 The NCVAW commissioned a small project to examine the effectiveness of service delivery to women with disabilities who experience violence, representing an acknowledgment by the Australian Government that violence against women with disabilities was an issue. The study looked at access to police, legal and support services and used a qualitative framework to interview women with disabilities, service providers, relevant government agencies and non-government organisations. The NCVAW was wound up in 1993, with none of the study’s recommendations being implemented. 8

WOMEN WITH DISABILITIES AUSTRALIA

17. In 1996, the New South Wales (NSW) Government funded a small research project to investigate access for women with disabilities to existing sexual assault services. Interviews with women with disabilities, carers and organisations identified key issues such as lack of understanding by service providers of the intersections between gender, disability and abuse; the discriminatory culture within services; lack of information for women with disabilities about abuse; and lack of access to services. Recommendations centred on empowerment, access to quality services and advocacy.41 There is no information available on whether or how these recommendations were implemented. 18. In May 2008, the Australian Government established the National Council to Reduce Violence against Women and their Children (the Council). The Council’s main role was to develop a national plan to reduce the incidence and the impact of violence against women and their children. In March 2009, the Council released Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021,42 which contained the Council’s recommendations for a National Plan to Reduce Violence against Women to be developed and agreed by the Council of Australian Governments (COAG) and to be released in 2010. 19. Time for Action identified six key outcome areas43, proposed strategies and actions in each area and identified 20 high-priority actions that required an urgent response. One of these ‘high-priority actions’ included developing a national response to ‘audit crisis accommodation services for their accessibility for all women’.44 However, to date, there is no evidence that this has occurred, and it appears that it is no longer considered a priority by the Government. This is despite many years of WWDA and other stakeholders urging the Australian Government to commission a national audit of crisis accommodation services (including women’s refuges) to determine their levels of accessibility and safety for women with disabilities. 20. The urgent need for improvement in data collection was also identified in Time for Action. A key strategy included ‘build[ing] the evidence base’, noting that: data relating to violence against women and their children in Australia is poor. Data on services sought by, and provided to,

DATA AND STATISTICS

victims is not readily available, and the way in which information is reported is generally inconsistent and does not allow for a comprehensive understanding of violence against women.45 21. Time for Action also found that where data exists, there are many limitations, including for example: Under-reporting, particularly given sample populations of large surveys often do not reach the most vulnerable groups of women; There is an over-reliance on data not supported by in-depth, detailed research that would provide a better understanding of the relevance of different social, physical, cultural, geographical and economic contexts.46 22. In November 2009, the Australian Government released the findings of the National Community Attitudes towards Violence against Women Survey 2009.47 For the first time in this survey series, a limited number of questions on violence against women with disabilities were included. Some key findings from the survey about women with disabilities included: community awareness of violence against women with disabilities was very poor; few respondents recognised the greater vulnerability of women with disabilities to violence; only 9% of respondents agreed that ‘women with intellectual disabilities are more likely to experience violence than other women’. 69% of respondents disagreed with the statement; 16% agreed that ‘women with physical disabilities are more likely to experience domestic violence than other women’, but 58% disagreed; 76% of respondents agreed that ‘few people know how often women with disabilities experience rape or sexual assault’; 42% of female respondents and 35% of male respondents agreed that ‘women with disabilities who report rape or sexual assault are less likely to be believed than other women’. 23. In February 2011, the Australian Government released the National Plan to Reduce Violence against Women

and their Children 2010-2022,48 which consists of four three-year Action Plans. The First Action Plan (2010– 2013) includes two key ‘immediate national initiatives’ specifically focused on women with disabilities. They are to: Investigate and promote ways to improve access and responses to services for women with disabilities. Support better service delivery for children, Indigenous women and women with disabilities through the development of new evidence based approaches where existing policy and service responses have proved to be inadequate.49

Australian Research 24. The limited and fragmented work undertaken by Governments to date, is supplemented by a small number of research studies into violence against women with disabilities in Australia. 25. Examples of the work undertaken include an examination of the experiences of women while inpatients in a psychiatric hospital. This 1997 NSW study uncovered the occurrence of sexual abuse and made evident the failure of the system to respond to that abuse.50 51 In another NSW study, identification of the barriers facing women with an intellectual disability when making a statement about sexual assault to police was undertaken by interviewing sexual assault workers and police officers. While the study found that women with intellectual disabilities face significant barriers in successfully making statements to police following a sexual assault, the omission of the views of the women themselves was a significant limitation of the study.52 26. The Sexual Offences Project for Women with Disabilities, conducted in Victoria in 2003, aimed to examine the issues and problems victim/survivors with cognitive impairment experience when reporting sexual assault and proceeding with prosecution in Victoria. Unfortunately, ‘due to ethical concerns and resource constraints, as well as the varying abilities of victim/survivors to share their experiences’, it was decided that victim/survivors would not be directly interviewed. The Project instead invited those people who work with victim/survivors to ‘give case studies

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

9

DATA AND STATISTICS

that illustrate important issues and experiences when reporting and/or seeking access to justice’.53 27. Similarly localised, Cockram’s work documenting the nature and extent of family and domestic violence against women with disabilities in Western Australia in 2003, sought to ascertain whether the needs of women with disabilities were being adequately addressed by relevant services. The accounts of women with disabilities who have histories of family and domestic violence coupled with information from service agencies, highlighted discrimination against such women by service providers across a range of sectors.54 28. A Victorian study undertaken in 2006 analysed 850 rapes reported to Victoria Police over three years, from 2000 to 2003.55 In 92.5% of cases, the victims were female. More than a quarter of victims (26.5%) were identified as having a disability and, of this group, 15.6% had a psychiatric disability and 5.9% had an intellectual disability. The cases in the study involving victims with a disability were among those least likely to result in charges being laid against the offender and twice as likely to be determined as false. 29. A recent Project undertaken by the Victorian Office of the Public Advocate (OPA)56 examined violence against OPA clients with cognitive impairments.57 Women comprised 76% of the study. The study found that women of all ages with a range of cognitive impairments are subjected to physical, sexual, psychological, emotional and impairment-related violence, financial abuse and neglect. The study also found that, when acts of violence are not responded to appropriately, further violence is likely to be perpetrated against the person and it is less likely that the person will report it. 30. Figures from the Victorian OPA also show that in the past five years, police have examined more than 1000 cases of alleged abuse involving people with severe disabilities living in state residential care or private homes - including 282 allegations of assault, 320 of rape, and six alleged abductions or kidnapping.58 31. A recent study in NSW examined the experience of domestic violence and women with disabilities living in licensed boarding houses.59 The study found that domestic violence is a daily lived experience of the women, and this situation exists largely due to ‘failures in legislative frameworks, policy guidelines, 10

WOMEN WITH DISABILITIES AUSTRALIA

administrative procedures, accessibility of services and support.’ The study found that women with disabilities have limited knowledge of rights and options to be free from this form of abuse, and that they experience ‘significant barriers’ in accessing domestic violence support services. 32. The lack of research on the issue of violence against women with disabilities has been identified by several writers as a major concern for some time.60 The small number of Australian research studies on violence against women with disabilities that have occurred over the past twenty years, have tended to be one-off, short term, small scale, and localised to a particular State/Territory or region. Generally speaking, the majority of projects have focused on women with intellectual disabilities. The lack of independent evaluation appears to be a common theme, as does the lack of translation of findings into practice. Appendix 1 to this document provides a brief description of all known Australian projects on the issue of violence against women with disabilities for the period 1990 – 2010.

Positive Initiatives 33. In recent times it does appear that the issue of violence against women with disabilities is slowly gaining more attention, particularly at the national policy level. In many respects, this is directly attributable to the sustained advocacy work of WWDA and its allies. 34. In early 2011, as part of the National Plan to Reduce Violence against Women and their Children 20102022, the Australian Government announced funding of up to three million dollars over three years for Community Action Grants to ‘support community action to reduce violence against women through projects which prevent domestic and family violence and encourage respectful relationships.’61 The Government announced that ‘priority will be given to projects that provide support to specific communities of older women, women with disabilities, culturally and linguistically diverse communities and gay and lesbian communities.’ At the time of writing, several of the seventeen successful projects are still to be publicly announced, although two of those which have been announced, will focus on violence against women with disabilities.62

DATA AND STATISTICS

35. WWDA also understands that, as part of the Australian Government’s immediate response to the National Plan, the Government will commission a national reform project on ‘Improving Service Delivery to Women with Disability’. This national reform project is intended to provide an evidence base for future reform of the service system to better respond to the needs of women with disabilities. At the time of writing, this national reform project is in the preliminary planning stage and no firm details are yet available. 36. Other positive developments at the national level include, for example: Representation of women with disabilities on the Australian Government’s national advisory structure to develop the National Plan to Reduce Violence against Women and their Children 20102022; Prioritising women with disabilities in the first Action Plan (2010–2013), including through two ‘immediate national initiatives’; Representation of women with disabilities on the Australian Bureau of Statistics Personal Safety Survey 2012 Advisory Group; Representation of women with disabilities on the Advisory Board of the 24 hour national counselling service 1800 RESPECT.63

Please provide the available data on the number of women and girls with disabilities who have accessed services and programmes to prevent and address violence in the past year? Is this information disaggregated by disability, as well as by sex, age, socio-economic and ethnic backgrounds? 37. Most services in Australia do not routinely collect disaggregated data on disability and violence, including our national data collection, hospitals, courts, and police. Little is known about the helpseeking experiences of women with disabilities experiencing (or at risk of experiencing) violence.64 65 66 The lack of inclusive services and programs for women with disabilities experiencing or at risk of experiencing violence is well documented.67

38. In Australia, Governments attempt to respond to violence against women through the legal and judicial systems on the one hand and through service systems, which provide protection, support, treatment and education, on the other hand.68 Women with disabilities are not only marginalised and ignored in many of these responses, but paradoxically, experience violence within and by the very systems and settings which should be affording them, care, sanctuary and protection.69 70 39. The Supported Accommodation Assistance Program (SAAP) (replaced in January 2009 by the National Affordable Housing Agreement) was the Australian Government’s main homeless program and, as such, funded services including women’s refuges, shelters, and crisis services. The systematic exclusion of disabled women from such services has been documented for more than two decades.71 In 2004, the New South Wales Ombudsman undertook an inquiry72 into New South Wales SAAP agencies to determine the extent of, and reasons for, exclusion from SAAP. Overall, the inquiry found that ‘the level and nature of exclusions in SAAP are extensive. In some cases, exclusions appear to be unreasonable and possibly in contravention of SAAP and antidiscrimination legislation, and SAAP standards and guidelines’. Disabled people, including people with physical impairments, intellectual impairments, acquired brain injuries, along with people with mental illnesses, were one of the most significant groups affected by exclusion from SAAP. The inquiry found that a significant proportion of exclusions were based on ‘global’ policies of turning away all individuals belonging to a particular population group or sharing similar characteristics with a group. Reasons given by service providers for exclusions included limited staffing levels, incompatibility with other clients/ residents, industrial legislative issues for staff, lack of physical access to buildings and lack of staff expertise and skills.73 40. It is well documented that domestic and family violence is one of the major factors in homelessness.74 75 And it is clear that women with disabilities are over-represented in the factors that contribute to homelessness.76 Despite this, women with disabilities remain excluded from all levels of the National Affordable Housing Agreement – the primary policy and program response designed to address homelessness in Australia.

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

11

DATA AND STATISTICS

41. On 1st July 2011, the Australian Government operationalised the new National Minimum Data Set for Specialist Homelessness Services (SHSNMDS). The SHSNMDS aims to provide quality information about people who are either homeless or at risk of homelessness and who are seeking services from specialist homelessness agencies77 (including women’s refuges, shelters, and crisis services). Many specialist homelessness services also deliver prevention and early intervention programs.78 However, the new SHS NMDS does not include an indicator for disability. Clearly, the importance of the SHS NMDS in capturing data on women with disabilities ought to be a critical mechanism in promoting their access to specialist homelessness services, including women’s refuges. It is unlikely that access and responses to such services will improve whilst disabled women remain invisible and ignored in such significant national policy initiatives as the SHS NMDS.

Please provide available data on the number of households in which persons with disabilities reside. How many of these are women-headed households? 42. There are two million women with disabilities living in Australia, making up 20.1% of the population of Australian women, but apart from that, gender and disability data is scarce. For more than a decade now, WWDA has found that one of the greatest difficulties in determining and substantiating the needs and human rights violations of women with disabilities in Australia is the acute lack of available gender and disability specific data, research and information - at all levels of Government and for any issue. 43. The Australian Bureau of Statistics (ABS) conducts a number of surveys that provide data on disability at the population level. The most comprehensive is the (national) Survey of Disability, Ageing and Carers (SDAC),79 which collects information about a wide range of impairments, activity limitations and participation restrictions, and their effects on the everyday lives of people with disability, older people and their carers. Less detailed but conceptually similar disability data are available in other data sources, including the Census of Population and Housing80 and the General Social Survey (GSS).81

12

WOMEN WITH DISABILITIES AUSTRALIA

44. However, although some data is available (through the SDAC) on the number of households in which some people with disabilities reside, this data is not disaggregated by gender. Special tabulations of data from the SDAC are available on request, however this is as a charged service. This means that any specific tabulations seeking disaggregated data by gender, would need to be purchased at a financial cost to those seeking the data.

Please provide any statistics, information or studies on disability/ies resulting from violence against women and girls? 45. There is very little information in Australia on women with disabilities who have acquired their disability as a result of violence, despite the fact that violence can cause acute and chronic injuries that may lead directly to disability as well as leading indirectly to disabilities through distress and adverse lifestyle or coping strategies:82 “When I was 16 years old, my boyfriend bashed me almost to death. He beat me so badly I suffered a severe brain injury and was in a coma for four months. That evening when he bashed me he repeatedly stomped on and kicked my head. While lying in my hospital bed my family and nursing staff could see the imprint of his shoe in my very swollen face.”83 46. Cockram’s 2003 study in Western Australia found that 38% of abused women with disabilities serviced by that State’s violence and/or disability services in a two year period, had acquired their disability as a direct result of the abuse.84 This is corroborated by US studies which suggest that of the population of women with disabilities, in approximately 40% of instances their disabilities are a result of violence perpetrated against them by either their partners or caregivers.85 47. An Australian Senate Inquiry in 2003 into ‘Children In Institutional Care’ highlighted the many hundreds of children in institutional care who acquired their disabilities as a result of the violence perpetrated against them while in ‘care’. The Inquiry received evidence of ‘general physical, psychological and dental health problems through to severe mental

DATA AND STATISTICS

health issues of depression and post-traumatic stress disorder’,86 along with reports from many care leavers that they acquired their disabilities as a result of being assaulted in the institutions. According to the Inquiry’s Report, ‘the outcome of serious abuse, assaults and deprivation suffered by many care leavers has had a complex, serious and negative impact on their lives’.87 48. A 2009 report by the Family Law Council88 highlights data that victims of family violence receive more psychiatric treatment and have an increased incidence of attempted suicide and alcohol abuse than the general population.89 49. Similarly, a 2004 study in Victoria,90 which measured the burden of disease caused by intimate partner violence found that intimate partner violence: has wide-ranging and persistent effects on women’s physical and mental health; contributes nine per cent (9%) to the total disease burden in Victorian women aged 15–44 and 3 per cent in all Victorian women; is the leading contributor to death, disability and illness in Victorian women aged 15–44, being responsible for more of the disease burden than many well-known risk factors such as high blood pressure, smoking and obesity. In relation to women with disabilities, the study found that: women with disabilities are underrepresented in existing prevalence studies. These women may be particularly vulnerable to violence or its health impacts, primarily because they are less likely to have the social supports and economic resources required to protect themselves from or to leave a violent relationship. Low participation in existing studies by these women also worked against comparing the burden experienced by them in this particular study.91

more likely to suffer family violence94 and sustain serious injury requiring hospitalisation, and 10 times more likely to die due to family violence, than nonIndigenous women.95 51. Research undertaken as part of the National Plan to Reduce Violence against Women and their Children 2010-2022 looked at the economic cost of domestic violence in Australia.96 It found that in 2009-10, it was estimated that violence against women and their children cost the Australian economy an estimated $13.6 billion, and that, without appropriate action to address violence against women and their children, an estimated three-quarters of a million Australian women will experience and report violence in the period of 2021-22, costing the Australian economy an estimated $15.6 billion. In relation to women with disabilities, it found that: without appropriate action the estimated cost to the Australian economy of violence perpetrated against women with disabilities in 2021-22 will be $3.9 billion, representing 25% of the total cost of the total cost of violence in 2021-22.97 52. There have been a number of media reports over the years of women who have sustained horrific injuries and permanent disabilities as a result of violence perpetrated against them. For example, in 2003, a 31 year old man raped and assaulted a colleague after a work function in Victoria. After raping his victim in the stairwell of a building, the man walked out of the building, looked up and down the street, and then returned to repeatedly stomp on her head. The 30 year old woman was admitted to hospital with facial fractures, a partly amputated right ear, brain damage and serious vaginal and anal injuries. The offender was subsequently sentenced to serve a minimum of 12 years in prison.98 99

50. It is widely acknowledged that Indigenous Australians have rates of ill-health and disability substantially higher than other Australians.92 Australian Bureau of Statistics data shows that nationally, 50% of Indigenous Australians aged 15 years and over have a disability or long-term health condition. Over half are female (51%).93 Indigenous women are 35 times SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

13

LEGISLATION AND POLICIES Is there a legal framework addressing violence against women and girls with disability in different contexts (within the family, at the community and in the workplace, and in Sate and non-State institutions such as medical, education and other service providing institutions)? 53. In Australia, there is no uniform definition or understanding of what constitutes violence against women.100 Legislation designed to protect individuals from family and domestic violence is the responsibility of the States and Territories. Generally, violence against women is understood in the context of ‘domestic’, ‘spousal’ or ‘family’ violence. The legal definition of domestic violence for example, varies across jurisdictions because of differences in legislation.101 Appendix Two provides definitions of ‘family/domestic violence’ in relevant Commonwealth/State/Territory legislation.102 54. Most of the Australian legislation designed to protect individuals from family and domestic violence defines what constitutes a ‘domestic relationship’ and some of these definitions are more inclusive than others, including for example, gay, lesbian and transgender relationships, siblings, children, non-partner family members, and so on. Some also include ‘informal care relationships’ which apply to domestic support and personal care relationships provided without fee or reward, and which are not under an employment relationship between the persons; and/or not on behalf of another person or an organisation.103 55. Despite the many and varied definitions within the various Australian laws of what constitutes domestic violence, family violence, domestic relationships, significant persons, relevant persons and so on, most of the current laws do not contain definitions which specifically encompass the range of domestic/ family settings in which women with disabilities may live (such as group homes, institutions), nor do they contain definitions which capture and encompass

the various forms of violence as experienced by women with disabilities. Because these experiences may not fit either traditional, or contemporary definitions, violence against women with disabilities often goes unidentified.104 It is nominally possible for women with disabilities who experience violence to take measures such as apprehended or personal violence orders. In practice however, for women with intellectual disabilities who live in group homes for example, recognition of the specific support needs of such women is limited and their access to effective protection, rather than promoted by legislation, is dependent on mediation and intervention by others such as staff or carers, who may also be perpetrators. 56. The Disability Discrimination Act 1992 (Cth) (DDA) represents a rights-based approach to establishing the legal right for disabled people to be free from discrimination and to participate in the community in the same way as non-disabled people.105 Compliance with the DDA is driven mainly by a system of individual complaints, through which people with disabilities enforce their rights. Many women with disabilities face significant barriers or disincentives to using the complaints process, including for example: lack of awareness of the DDA; the complexity and potential formality of the process; the fear of victimisation; the onus on the complainant to prove their complaint; the unequal financial and legal resources of complainants and respondents; the financial and non-financial costs involved; and, the lack of support and assistance in preparing for, and going through the process.106 107 108 The DDA has not been used in relation to violence against women with disabilities, as it is essentially designed to prohibit discrimination against people with disabilities in the areas of employment, education, the provision of goods, services and facilities, and access to premises. 57. Australian Guardianship law is the key regulatory mechanism for protecting the health and human rights of young persons, adults with disabilities and the elderly, and yet it remains understudied and misunderstood as a body of knowledge.109 Australia has eight different guardianship regimes, which vary widely in their forms of regulation. Guardianship legislation is enacted through State and Territory based Guardianship Tribunals/Boards.110 The roles of Guardianship Tribunals/Boards vary but can include for example:

facilitating decision making for people with disabilities who lack the capacity to make certain decisions themselves; appointing guardians and financial managers, and consents to medical and dental treatment; investigating claims of exploitation, abuse or neglect; consenting to a “special medical procedure”, such as ‘a procedure intended or likely to cause infertility’. 58. Most States and Territories of Australia also have an independent body (such as the Victorian OPA), which acts on behalf of, and advocates for, people with a decision-making disability. The roles and responsibilities differ from State to State, however, they include promoting the rights of people with disabilities and protecting them from exploitation and abuse. This can include investigating the circumstances of a person who is believed to have decision-making incapacity and is at risk in some way.111 However, Public Advocates have recently spoken out about their lack of investigative powers and also the failure of current laws in protecting people with disabilities from violence and abuse.112 113 For example, under current Guardianship Laws in Victoria, the Public Advocate has only the power to examine alleged mistreatment involving people who are formally placed under her guardianship or who are being considered for guardianship. This is done through an order by the Victorian Civil and Administrative Tribunal (VCAT).114 But many people being abused may not be subject to a guardianship order, meaning that large numbers of the state’s most vulnerable people are at risk. 115 According to Colleen Pearce, the Public Advocate in Victoria: ‘’There’s a widespread expectation that the Public Advocate is going to be able to investigate situations of abuse involving a person with a disability, and that is not necessarily the case. We think there are large numbers of people [at risk], but it’s really hard to quantify and that’s partly because abuse against people with a disability is really hidden. It occurs in a government-run institution or in people’s private homes.’’116

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

15

LEGISLATION AND POLICIES

Are practices such as 1) forced psychiatric intervention, 2) forced institutionalization, 3) solitary confinement and restraint in institutions, 4) forced drug and electroshock treatment, 5) forced abortion 6) forced sterilization and 7) harmful practices, prohibited by law? Forced Sterilisation 59. In Australia, the legal position on sterilisation varies from jurisdiction to jurisdiction.117 From 2003 to 2007, in an attempt to ‘minimise the risk of unauthorised sterilisations occurring’,118 the Australian Government began to address non-therapeutic sterilisation of children [girls] by drafting national, uniform legislation (ref). However, the goal of this legislation was not to prohibit forced sterilisation of girls with disabilities, but instead to regulate who could authorise nontherapeutic sterilisations of minors with ‘decisionmaking disabilities’. The draft legislation was strongly opposed by disability and human rights organisations on the grounds that it did not clearly prohibit sterilisation in all non-therapeutic circumstances, it only applied to children with intellectual disabilities, and it applied a broad test for the judicial authorisation of sterilisation. Critically, the primary emphasis of the draft legislation was not on the prohibition of this human rights abuse but on the elaboration of the circumstances and principles under which it could occur – which were essentially permissive rather than protective. 60. The Australian Government discontinued this work in 2007 because it believed that sterilisation of girls with disabilities had declined and that existing guardianship and court mechanisms for authorising sterilisation procedures worked adequately.119 This was incorrect, and, to date, existing State and Territory legislation and federal court mechanisms have been ineffective in eliminating non-therapeutic, forced sterilisations of young girls with disabilities. Anecdotal reports and health insurance statistics provide evidence that nontherapeutic sterilisation of girls with disabilities has occurred in greater numbers than officially reported; that it occurs without authorisation by courts and

16

WOMEN WITH DISABILITIES AUSTRALIA

tribunals; and that these procedures are actively sought (by parents and carers) in other jurisdictions both within Australia and in other countries. Current domestic law does not prevent children with disabilities from being taken out of Australia to another country to have the sterilisation procedure performed.120 61. In late June 2011, WWDA submitted a formal communication to the United Nations regarding the ongoing practice of forced sterilisation in Australia121. WWDA’s Submission was sent simultaneously to four of the United Nations Special Rapporteurs,122 requesting intervention to urge the Australian Government to comply with the recommendations of the Committee on the Elimination of Discrimination against Women (July 2010),123 the Committee on the Rights of the Child (October 2005),124 and the Human Rights Council (January 2011)125 to act immediately to develop national legislation prohibiting the nontherapeutic sterilisation of girls and adult women with disabilities in the absence of their fully informed and free consent. WWDA’s Submission further requested assistance from the Special Rapporteurs to ensure that the Australian government implement a range of strategies to enable women with disabilities to realise their right to health, their right to freedom from violence, their rights to reproductive freedom and to found a family, and their right to freedom from torture or cruel, inhuman or degrading treatment or punishment. 62. In late 2011, WWDA collaborated on the development of an international Briefing Paper on Sterilization of Women and Girls with Disabilities.126 This briefing paper has been jointly prepared by WWDA, Human Rights Watch (HRW), the Open Society Foundations, and the International Disability Alliance (IDA) as part of the Global Campaign to Stop Torture in Health Care.127 The paper gives a background to the issue of forced sterilisation, outlines various international human rights standards that prohibit forced sterilisation, and offers several recommendations for improving laws, policies, and professional guidelines governing sterilisation practices. 63. Anecdotal evidence indicates that applications for non-therapeutic sterilisations of women and girls with disabilities in Australia may be on the increase rather than in decline. For example, recent reports

LEGISLATION AND POLICIES

to WWDA suggest that gynaecologists are applying to Guardianship Boards for authorisation to perform hysterectomies on disabled girls as soon as they reach the age of 18 years. It appears that the applications are being sought solely for the purpose of ‘prevention of future pregnancy’.128

managing menstruation is a medical matter. Dowse & Frohmader (2001) reported that in Australia, there have been no long-term studies into the health effects of long-term hormonal suppression of menstruation on young women although risk factors such as dysfunction of the ovaries and the cardiovascular system have been identified.132

Forced Contraception/Menstrual Suppression 64. The management of menstruation in women with disabilities should be no different to that provided for any other woman. However, in the case of women and girls with intellectual disabilities, there appears to be an assumption that menstruation is a problem that should be overcome by menstrual suppression or elimination of the cycle.129 Forced contraception through the use of menstrual suppressant drugs (such as Depo-Provera) is a widespread, current practice in Australia, particularly in group homes and other forms of institutional care. It has been justified as a way of reducing the ‘burden’ on carers who have to ‘deal with’ managing menstruation of disabled women and girls. It is however, a means of denying basic reproductive rights and is a form of sexual violence.130 65. In 1992, the Victorian Intellectual Disability Review Panel submitted a report to the Minister for Community Services on the use of menstrual suppressants in Victorian institutions. A major finding of the Panel was that there had been blanket administration of drugs causing menstrual suppression to women in institutions who did not require this medication for contraceptive purposes and for whom the medication was prescribed without their consent. The purpose of administering the medication was for the ease of management of the menstrual cycle of the women, that is, for the convenience of the staff caring for them. The Panel found that the drugs Depo-Provera and Noresthisterone were being used in Victoria without routine gynaecological screening (Law Reform Commission of Western Australia 1994). 66. A 1994 Australian study by Carlson & Wilson,131 examined menstrual management issues for women with intellectual disabilities. The study found that frequent access to medical advice and an apparent lack of access to advice about educational and environmental management approaches and to practical support, may be reinforcing a perception that

Deprivation of liberty and restrictive practices 67. Women and girls with disabilities in Australia continue to be subjected to multiple forms and varying degrees of ‘deprivation of liberty’ and are subjected to unregulated or under-regulated restrictive interventions.133 134 This is particularly the case for women and girls with intellectual and/or cognitive disabilities, developmental disabilities and those with psychosocial disabilities. A restrictive intervention has been defined as ‘any intervention that is used to restrict the rights or freedom of movement of a person with a disability’,135 and can include practices such as chemical restraint,136 mechanical restraint,137 physical restraint,138 social restraint,139 seclusion140. Such practices are often imposed as a means of coercion, discipline, convenience, or retaliation by staff, family members or others providing support.141 These practices are not limited to institutions such as group homes, but also occur in educational settings (such as schools), hospitals, residential aged care facilities and other types of institutions (such as hostels, boarding houses, psychiatric/mental health community care facilities, prisons, supported residential facilities). 68. Australian studies of restrictive practices and people with disabilities are limited and publicly available data from government agencies is not easily sourced.142 However, in Victoria the public record reports that during 2005/06, on average, 28% of residents with intellectual disabilities in accommodation services were subject to restraint and/or seclusion and 23% of clients with intellectual disabilities in respite services were subject to restraint and/or seclusion.143 The Australian Psychological Society144 asserts that at least a quarter of all people with an intellectual disability will be subject at some time to some form of restraint, and has called on the Australian Governments to take urgent action to end restrictive practices in the disability sector:

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

17

LEGISLATION AND POLICIES

“Vulnerable children and adults with disabilities, some of whom have difficulty even communicating what has happened to them, continue to be exposed to the risks inherent in using restrictive practices, which have in some cases led to death and which are certainly in contravention of their human rights.”145 69. The Victorian Government has estimated that between 44-80% of people with disabilities who ‘show behaviours of concern’ are prescribed chemical restraint.146 No controlled studies exist that evaluate the value of seclusion or restraint in those with ‘serious mental illness’,147 although the use of involuntary seclusion and restraint in all forms is an everyday occurrence, particularly in Australia’s public acute inpatient facilities.148 The widespread, systemic problem of restrictive practices and children with disabilities in Australian schools remains ignored and unaddressed by Governments.149 150 151 70. There continues to be a myriad of media reports regarding people with disabilities being deprived of their liberty and subjected to restrictive and violent practices. For example, in 2003 mentally and physically disabled children and adults in residential care in Queensland were locked in cages and physically and sexually abused.152 In 2009, staff of a Queensland Independent Living facility were found guilty of assaulting and depriving disabled children of their liberty. Common practices at the facility included tying children to the toilet; rubbing chilli in their mouths, beating them with fly swatters when they ‘misbehaved’, taking away prosthetic limbs, substituting bread and butter for meals, washing out resident’s mouths with soap; slapping, hitting, humiliating and pulling the hair of residents.153 When sentencing one of the staff to 150 hours of community service, the judge said it was clear from the evidence that such practices were not only tolerated, but encouraged at the care facility, and that the culture of abuse ‘permeated from the top down’.154 More than eight former staff were charged with more than 130 counts of abuse involving more than 18 former residents. But the number of abuse victims is unknown, with police unable to gather sufficient evidence from some of the more severely disabled former residents to support further charges.155

18

WOMEN WITH DISABILITIES AUSTRALIA

Forced Electroshock 71. All Australian states and territories have provisions for the ‘treatment’ of people with mental illnesses without consent.156 This occurs when the persons illness is believed to impair his or her capacity to understand the need for treatment, or where the person is likely to put themselves or others at risk in some substantial way.157 Legislation typically allows for involuntary admission to hospital and, in most jurisdictions, pharmacological or other treatments without consent. 72. In most States and Territories of Australia, involuntary electroconvulsive therapy (ECT) requires the approval of the relevant Mental Health Review Tribunal, except in Tasmania (where approvals are made by the Guardianship and Administration Board) and in Victoria, where current legislation allows treating psychiatrists to administer ECT without consent or external review.158 73. In 2009-10 the Queensland Mental Health Tribunal scheduled 462 ECT applications in relation to 355 patients. This was 15.5% higher than the previous year. Of these, 98 (21.2%) were applications for patients undergoing emergency ECT.159 In 2009-10 in NSW, 716 applications were made to the NSW Mental Health Review Tribunal to administer ECT to involuntary patients (455 or 63.5% of the applications involved female patients). Only 20% of the 716 applications included legal representation for the patient. The NSW Mental Health Act 2007 allows for determinations of more than 12 ECT treatments ‘if the Tribunal is satisfied that more are justified, having regard to the special circumstances of the case.’ In 200910, 5.4% of cases were for more than 12 treatments approved.160 74. In Victoria in 2009-10, more than 1100 people received electroconvulsive therapy (ECT), in the public mental health system. Of these, 377 (or about one third) were deemed involuntary patients who did not consent to the ECT. Involuntary mental health patients received more than half of the 12,968 ECT sessions administered in the Victorian public psychiatric system in 2009-10.161 The use of ECT in Victoria’s public and private psychiatric services has increased sharply in recent years. In public mental health services, its use has increased by 12% since 2003-04, and private ECT sessions in Victoria have increased by 71% during the

LEGISLATION AND POLICIES

same period.162 An 2011 investigation into Victoria’s mental health system reported that: ‘Practices from a previous age appear routine in some hospitals: threatening patients with electroconvulsive therapy (ECT) if they refuse to take medication; locking bathrooms to prevent patients drinking water, which would negate the effect of the ECT; and imposing a form of solitary confinement as punishment for improper behaviour. Such attempts to subdue and control patients are disturbing enough in fiction such as One Flew Over the Cuckoo’s Nest; they have no place in hospitals in 21st century Australia.’163

Female Genital Mutilation 75. Female genital mutilation (FGM) (also known as female circumcision, female cutting) has been illegal in Australia since the 1990s. Parliaments in every Australian jurisdiction have perceived FGM as warranting legislative regulation. The legislation prohibits a person from performing any type of FGM, defined as including clitoridectomy, excision of any other part of the genitalia, infibulation, and any other mutilation of the genitalia, on a child or an adult.164 Consequently, even though those aged over 18 years (or 16 years in South Australia) may consent to medical treatment, any medical practitioner administering FGM would commit an offence even if the child or adult consents.165 76. There have however, been media reports in recent times of the practice occurring in Australia. In 2010, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) reported that there was ‘some evidence to suggest that it [FGM] does happen in certain parts of Australia’166 but that the actual numbers are hard to gauge because it is prohibited by legislation and is something that is performed in an underground way. According to Dr Ted Weaver from RANZCOG, “there have been reports of children being taken to hospital after having the procedure done with complications from that procedure.” It has also been reported that the Royal Women’s Hospital in Melbourne sees between 600 and 700 women each year who have experienced FGM in some form.167

What specific policies/programmes are in place to prevent and address violence against women and girls with disabilities and/or to address harmful practices that can result into disabilities? How do general policies and plans/programmes on violence against women ensure the inclusion of and accessibility by women and girls with disabilities? Government Policies 77. There is a general lack of specific, targeted policies and programs available in Australia to prevent and address the multiple and complex forms of violence against women and girls with disabilities. The recently released National Plan to Reduce Violence against Women and their Children 2010-2022 (discussed earlier in this paper) does include specific initiatives focused on violence against women with disabilities, and this is a long-overdue and positive step forward. Most States and Territories are currently in the process of developing their own Implementation Plans to give effect to and operationalise the National Plan. These State and Territory Implementation Plans could provide further scope for more targeted initiatives to address violence against women and girls with disabilities at the state, territory, regional and local levels. 78. As part of the National Plan to Reduce Violence against Women and their Children 2010-2022, the Australian Government is establishing a National Plan Implementation Panel (NPIP)168 to provide advice on the implementation of the National Plan. The NPIP will include a number of non-government representatives as part of the overall approach to engaging the community on the National Plan. WWDA has written to the Federal Minister for the Status of Women (Hon Kate Ellis) and to State and Territory Premiers, reiterating the critical importance of inclusion of women with disabilities in the membership of the NPIP. 79. The National Disability Strategy (NDS) was formally endorsed by the Council of Australian Governments (COAG) in February 2011.169 A key policy priority of the NDS is the right of people with disability to be safe from violence, exploitation and neglect.170 The NDS acknowledges that women and men with disabilities often face different challenges by reason of their sex,

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

19

LEGISLATION AND POLICIES

or experience the same issues in different ways, and therefore need different supports.171 The success of the NDS will rely heavily on its implementation at the State and Territory levels. Work is currently underway to develop NDS Implementation Plans at the State/ Territory levels and this could provide opportunities for WWDA to advocate for targeted, gendered initiatives around violence prevention. 80. In June 2010, Australia’s Sex Discrimination Commissioner,172 Elizabeth Broderick, released her Gender Equality Blueprint 2010.173 In efforts to address violence against women, the Sex Discrimination Commissioner’s Blueprint recommends, amongst other things, that ‘the Australian Government should invite the UN Special Rapporteur on Violence Against Women to visit Australia to contribute to independent monitoring of the nation’s ‘zero tolerance’ approach to gender-based violence.’174 WWDA understands the Sex Discrimination Commissioner is currently in the process of putting together a proposal for the Special Rapporteur to visit Australia to undertake a study tour. The Australian Human Rights Commission (AHRC) Disability Rights Unit has prioritised ‘violence against women with disabilities’ in its 2011-12 Workplan. WWDA continues to receive strong support from the AHRC, including both the Sex Discrimination Commissioner and the Disability Discrimination Commissioner in efforts to progress the rights of women with disabilities to freedom from violence, exploitation and abuse. 81. Australia’s Disability Services Act (1986)175 provides for a set of national guiding standards (known as the Disability Services Standards). The Standards are a set of eight principles intended to represent the core elements of a quality disability service in Australia.176 The Standards have remained essentially unchanged since 1993,177 and do not contain a Standard on the right to freedom from violence, exploitation, abuse and neglect.178 However, in recent years, eight jurisdictions have added a standard on ‘Protection of human rights and freedom from abuse’ to their own state/territory-based or jurisdictional standards. In reporting against this Standard, funded agencies ‘may provide evidence’ that staff have the knowledge to ‘report criminal activities, abuse and neglect’, and can provide ‘practical examples of how they act to prevent abuse and neglect’.179 As a mechanism to prevent and address violence against women and girls with

20

WOMEN WITH DISABILITIES AUSTRALIA

disabilities, the Disability Services Standards are grossly ineffective. They are un-gendered, they focus only on ‘abuse and neglect’, they rely on service providers possessing the knowledge of what constitutes violence against women and girls with disabilities, they are essentially adult focused, and are concerned primarily with the collection of quantitative data. For example, a Review of Disability Services in Tasmania in 2008, found that service performance measurement and monitoring was inadequate and that ‘current measures are primarily output and process focused and as such do not provide the opportunity to consider the effectiveness of the service system in achieving meaningful outcomes for clients’.180

Programs 82. In late 2010, the Australian Government launched 1800 RESPECT - the National Sexual Assault, Domestic Family Violence Counselling Service for people living in Australia. It provides a 24 hour telephone and online, crisis and trauma counselling service to anyone whose life has been impacted by sexual assault, domestic or family violence. It includes an information and referral service.181 The 1800 RESPECT Service does not collect data on the numbers of women with disabilities accessing the service unless the woman chooses to disclose that she has a disability. Between the period November 2010-June 2011, there were 7097 individuals who contacted the 1800 RESPECT Service. Of these, sixty-five individuals identified as having a ‘physical disability’; seven identified as having an ‘intellectual disability’ and five individuals identified as having both a physical and intellectual disability. For the period concerned, 4% of overall callers therefore disclosed that they had a disability.182 Coordinators of the 1800 RESPECT Service acknowledge that these numbers do not provide an accurate reflection of women with disabilities who may be accessing the service, and also under-estimate the numbers of women and girls with disabilities who experience violence.183 It must also be acknowledged, that it is inherently difficult (and in many cases impossible) for some women with disabilities experiencing, or at risk of violence, to access the 1800 RESPECT Service, due to: their dependence on others (including perpetrator/s); fear of disclosure, fear of consequences (including

LEGISLATION AND POLICIES

retribution), social isolation, place of residence, communication barriers and impairments, lack of support, nature of disability, lack of assertiveness, unquestioning compliance, lack of awareness of rights, lack of access to information about services and support options, and so on. 83. There is evidence of a very small number of localised programs in some States/Territories that are attempting to address the prevention of violence against women with disabilities. For example, the WWILD Sexual Violence Prevention Service184 is funded by the Queensland Government to work specifically with women with intellectual and/ or learning disabilities in Queensland who have experienced or are at risk of sexual assault, violence or exploitation. The Domestic Violence Resource Centre (DVRC)185 in Victoria, runs education and training programs for family violence service providers. DVRC is currently working on a program to recruit and train women with disabilities to plan and implement ‘Disability and Family Violence’ training programs for service providers. People With Disabilities Australia (PWD)186 runs training courses for service providers on Responding to Sexual Assault of People with Disabilities,187 and over the next three years will implement a Violence Prevention Training Project for women with intellectual disabilities, and staff that support them.188 PWD has also been funded to provided Sexuality and Human Rights Training in a number of boarding houses in NSW as one measure to address the unacceptably high levels of violence in this form of accommodation.189 The Women’s Centre for Health Matters in the ACT is currently developing a disability awareness training package for domestic violence/crisis service workers to understand and meet the needs of women with disabilities escaping domestic violence.190 84. In relation to the prevention of harmful practices such as FGM, the Melbourne Royal Women’s Hospital hosts the Family and Reproductive Rights Education Program (FARREP) - a Victorian state-wide program which aims to raise awareness among affected communities and health professionals about FGM and build their capacity to effect positive change.191

How has the participation of women with disabilities in the development of such laws, programmes/policies been ensured? 85. WWDA’s work on the issue of violence against women with disabilities has found that meaningful engagement must be inherent in the key strategies to address violence against them so that their experiences and their views are integral to identifying potential solutions and building successful interventions. However, women with disabilities in Australia have traditionally been excluded from participating in the development of violence prevention laws, policies, programs and services.192 Although in recent times there have been improvements in consulting with, and including women with disabilities in the development of violence prevention initiatives (particularly at the national level), there remains much to be done in this area. 86. In its 2010 Concluding Comments regarding the Australian Government’s implementation of CEDAW, the CEDAW Committee expressed concern at the under-representation of women with disabilities in decision-making positions and the subsequent persistent inequality of their access to education, employment opportunities and health care services. The Committee noted with concern that measures taken to enhance the participation of women with disabilities in public life remains inadequate, and recommended that the Australian Government adopt targeted measures, including temporary special measures with clear time frames, to ensure the equal participation and representation of women with disabilities in public and political life.193 87. Research has demonstrated the importance and effectiveness of women’s NGO’s in addressing the issue of violence against women.194 195 196 It is also considered critical to involve women fully and to use their experiences of violence - including the complexities that arise from multiple discrimination - as the starting point for developing policies and programs to address violence. The empowerment of women is vital in any framework to tackle violence against women and girls, and this is even more potent for women with disabilities, who have made it clear that empowerment for them comes from speaking

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

21

LEGISLATION AND POLICIES

and/or acting in their own interests; the presence of a collectivity and a basis in self-determination; and a discourse of human rights.197 88. Organisations and groups of women with disabilities play an essential role in efforts to promote the rights of women and girls with disabilities to freedom from all forms of violence, exploitation and abuse. However, in Australia, the national organisation of and for women with disabilities (WWDA) is poorly funded, receiving a small amount of operational funding each year from the Australian Government. This funding is not sufficient to sustain the work of the organisation, nor allow for growth and expansion. WWDA’s current government funding enables the organisation to operate a small one room office and employ one full time worker (Executive Director) and one part-time worker (Finance & Office Manager). The work undertaken by WWDA relies heavily on the goodwill of its members, all of whom are women with disabilities, and who undertake work for WWDA in an unpaid capacity. Of the 8 Australian State/Territory Governments, there is only one (Victoria) which provides operational funding for a disabled women’s organisation.198 89. The meaningful participation of women with disabilities in the development of violence prevention laws, policies, programs, and services requires Governments to recognise that organisations, groups and networks of women with disabilities must be adequately resourced and supported in order to: develop systems and processes whereby women with disabilities can be identified, trained and recruited to act as advocates to improve the human rights of women with disabilities; develop the necessary systems and tools to support women with disabilities to undertake representative and advocacy roles; undertake capacity building to promote women with disabilities’ access to positions of leadership and decision-making; research and identify representation, leadership and systemic advocacy opportunities for women with disabilities.

22

WOMEN WITH DISABILITIES AUSTRALIA

90. As outlined earlier, in more recent times, WWDA has been consulted by Governments on national family violence legislative and policy reforms. However, this inclusion is largely the result of WWDA’s consistent and sustained systemic advocacy on the need for inclusion of women with disabilities in advisory and decision-making structures. This work has resulted in tangible outcomes, but continues to be hampered due to inadequate funding and burdensome, bureaucratic processes which create unnecessary work for WWDA and which impact on the capacity of the organisation to concentrate its efforts on its core business of improving the human rights of women with disabilities in Australia.

PREVENTION AND PROTECTION What measures/initiatives are in place to combat negative perceptions, stereotyping and prejudices of women and girls with disabilities in the public and private spheres? 91. Gender is one of the most important categories of social organisation,199 yet people with disabilities are often treated as asexual, genderless human beings. This view is borne out in Australian disability policies, which have consistently failed to apply a gender lens. Most have proceeded (and continue to proceed) as though there are a common set of issues - and that men and women experience disability in the same way.200 Women with disabilities face multiple discriminations and are often more disadvantaged than men with disabilities in similar circumstances. Women with disabilities are often denied equal enjoyment of their human rights, in particular by virtue of the lesser status ascribed to them by tradition and custom, or as a result of overt or covert discrimination.201 Women with disabilities face particular disadvantages in the areas of education, work and employment, family and reproductive rights, health, violence and abuse. 92. Around the world, images of women and girls with disabilities in the mass media are universally negative or absent, and the situation is no different in Australia. If reported in a news or feature story, the disabled girl or woman is usually singled out as an object of pity or charity, or conversely, as a heroine for achieving the ordinary. If portrayed in a fictional or dramatic work, they are often utilised to represent a negative situation or character flaw (weakness, passivity, evil, sickness). Missing in the media are the everyday stories about girls and women with disabilities who are attending schools, participating in active family life, holding down jobs - part of the foreground and background of the rhythm and dynamics of communities all over the world.202

PREVENTION AND PROTECTION

93. Although there are some national initiatives of the Australian Government which aim to combat negative attitudes towards people with disabilities,203 these initiatives are un-gendered. WWDA’s experience confirms that biases and stereotypes related to gender can be as pervasive and limiting as for disability. When the two are combined, the effects can be multiplied.204 Women with disabilities in Australia want options for diversity in relationships, marriage, mothering, control of fertility and reproduction, running a household, caring for children and older family relatives and to live safely, as well as opportunities for employment and further education.205 Yet they are often stereotyped as passive, asexual, dependent,206 compliant,207 sick, child-like, incompetent and helpless,208 powerless209 or insecure.210 Alternatively, women with developmental disabilities in particular may be regarded as overly sexual, creating a fear of profligacy and the reproduction of disabled babies, often a justification for their sterilisation.211 These perceptions, although very different, often result in women with disabilities being denied the right to participate in decisionmaking processes that affect their lives, and contribute to the high incidence of violence perpetrated against them. 94. WWDA’s concern remains that whilst Australian initiatives to address attitudes towards people with disabilities remain un-gendered, the negative perceptions, stereotyping and prejudices of women and girls with disabilities will prevail.

What initiatives exist to inform women and girls with disabilities about their rights, including sexual and reproductive health issues? To what extent do these initiatives address also women in institutions? Sexual and reproductive health 95. Reproductive rights and freedoms rest on the recognition of the basic rights of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so. It also includes the right to make decisions regarding reproduction free of discrimination, coercion and violence.212 For women with disabilities, reproductive

24

WOMEN WITH DISABILITIES AUSTRALIA

rights and freedoms include the right to bodily integrity, the right to procreate, the right to sexual pleasure and expression, the right for their bodies to develop in a normal way, the right to sex education, to informed consent regarding birth control, to terminate a pregnancy, to choose to be a parent, and to access reproductive information, resources, medical care, services, and support (WWDA 2009).213 96. Although the right to ‘found a family’ and to ‘reproductive freedom’ is clearly articulated in a number of international human rights instruments to which Australia is a party,214 for many women with disabilities in Australia, such fundamental human rights are not realisable. Instead, women with disabilities have traditionally been discouraged or denied the opportunity, to bear and raise children.215 They have been, and continue to be perceived as asexual, dependent, recipients of care rather than care-givers, and generally incapable of looking after children.216 In Australia, the denial of the right to reproductive freedom and the right to found and maintain a family takes many forms for women with disabilities, including for example: systematic exclusion from comprehensive reproductive and sexual health education and care, limited voluntary contraceptive choices, a focus on menstrual suppression, poorly managed pregnancy and birth, involuntary abortion, forced sterilisation, and the denial of rights to parenting. These practices are framed within traditional social attitudes that characterise disability as a personal tragedy or a matter for medical management and rehabilitation 217 218 97. Whilst there are exceptions, there appear to be very few specific, targeted initiatives for women and girls with disabilities in Australia regarding a rights based approach to sexual and reproductive health. Where they exist, the majority of initiatives focusing on disability, sexuality and reproductive rights – are not gendered, focus largely on people with intellectual disabilities, tend to overlook the sexual and reproductive health needs of other women and girls with disabilities, and appear to be primarily targeted at service providers and/or parents and carers. 98. Each State & Territory in Australia has a sexual health and family planning organisation,219 funded by its respective Government. These organisations can provide information, support and training around

PREVENTION AND PROTECTION

sexuality, relationships, reproductive and sexual health for people with disabilities, as well as those who care for and work with them. Some are more progressive than others in relation to developing specific, targeted initiatives for women and girls with disabilities regarding sexual and reproductive health. For example, some provide disability and gender specific resource materials, yet others do not. Regrettably, much of the online disability resource materials provided by the majority of the Family Planning organisations are only available for download in PDF formats, which remain inaccessible for some women and girls with disabilities. Some provide disability specific training courses for service providers who come into contact with people with disabilities, however Family Planning charges fees for most of these courses.220 Many of these organisations lack the funding to enable a comprehensive service for women and girls with disabilities.221 99. The SoSAFE! Program is an example of a sexual and reproductive health program developed in Australia for people with intellectual disabilities. The Program is currently being implemented in the Australian Capital Territory (ACT) and Tasmania, in school, residential and employment settings. The SoSAFE! Tools (together with the one day SoSAFE! Certified Training) provide teachers, trainers and counsellors with skills and simple visual tools to enhance the social, social-sexual and social safety training of people with ‘moderate to severe’ intellectual disabilities and Autism Spectrum Disorder.222 There is no information readily available as to how or whether this Program is being implemented with women and girls with disabilities in institutional settings such as group homes. 100.There are some limited examples of sexual and reproductive health programs developed specifically for women and girls with disabilities. One such Program is the ‘Pimples & Periods’ Program, run by Sexual Health & Family Planning (SHFPACT) in the ACT.223 This Program includes a two hour workshop where girls with a disability and their carers can learn about periods and some of the other changes girls go through physically and emotionally during puberty. Topics include a practical look at managing periods, peer pressure, body image, personal hygiene and the difference between public and private places. The workshops are free, and can be delivered in community settings. SHFPACT’s Schools Disability

Program 224 provides one-to-one education and workshops to people with disabilities, to support positive sexual health choices and strengthen preventative approaches. The Program tailors all education sessions as required, so that students can be supported individually, in small groups or within their integrated class. The Program is free. 101. The Sexuality Education Counselling and Consultancy Agency (SECCA)225 in Western Australia, provides education and training workshops which are able to be customised. One example is the ‘Menstrual Management, Personal Hygiene & Sexual Health’ Training Workshop which aims to ‘provide participants with strategies to teach women with a disability, their carers and other health professionals a positive approach to menstruation’. SECCA also provides a one-on-one specialist counselling and education service in the area of human relationships and sexuality to people who have a disability, their family and significant carers.

Human Rights Education 102. There are limited examples of targeted programs and other initiatives developed to educate women with disabilities about their human rights generally. In April 2010, the Attorney-General launched Australia’s Human Rights Framework226 which outlines a range of key measures to further protect and promote human rights in Australia. Human rights education is the centrepiece of the Framework, and the Australian Government has allocated funding of $2.068 million over four years to non-government organisations for the development and delivery of human rights community education and engagement programs.227 Thirty of these NGO projects have been funded to date, and although there are a number that target ‘people with disabilities’, there are none which are gender and disability specific.228 103. A number of Australian disability NGO’s are working hard to educate their members and constituents around human rights, however, many lack the funding, resources and capacity to undertake this work effectively. For example, Advocacy for Inclusion,229 based in the Australian Capital Territory (ACT), delivers self-advocacy courses for women with disabilities, to develop the skills needed to speak for

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

25

PREVENTION AND PROTECTION

themselves. Courses include training around human rights, respectful relationships, self-determination, and assertiveness. WWDA, with limited funding and only two paid staff, relies heavily on its website and use of other information and communication technologies to inform women with disabilities about human rights.

What programmes/initiatives have been developed to train women with disabilities to develop skills and abilities for economic autonomy and participation in society and to use technological and other aids that lead to greater independence? 104. Through organisations like WWDA, and its affiliates, some women with disabilities who do not necessarily see themselves as political actors are able to participate in mobilisation for change through the use of new communication technologies. Through using new media women with disabilities are able to network and engage in mutual learning and support. However, these new technologies are expensive and not always available in remote and rural areas. Many women with disabilities in Australia still do not have access to the Internet. There are issues of affordability, capacity and ‘gatekeepers’ to technology. It remains a challenge for small organisations such as WWDA to keep abreast of new developments and also to ensure that women with disabilities have access to new forms of interactivity.230 105. Women with disabilities are over-represented in low socio-economic groups compared to men with disabilities and women in general. This affects their ability to access Information and Communications Technology (ICT), and further disadvantages them in a range of activities that are now conducted over the Internet. Many E-commerce activities - for example bill paying and banking - offer discounts for business conducted over the Internet. Thus lack of Internet access further penalises people who are already under financial strain. Moreover, the lack of access to the Internet deprives women with disabilities the social interaction afforded by email contact with family, friends, disability support groups and other special interest groups.231 106.A national survey undertaken by WWDA in 1999 found that 84% of women with disabilities are restricted in

26

WOMEN WITH DISABILITIES AUSTRALIA

their access to telecommunications. Forty-nine per cent of responses from women with disabilities cited restrictions due to issues of affordability; 76% due to poor design of telecommunications equipment; 20% due to lack of training; 20% due to lack of information; and 18% due to discrimination.232 A further study conducted by WWDA in 2000233 found that the costs of purchasing, operating/maintaining and getting internet connections for a computer were major factors preventing women with disabilities from accessing the Internet. Access to affordable and appropriate training was also a major barrier.

What measures exist to ensure access by women and girls with disabilities to social protection programmes and poverty reduction programmes? 107. Women with disabilities throughout Australia bear a disproportionate burden of poverty and are recognised as amongst the poorest of all groups in society.234 108.Although the Australian Government provides a range of income support benefits and payments for people with disabilities,235 such as the Disability Support Pension (DSP), these payments remain inadequate to support women with disabilities. The setting of income support payment rates for women with disabilities has failed to take account of the non-optional, extra costs associated with disability. In 2004, the Senate Inquiry into Poverty and Financial Hardship236 found widespread poverty among people with disabilities. A report released in November 2011 by Price WaterhouseCoopers,237 found that people with disabilities are more likely to be living in poverty in Australia than any other developed country, they have the worst quality of life in the developed world, and the nation ranks in the bottom third of Organisation for Economic Co-operation and Development (OECD)238 nations in employing those with a disability (21st out of 29 OECD countries). The report showed there was an employment rate of 39.8 percent for people with disabilities compared with 79.4 per cent for those without a disability. 109. Women with disabilities are less likely to be in paid work (or looking for work) than other women, men with disabilities or the population as a whole. There are fewer employment openings for disabled women

PREVENTION AND PROTECTION

and those who are employed often experience unequal recruitment and promotion criteria, unequal access to training and retraining, unequal access to credit and other production resources, unequal remuneration for equal work and segregation.239 In Australia, twenty-one per cent (21%) of men with disabilities are in full time employment compared to nine per cent (9%) of women with disabilities.240 Eleven per cent of women with disabilities have part time employment compared to 6% of men with disabilities.241 In any type of employment women with disabilities are more likely to be in low paid, part time, short term casual jobs.242 Over the last decade, the unemployment rate for disabled women in Australia has remained virtually unchanged (8.3%) despite significant decreases in the unemployment rates for disabled men, and non-disabled women and men.243 110. In August 2011, following a two year Productivity Commission244 Inquiry into the Feasibility of a Longterm Care and Support Scheme for People with Disability in Australia,245 the Council of Australian Governments (COAG) agreed on the need for major reform of disability services in Australia through a National Disability Insurance Scheme (NDIS) by mid2013.246 The NDIS will provide insurance cover for all Australians in the event of ‘significant disability’. The main function of the NDIS would be to fund long-term high quality care and support (but not income) for an estimated 410,000 people with ‘significant disabilities’. COAG will develop high-level principles by the end of 2011 to guide consideration of the Productivity Commission’s recommendations regarding an NDIS,247 including for foundation reforms, funding and governance. 111. WWDA made a number of Submissions to the Productivity Commission Inquiry into long-term care and support scheme for people with disability in Australia,248 249 focusing on the need for development of the NDIS to be consistent with Australia’s international commitments to ‘promote an active and visible policy of mainstreaming a gender perspective into all legislative and policy frameworks’.250 WWDA’s work specifically emphasises the critical need for the NDIS to be gendered, in order to promote equal opportunities for women and girls with disabilities, address gender-based discrimination, and encompass issues for women with disabilities which are critical in the development and implementation of such a

scheme (including for example: sexuality, parenting and reproductive rights; health and wellbeing; employment; and, safety and violence). Regrettably, the Final Report of the Productivity Commission Inquiry, released in August 2011, made no mention of gender, rendering women with disabilities invisible. According to Women With Disabilities Victoria: “The NDIS will not be effective unless it addresses the specific needs of women with disabilities. We know that all the evidence tells us women with disabilities are the most disadvantaged group in society but once again women with disabilities are invisible in the Productivity Commission’s report. As the report stands a mother with a disability will not receive help to bath or feed her children”. The next stage of the NDIS must place greater emphasis on recognizing and responding to abuse and violence of people with disabilities; improving services that support women with a disability in their role as parents, and; ensuring women’s reproductive and sexual health through appropriate services”.251

Please provide information on other measures (legislative, administrative, juridical or other) aimed at the development, advancement and empowerment of women with disabilities. 112. Political participation and representation are essential markers of gender equality. However, in Australia, women with disabilities are too often excluded from opportunities to participate in decision-making about issues that affect their lives and those of their families, community and nation. It is largely through the actions of women with disabilities themselves that this culture of exclusion is being challenged. Women with disabilities argue that one of the best ways to challenge oppressive practices, cultures and structures is to join with other women with disabilities - to share experiences, to gain strength from one another and to work together on issues that affect them. These collectivities enable women with disabilities to recognise their own needs for personal autonomy, and perhaps more importantly, develop a sense of personal worth. At the broader level, it enables the formation of a collective identity, where women

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

27

PREVENTION AND PROTECTION

with disabilities are able to speak out about their experiences together and take action to realise their rights and improve their lives as a group.252 113. In Australia, there is an urgent and critical need for governments to establish mechanisms and structures which enable women with disabilities to have their voices heard, and to act politically as agents in their own right. This includes the need to adequately resource, support and strengthen organisations, networks and groups run and controlled by women with disabilities in the pursuit of their collective interests, as defined by them. 114. As outlined earlier in this Paper, in its 46th session in 2010, the CEDAW Committee noted with concern that measures taken to enhance the participation of women with disabilities in public life remains inadequate, and recommended that the Australian Government adopt targeted measures, including temporary special measures with clear time frames, to ensure the equal participation and representation of women with disabilities in public and political life.253 115. In 2011, the Australian Government announced funding of $2.9 million over four years for a new national program to help people with disabilities become leaders in business, the community and government through mentoring and leadership development. The ‘Leaders for Tomorrow’ Program will provide up to 12 months training for around 200 people with disabilities and develop individual leadership development plans for all participants of the program. The Program is not specifically targeted at women with disabilities, although is ‘committed to including a variety of participants reflecting the diversity of the Australian community.’254 116. Whilst the ‘Leaders for Tomorrow’ Program is a welcome initiative, women with disabilities in Australia could greatly benefit from a targeted Leadership Development Program for Women and Girls with Disabilities, along the lines of the Indigenous Women’s Program, funded by the Australian Government. The Indigenous Women’s Program (IWP) is a grants program which provides funding for activities that enhance Indigenous women’s leadership, representation, safety, wellbeing and economic status.255 Amongst other things, the IWP specifically aims to: support more women to

28

WOMEN WITH DISABILITIES AUSTRALIA

undertake leadership, representative and management roles; and, increase Indigenous women’s awareness of, access to, and role in local priority setting and Government funding activities.

Are there provisions for regular home visits and inspections of medical institutions where women and girls with disabilities are living/ receiving treatment? How do these work? 117. In Australia, deinstitutionalisation has been heralded as a breakthrough for women with disabilities to provide them with the opportunity to become part of the wider community, especially to those who are able, and who wish to, live by themselves or as autonomously as possible. However, the reality is that while large institutions have been closing, the essential support services for women attempting to integrate into the community have not kept pace with their needs. Consequently, many women with disabilities are forced to live in inappropriate accommodation, where they are vulnerable to violence and abuse. Alternatively, they live without adequate support in the community. They experience considerable difficulties in obtaining relevant information about leaving an institution and finding accommodation elsewhere. The lack of supports available in the community is a major disincentive to women with disabilities to leave institutions.256 118. There is no uniform, consistent approach in Australia to protect women and girls with disabilities in institutions from violence, abuse, neglect and exploitation. Women and girls with disabilities in Australia live in a range of settings, including a vast array of different types of ‘institutions’ such as group homes, residential aged care facilities, hostels, boarding houses, psychiatric/mental health community care facilities, hospitals, prisons, supported residential facilities. Their protection from violence, abuse neglect and exploitation essentially depends on where they live, how or whether the institution is regulated or licenced, and whether or not there are laws, policies, programs and services in existence. For example, some women with disabilities live in boarding houses which may or may not be licenced, some in aged care facilities which again, may or

PREVENTION AND PROTECTION

may not be licenced. However, it remains clear that ‘regulations, accreditations, and licencing’ do not prevent or even necessarily reduce, violence perpetrated against women with disabilities. This paper, for example, highlights a number of cases where women with disabilities living in government run institutions have experienced multiple forms of violence, which have been either not reported, not investigated, inadequately investigated, remain unsolved, or resulted in poor outcomes for the women concerned. 119. One of the major difficulties in trying to ascertain what protections are in place for women and girls with disabilities living in institutions, is the vast disparity in approaches between the 8 Australian States and Territories. For example, some States/Territories have schemes such as ‘Community Visitor Schemes’ although, their role and function varies. In Victoria, community visitors are created under three Acts of Parliament,257 whereby volunteers are empowered by law to visit Victorian accommodation facilities for people with a disability or mental illness at any time, unannounced. They monitor and report on the adequacy of services provided, in the interests of residents and patients.258 120. In NSW, Official Community Visitors are appointed by the Minister for Disability Services and the Minister for Community Services under the Community Services (Complaints, Reviews and Monitoring) Act 1993. They visit most government and non-government accommodation services for children, young people and people with a disability throughout NSW. They also visit people living in licensed boarding houses. However, only services that are operated, funded or licensed to provide accommodation and care by the NSW State Government are visited. The Official Community Visitors have the authority to enter and inspect a visitable service without notice.259 Queensland also has a legislated Community Visitors Program, where ‘designated care facilities’260 can be visited without notice. 121. In South Australia, there is currently no independent community visitor scheme to support people receiving disability services (and monitor the agencies and companies that provide them). There is a Community Visitor Scheme (CVS) established under the SA Mental Health Act 2009, however its

mandate relates to people with a mental illness who are admitted to treatment centres in South Australia. There have been concerns raised about the scheme’s transparency and effectiveness, as it operates under the auspices of Government, rather than an independent body (such as the Office of the Public Advocate).261 There is no legislated Community Visitors Scheme for people with disabilities in Tasmania.

What measures have been adopted to provide information and education to women and girls with disability and their families, caregivers and health providers on how to avoid, recognize and report instances of exploitation, violence and abuse? 122. It is widely acknowledged that at some point in their lives, many women and girls with disabilities will experience, or be at risk of experiencing, violence, abuse, neglect and exploitation. Yet for many, identification and recognition that violence in their lives is a problem or a crime remains a significant issue. They may have difficulties in recognising, defining and describing the violence; have limited awareness of strategies to prevent and manage it; lack the confidence to seek help and support; and be unaware of the services and options available to assist them. The lack of appropriate, available, accessible and affordable services, programs and support has been widely documented in the literature – and borne out by WWDA’s experience - as a factor that increases and contributes to violence against women and girls with disabilities. 123. As outlined in other sections of this Paper, to date in Australia, there have been minimal initiatives of any description specifically targeted at women and girls with disabilities in relation to violence, abuse, neglect and exploitation. There is a critical and urgent need for research, data collection, legislative and policy development, advocacy, development of inclusive and accessible services, programs and resources, information and awareness raising, education and training (of both women and girls with disabilities and of service providers across a wide range of sectors), as well as targeted initiatives which foster the social, economic and political empowerment of women

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

29

PREVENTION AND PROTECTION

with disabilities. The importance of information and awareness raising, along with education and training of women and girls with disabilities themselves, is particularly urgent. 124. In 1998, WWDA conducted the first ever national ‘Workshop on Women With Disabilities and Violence’ where women with disabilities from around Australia gathered to develop an agenda for action into the future.262 In 2007, WWDA received funding from the Australian Government to develop a ‘Resource Manual on Violence Against Women With Disabilities’.263 This Manual is made up of four booklets which include: narratives from women with disabilities who experience violence; a global review of the issue; information about domestic violence and women with disabilities; and a model process for women’s refuges and other crisis services to re-orient their practices to be accessible and inclusive. WWDA’s Resource Manual has been disseminated to more than two thousand individuals and organisations. In 2008, Women With Disabilities Victoria undertook a state-wide Project on violence against women with disabilities in Victoria. The Building the Evidence Project264 analysed the extent to which current Victorian family violence policy and practice recognises and provides for women with disabilities who experience violence; and makes recommendations to improve responses to women with disabilities dealing with family violence. 125. In 2008, in response to the work of WWDA and Women with Disabilities Victoria, the Victorian Department of Human Services funded and implemented a ‘Women with a Disability Family Violence Learning Program’. The aim of the Program was to assist workers in the disability and family violence sectors to provide a more collaborative response to women with a disability who are experiencing family violence. The Program was conducted once in 2008, and was intended to be rolled out across the State, however this has not occurred. The status of the Program is unclear and there is no information available on the effectiveness or outcomes of the one Program that was conducted in 2008.

30

WOMEN WITH DISABILITIES AUSTRALIA

What are the means to report violence against women and girls with disabilities in different settings, including medical centres and institutions? To what extent are these known and accessible? 126. As outlined in other sections of this Paper, violence is a significant presence in the lives of large numbers of women and girls with disabilities in Australia, and this situation exists largely due to systemic failures in legislation, policy guidelines, administrative procedures, availability and accessibility of services and support, along with an entrenched culture throughout all levels of society that devalues, stereotypes and discriminates against women and girls with disabilities. 127. As also outlined elsewhere in this Paper, there are a range of mechanisms in Australia to report violence against women and children, including those with disabilities, however, many of these mechanisms remain ineffective for protecting women and girls with disabilities from the multiple forms of violence they experience. For example, the police have a duty to investigate family violence; whether this duty be in legislation or police codes of practice. However, as discussed elsewhere in this paper, police responses to violence perpetrated against women and girls with disabilities remain grossly inadequate. 128. One way that police can be alerted to family violence is through reports from neighbours, health professionals, and others. The making of such reports can be mandated, and persons can be fined for not reporting violence when they should. Such a policy has been adopted in the Northern Territory (NT), where a duty to report some types of family violence is imposed on all adults. Police must take reasonable steps to ensure reports are investigated. Failure to make a report is a criminal offence, and can therefore result in a wide range of persons - including professionals and family members who have not themselves committed family violence - entering into the criminal justice system. As at June 2010, there had been no prosecutions or formal investigations for this offence. Tasmanian family violence legislation also contains a mandatory reporting provision, but the relevant section has not commenced, and the Tasmanian provision, unlike the NT provision, only

PREVENTION AND PROTECTION

applies to ‘prescribed persons’. Prescribed persons include registered medical practitioners, nurses, dentists, psychologists, and school teachers.265

To what extent are public institutions, such as police stations and hospitals, accessible to women and girls with disabilities? 129. Many public buildings in Australia, including hospitals and police stations, remain inaccessible to people with disabilities. 130. Section 23 of the Federal Disability Discrimination Act (DDA) makes it unlawful to discriminate on the grounds of disability in providing access to or use of premises that the public can enter or use. Building access issues also arise under other DDA provisions including in relation to employment, access to services, and accommodation. After more than 10 years of negotiations which the Australian Human Rights Commission (AHRC) initiated, the Australian Government has introduced new standards for access to buildings for people with disabilities. The standards (Disability (Access to Premises-Buildings) Standards), approved by the Australian Parliament in November 2010, clarify how to ensure buildings are accessible to people with disabilities and meet the requirements of discrimination law. The completion of this project will ensure that over time buildings in Australia become more accessible, and more useful to an ageing population. More accessible buildings will assist in achieving equal participation for people with disabilities in employment, education, access to services, and other areas of participation in economic, social and cultural life. From May 2011, any new building open to the public, or existing buildings undergoing ‘significant renovation’, is required to comply with the standards.266 267

Are there shelters for women victims of violence? To what extent are they physically accessible to women with disabilities? 131. In June 2010, the United Nations Human Rights Council, urged member states to adopt and implement policies and programmes that enable women to avoid and escape situations of violence and prevent its recurrence, and that provide, financial support and affordable access to safe housing or

shelters, childcare and other social supports, legal assistance, skills training and productive resources, and to make these services accessible to women and girls with disabilities.268 132. The lack of inclusive services and programs for women with disabilities experiencing or at risk of experiencing violence is well documented.269 270 There are limited support options for those who do escape violence. Recovering from the trauma of victimisation, and rebuilding their lives as independent, active, valued members of society is a difficult challenge. Where services do exist (such as refuges, shelters, crisis services, emergency housing, legal services, health and medical services, and other violence prevention services) a number of specific issues have been identified271 which make access for women with disabilities particularly problematic: whilst violence is a significant presence in the lives of large numbers of women with disabilities, many do not recognise it as a crime, are unaware of the services and options available to them, and/or lack the confidence to seek help and support. experience in community support services suggests that accessible information and communication is very limited in terms of both content and format of information available. the physical means of fleeing a violent situation (such as accessible transportation) are often unavailable. the low likelihood of being referred to a refuge because it is assumed that such agencies do not or are unable to cater to their needs. 133. Policy makers, service providers and the broader community have limited understandings of accessibility, believing it requires only a ramp or an accessible toilet.272 In fact accessibility includes being able to receive all policy, service and program information in an accessible format. Experience in Australian health and community support services suggests that this kind of access is extremely limited in terms of both content that reflects the experiences of disabled women and format of information available, such as Braille, audio, Easy English and the use of telephone access relay services and sign interpreters. Another dimension of access includes being able

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

31

PREVENTION AND PROTECTION

to understand and meaningfully participate in the services and programs available. Experience suggests that women with disabilities generally have limited input into the development of policies, services and programs, including information and education resources.273 134. As outlined earlier in this paper, for several years now, WWDA has been advocating for the Australian Government to commission a national audit of crisis accommodation services (including women’s refuges) to determine their levels of accessibility and safety for women with disabilities. In April 2009, the Australian Government agreed that this audit was a priority and committed to consult with the States and Territories to develop a national response to this priority. However, to date, there is no evidence that this has occurred. 135. Research in 2008 undertaken by Women With Disabilities Victoria, found that of Victoria’s 23 secure refuge and crisis accommodation, only four described their properties as providing ‘full physical access’, (which means that there are no steps at the entrance, there is good access inside and accessible bathroom and kitchen facilities). A further five described their properties as having ‘limited physical access’ (in that there are no major impediments for women with a physical disability, such as internal stairs, but there may be narrow passages in the house that make manoeuvring a wheelchair or frame impossible). The remaining fourteen refuges were located in properties which were described as giving ‘no physical access’ to women with physical disabilities.274 136. Service providers within community support services (such as women’s refuges and other crisis services) may share some stereotypes and myths held by society at large regarding women with disabilities.275 Limitations in workers awareness of the broader issues of accessibility and disabilities, negative or ambivalent attitudes about providing access, lack of knowledge of the complex nature and multiple forms of violence against women with disabilities, limited recognition of the sexuality of women with disabilities, and a tendency to focus on the disability rather than the violence may all stem from this.276 Resources, attitudes and narrow prescriptions of responsibility are often the reasons for women’s services and generic services maintaining exclusionary practices.277 For example, Women With Disabilities Victoria, in its 2008 ‘Building

32

WOMEN WITH DISABILITIES AUSTRALIA

the Evidence Report’, gave the example of a family violence worker who said they were doubtful that their management would see supporting women with disabilities as “part of their core business” in providing a family violence service: “I think there would be great cost implications. I’m not sure that it [referral of women with disabilities] is something we would like to encourage. I feel money, space and other resources would need to be in place if we were going to encourage this type of referral…….” 278 137. Maroondah Halfway House279 in Victoria is one example of a women’s refuge service which is working hard to ensure it is accessible to women with disabilities (and their children). In 2008-09, the service secured funding from the Victorian Government to re-develop part of the refuge into a universal access unit. The unit has two bedrooms, which can each sleep three people, and a separate living area. It can accommodate family or, potentially two single women. It is adjacent to the existing refuge accommodation but has an independent entry point. Since the day it opened, the unit has been fully occupied. Staff have undertaken training in developing Disability Action Plans and have also completed the Domestic Violence Resource Centre (Victoria) ‘Getting Safe Against the Odds’ training program on working with women with disabilities.280

PROSECUTION AND PUNISHMENT Are there disaggregated statistics on crimes against persons with disabilities? 138. There is no data collection in Australia on crimes perpetrated against people with disabilities. The Australian Bureau of Statistics (ABS) produces two key data sources that can inform the community about crime victimisation in Australia. The first of these is a measure of crimes reported to and recorded by police; and the second is a household survey collecting direct reports from members of the public about their experiences of crime.281 Neither of these sources include data on people with disabilities.

Please provide information on the total amount of registered complaints for violence against women and girls with disabilities? Of the total amount how many were dismissed? What were the main reasons for dismissal? Of the cases that were prosecuted, how many resulted in convictions? 139. Despite high levels of violence against women with disabilities in Australia, few cases are prosecuted. Many cases involving crimes committed against women and girls with disabilities often go unreported, and when they are, they are inadequately investigated, remain unsolved or result in minimal sentences.282 283 284 It has been well documented for decades that police are reluctant to investigate and report cases of violence against women with disabilities (particularly women with intellectual, cognitive, developmental, psychosocial disabilities).285 286 287 This is in part due to the stereotypical perceptions of women with disabilities that have been found to be operating at almost all levels of the criminal justice system, including police and courts – ie: that women with disabilities are sexually promiscuous, provocative, unlikely to tell the truth, asexual, childlike, or unable to be a reliable witness.288 289 Research has also found

PROSECUTION AND PUNISHMENT

that police are reluctant to investigate allegations made by women with disabilities about violence perpetrated against them by family members and/ or carers; and they also fail to act on such allegations because there is no ‘alternative to the abusive situation’.290 291 As recently as November 2011, a Chief Justice of the Supreme Court of Western Australia suggested that the ‘biggest problem’ in the legal system’s fight against domestic violence is the lack of reporting, including the continued ‘reluctance of women to report abuse’.292 140. Senior public officials in Australia have recently openly acknowledged that police are not investigating cases of rape and serious sexual assault against the disabled because police believe the ‘current court system offers no chance of conviction’.293 In June 2011, the South Australian Health and Community Services Complaints Commissioner294 reported that there had been five cases of rape and serious sexual assault against disabled people in the past year and, in the worst case of abuse in care, the victim had become pregnant with the suspected rapist’s child but the man had disappeared before any action could be taken against him. None of the five cases resulted in any serious police action because of a lack of corroboration or the extent of the impairment of the alleged victim.295 141. In July this year, authorities in South Australia decided not to proceed with a case claiming sexual abuse of a child with an intellectual disability. The prosecution formed the view that the child could not give reliable evidence. The accused was released. Although it transpired that up to 30 other intellectually disabled children had been abused by the accused (a volunteer bus driver with a school for intellectually disabled children) and introduced into a ring of paedophiles,296 the police and the school authorities did not tell all the parents whose children had come into contact with the accused.297 It was only as a result of a chance encounter between the parents, that the full extent of their children’s abuse was revealed. 142. It often transpires that it is only when cases of alleged abuse against people with disabilities are reported in the media, that some investigative action is pursued by police. For example, in 2006, in a case that shocked the nation, a group of 12 boys all aged under 18, made and sold a DVD depicting the group sexually assaulting

34

WOMEN WITH DISABILITIES AUSTRALIA

and humiliating a 17-year-old intellectually disabled girl. The girl was forced to perform oral sex on two boys, had her hair set alight three times, was stripped of some of her clothing, was spat at and urinated on during a sustained and degrading assault.298 The DVD of the assault, entitled ‘Cunt: The Movie’ was sold at schools for $5 and widely distributed throughout the community in Victoria.299 Segments of the DVD were posted on the popular YouTube website and viewed by more than 9000 people before it was removed from the site due to ‘terms of use violation’.300 Eight of the boys were subsequently charged with assault, manufacturing child pornography and procuring sexual penetration by intimidation. In November 2007, all eight of the boys involved avoided any form of detention, instead being ordered to participate in a rehabilitation program for male adolescents about positive sexuality. Seven had convictions recorded against them. Six were placed on youth supervision orders for between 12 and 18 months and two on probation for 12 months.301 ‘Cunt: The Movie’ remains catalogued on Wikipedia – described as a ‘2006 Australian movie produced by The Teenage Kings of Werribee’.302 143. In 2010, three intellectually disabled women living in accommodation run by the Victorian Department of Human Services were allegedly raped and assaulted after being left alone with a male carer in the staterun house.303 The mother of one of the women said that her daughter was “covered in bruises” after the alleged attack but did not receive counselling until 10 days later, and even then the women were only given one session of one-on-one counselling.304 It was only after the media reported the story that the Department of Human Services undertook ‘an internal investigation’ and police became involved. However, the outcome of the ‘internal investigation’ is unknown, as is the result of the police investigation. This lack of transparency is a familiar theme in cases of violence and abuse against women and girls with disabilities. 144. In November 2011, it was reported that a major mental health service in Victoria has been covering up sexual assaults of its patients, and that the same service has been previously investigated for allegedly failing to protect an intellectually disabled teenage girl from being sexually exploited by a 34 year old male patient. The latest allegations involved a 20 year old female mental health patient allegedly sexually assaulted by a

PROSECUTION AND PUNISHMENT

male nurse. When the young woman complained to a female staff member, she was told not to tell anyone else about it to avoid it ‘’becoming office gossip’’. Police investigated the case but did not lay charges on the grounds it would be difficult to prosecute. An internal investigation was conducted and ‘’appropriate disciplinary action implemented’’ however, it is not known what disciplinary action was taken, and it has been reported that ‘soon after the alleged incidents’ the male nurse resumed working in mental health services, and ‘remains in a role where he interacts with female patients’.305 In most jurisdictions in Australia there is no register of perpetrators of violence against people with disabilities in care settings. Consequently, it is relatively easy for perpetrators to move from one place of employment to another when they are discovered or dismissed.306 145. The entrenched culture of violence and abuse against people with disabilities in institutions, along with the lack of reporting and cover up by staff and management is acknowledged as a widespread and common problem,307 308 309 and remains a significant factor in the lack of police investigation, prosecution and conviction of perpetrators. For example, a recent investigation by the Victorian Ombudsman into assault of a disabled client by department-employed carers found that the Victorian Department of Human Services fabricated evidence in an attempt to cover up the assault.310 311 Similarly, in Tasmania in 2005, an investigation was undertaken into an acute mental health facility after allegations of staff sexual misconduct and concerns about the standard of care and treatment of mental health patients. The investigation by the Tasmanian Health Complaints Commissioner found that management had not adequately addressed the incidents and complaints, and staff who had raised concerns claimed they had been victimised by management as a consequence.312 146. An investigation by the NSW Ombudsman in 2011 into residents with psychological and intellectual disabilities living in boarding houses licensed by the state government, found that residents have been physically and sexually assaulted by staff and other residents, have died in appalling circumstances, and been denied basic rights, including contact with their families.313 314 315 Disturbingly, the report from the investigation is the Ombudsman’s fourth in less than 10 years on the failure of the state to protect boarding

house residents, in particular those with psychological and intellectual disabilities.316 It was only after significant media coverage and sustained advocacy by the NSW peak organisation for people with disabilities, that police became involved. Forty three residents who had been subjected to significant experiences of abuse and violence were removed from one of the boarding houses under investigation, and police have now established a Taskforce to ‘investigate alleged incidents of assault, attempted suicides, fire and “missing persons” at the state government-licensed boarding house’.317 147. Violence perpetrated against women and girls with disabilities by co-residents of institutions, is another grave systemic problem that receives little attention, with cases unlikely to be reported, or adequately investigated and perpetrators prosecuted. For example, in 2009, a severely disabled teenage girl had her nose almost bitten off in a ‘sickening attack’ at a NSW government respite home.318 The young girl was unable to fend off her 22-year-old male attacker who was in the same facility, despite government policy dictating children should be in separate homes to adults. It was reported that the intellectually disabled man climbed into her bed during the night and tore into her face and chest with his teeth, leaving her with severe bites, black eyes, bruises and scratches all over her body. No charges were laid.319 148. It is often the case that violence perpetrated against women and girls with disabilities by co-residents of institutions is rarely characterised as domestic violence and rarely are domestic violence related interventions deployed to deal with this type of violence. Where action is taken at all, the typical response is to move and/or remove the victim rather than the perpetrator, which tends to compound the trauma experienced by the victim.320 Research also suggests that resident on resident assaults in specialist disability services are ‘typically reframed and detoxified as ‘challenging behaviour’ and the response tends to be one of ‘call for a psychologist’ and adopt behaviour management strategies rather than involve police and protect the victim.’321 149. Women and girls with disabilities are socialised or compelled to tolerate a high degree of personal indignity, mishandling, and even violence, abuse, exploitation and neglect as an incident of service

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

35

PROSECUTION AND PUNISHMENT

delivery to them. This can lead to their desensitisation to, or to a sense or resignation or despondency about, sexual abuse and other violence,322 and is a contributing factor to the lack of reporting of violence. Because of the limited recognition of the sexuality of women with disabilities, along with the ignorance around the intersection of gender, disability and violence, there is also a tendency for family members, carers, service providers and other professionals to interpret evidence (such as bodily injuries, verbal or gestural cues, and behaviour) that may be indicative of violence, as a characteristic of impairment or disability.323 324 This can result in a failure to identify, report and investigate incidents of violence perpetrated against women and girls with disabilities. 150. There are some reported cases where perpetrators of violence against women and girls with disabilities have been brought to justice, however such outcomes are difficult to locate (or publicly unavailable) unless they are reported in the media. For example, in 2010, a father of six was jailed for nine years for sexually abusing his intellectually disabled daughter and prostituting her for money to a group of ‘truck-driving mates’.325 326 The sexual abuse began when the girl was 11 years old and continued for nine years. The court also heard she was raped seven times by a neighbour when she was aged fourteen. The father ‘loaned her out to friends’ for up to $300 a time. Police were only able to identify one man who paid for sex with the daughter; he was charged with two counts of entering into an agreement of sex with a child under 18. The outcome of that charge is unknown. 151. In September 2011, a 62 year old South Australian man was sentenced to three and a half years jail for ‘persistently sexually exploiting’ an intellectually disabled 12 year old girl. Although sentenced to three and a half years jail, the man will be eligible for parole in 21 months, ‘because he is the sole carer for his sick wife’.327

What system is in place to ensure legal aid for women and girls with disabilities who have been victims of violence? 152. Australian governments provide some legal aid for people assessed as being least able to afford to

36

WOMEN WITH DISABILITIES AUSTRALIA

cover the costs of a court appearance. The Federal Attorney-General’s Department is responsible for administering funding for the provision of legal aid services for federal law matters through Legal Aid Commissions (LAC),328 administering a Community Legal Services Program329 and managing legal aid services for Indigenous Australians.330 State and territory governments fund legal aid services for cases being tried under state and territory law. There are eight independent legal aid commissions, one in each of the states and territories. Funding is provided by the federal government and state and territory governments. The federal government also funds a network of Family Violence Prevention Legal Services331 across rural and remote Australia, which provide services specifically to Indigenous victims of family violence and/or sexual assault or abuse. Disability Discrimination Act Legal Services (DDLS) are funded as a component of the Community Legal Services Program. These services operate in each State and Territory of Australia and are funded to address the needs of people experiencing discrimination because of a disability or a perceived disability or because a family member or friend has a disability.332 153. Despite the existence of a range of legal services in Australia, it is widely recognised, and borne out by WWDA’s experience, that women with disabilities continue to face significant barriers in accessing legal processes and services.333 Just some examples of barriers include: A lack of awareness of legal rights and options – many women with disabilities experiencing, or at risk of violence do not realise that what is occurring to them is a criminal offence.334 335 Whilst violence is a significant presence in the lives of large numbers of women with disabilities, many are unaware of the services and options available to them or lack the confidence to seek help and support.336 Dependence on others to take action – some women with disabilities who have experienced violence are simply unable to access legal services or bring their own legal actions because they are totally dependent on others to act on their behalf. Women with severe impairment may be denied the opportunity to participate in court processes

PROSECUTION AND PUNISHMENT

unless a third party can gain standing to bring an action on their behalf;337

processes; and general lack of access to courts;347

Lack of knowledge of the nature and forms of violence against women with disabilities – throughout all levels of the legal system, there is a lack of knowledge of the complex nature and multiple forms of violence against women with disabilities, limited recognition of the sexuality of women with disabilities, and a common tendency to focus on the disability rather than the violence;338

Lack of and under-resourcing of specialist services – there is an acute lack of specialist legal services for people with disabilities, and where these do exist, they are severely underresourced.349 General community legal services do not necessarily have the time, skills, expertise or resources to address the legal needs of women with disabilities experiencing violence, and specialist services often lack the capacity to provide assistance.350

Lack of knowledge about disability – there is a significant lack of knowledge, expertise and experience within the legal sector about disability generally and the intersection of gender and disability specifically.339 340 The systemic gender bias in the criminal justice system remains a very real issue.341 The lack of knowledge of disability is reflected in a myriad of ways, such as: limitations in workers awareness of the broader issues of accessibility and disabilities, negative or ambivalent attitudes about providing access, assumptions about the capacity/incapacity of women with disabilities;342 Fear of retribution – this is particularly the case when women with disabilities are dependent upon perpetrator/s of the violence;343 344 Misconceptions about women with disabilities – commonly held perceptions of women with disabilities (particularly those with intellectual, cognitive, developmental, psychosocial impairments) reduce the likelihood of incidents of violence being reported, investigated and prosecuted;345 Affordability and Eligibility – for many women with disabilities, commercial legal services are simply unaffordable and yet they may be assessed as ineligible for publicly funded legal assistance;346 Practice Issues – these can include for example: absence of protocols for dealing with women with disabilities who make complaints; rules of evidence which discriminate against people with disabilities giving evidence; courtroom procedures that unfairly impinge on the rights of people with disabilities; the reliance on formal written

348

154. A 2007 study commissioned by Queensland Advocacy Incorporated (QAI), examined in detail, the barriers to justice for people with disabilities in Queensland. The study found that access to legal services, and the quality of legal services, were two of the most significant barriers to justice for people with disabilities.351

What special measures have been envisaged in legislation and practice for victims and witnesses with disabilities? 155. When researching information on Australian policies and legislation around victims and witnesses with disabilities, one of the most notable findings is the lack of information, including the paucity of research, on the issue. Gudjonsson (2010) has observed that ‘England has taken the lead in improving the police interview process and the protection of vulnerable interviewees’, although ‘there still remains a huge unmet need among vulnerable witnesses with regard to identification and implementation of the special measures’.352 Australian researchers have recommended that future Australian research should build upon the UK developments and that any policy initiatives in this context should not only adopt contemporary terminology, but also comply with Australia’s requirements under the Convention on the Rights of Persons with Disabilities (CRPD) to ‘promote appropriate training for those working in the field of administration of justice, including police and prison staff’ (Article 13) to ensure effective access to justice for persons with disabilities.353

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

37

PROSECUTION AND PUNISHMENT

156. In a recent paper on ‘Police interviews with vulnerable adult suspects’354 Dr Lorana Bartels from the Australian Institute of Criminology, found that the relevant Australian legislation in relation to the special needs of vulnerable persons interviewed by police, revealed ‘significant differences in approach’, and that there is a need for more comprehensive and compatible legislation. Bartels work gives an overview of the Australian legislation and police policies governing police interviews in circumstances where police deal with vulnerable adults.355 She found that: the legislation in all jurisdictions except the Northern Territory makes some provision for police to arrange an interpreter where the interviewee’s English is limited and some jurisdictions have explicit provisions in relation to foreign nationals. The legislation in New South Wales is the most extensive and makes special provision for a range of vulnerable persons. Queensland’s legislation relates to Indigenous people and those of ‘impaired capacity’, while the Commonwealth provisions are limited to Indigenous people. The issue of protections for vulnerable witnesses is currently being considered by the Tasmania Law Reform Institute and the ACT Government. In examining the relevant police policies and manuals, Bartels found that: New South Wales and Tasmania provide detailed instruction to officers in relation to their dealings with vulnerable witnesses and suspects, with such information readily available online. Queensland and Western Australia have some information available publicly and more detailed policies were kindly provided for the purposes of the paper. The Northern Territory also provided copies of its policies, which require the use of an interpreter for suspects and witnesses who give responses not in English. The policy provided by Victoria Police relates to deaf and mute and non-English speaking people and those with a mental disorder or affected by drugs or alcohol, but does not refer to the specific circumstances of Indigenous people.

38

WOMEN WITH DISABILITIES AUSTRALIA

157. Bartels suggests that: ‘in evaluating police policies and practices in this area, future research should therefore consider the practical effects of such measures in terms of police training, the management of police interviews and ultimately, the impact on criminal investigations. Key research issues in this context are: to what extent are policies on interviewing vulnerable adults—where they exist—applied in practice? And, does the use of these guidelines actually assist in producing more satisfactory outcomes for all parties?356 158. In June 2011, the South Australian Attorney-General announced that changes would be made to the South Australian Evidence Act (1929) part 34CA, in response to the lack of investigation and prosecution of recent cases of sexual assault against people with disabilities.357 Part 34CA of the Act placed severe restrictions on the evidence which can be heard in court by the severely disabled and children. The (South Australia) Evidence (Hearsay Rule Exception) Amendment Bill 2011 was tabled in the South Australian Parliament on 14th September 2011, and applies to: ‘an alleged victim of a sexual offence who is (a) a young child; or (b) a person who suffers from a mental disability that adversely affects the person’s capacity to give a coherent account of the person’s experiences or to respond rationally to questions’.358 359

159. The Independent Third Person’s (ITP’s) Program360 is administered by the Office of the Public Advocate (OPA) in Victoria. ITP’s are volunteers who assist people with a cognitive disability or mental illness during interviews, or when giving formal statements to Victoria Police. The person with a cognitive disability or mental illness may be an alleged offender, victim or witness. Victoria Police members are responsible for contacting an ITP. An ITP can also be requested, at any time, by the person with a cognitive disability or mental illness, or someone close to them. The Intellectual Disability Rights Service (IDRS)361 in New South Wales provides a Criminal Justice Support Network which supports people with intellectual disabilities involved in any type of criminal matter. Support is available 24 hours a day, 7 days a week

PROSECUTION AND PUNISHMENT

and includes a court support service (includes legal appointments and other court processes); support at police stations; and support at court for parents with intellectual disability involved in care proceedings. Queensland Advocacy Inc (QAI)362 provides a Justice Support Program designed to respond to the needs of people with disabilities in the justice and related systems. QAI also provides the Human Rights Legal Service (HRLS) which assists persons with impaired capacity who are subject to restrictive practices and involuntary treatment in Queensland. Support includes representing the client or the client’s guardian in relevant legal hearings. Despite high demand for the HRLS, it was closed in September 2011 due to lack of funding, and remains closed whilst QAI attempts to source funds to reinstate the service.

What specific training is conducted for law enforcement and legal personnel on the rights of women and girls with disabilities and effective ways to communicate with them? 160. Disabled women come into contact with the criminal justice system both as victims of crime and as offenders. While the range of risk factors precipitating such contact for these two groups of women is complex and the systemic responses are various, it is often the presence of disability that initially heightens their vulnerability to coming into contact with the police and courts, and which results in their incarceration in the first place. Risk of contact with the criminal justice system has been recognised as particularly heightened for women with intellectual and psychiatric impairments. Becoming the victim of a crime or experiencing incarceration may also be implicated in the production of disability, in particular psychological or psychiatric disorders, including posttraumatic stress disorder.363 Other areas of this Paper have highlighted the many barriers that women and girls with disabilities face in accessing legal processes and services, and the urgent need for targeted, gendered training for those working at all levels of the criminal justice system, including police and courts.

and focus on people with intellectual or cognitive disabilities. There are however, some initiatives which can be highlighted. For example, the Queenslandwide WWILD Sexual Violence Prevention Service,364 provides a ‘Disability Training Program Victims of Crime’ Program which works with individuals, organisations and systems that have contact, or provide a service to, people with intellectual and developmental disabilities who are victims or witnesses to crime. The NSW Intellectual Disability Rights Service (IDRS) provides a range of programs through its Criminal Justice Support Network. One such program is the IDRS tailored Disability Awareness Training for local court staff; Sheriff’s Officers; Transit Officers; Special Constables and Police.

162. The Queensland Criminal Justice Centre (QCJC)365 is a government funded resource based website for Queensland’s criminal lawyers and other professionals working within the criminal justice system. The primary intention of the site is to provide information that will assist lawyers conduct criminal defences where a relevant disability may be at issue. The QCJC conducts disability awareness training across Queensland for lawyers, police and court volunteers. In 2008 the NSW Attorney Generals Department developed a Capacity Toolkit,366 in response to requests from lawyers, medical professionals, health workers, carers and advocates who required more information about capacity, some general capacity principles and guidelines on assessing a person’s capacity to make decisions. The Toolkit applies only to the civil (non-criminal) areas of law. In 2009 the Law Society of NSW developed ‘A Practical Guide for Solicitors: When a client’s capacity is in doubt’. This resource is a short, practical guide for solicitors on what to do and what resources are available to assist them if they are concerned that their client may lack capacity to give instructions or make their own legal decisions.367

161. There are limited examples of targeted education and training programs in Australia for law enforcement and legal personnel on the rights of women and girls with disabilities. Most disability awareness training and education programs are un-gendered

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

39

RECOVERY, REHABILITATION AND SOCIAL REINTEGRATION What measures (legislative, administrative, social, educational or other) are in place to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of women and girls with disabilities who have been victim of any form of exploitation, violence or abuse? 163. This paper has highlighted a range of legislative, administrative, social, educational and other mechanisms within Australia which are designed to prevent, address, and respond to, violence against women and their children. This Paper has also highlighted and demonstrated that such mechanisms are woefully inadequate in ensuring the rights of women and girls with disabilities to freedom from violence, exploitation and abuse and to freedom from torture and other cruel, inhuman or degrading treatment or punishment. 164. As highlighted throughout this Paper, there have been, and remain, significant systemic failures in legislation, regulatory frameworks, policy, administrative procedures, availability and accessibility of services and support to prevent and address the epidemic that is violence against women and girls with disabilities. Underlying these systemic failures is an entrenched culture throughout all levels of society that devalues, stereotypes and discriminates against women and girls with disabilities, and invariably perpetuates and legitimises not only the multiple forms of violence perpetrated against them, but also the failure of governments to recognise and take action on the issue.368

165. In addressing violence against women with disabilities in Australia, it is not possible to truly move forward without an understanding of the depth and seriousness of past and current violations of the rights of women and girls with disabilities to freedom from violence, exploitation and abuse. WWDA has consistently urged the Australian Government to take leadership in this area by commissioning a National Public Inquiry or Royal Commission into Violence Against People with Disabilities in Australia, both historically and currently. 166. There is no specific legal and institutional framework for the investigation and prosecution of violence against people with disabilities in Australia.369 370 There is no national co-ordinated strategic framework for the prevention of violence against people with disabilities. As a matter of urgency, and consistent with recommendations from other key Australian disabled people’s organisations, the Australian Government should establish and adequately resource an independent, statutory, national protection mechanism for ‘vulnerable’ adults,371 where the requirement for mandatory reporting is legislated. The Australian Government, in consultation with people with disabilities, should act immediately to develop and adopt, a gendered National Violence & Disability Prevention Strategy, which includes targeted, gendered initiatives to build capacity of individuals and organisations to prevent violence against people with disabilities and to ensure appropriate responses when it does occur.372

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

41

APPENDIX 1 PROJECTS ON VIOLENCE AGAINST WOMEN WITH DISABILITIES 1990-2010 STAR Conference on Sterilisation (VIC) (1990) This report details the proceedings of a Conference held in Victoria (Australia) for women with intellectual disabilities, parents and workers on the issue of sterilisation. The report includes the voices of women with intellectual disabilities and contains a series of recommendations in the areas of: Women’s Issues and Rights; Legal; Health; Information; Education; and, Resources. http://www.wwda.org.au/record.htm

Access to services for women with disabilities who are subjected to violence (National) (1993) This research project was funded and commissioned by the National Committee on Violence Against Women (1993). The project sought to examine the effectiveness of service delivery to women with disabilities who have been subjected to violence. The study specifically looked at access to police, legal and support services. The major recommendations stemming from the research were detailed under the headings of: Support Groups; Education & Training; Data Collection; Access to Services. ISBN: 0 644 29597 X

Reclaiming Our Rights - Access to Existing Police, Legal & Support Services for Women with Disabilities or who are Deaf or Hearing Impaired who are Subject to Violence (NSW) (1995) This research project was conducted by the NSW Department for Women in 1995. The aim of the project was to investigate the degree of access women with disabilities have to existing services after they have been assaulted. The recommendations of the research report came from the women involved and key service providers including those in the areas of police, health, community services and the justice system. They are classified in the report under three headings which sum up the needs of women with disabilities and women who are deaf/ hearing impaired who have been abused. These headings are: empowerment; access to quality services; advocacy. Report is available from the National Library of Australia. http://catalogue.nla.gov.au/Record/1375541

The Sterilisation of Girls and Young Women in Australia A Legal, Medical and Social Context (National) (1997) This report concentrates on the sterilisation of girls and young women. The report poses a range of unanswered and grave questions about the fundamental breach of human rights and well-being of children subject to unauthorised sterilisation procedures. It suggests that a genuine concern for protection of the child’s best interests should be about a broader advocacy of the child’s interests not simply the narrow legal questions of who should make the decisions and how they should be made. The report suggests that fundamental to the success of protecting and ensuring best interests is the support and cooperation of a broader community of medical practitioners, human service providers, specialist consultants in disability, advocates and others. Any weak link will compromise positive outcomes for the child. http://www.wwda.org.au/brady.htm

Every Boundary Broken: Sexual Abuse of Women Patients in Psychiatric Institutions (NSW) (1997) This research project by Women and Mental Health Inc (NSW) was funded by the NSW Department for Women and the NSW Health Department. The Project relates to one of the most disadvantaged groups of women in the community: those who are disempowered and vulnerable by having a mental illness, and are then sexually abused or exploited within the institution in which they are placed for their own safety. This study is a qualitative, exploratory study of the experiences of women who were abused while they were inpatients in a psychiatric hospital, and of the institutional responses to that abuse. The Project Report, Every Boundary Broken: Sexual Abuse of Women Patients in Psychiatric Institutions, by Jane Davidson, is available from the National Library of Australia. http://catalogue.nla.gov.au/Record/1816439

More Than Just A Ramp - A Guide for Women’s Refuges to Develop Disability Discrimination Act Action Plans (National) (1997) This Project was undertaken by Women With Disabilities Australia (WWDA) in 1997. The Project report includes a discussion and analysis of: gender and disability, and women with disabilities and violence. It discusses the barriers women with disabilities face when accessing domestic violence services. The report provides information on the Disability Discrimination Act (1992) including a discussion on ‘discrimination’. The report details step by step how to develop a Disability Discrimination Act Action Plan. The Report was updated in 2007 as part of WWDA’s ‘Resource Manual on Violence Against Women With Disabilities’. http://www.wwda.org.au/vrm2007.htm

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

43

APPENDIX 1

Woorara Women’s Refuge Disability Action Plan (National/VIC)(1997) This Project was undertaken by Women With Disabilities Australia (WWDA) in 1997 in collaboration with Woorara Women’s Refuge in Victoria. The report details the project which was to develop a Disability Action Plan for the Woorara Women’s Refuge. The report sets the context for the study - providing information about the Disability Discrimination Act (1992) including the legislative requirements. The Project Methodology is outlined, including findings from consultations conducted with women with disabilities as part of the project. The report includes the Action Plan developed with Woorara Women’s refuge as part of the project. More information available from WWDA. Email: [email protected] wwda.org.au

Domestic Violence and Women with Disability Project (QLD) (1998) This small, six-month project was funded by the Queensland Department of Families, Youth and Community Care and conducted by MIMS and Associates. The Project aimed to research and design information resources and strategies for women with disabilities about domestic violence. The research component of the Project involved interviews with 9 women with disabilities and surveys to 68 service providers in the disability and violence sectors. The research findings included: service providers’ lack of knowledge and skills about the needs of women with disabilities; inaccessible services; and lack of information and resources for women with disabilities experiencing or at risk of experiencing domestic violence. More information available from WWDA. Email: [email protected] wwda.org.au

44

WOMEN WITH DISABILITIES AUSTRALIA

National Workshop on Violence Against Women With Disabilities (National) (1998) In 1998, Women With Disabilities Australia (WWDA) conducted a National Violence Against Women With Disabilities Workshop, the first of its kind in Australia and unique in that it was planned, organised, attended and run by, women with disabilities. This report documents the proceedings of the National Women With Disabilities and Violence Workshop. It contains a wide range of information including: background and context information; articles on the intersection of gender, disability and violence; details on work occurring in Australia on domestic violence generally as well as specific work on the issue of violence against women with disabilities; issues and problems identified by workshop participants requiring action; detailed strategies to address areas such as: Education; Research; Information; Social Action; Networking; Service and Program Planning and Delivery. More information available from WWDA. Email: [email protected] wwda.org.au

Making a statement: An exploratory study of barriers facing women with an intellectual disability when making a statement to the police about sexual assault (NSW) (2001) This Project was funded by the NSW Department of Corrective Services and conducted by the NSW Intellectual Disability Rights Service (IDRS). In this study, sexual assault workers and members of the New South Wales police service in the greater Sydney area were interviewed to identify the barriers that arise when women with intellectual disability decide to make a statement to police following sexual assault. The study’s findings demonstrate a need for greater awareness within the police service of police policies and procedures, and legislation, as well as greater co-operation between the police service and other organisations, which have an impact on the lives of women with intellectual disability. More information available from WWDA. Email: [email protected] wwda.org.au

APPENDIX 1

The Sterilisation of Girls and Young Women in Australia: Issues and Progress (National) (2001) The Report from this study summarises some developments since the 1997 Report ‘The Sterilisation of Girls and Young Women in Australia - A Legal, Medical and Social Context’, including responses to it, most notably debate about the numbers of sterilisations being performed. It provides up-todate information on the number of applications to the Family Court or relevant State Guardianship Tribunals. It is written to contribute to further community discussion in this sensitive area. http://www.wwda.org.au/brady2.htm

Moving Forward: Sterilisation and Reproductive Health of Women and Girls with Disabilities (National) (2001) In 2001, Women With Disabilities Australia (WWDA) undertook a national project on the sterilisation and reproductive health of women and girls with disabilities. The Project report provides a context for the discussion of sterilisation and reproductive health of women and girls with disabilities. It explores the assumptions made in discussing the issues and examines how they come to manifest themselves in the denial of human rights to bodily integrity and rights to reproductive choice and parenting. It examines the major issues in the debate around sterilisation of girls and women with disabilities and reports on developments both in Australia and internationally. It also outlines significant issues in reproductive health for women with disabilities. The report reflects the experiences and perspectives of women and girls with disabilities in reporting on the National Forum on Sterilisation and Reproductive Health for Women and Girls with Disabilities held in Sydney (Australia) in February 2001. More information available from WWDA. Email: [email protected] wwda.org.au

Domestic Violence Against Women With Disabilities Project (NSW) (2000-2004) The project’s aim was to increase access to domestic violence services and support for women with disabilities through training and resource information for health and community workers. The Project was a 4 year project of the Benevolent Society and Macarthur Disability Services, and was funded by the Macarthur Area Assistance Scheme. The Project produced a resource kit entitled: Fabulous femmes: a resource kit: inspiration and resources to improve services for women with disabilities affected by domestic violence. http://www.bensoc.org.au/uploads/documents/fabulousfemmes-nov04.pdf

Be Safe Be Sure Project: A Project for Women with Intellectual Disabilities on Safety and Sexuality (NSW) (2002) This one year Project was funded by the NSW Department of Urban Affairs and Planning and undertaken in the Western area of Sydney. The Project was an educational project for women with intellectual disabilities in the area of safety and sexuality. The Project also aimed to build partnerships between disability services in the area, mainstream services, Aboriginal and Torres Strait Islander communities and culturally and linguistically diverse communities. http://www.wwda.org.au/BeSafeBeSure1.pdf

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

45

APPENDIX 1

Violence Against Women With Disabilities Project (VIC) (2002-2003) The primary focus of this Project from the Domestic Violence and Incest Resource Centre (DVIRC), was to create partnerships between disability services and services for women experiencing violence, in order to better address the needs of women with disabilities who are marginalised by the service system. The Project took the form of a one year demonstration project in the Western Metropolitan region of Victoria. The Report of the Project ‘Triple Disadvantage: Out of sight, Out of mind’ details the Project, and includes a series of recommendations. http://www.wwda.org.au/triple1.pdf

Silent Voices: Women With Disabilities and Family and Domestic Violence (WA) (2003) This research project arose as a result of the widespread experience of women with disabilities, disability and community agencies and the paucity of relevant literature in family and domestic violence. The project was a joint project of People with Disabilities (WA) Inc., the Ethnic Disability Advocacy Centre and the Centre for Social Research, Edith Cowan University, Perth. The objectives for the research were to: document the nature and extent of family and domestic violence against women with disabilities who have accessed services in Western Australia; and identify whether the needs of women with disabilities are being adequately addressed by relevant services. http://www.wwda.org.au/cockram2.pdf

Sexual Offences Project for Women with Disabilities (VIC) (2003) The Sexual Offences Project for Women with Disabilities, conducted in Victoria in 2003, aimed to examine the issues and problems victim/survivors with cognitive impairment experience when reporting sexual assault and proceeding with prosecution in Victoria. The Project found, amongst other things that: the policies and practices of disability service providers and other professionals working with people with disabilities, still often lead to silence and isolation in the name of protection. It also found that as a result of sexual assault, victim/survivors with cognitive impairment are often: not believed when they do report sexual assault; not considered reliable witnesses; and, not considered capable of participating in the justice process. It was decided that victim/survivors would not be directly interviewed. The Project instead invited those people who work with victim/survivors to give case studies that illustrate important issues and experiences when reporting and/or seeking access to justice. http://www.wwda.org.au/beyondbelief1.pdf

46

WOMEN WITH DISABILITIES AUSTRALIA

Four Corners (ABC TV) ‘Walk In Our Shoes’: Documentary on Sterilisation (National) (2003) In June 2003, the current affairs program Four Corners (ABCTV) broadcast a program entitled ‘Walk In Our Shoes’. The program explored the issue of whether, and in what circumstances, disabled women (and men) should be sterilised. In this emotionally compelling documentary, the people at the heart of the sterilisation debate – disabled people, their parents and their carers – speak with remarkable candor about their experiences, frustrations and dilemmas. The transcript of the Program is available from the WWDA website. http://www.wwda.org.au/4corners.htm

APPENDIX 1

Looking After Me Project (LAM) (NSW) (2004-2007) The Looking After Me Resource Kit is one of the outcomes of the Looking After Me Project (LAM). LAM was an innovative three and a half year project that began in January 2004, funded by Western Sydney Area Assistance Scheme. The project was auspiced by the Penrith Women’s Health Centre and focussed on the Penrith Local Government Area. The Kit provides visual aids that can be used when discussing domestic violence issues with women with intellectual disabilities. http://www.whnsw.asn.au/Looking_After_Me/ResourceLooking_After_Me.htm

Pandora’s Box: Hume Region Family Violence and Disability Project (VIC) (2006) This Project, auspiced by Women’s Health Goulburn North East, aimed to address the barriers faced by women with disabilities in seeking assistance from both the family violence and disability support systems within the Hume region of Victoria. The Project developed a Resource Guide as part of the Project. http://www.whealth.com.au/documents/publications/whppandora_box_resource_guide.pdf

Violence Against Women with Disabilities Project (VIC) (2008) The Domestic Violence and Incest Resource Centre (DVIRC) undertook a Project on violence against women with disabilities, which resulted in the development of an online resource for women with disabilities, and an online resource for service providers in the family violence and disability sectors. http://dvrcv.org.au/Disability/AboutthisSite.htm http://www.dvrcv.org.au/Disability/ServiceProviderGuide. htm

Resource Manual on Violence Against Women With Disabilities (National) (2007) This Project was undertaken by Women With Disabilities Australia (WWDA) and culminated in the development of a Resource Manual on Violence Against Women With Disabilities. The Manual is made up of four booklets which include: narratives from women with disabilities who experience violence; a global review of the issue; information about domestic violence and women with disabilities; and a model process for women’s refuges and other crisis services to reorient their practices to be accessible and inclusive. Audio, e-text & Large Print PDF versions of the Booklets are included on a CD-ROM which accompanies the Manual. Braille and DAISY versions are also available on request. http://www.wwda.org.au/vrm2007.htm

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

47

APPENDIX 1

Building the Evidence Project (VIC) (2008) The Building the Evidence Project was undertaken as a research collaboration between the Victorian Women with Disabilities Network Advocacy Information Service, the Alfred Felton Research Program at the University of Melbourne, and the Domestic Violence Resource Centre Victoria. The Project analyses the extent to which current Victorian family violence policy and practice recognises and provides for women with disabilities who experience violence; and makes recommendations to improve responses to women with disabilities dealing with family violence. http://www.wdv.org.au/publications.htm#bte

Improving Access to Services for Women from non-English Speaking Backgrounds with Disability Experiencing Violence Project (NSW) (2010) This Project was conducted by the Multicultural Disability Advocacy Association of NSW (MDAA) with funding provided by the NSW Premiers Department (Office for Women) and Clubs NSW. The Project worked with women with disabilities from non-English Speaking Backgrounds (NESB), and service providers to improve responses to women from NESB with disability experiencing domestic violence. http://www.wwda.org.au/mdaaviol1.pdf

48

WOMEN WITH DISABILITIES AUSTRALIA

Women With Disabilities Accessing Crisis Services (ACT) (2010) The project was a collaboration between Women’s Centre for Health Matters (WCHM), the Domestic Violence Crisis Service (DVCS) and Women with Disabilities ACT (WWDACT), and which focussed on increasing the capacity for service providers to support women with a disability escaping domestic and family violence. It was funded by a grant from the Women’s Services Network (WESNET). The project aimed at exploring current practices, raising awareness and assisting domestic violence / crisis services in the ACT to become more accessible for women with disabilities by developing a set of best practice principles. http://www.wwda.org.au/wwdcrisis1.pdf

Accommodating Violence – Disability and Domestic Violence in Residential Settings Project (NSW) (2010) This research study was undertaken y People With Disability Australia (PWD). The project report documents the experience of domestic violence and people with disability, particularly women with disability living in licensed boarding houses. The findings outlined in the Project’s report derive from a range of activities, consultations, legislative and policy analysis undertaken in the course of the Disability and Domestic Violence in Residential Settings Project (the DDV project) funded by the NSW Office for Women’s Policy for the period June 2009 – July 2010. http://www.pwd.org.au/documents/pubs/ Accommodating%20Violence%20Report.pdf

APPENDIX 2 DEFINITIONS OF ‘FAMILY

VIOLENCE’ IN LEGISLATION

APPENDIX 2

JDN

STATUTE

DEFINITION OF FAMILY VIOLENCE

COMMENT

CTH

Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

4AB Definition of family violence etc. (1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. (2) Examples of behaviour that may constitute family violence include (but are not limited to): (a) an assault; or (b) a sexual assault or other sexually abusive behaviour; or (c) stalking; or (d) repeated derogatory taunts; or (e) intentionally damaging or destroying property; or (f) intentionally causing death or injury to an animal; or (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or preventing the family member from making or keeping connections with his or her family, friends or culture; or (j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty. (3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. (4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child: (a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or (b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or (c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or (d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or (e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

Amends the: Family Law Act 1975 to protect children and families at risk of violence or abuse by: prioritising the safety of children in parenting matters; including harmful behaviour in the definitions of ‘abuse’ and ‘family violence’; requiring family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to prioritise the safety of children; placing additional reporting requirements on certain parties to provide evidence to courts; and state and territory child protection authorities participating in family law proceedings where appropriate; and Bankruptcy Act 1966 and Family Law Act 1975 to make technical amendments.

(before Senate)

APPENDIX 2

JDN

STATUTE

DEFINITION OF FAMILY VIOLENCE

COMMENT

Family Violence Protection Act 2008

s5. Meaning of family violence 1) For the purposes of this Act, family violence is(a) behaviour by a person towards a family member of that person if that behaviour(i) is physically or sexually abusive; or (ii) is emotionally or psychologically abusive; or (iii) is economically abusive; or (iv) is threatening; or (v) is coercive; or(vi) in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or (b) behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a). Examples: The following behaviour may constitute a child hearing, witnessing or otherwise being exposed to the effects of behaviour referred to in paragraph (a)-overhearing threats of physical abuse by one family member towards another family member; seeing or hearing an assault of a family member by another family member; comforting or providing assistance to a family member who has been physically abused by another family member; cleaning up a site after a family member has intentionally damaged another family member’s property; being present when police officers attend an incident involving physical abuse of a family member by another family member.

Passed by the Victorian Parliament on 12 September 2008. Replaces the Crimes (Family Violence) Act.

(2) Without limiting subsection (1), family violence includes the following behaviour(a) assaulting or causing personal injury to a family member or threatening to do so; (b) sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour; (c) intentionally damaging a family member’s property, or threatening to do so; (d) unlawfully depriving a family member of the family member’s liberty, or threatening to do so; (e) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member. (3) To remove doubt, it is declared that behaviour may constitute family violence even if the behaviour would not constitute a criminal offence. s6. of the Act defines economic abuse. s7. of the Act defines emotional or psychological abuse.

Empowers the police to issue family violence safety notices which may include the same conditions as a family violence intervention order and last until the application for a family violence intervention order is brought before the court. Broadens the definition of family member to include carers. Broadens the definition of family violence to include economic and emotional abuse. Restricts the ability of self-represented respondents to personally crossexamine the alleged victim in court. Violent partners barred from questioning victims in court. Police will be able to issue safety notices outside court hours, giving them the power to remove violent family members. Allows women and children to remain in the family home following a violent incident while the perpetrator is removed. The Crimes (Family Violence) (Holding Powers) Act 2006 allows police to detain a person suspected of family violence for up to six hours. The Crimes Amendment (Rape) Act 2007 amends provisions applying to sexual offences in Victoria making it easier for witnesses to give evidence in sexual offence trials.

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

51

APPENDIX 2

JDN

STATUTE

DEFINITION OF FAMILY VIOLENCE

COMMENT

QLD

Domestic and Family Violence Protection Act 1989

Section 11 - What is domestic violence (1) Domestic violence is any of the following acts that a person commits against another person if a domestic relationship exists between the 2 persons— (a) wilful injury; (b) wilful damage to the other person’s property; Example of paragraph (b)—wilfully injuring a defacto’s pet (c) intimidation or harassment of the other person; Examples of paragraph (c)— 1 following an estranged spouse when the spouse is out in public, either by car or on foot 2 positioning oneself outside a relative’s residence or place of work 3 repeatedly telephoning an ex-boyfriend at home or work without consent (whether during the day or night) 4 regularly threatening an aged parent with the withdrawal of informal care if the parent does not sign over the parent’s fortnightly pension cheque (d) indecent behaviour to the other person without consent; (e) a threat to commit an act mentioned in paragraphs (a) to (d). (2) The person committing the domestic violence need not personally commit the act or threaten to commit it.

As part of the Queensland Government’s responsibility for administering the Domestic and Family Violence Protection Act 1989, a review of the Act is currently underway. The draft Domestic and Family Violence Protection Bill 2011 has been gathered to inform the review. The review is expected to be completed in late 2011. Provide for the safety and protection of a person who is in a domestic relationship where violence is committed against them by the other party to the relationship. Achieved by the court making a domestic violence order to protect the person against further violence. Substantial amendments made in 2003 extending the types of make application to a Magistrates’ Court. Domestic violence is committed under the Act if it takes place between two people in the following domestic relationships: - a spousal relationship; - an intimate personal relationship; - a family relationship; and - an informal care relationship. (see section 11A)

52

WOMEN WITH DISABILITIES AUSTRALIA

APPENDIX 2

JDN

STATUTE

DEFINITION OF FAMILY VIOLENCE

COMMENT

WA

Acts Amendment (Family and Domestic Violence) Act 2004

S6. Meaning of “act of family and domestic violence” and “act of personal violence” (1) In this Act — act of family and domestic violence” means one of the following acts that a person commits against another person with whom he or she is in a family and domestic relationship — (a) assaulting or causing personal injury to the person; (b) kidnapping or depriving the person of his or her liberty; (c)damaging the person’s property, including the injury or death of an animal that is the person’s property; (d) behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person; (e) causing the person or a third person to be pursued — (i) with intent to intimidate the person; or (ii) in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, the person; (f) threatening to commit any act described in paragraphs (a) to (c) against the person.

Makes important changes to Western Australia’s family violence legislative framework [which mainly consists of the Restraining Order Act 1997, The Criminal Code and the Bail Act 1982].

(2) In this Act — “act of personal violence” means one of the following acts that a person commits against another person with whom he or she is not in a family and domestic relationship — (a) assaulting or causing personal injury to the person; (b) kidnapping or depriving the person of his or her liberty; (c) causing the person or a third person to be pursued — (i) with intent to intimidate the person; or (ii) in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, the person; (d) threatening to commit any act described in paragraph (a) or (b) against the person; (e) if the person who commits the act has an imagined personal relationship with the person against whom the act is committed, an act that would constitute an act of family and domestic violence if those persons were in a family and domestic relationship. (3) For the purposes of this Act, a person who procures another person to commit an act of abuse, or part of such an act, is to be taken to have also committed the act himself or herself.

Better protection for direct and indirect victims of domestic violence. Seven major changes to Western Australia’s domestic violence law including: - increasing penalties where domestic violence is committed in circumstances of aggravation; - significantly limiting the defences to breaching an order; - making it possible to vary or cancel an interim order as opposed to only a final order; - allowing for a violence restraining order to be granted automatically in some cases; - providing better protection to the interests of children in the court environment; - giving police stronger investigation powers and enabling them to issue on-the-spot temporary restraining orders to immediately remove violence offenders from the home; and - reclassifying the various types of restraining orders to include domestic violence rather than just violence.

(4) In this section — “assaulting” includes — (a) an assault within the meaning of The Criminal Code; and (b) behaving in a manner described in paragraph (a), (b) or (c) of section 319(3) of The Criminal Code; “intimidate” has the same meaning as in section 338D of The Criminal Code ; “kidnapping or depriving the person of his or her liberty ” includes behaving in a manner described in section 332 of The Criminal Code ;“pursue” has the same meaning as in section 338D of The Criminal Code .

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

53

APPENDIX 2

JDN

STATUTE

DEFINITION OF FAMILY VIOLENCE

COMMENT

NSW

The Crimes Amendment (Apprehended Violence) Act 2006

562A Definitions domestic relationship—see section 562B. domestic violence offence means a personal violence offence committed by a person against another person with whom the person who commits the offence has or has had a domestic relationship. personal violence offence means: an offence under, or mentioned in, section 19A, 24, 26, 27, 28, 29, 30, 31, 33, 33A, 35, 35A, 37, 38, 39, 41, 44, 46, 47, 48, 49, 58, 59, 61, 61B, 61C, 61D, 61E, 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 65A, 66A, 66B, 66C, 66D, 66EA, 80A, 80D, 86, 87, 93G, 93GA, 195, 196, 198, 199, 200 or 562ZG, or an offence of attempting to commit an offence referred to in paragraph (a).

Assented to on 27 October 2006. 562E Objects of Division 2 [Apprehended DV orders] (1) The objects of this Division are: (a) to ensure the safety and protection of all persons, including children, who experience or witness domestic violence, and (b) to reduce and prevent violence between persons who are in a domestic relationship with each other, and (c) to enact provisions that are consistent with certain principles underlying the Declaration on the Elimination of Violence against Women, and d) to enact provisions that are consistent with the United Nations Convention on the Rights of the Child. (2) This Division aims to achieve its objects by: (a) empowering courts to make apprehended domestic violence orders to protect people from domestic violence, intimidation, stalking and harassment, and (b) ensuring that access to courts is as speedy, inexpensive, safe and simple as is consistent with justice. (3) In enacting this Division, Parliament recognises: (a) that domestic violence, in all its forms, is unacceptable behaviour, and (b) that domestic violence is predominantly perpetrated by men against women and children, and (c) that domestic violence occurs in all sectors of the community, and (d) that domestic violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years, and (e) that domestic violence occurs in traditional and non-traditional settings, and (f) the particularly vulnerable position of children who are exposed to domestic violence as victims or witnesses, and the impact that such exposure can have on their current and future physical, psychological and emotional well-being, and (g) that domestic violence is best addressed through an integrated framework of prevention and support and, in certain cases, may be the subject of appropriate intervention by the court.

54

WOMEN WITH DISABILITIES AUSTRALIA

APPENDIX 2

JDN

STATUTE

DEFINITION OF FAMILY VIOLENCE

COMMENT

SA

Domestic Violence Act 1994

s4 spells out the grounds for making a domestic violence restraining order and states that a defendant commits domestic violence if:

The South Australian Parliament passed a number of Acts in 2008, namely:

(2)For the purposes of this Act, a defendant commits domestic violence— (a) if the defendant causes personal injury to a member of the defendant’s family; or (b) if the defendant causes damage to property of a member of the defendant’s family;

Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 Reforms many offences, including persistent sexual abuse, unlawful sexual intercourse, incest, and offences with animals. Rape defined more comprehensively, including a continuation of sexual intercourse when consent is withdrawn. Introduces a new offence of compelled sexual activity and defines reckless indifference to consent to sexual acts, as well as consent to sexual activity.

or if on two or more separate occasions— (i) the defendant follows a family member; or (ii)the defendant loiters outside the place of residence of a family member or some other place frequented by a family member; or (iii) the defendant enters or interferes with property occupied by, or in the possession of, a family member; or (iv) the defendant— (A) gives or sends offensive material to a family member or leaves offensive material where it will be found by, given to, or brought to the attention of a family member; or (B) publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, a family member; or the defendant communicates with a family member, or to others about a family member, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication; or

JDN

STATUTE

Statutes Amendment (Evidence) Act 2008 Reforms laws about the special arrangements for witnesses giving evidence, particularly from vulnerable witnesses including children and victims of serious offences. Reforms the way witnesses may be questioned, the manner in which judges warn or direct juries about the evidence of children, and restricts access to sensitive material that is to be used as evidence. Enable a victim to read impact statements by pre-recording them or for a representative to read them.

(v)the defendant keeps a family member under surveillance; or (vi)the defendant engages in other conduct, so as to reasonably arouse in a family member apprehension or fear of personal injury or damage to property or any significant apprehension or fear.

Victims of Crimes Act 2001 Provides for a Commissioner for Victim’s Rights. Able to require a public agency or official to consult about steps the agency or official might take to further the interests of victims. After consultation, the Commissioner may recommend that the agency or official issue a written apology to the victim. The Commissioner is required to have regard to the wishes of the victim.

DEFINITION OF FAMILY VIOLENCE

COMMENT

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

55

APPENDIX 2

TAS

Family Violence Act 2004

s. 7 Family violence In this Act – “family violence” means – (a) any of the following types of conduct committed by a person, directly or indirectly, against that person’s spouse or partner: (i) assault, including sexual assault; (ii) threats, coercion, intimidation or verbal abuse; (iii) abduction; (iv) stalking within the meaning of section 192 of the Criminal Code; (v) attempting or threatening to commit conduct referred to in subparagraph (i), (ii), (iii) or (iv); or (b) any of the following: (i) economic abuse; (ii) emotional abuse or intimidation; (iii) contravening an external family violence order, an interim FVO, an FVO or a PFVO. s8. of the Act defines economic abuse Includes emotional abuse or intimidation

Includes most of the recommendations from Safe at Home: A Criminal Justice Framework for Responding to Family Violence in Tasmania (2003). Includes non-physical abuse, such as verbal abuse, intimidation, coercion, stalking, threats, abduction, emotional abuse and economic abuse. Inclusion of economic abuse in a definition of family violence was an Australian first. Includes the withholding of financial support, maintenance and money for household expenses. The only Australia domestic violence legislation to include sexual assault in its definition of domestic/family violence. Creates a presumption against bail for alleged perpetrators, requiring the decision-maker to consider the likely effect of release on the safety, wellbeing and interests of the victim or affected child. Safety of victims is a primary concern, should be able to remain in the family home. Increased penalties for breaches of orders. A breach that exposes a child to violence considered an aggravating factor in sentencing. Police mandated to notify the Child Protection services of any children present during an incident of family violence and considered at risk.

JDN

56

STATUTE

DEFINITION OF FAMILY VIOLENCE

WOMEN WITH DISABILITIES AUSTRALIA

COMMENT

APPENDIX 2

ACT

Domestic Violence and Protection Orders Act 2008

s. 13 What is domestic violence? (1) For this Act, a person’s conduct is domestic violence if it— (a) causes physical or personal injury to a relevant person; or (b) causes damage to the property of a relevant person; or (c) is directed at a relevant person and is a domestic violence offence; or (d) is a threat, made to a relevant person, to do anything in relation to the relevant person or another relevant person that, if done, would fall under paragraph (a), (b) or (c); or (e) is harassing or offensive to a relevant person; or (f ) is directed at a pet of a relevant person and is an animal violence offence; or (g) is a threat, made to a relevant person, to do anything to a pet of the person or another relevant person that, if done, would be an animal violence offence. (2) In this Act: domestic violence offence means an offence against— (a) section 90 (which is about contravening protection orders); or (b) a provision mentioned in an item in schedule 1 (Domestic violence offences against other legislation) of an Act mentioned in the item. (3) In this section: animal violence offence means an offence against any of the following provisions of the Animal Welfare Act 1992:

Section 6 of the Act outlines the objects of the Act which include: (a)to prevent violence between family members and others who are in a domestic relationship, recognising that domestic violence is a particular form of interpersonal violence that needs a greater level of protective response; and (b)to facilitate the safety and protection of people who fear or experience violence by-(i) providing a legally enforceable mechanism to prevent violent conduct; and (ii) allowing for the resolution of conflict without the need to resort to adjudication.

(a) section 7 (Cruelty); (b) section 7A (Aggravated cruelty); (c) section 8 (Pain); (d) section 12 (Administering poison); (e) section 12A (Laying poison); (f) section 13 (Electrical devices). offence, other than in relation to the Public Order (Protection of Persons and Property) Act 1971 Cth, section 11 (Additional offences on premises in a Territory), includes conduct, engaged in outside the ACT, that would be an offence if it were engaged in within the ACT. personal injury includes nervous shock. S14 defines personal violence.

JDN

STATUTE

DEFINITION OF FAMILY VIOLENCE

COMMENT

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

57

APPENDIX 2

NT

Domestic and Family Violence Act 2007

s5 - Domestic violence is any of the following conduct committed by a person against someone with whom the person is in a domestic relationship: (a) conduct causing harm; Example of harm for paragraph (a) Sexual or other assault. (b) damaging property, including the injury or death of an animal; (c) intimidation; (d) stalking; (e) economic abuse; (f) attempting or threatening to commit conduct mentioned in paragraphs (a) to (e). Note - Under Part 2.2, a DVO may be sought, and made, against a person if the person counsels or procures someone to commit the domestic violence, see section 17

Replaced the Domestic Violence Act (NT). Commenced on 1 July 2008.

s.6 of the Act defines intimidation s.7 of the Act defines stalking s.8 of the Act defines economic abuse

Provides for the option for children to apply for a Domestic Violence Order (DVO) on their behalf.

Provides for the protection of people in a domestic relationship against violence. Simplifies the processes associated with domestic violence orders to protect women and children. Defines domestic violence to include economic abuse and intimidation as being explicit grounds for orders, as is violence that impacts on the welfare of a child.

Increasing the maximum penalty for breaching a Domestic Violence Order from 6 months to 2 years. Presumption in favour of a DVO applicant, who has children in their care, remaining in the family home. Economic abuse and intimidation being explicit grounds for orders, as is violence that impacts on the welfare of a child. The Northern Territory Government introduced the Victims of Crime Assistance Act 2006 to establish schemes to help victims of violent acts with counselling and financial assistance.

58

WOMEN WITH DISABILITIES AUSTRALIA

ENDNOTES 1.

For more detailed information on Women With Disabilities Australia (WWDA), go to: http://www.wwda.org.au

2.

See WWDA’s Strategic Plan 2010 – 2015 at: http://wwda.org.au/stratplan. htm

3.

See: Commonwealth of Australia (2009) A Stronger, Fairer Australia: National Statement on Social Inclusion. Department of the Prime Minister and Cabinet, Canberra; See also: McClelland, R. in Commonwealth of Australia (2010) Australia’s Human Rights Framework, Attorney-General’s Department, Canberra; See also: Australian Government Australian Values Statement, Department of Immigration & Citizenship, available online at: http://www. immi.gov.au/living-in-australia/values/statement/long/

4.

Women With Disabilities Australia (WWDA)(2011) ‘Assessing the situation of women with disabilities in Australia: A human rights approach’. Available online at: http://wwda.org.au/subs2011.htm

5.

In addition to the forms of violence experienced by women in general, the following also constitute violence against women with disabilities: forced/coerced abortion and sterilisation; forced/coerced psychiatric interventions, involuntary commitment to institutions, forced isolation, physical and chemical restraint; strip searches; deprivation of legal capacity; denial of necessities and purposeful neglect; withholding mobility aids, communication equipment, or medication that the woman uses voluntarily; threats to neglect or kill support or assistive animals; being left in physical discomfort or in embarrassing situations for long periods of time; threats of abandonment by caregivers; violations of privacy; rape and sexual abuse by personal carers, staff and other inmates/residents of institutions.

6.

International Network of Women with Disabilities (2011) Violence Against Women with Disabilities. Barbara Faye Waxman Fiduccia Papers on Women and Girls with Disabilities, Center for Women Policy Studies.

7.

Frohmader, C. & Meekosha, H. [forthcoming] Recognition, respect and rights: Women with disabilities in a globalised world. In Disability and Social Theory, Edited by Dan Goodley, Bill Hughes and Lennard Davis, London: Palgrave Macmillan.

8.

Women With Disabilities Australia (WWDA) (2007b) ‘Forgotten Sisters - A global review of violence against women with disabilities’. WWDA Resource Manual on Violence Against Women With Disabilities. Published by WWDA, Tasmania, Australia.

9.

Healey, L., Howe, K., Humphreys, C., Jennings, C. & Julian, F. (2008) Building the Evidence: A report on the status of policy and practice in responding to violence against women with disabilities in Victoria. Published by the Victorian Women with Disabilities Network Advocacy Information Service, Melbourne.

10.

United Nations General Assembly (2006) In-depth study on all forms of violence against women. Report of the Secretary-General. A/61/122/ Add.1.New York.

11.

UN General Assembly, Convention on the Rights of Persons with Disabilities, 24 January 2007, A/RES/61/106.

12.

Women With Disabilities Australia (WWDA) (2010) Women With Disabilities & The Human Right to Health: A Policy Paper. Available online at: http://www. wwda.org.au/health2006.htm

13.

In 2010, for example, WWDA undertook a national postcard campaign, urging all politicians to support WWDA’ s call for the Australian Government to commission and fund a national study on the incidence and prevalence of violence against women with disabilities. Although WWDA received in principle support from many politicians, no action has been taken to date.

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

59

ENDNOTES

14.

Women With Disabilities Australia (WWDA) (2007b) OpCit.

15.

Women With Disabilities Australia (WWDA) (2010) Women With Disabilities & The Human Right to Health: A Policy Paper. Available online at: http://www.wwda.org.au/health2006.htm

16.

Healey, L. et al (2008) OpCit.

17.

Bartels, L. (2010) Emerging issues in domestic/ family violence research. Research in Practice Report No. 10, Australian Institute of Criminology, Canberra.

18.

Tually, S., Faulkner, D., Cutler, C. & Slatter, M. (2008) ‘Women, Domestic and Family Violence and Homelessness: A Synthesis Report’. Prepared for the Office for Women (Australian Government).

19.

20.

21.

United Nations Human Rights Council, Resolution 14/12: Accelerating efforts to eliminate all forms of violence against women: ensuring due diligence in prevention. 23 June 2010, A/HRC/RES/14/12. ‘Disabled women vulnerable to abuse: govt.’ 9News; Monday Oct 24 2011. Accessed online October 2011 at: http://news.ninemsn.com.au/ national/8364611/disabled-women-vulnerableto-abuse-govt

22.

Ibid.

23.

In its 2006 Concluding Comments on Australia’s combined Fourth and Fifth Reports on Implementing CEDAW, the CEDAW Committee expressed its regret at the ‘absence of sufficient information and data on women with disabilities’, and specifically recommended that ‘the State Party to include adequate statistical data and analysis, disaggregated by sex, ethnicity and disability, in its next report so as to provide a full picture of the implementation of all the provisions of the Convention.’ See: UN Committee on the Elimination of Discrimination against Women, Concluding comments of the Committee on the Elimination of Discrimination against Women: Australia, 3 February 2006, CEDAW/C/AUL/CO/5.

24.

60

Murray, S. & Powell, A. (2008) Sexual assault and adults with a disability: Enabling recognition, disclosure and a just response. Australian Centre for the Study of Sexual Assault, Australian Institute of Family Studies, Melbourne.

UN Committee on the Elimination of Discrimination against Women (CEDAW) (2010) Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia, 30 July 2010, CEDAW/C/ AUS/CO/7.

25.

See: http://www.abs.gov.au/ausstats/[email protected] nsf/lookupMF/B62DEB3AC52A2574CA256 8A900139340

26.

See: http://www.abs.gov.au/ausstats/[email protected]/ mf/4906.0

27.

Mulroney, J. (2003) Australian Statistics on Domestic Violence. Australian Domestic and Family Violence Clearinghouse Topic Paper. Sydney NSW.

WOMEN WITH DISABILITIES AUSTRALIA

28.

Flood, M. (2006) Violence Against Women and Men in Australia: What the Personal Safety Survey can and can’t tell us. DVIRC Quarterly, Edition 4, Summer 2006. Domestic Violence and Incest Resource Centre (DVIRC), Victoria.

29.

Phillips, J. & Park, M. (2004, 2006) Measuring domestic violence and sexual assault against women: a review of the literature and statistics. Parliament of Australia Library. Retrieved from http://www.aph.gov.au/library/INTGUIDE/SP/ ViolenceAgainstWomen.htm

30.

Women With Disabilities Australia (WWDA) (2004) Correspondence to Kerry Flanagan, Australian Government Office of the Status of Women. May 18, 2004.

31.

People With Disability Australia (PWDA) (2004) Correspondence to Kerry Flanagan, Australian Government Office of the Status of Women. May 31, 2004.

32.

Flanagan, K. (2004) Correspondence to Women With Disabilities Australia (WWDA) from the Department of the Prime Minister and Cabinet Office of the Status of Women; 3 June 2004.

33.

Ibid.

34.

Australian Bureau of Statistics (2010) Personal Safety Survey Advisory Group Meeting (16 July 2010) Agenda Item 6: Survey content for a 2012 Personal Safety Survey (PSS).

35.

The National Disability Abuse and Neglect Hotline is an Australia-wide telephone hotline for reporting abuse and neglect of people with disability. Cases of abuse and neglect can include physical, sexual, psychological, legal and civil abuse, restraint and restrictive practices, or financial abuse. It can also include the withholding of care and support which exposes an individual to harm. See: http://www. disabilityhotline.org/

36.

The Hotline is fully funded by the Australian Government through the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), and operated by People with Disability Incorporated (PWD), a national peak disability rights and advocacy organisation (see: http://www.pwd.org.au).

37.

French, P., Dardel, J. & Price-Kelly, S. (2010) Rights Denied: Towards a National Policy Agenda About Abuse, Neglect & Exploitation of Persons with Cognitive Impairment. People With Disability Australia (PWD), Sydney, NSW.

38.

Ibid.

39.

See for example: Attard, M., & Price-Kelly, S. (2010) Accommodating Violence: The experience of domestic violence of people with disability living in licensed boarding houses, People with Disability Australia, NSW. Accessed online October 2011 at: http://www.pwd.org. au/documents/pubs/Accommodating%20 Violence%20Report.pdf

40.

Putt, J. & Higgins, K. (1997) ‘Violence Against Women in Australia: Key Research and Data Issues.’ Australian Institute of Criminology, Canberra.

ENDNOTES

41.

42.

43.

44.

New South Wales Department for Women (1996) Reclaiming Our Rights - Access to Existing Police, Legal & Support Services for Women with Disabilities or who are Deaf or Hearing Impaired who are Subject to Violence. Prepared by Liz Mulder for the New South Wales Department for Women, Sydney, Australia. Commonwealth of Australia (2009) Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009-2021. Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), Canberra. The six outcome areas were: 1) communities are safe and free from violence; 2) relationships are respectful; 3) services meet the needs of women and their children; 4) responses are just; 5) perpetrators stop their violence; and 6) systems work together effectively (NCRVWC 2009). Commonwealth of Australia (2009) The National Plan to Reduce Violence against Women: Immediate Government Actions; April 2009, Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), Canberra.

45.

Bartels, L. (2010), OpCit.

46.

Commonwealth of Australia (2009) Background Paper to The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009-2021. Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), Canberra.

47.

48.

49.

The National Community Attitudes towards Violence against Women Survey (2009) was conducted with a broad cross-section of the Australian community, with approximately 10,000 people participating. The survey included 16 and 17-year-olds with parental consent, telephone interviews with 2,500 members of the Italian, Greek, Chinese, Vietnamese and Indian communities and face-to-face interviews with 400 Indigenous Australians. The results are compared with an equivalent national survey conducted in 1995 to examine changes in attitudes over time. The Survey Report is available online at: http://www.vichealth.vic.gov.au/~/media/ ResourceCentre/PublicationsandResources/ NCAS_CommunityAttitudes_report_2010.ashx The National Plan is a 12-year strategy endorsed by the Commonwealth and states and territory governments. The National Plan will be driven by a series of four three-year Action Plans. The four Action Plans have been designed as a series to be implemented over 12 years, each building on the other. The National Plan to Reduce Violence against Women and their Children 2010-2022 is available online at: http://www.fahcsia.gov.au/ sa/women/progserv/violence/nationalplan/ Pages/default.aspx

50.

51.

Davidson, J. & McNamara, L. (1999) Systems that Silence: lifting the lid on psychiatric institutional sexual abuse. In Breckenridge, J. & Laing, L. (Eds) Challenging Silence Innovative Responses to Sexual and Domestic Violence. Allen and Unwin, St Leonards, pp. 86-102. Davidson, J. (1997) Every Boundary Broken Sexual Abuse of Women Patients in Psychiatric Institutions. Women and Mental Health Inc: Rozelle, NSW, Australia.

52.

Keilty, J., & Connelly, G. (2001) Making a statement: An exploratory study of barriers facing women with an intellectual disability when making a statement about sexual assault to police. Disability & Society, Vol. 16, No.2, pp. 273-291.

53.

Goodfellow, J. & Camilleri, M. (2003) Beyond Belief, Beyond Justice: The difficulties for victim/ survivors with disabilities when reporting sexual assault and seeking justice. Final report of Stage One of the Sexual Offences Project. Available online at: http://www.wwda.org.au/viol2001. htm

54.

55.

56.

Cockram, J. (2003) Silent Voices: Women With Disabilities and Family and Domestic Violence. A joint project of People with Disabilities (WA) Inc., the Ethnic Disability Advocacy Centre and the Centre for Social Research, Edith Cowan University, Perth, Australia. Heenan, M., & Murray, S. (2006). Study of reported rapes in Victoria 2000–2003. Summary research report. Melbourne: Statewide Steering Committee to Reduce Sexual Assault. Published by the Office of Women’s Policy, Department for Victorian Communities. OPA is an independent statutory body established by the Victorian State Government. OPA works to protect and promote the interests, rights and dignity of people with a disability. See: http://www.publicadvocate.vic.gov.au

57.

Office of the Public Advocate (2010) Violence against people with cognitive impairments: Report from the Advocacy/Guardianship program at the Office of the Public Advocate, Victoria. Prepared by Janine Dillon. Available online at: http://www.publicadvocate.vic.gov. au/file/file/Research/Reports/Violence_and_ disability_report_August2010.pdf

58.

‘Law failing to protect disabled in state care’; The Age Newspaper, April 24, 2011. Accessed online October 2011 at: http://www.theage.com.au/ victoria/law-failing-to-protect-disabled-instate-care-20110423-1dse1.html

59.

Attard, M., & Price-Kelly, S., (2010) Accommodating Violence: The experience of domestic violence of people with disability living in licensed boarding houses, People with Disability Australia, NSW. Accessed online October 2011 at: http://www.pwd.org. au/documents/pubs/Accommodating%20 Violence%20Report.pdf

60.

Cited in Women With Disabilities Australia (WWDA)(2007b) OpCit.

61.

Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA)(2011) Program Guideline Suite: Part C: Application Information; Community Action Grants, Stream 1 – Community Projects. FaHCSIA, Canberra.

62.

People with Disability Australia (PWD) will receive $147,720 over three years to roll out a domestic abuse and neglect training package for its staff and service providers. Montagu Community Living (Tasmania) will receive $250,000 to deliver its ‘Find A Friend, Keep A Friend’ project supporting women with disabilities.

63.

See: http://www.1800respect.org.au/

64.

Healey, L. et al (2008) OpCit.

65.

Women With Disabilities Australia (WWDA) (2007b) OpCit.

66.

Murray, S. & Powell, A. (2008) OpCit.

67.

Women With Disabilities Australia (WWDA) (2007b) OpCit.

68.

Roeher Institute (1994) Violence and People with Disabilities: A Review of the Literature. Prepared by Miriam Ticoll of the Roeher Institute for the National Clearinghouse on Family Violence, Health Canada, Ontario.

69.

Women With Disabilities Australia (WWDA) (2007b) OpCit.

70.

Office of the Public Advocate [Victoria] (2010) Violence against people with cognitive impairments: Report from the Advocacy/ Guardianship program at the Office of the Public Advocate, Victoria. Prepared by Janine Dillon, OPA, Melbourne.

71.

See, for example: Disabled People’s International (Australia) Women’s Network, ‘Summary of Response to Housing Issues for Women with Disabilities’ in Women’s Network Newsletter for Women with Disabilities, 1992, Issue 1; Ludo McFerran, ‘Consumer driven services: do-ityourself research that puts the consumer back in the picture’ (1996) 11(3) National Housing Action 5–12; Diana Currie, ‘Housing Issues for Women With Disabilities’, National Housing Action, 1996, Vol 11, No 3, pp 20–6.

72.

NSW Ombudsman (2004) Assisting homeless people: the need to improve their access to accommodation and support services: final report arising from an inquiry into access to, and exiting from, the Supported Accommodation Assistance Program, NSW Ombudsman, Sydney.

73.

Dowse, L., Frohmader, C. and Meekosha, H. (2010) Chapter 14: ‘Intersectionality: Disabled Women’. In Easteal, P. (ed) Women and the Law in Australia, Reed International Books Australia.

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

61

ENDNOTES

74.

75.

76.

77.

78.

88.

The Family Law Council is a statutory authority established under section 115 of the Family Law Act 1975 (Family Law Act). Members of the Council are appointed by the Attorney-General in consultation with the Prime Minister and Cabinet.

89.

Commonwealth of Australia (2008) Which Way Home? A new approach to homelessness. A Green Paper on Homelessness prepared by the Commonwealth as a consultation paper. ISBN 9781 921380 976

Family Law Council (2009) Improving responses to family violence in the family law system: An advice on the intersection of family violence and family law issues. Family Violence Committee, Family Law Council, Canberra.

90.

Women With Disabilities Australia (WWDA) (2009) Submission to the National Human Rights Consultation. WWDA, Rosny Park, Tasmania. Available online at: www.wwda.org. au/subs2006.htm

Victorian Health Promotion Foundation (2004) The health costs of violence: Measuring the burden of disease caused by intimate partner violence - A summary of findings. Department of Human Services, Melbourne.

91.

Ibid.

92.

Australian Institute of Health and Welfare; Specialist Homelessness Services NMDS 2011; accessed online October 2011 at: http:// meteor.aihw.gov.au/content/index.phtml/ itemId/398238

Australian Institute of Health and Welfare (2011) Aboriginal and Torres Strait Islander people with disability: wellbeing, participation and support; IHW 45. Canberra: AIHW.

93.

Commonwealth of Australia (2008) The Road Home: Homelessness White Paper. Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA). Accessed online October 2011 at: http://www.fahcsia.gov.au/sa/ housing/progserv/homelessness/whitepaper/ Documents/default.htm

Australian Bureau of Statistics (ABS) (2010) The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander People: Prevalence of Disability. 4704.0. Accessed online October 2011 at: http://www.abs.gov.au/AUSSTATS/[email protected]/ lookup/4704.0Chapter510Oct+2010#CWNIP

94.

The nature of violence from an Indigenous perspective is impacted by numerous systemic factors including dispossession from land and traditional culture, breakdown of community kinship systems, racism and vilification, entrenched poverty, overcrowding and inadequate housing, child removal policies and the loss of traditional Aboriginal female roles, male roles and status. See: Family Law Council (2009) OpCit.

95.

Family Law Council (2009) OpCit.

96.

Commonwealth of Australia (2009) The Cost of Violence against Women and their Children. The National Council to Reduce Violence against Women and their Children; Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), Canberra.

97.

Ibid.

98.

Munro, I. (2003) ‘Monster’ who raped and beat colleague jailed for 16 years. The Age, November 7, 2003. Accessed online at: http://www.theage. com.au/articles/2003/11/06/1068013329595. html?from=storyrhs

99.

Supreme Court of Victoria (2003) R v Empey [2003] VSC 422 (6 November 2003). Available online at: http://www.austlii.edu.au/au/cases/ vic/VSC/2003/422.html

79.

See: http://www.abs.gov.au/ausstats/[email protected]/ mf/4430.0

80.

See: http://www.abs.gov.au/census

81.

See: http://www.abs.gov.au/ausstats/[email protected]/ mf/4159.0

82.

Women With Disabilities Australia (WWDA) (2007b) OpCit.

83.

Cited in: Commonwealth of Australia (2009) Background Paper to Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children. Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), Canberra.

84.

Cockram, J. (2003) OpCit.

85.

Hickman, S. cited in Erwin, P. (2000) Intimate and caregiver violence against women with disabilities. Minneapolis: Battered Women’s Justice Project-Criminal Justice Office, Minneapolis.

86.

87.

62

Chung, D., Kennedy, R., O’Brien, B., & Wendt, S. (2001) The Impact of Domestic and Family Violence on Women and Homelessness: Findings from a national research project. In Out of the Fire: Domestic Violence and Homelessness. A joint publication of the NSW Women’s Refuge Resource Centre, the Domestic Violence and Incest Resource Centre and the Council to Homeless Persons. pp. 2124.

WOMEN WITH DISABILITIES AUSTRALIA

Commonwealth of Australia (2004) Forgotten Australians: a report on Australians who experienced institutional or out-of-home care as children. Report from the Australian Senate Community Affairs References Committee Inquiry. Parliament House, Canberra. Commonwealth of Australia (2004) Ibid.

100. Australian Bureau of Statistics (2006) 2006 Personal Safety, Australia (Re-issue) Cat. No. 4906.0. 101.

Commonwealth of Australia (2009) Domestic Violence laws in Australia. The National Council to Reduce Violence against Women and their Children; Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), Canberra.

ENDNOTES

102. Excerpts taken from: Family Law Council (2009) Improving responses to family violence in the family law system: An advice on the intersection of family violence and family law issues. Family Violence Committee, Family Law Council, Canberra.

110.

103. Tasmanian Government (2003) ’Safe at Home: A Criminal Justice Framework for Responding to Family Violence in Tasmania’. Options Paper. Office of the Secretary of the Department of Justice and Industrial Relations (DJIR). Hobart, Tasmania. 104. Women With Disabilities Australia (WWDA) (2004) Submission to the South Australian Government’s Discussion Paper: “Valuing South Australia’s Women: Towards A Women’s Safety Strategy For South Australia”. WWDA, Tasmania, Australia. 105. The DDA prohibits discrimination in a range of areas including employment, education, the provision of goods, services and facilities, and access to premises. This Act also makes harassment on the basis of disability illegal and protects friends, relatives and other associates from discrimination because of their connection to someone with a disability. 106. Productivity Commission (2004) Review of the Disability Discrimination Act 1992, Report no. 30, Melbourne. 107.

A Review of the DDA undertaken by the Productivity Commission in 2004, found that the DDA had been more effective for people with physical disabilities and sight or hearing impairments than it had been for people with other disabilities (such as intellectual disability and mental illness). The DDA had been of limited effect for people with multiple disabilities, people living in institutions, as well as for indigenous Australians, people from Non-English speaking backgrounds, and those living in rural areas. The Review also found that in relation to reducing discrimination, the DDA had been essentially ineffective in the area of employment and of only limited effectiveness in improving access to premises. Access to public transport and education were the areas where the DDA was found to have been ‘reasonably effective’ in its eleven years of operation at the time of the Review.

108. Women With Disabilities Australia (WWDA) (2009) Submission to the National Human Rights Consultation. WWDA, Rosny Park, Tasmania. Available online at: www.wwda.org. au/subs2006.htm

111.

112.

New South Wales (NSW) Guardianship Tribunal (NSW Guardianship Act 1987); Australian Capital Territory (ACT) Civil and Administrative Tribunal (Guardianship and Management of Property Act 1991); Northern Territory Office of Adult Guardianship (Adult Guardianship Act); Queensland Civil and Administrative tribunal (Guardianship and Administration Act 2000); Guardianship Board of South Australia (Guardianship and Administration Act 2003); Tasmanian Guardianship and Administration Board (Guardianship and Administration Act 1995); Victorian Civil and Administrative Tribunal (VCAT) (Guardianship and Administration Act 1986); Western Australian State Administrative Tribunal (SAT) (Guardianship and Administration Act 1990). See for example: About the South Australian Office of the Public Advocate. Accessed October 2011 at: http://www.opa.sa.gov.au/cgibin/wf.pl?pid=&mode=show&folder=../html/ documents//01_About&file=19-What_is_the_ Office_of_the_Public_Advocate.html Haxton, N. (2011) More protection needed to prevent abuse of the disabled. ABC PM, July 5, 2011. Accessed online October 2011 at:http:// www.abc.net.au/pm/content/2011/s3261847. htm

113.

Tomazin, F. (2011) Law failing to protect disabled in state care. The Age, April 24, 2011; Accessed online October 2011 at: http://www.theage. com.au/victoria/law-failing-to-protectdisabled-in-state-care-20110423-1dse1.html

114.

VCAT was created on 1 July 1998 and amalgamated 15 boards and tribunals to offer a one stop shop dealing with a range of disputes, providing Victorians with access to a civil justice system which is modern, accessible, efficient and cost effective. VCAT deals with disputes about: purchase and supply of goods; discrimination; domestic building works; guardianship and administration; disability services, health and privacy, mental health; legal profession services; owners corporations; residential tenancies; retail tenancies. For more information see: http://www.vcat.vic.gov.au

115.

Ibid.

116.

Ibid.

117.

In Western Australia, Victoria, the Australian Capital Territory and the Northern Territory, the Family Court of Australia and the Federal Magistrates Court have exclusive jurisdiction to decide on sterilisation matters. New South Wales, South Australia, Queensland and Tasmania have conferred concurrent jurisdiction in relation to sterilisation decisions on their respective guardianship tribunals and boards.

109. Discovering Australian Guardianship Law. See: http://www.austguardianshiplaw.org/ 118.

Standing Committee of Attorneys-General (SCAG) (2004) Issues Paper on the NonTherapeutic Sterilisation of Minors with a Decision-Making Disability. Available online at: www.wwda.org.au/scagpap1.htm

119.

In: Women With Disabilities Australia (WWDA) (2011) ‘Submission to the United Nations Special Rapporteurs regarding forced sterilisation in Australia’. Available online at: http://www.wwda. org.au/WWDA_Submission_SR2011.doc (Word version) or http://www.wwda.org.au/WWDA_ Submission_SR2011.pdf (PDF version).

120. Ibid. 121.

Ibid.

122.

WWDA’s Submission was sent to Mr. Shuaib Chalklen (Special Rapporteur on Disability); Mr. Anand Grover (Special Rapporteur on the Right to the Highest Attainable Standard of Physical and Mental Health); Ms. Rashida Manjoo (Special Rapporteur on Violence against Women); and Mr. Juan E Méndez (Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).

123.

Committee on the Elimination of Discrimination against Women (2010) Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia. CEDAW Forty-sixth session, 12 – 30 July 2010. CEDAW/C/AUS/CO/7. See: http://www2.ohchr. org/english/bodies/cedaw/cedaws46.htm

124.

In considering Australia’s report under Article 44 of the CRC (Fortieth Session), the Committee on the Rights of the Child encouraged Australia to: ‘prohibit the sterilisation of children, with or without disabilities’. United Nations Committee on the Rights of the Child, Fortieth Session, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Australia, CRC/C/15/ Add.268, 20 October 2005, paras 45, 46 (e).

125.

UN General Assembly Human Rights Council (2011) Draft report of the Working Group on the Universal Periodic Review: Australia, 31 January 2011, A/HRC/WG.6/10/L. 8 [para. 86.39]. The final document will be issued under the symbol A/HRC/17/10.

126. Women With Disabilities Australia (WWDA), Human Rights Watch (HRW), Open Society Foundations, & International Disability Alliance (IDA)(2011) Sterilization of Women and Girls with Disabilities: A Briefing Paper (November). Available online at: http://www.wwda.org. au/Sterilization_Disability_Briefing_Paper_ October2011.doc (Word version) or http://www. wwda.org.au/Sterilization_Disability_Briefing_ Paper_October2011.pdf (PDF version). 127.

For more information about the Global Campaign to Stop Torture in Health Care, go to: http://www.stoptortureinhealthcare.org/

128. Personal communication to WWDA, November 25, 2011. 129.

Dowse, L. and Frohmader, C. (2001) Moving Forward: Sterilisation and Reproductive Health of Women and Girls with Disabilities. Published by Women With Disabilities Australia (WWDA), Tasmania, Australia.

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

63

ENDNOTES

130. Women With Disabilities Australia (WWDA) (2009) Submission to the National Human Rights Consultation. WWDA, Rosny Park, Tasmania. Available online at: www.wwda.org. au/subs2006.htm 131.

Carlson, G., & Wilson, J. (1996). Menstrual management and Women who have Intellectual Disabilities: Service Providers and DecisionMaking. Journal Intellectual Developmental Disability (21), pp. 39-57.

132.

Dowse, L. and Frohmader, C. (2001) OpCit.

133.

Office of the Public Advocate (2010) Submission to the Victorian Law Reform Commission in Response to the Guardianship Information Paper. Accessed online October 2011 at: http:// www.publicadvocate.vic.gov.au/file/file/ Research/Submissions/2010/OPA-Submissionto-VLRC-May-2010.pdf

134.

135.

French, P., Dardel, J. & Price-Kelly, S. (2010) Rights Denied: Towards a National Policy Agenda About Abuse, Neglect & Exploitation of Persons with Cognitive Impairment. People With Disability Australia (PWD), Sydney, NSW. Office of the Public Advocate (2010) Supervised Treatment Orders in Practice: How are the Human Rights of People Detained under the Disability Act 2006 Protected? Accessed online October 2011 at: http://www.publicadvocate. vic.gov.au/file/file/Research/Reports/STOs%20 in%20Practice,%20How%20are%20the%20 HRs%20of%20People%20Detained%20 under%20the%20Disability%20Act%202006%20 Protected.pdf

136. Chemical restraint occurs when medication that is sedative in effect is prescribed and dispensed to control the person’s behaviour rather than provide treatment. See in: National Mental Health Consumer & Carer Forum (2009) Ending Seclusion and Restraint in Australian Mental Health Services. www.nmhccf.org.au 137.

Mechanical restraint is understood as the use of any device to prevent, restrict or subdue movement of a person’s body for the primary purpose of behavioural control. See for eg: McVilly, K. (2008). Physical restraint in disability services: current practices; contemporary concerns and future directions. A report commissioned by the Office of the Senior Practitioner, Department of Human Services, Victoria, Australia.

138. Physical restraint is defined as the sustained or prolonged use of any part of a person’s body to prevent, restrict, or subdue movement of the body or part of a body of another person. See for eg: McVilly, K. (2008) OpCit. 139.

64

WOMEN WITH DISABILITIES AUSTRALIA

Social restraint is recognized to include the use of verbal interactions and/or threats of social or other tangible sanctions, which rely on eliciting fear to moderate a person’s behavior. See for eg: McVilly, K. (2008) OpCit.

140. In Australia the definition of seclusion is both legislated and policy driven. Seclusion can be understood as ‘the confinement of a person alone at any hour of the day or night in a room, the door(s) and window(s) of which cannot be opened by the person from the inside; or the confinement of a person alone at any hour of the day or night in a room in which the door(s) or window(s) are locked from the outside or their opening is prevented by any other means, such as a person holding the door shut; or where exit from a place is prevented by the presence of another person. 141.

Cited in McVilly, K. (2008). OpCit.

142. Ibid. 143.

Ibid.

144. The Australian Psychological Society (APS) is the largest professional association for psychologists in Australia, representing over 20,000 members. See: http://www.psychology.org.au 145.

Australian Psychological Society (May 2011) Psychologists call for prompt end to restrictive practices in disability sector. Media Release; May 2011.

146. Department of Human Services (2008) Positive Solutions in Practice: Chemical Restraint: What every Disability Support Worker needs to know. Office of the Senior Practitioner, Melbourne. 147.

Sailas EES, Fenton M. (2000) Seclusion and restraint for people with serious mental illnesses. Cochrane Database of Systematic Reviews 2000, Issue 1. Art. No.: CD001163. DOI: 10.1002/14651858.CD001163.

148. National Mental Health Consumer & Carer Forum (2009) OpCit. 149.

See for eg: Australian Broadcasting Corporation (ABC TV) (17/05/2011) ‘Hidden shame‘; 7.30 Report. Accessed online October 2011 at: http:// www.abc.net.au/7.30/content/2011/s3219518. htm

150. Martin, L. (March 11, 2010) ‘Outrage over Seven Hills West Public School putting autistic children in cage’; Accessed online October 2011 at: http://www.news.com.au/national/ outrage-over-seven-hills-west-publicschool-putting-autistic-kids-in-cage/storye6frfkvr-1225839691640 151.

Brown, D. (2010) ‘Autistic kids ‘caged’ at school.’ The Mercury Newspaper, September 13, 2010. Accessed: http://www.themercury.com.au/ article/2010/09/13/172495_tasmania-news. html

152.

Bottom, B. (2003) The man who wasn’t there. The Bulletin, December 3, 2003.

153.

Dibben, K. (2011) ‘Blue card denied to abusive carer.’ The Sunday Mail (Qld) March 27, 2011. Accessed online October 2011 at: http://www.couriermail.com.au/news/ blue-card-denied-to-abusive-carer/storye6freomx-1226028747166

ENDNOTES

154.

Flatley, C. (2009) ‘Carer guilty of assaulting disabled kids.’ The Age Newspaper, September 4, 2009. Accessed online at: http://news.theage. com.au/breaking-news-national/carer-guiltyof-assaulting-disabled-kids-20090904-fawd. html

155.

Wenham, M. (2006) ‘Abused can access $1m fund.’ The Courier Mail. November 8, 2006. http://www.couriermail.com.au/news/ queensland/abused-can-access-1m-fund/ story-e6freoof-1111112491139

156.

157.

For a detailed analysis of forced psychiatric interventions and practices, see the Center for the Human Rights of Users and Survivors of Psychiatry (CHRUSP) at: http://www.chrusp.org Fitzgerald, P. (2011) ‘It’s time to move on from ECT’s shocking past.’ The Conversation; 29 September 2011; Accessed online October2011 at: http://theconversation.edu.au/its-time-tomove-on-from-ects-shocking-past-3312

158. Baker, R. & McKenzie, N. (2011) Mental health care inquiry. The Age, Accessed online October 2011 at: http://www.theage.com.au/victoria/ mental-health-care-inquiry-20110905-1juiy. html 159.

Queensland Government (2010) Mental Health Review Tribunal Annual Report 2009-10. Accessed October 2011 at: http://www.mhrt. qld.gov.au/wp-content/uploads/2010/12/mhrtannual-Report-2009-10.pdf

160. NSW Mental Health Review Tribunal (2010) Annual Report of the Mental Health Review Tribunal. Accessed online October 2011 at: http://www.mhrt.nsw.gov.au/mhrt/pdf/ Annualreport200910.pdf 161.

Baker, R. & McKenzie, N. (2011) OpCit.

169. The National Disability Strategy (NDS) outlines a 10-year national policy framework to guide government activity across six key outcome areas and to drive future reforms in mainstream and specialist disability service systems to improve outcomes for people with disability, their families and carers. See: Council of Australian Governments (2010) 2010–2020 National Disability Strategy. Available online at: http://www.facs.gov.au/sa/disability/progserv/ govtint/Pages/nds.aspx 170.

171.

National Disability Strategy (NDS) at p.14.

172.

The Sex Discrimination Commissioner leads the work of the Australian Human Rights Commission to address gender-based discrimination, sexual harassment and other barriers to gender equality in Australia. See: www.hreoc.gov.au/sex_discrimination/index. html

The Age Newspaper; Silence hides shameful neglect of mentally ill; September 5, 2011; Accessed online October 2011 at: http://www. theage.com.au/opinion/editorial/silence-hidesshameful-neglect-of-mentally-ill-201109041js7t.html

167.

183. Ibid. 184. WWILD works with women with intellectual and learning disabilities who have experienced or at risk of experiencing sexual violence or have become a victim of crime. WWILD runs two main programs: The Sexual Violence Prevention Program provides support to women with intellectual and learning disabilities aged over 15 who have experienced or are at risk of experiencing sexual violence. The Victims of Crime Disability Training Program provides support to people with learning and intellectual disabilities who are a victim of crime and the professionals seeking to support them. See: http://www.wwild.org

Ibid.

175.

The Disability Services Act (1986) provides a legislative and funding framework for a range of disability services. See: http://www.austlii.edu. au/au/legis/cth/consol_act/dsa1986213/

185. DVRCV is a Registered Training Organisation and a major provider of accredited training and professional development programs for family violence workers and other professionals in Victoria. See: http://www.dvrcv.org.au

176.

Meltzer, A., Muir, K. & Dinning, B. (2010) Report on the consultation data for the revision of the National Standards for Disability Services. Victorian Department of Human Services, Disability Services Division.

186. People with Disability Australia Incorporated (PWD) is a national peak disability rights and advocacy organisation. See: http://www.pwd. org.au

177.

The Disability Services Standards and are currently being reviewed as part of the development of a National Quality Framework for Disability Services in Australia. This work however, is not yet complete. More information on the National quality framework for disability services in Australia, is available from the Victorian Department of Human Services website at: http://www.dhs.vic.gov.au/forservice-providers/disability/service-qualityand-improvement/national-quality-frameworkfor-disability-services-in-australia

178.

A national consultation undertaken in 2010 as part of the review of the National Disability Standards, found that over 80% of people with a disabilities, families/carers and service providers identified the concepts of ‘freedom from abuse’ and ‘rights and human rights’ as missing from the National Standards, and wanted it included in any new national Standards developed. See: Meltzer, A., Muir, K. & Dinning, B. (2010) OpCit.

179.

Department of Families, Housing, Community Services & Indigenous Affairs (FaHCSIA) (2011) Disability Services Standards Self-Assessment Guide; National Disability Advocacy Program. FaHCSIA, Canberra.

Ibid.

168. See: UN Secretary General’s Database on Violence Against Women; accessed online October 2011 at: http://webapps01.un.org/ vawdatabase/searchDetail.action?measureId=5 0830&baseHREF=country&baseHREFId=157

182. Personal communication between WWDA and 1800 RESPECT co-ordinator, November 27 2011.

174.

Ibid.

166. Bourke, E. (2010) Female circumcision happening in Australia. ABC News, February 06, 2010. Accessed online October 2011 at: http:// www.abc.net.au/news/2010-02-06/femalecircumcision-happening-in-australia/2594496

1800RESPECT (1800737732) is the Australian Government’s National Sexual Assault, Domestic Family Violence Counselling Service for people living in Australia. See: http://www.1800respect. org.au

The Blueprint sets out key reforms and recommendations in five priority areas which significantly affect both the public and private lives of women and men in Australia. See: Broderick, E. (2010) Gender Equality Blueprint 2010. Australian Human Rights Commission, Sydney.

164. Cited in: Mathews, B. (2011) Female genital mutilation: Australian law, policy and practical challenges for doctors. Medical Journal of Australia, 194(3), pp. 139-141. 165.

181.

173.

162. Ibid. 163.

See the National Disability Strategy (NDS) under Outcome Area 2: ‘Rights protection, justice and legislation’.

180. KPMG (2008) ‘Review of Tasmanian Disability Services: Summary Report’; Department of Health and Human Services Tasmania. Accessed on line October 2011 at: http://www.dhhs.tas. gov.au/__data/assets/pdf_file/0006/60927/ Review_of_Disability_Services-Summary_ Report.pdf

187.

People with Disability Australia Incorporated (PWD) Training Services; See: http://www.pwd. org.au/training.html

188. Bleasdale, M. (2011) cited in ‘Community organisations to reduce violence against women with disabilities’; Joint Media Release Hon Kate Ellis & Hon Tanya Plibersek; 24 October 2011. Accessed online November 2011 at: http://www.kateellis.fahcsia.gov.au/ mediareleases/2011/pages/ellis_m_reduced_ violence_24october2011.aspx 189. This training covers a number of issues relating to sexuality and relationships, violence, abuse and neglect and the rights of people with disability. The training is delivered separately to men and women living in boarding houses in recognition of the higher incidence of violence that many of the women participating will have experienced, as well as the sensitivity of some of the subject matter. The training is also delivered to staff who support people with disability living in boarding houses.

SUBMISSION TO THE UN ANALYTICAL STUDY ON VIOLENCE AGAINST WOMEN WITH DISABILITIES DEC2011

65

ENDNOTES

190. Women’s Centre for Health Matters (2011) Disability Awareness Training for Domestic Violence/Crisis Services. Accessed online November 2011 at: http://www.wchm.org.au/ Prevention-Of-Violence-Against-Women

203. See for example: International Day of People With Disabilities (http://www.idpwd.com. au); Prime Ministers National Disability Awards (http://www.idpwd.com.au/awards); Ramp Up (http://www.abc.net.au/rampup)

191.

204. Women With Disabilities Australia (WWDA) and Women With Disabilities Victoria (WDV)(2011) Joint Submission in Response to the Productivity Commission’s Disability Care and Support Draft Report. Available online at: http://www.wwda. org.au/subs2011.htm

See: Royal Women’s Hospital Melbourne: Family and Reproductive Rights Education Program (FARREP) at: http://www.thewomens.org.au/Fa milyandReproductiveRightsEducationProgram FARREP

192. Women With Disabilities Australia (WWDA)(2009) Submission to Inform the Development of the Framework for the National Women’s Health Policy. Available online at: http://www.wwda. org.au/subs2006.htm 193.

UN Committee on the Elimination of Discrimination against Women (CEDAW) (2010) Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia, 30 July 2010, CEDAW/C/ AUS/CO/7.

194. Council of Europe (1997) Final Report of Activities of the EG-S-Vl including a Plan of Action for combating violence against women. Group of Specialists for Combating Violence Against Women (EG-S-Vl). 195.

United Nations General Assembly (2006) Indepth study on all forms of violence against women. Report of the Secretary-General. A/61/122/Add.1.

205. Ibid. 206. See for eg: Curry, M. et al (2001) Abuse of women with disabilities: An ecological model and review. Violence Against Women, Vol. 7, No. 1. 207. See for eg: Carlson, B. (1997) Mental retardation and domestic violence: An ecological approach to intervention. Social Work, Vol.42, No.1. 208. See for eg: Crawford, D. & Ostrove, J. (2003) Representations of Disability and the Interpersonal Relationships of Women with Disabilities. Women & Therapy, Vol. 26, No.3/4. 209. See for eg: Chang, J. et al (2003) Helping Women with Disabilities and Domestic Violence: Strategies, Limitations and Challenges of Domestic Violence Programs and Services. Journal of Women’s Health, Vol.12, No.7.

196. Women With Disabilities Australia (WWDA) (2007b) OpCit.

210. See for eg: Calderbank, R. (2000) Abuse and Disabled People: vulnerability or social indifference? Disability & Society, Vol.15, No.3.

197.

211.

Women With Disabilities Australia (WWDA) (2007b) Op Cit.

212.

UN General Assembly (2000) Further actions and initiatives to implement the Beijing Declaration and Platform for Action. Resolution adopted by the General Assembly: S-23/3.A/ RES/S-23/3 [para.27].

213.

Women With Disabilities Australia (WWDA)(2009) OpCit.

214.

See for eg: International Covenant on Economic, Social and Cultural Rights (Article 10); International Covenant on Civil and Political Rights (Article 23); Convention on the Elimination of All Forms of Discrimination against Women (Article 16); Convention on the Rights of Persons with Disabilities (Article 23).

215.

Women With Disabilities Australia: ‘Parenting Issues for Women with Disabilities in Australia’ - A Policy Paper (May 2009). Available at: www. wwda.org.au/motherhd2006.htm

Women With Disabilities Australia (WWDA) (2008) Policy Paper: ‘The Role of Advocacy in Advancing the Human Rights of Women with Disabilities in Australia’. Available online at: http://www.wwda.org.au/subs2006.htm

198. See: Women With Disabilities Victoria (WDV) at: http://www.wdv.org.au/ 199. Arnade, S. & Haefner, S. (2006) Gendering the Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. Legal background paper. Published by Disabled Peoples´ International (DPI), Berlin. 200. Gray, G. (2010 draft) By Women for Women, the Australian women’s health movement and public policy. (forthcoming). 201. UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 16: The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights (Art. 3 of the Covenant), 11 August 2005, E/C.12/2005/4, available at: http://www.unhcr. org/refworld/docid/43f3067ae.html [accessed 27 June 2010] 202. Duncan, B. & Berman-Bieler, R. (Eds.) (1998) ‘International Leadership Forum for Women With Disabilities Final Report’; Published by Rehabilitation International; New York, USA.

216. Ibid. 217.

218. Dowse, L. & Frohmader, C. (2001) Moving Forward: Sterilisation and Reproductive Health of Women and Girls with Disabilities, A Report on the National Project conducted by Women with Disabilities Australia (WWDA), Canberra. 219.

66

WOMEN WITH DISABILITIES AUSTRALIA

Ibid.

For links to each State and Territory Family Planning & Sexual Health organisation, go to: http://www.shfpa.org.au/

ENDNOTES

220. See for example: Family Planning NSW Education & Training: http://fpnsw.org.au/ topic_education.html?ID=49&TYPE=QUEUE&K EYWORD=&AUDIENCE=4469736162696C6974 7920576F726B657273&COURSES=&BYDSND=I CONV.POSTED 221.

For example, Family Planning Tasmania has one part time worker in its southern region (servicing a population of more than 200,000 people) to undertake both individual ‘casework’ and all education and training of people with disabilities and as well as those who care for and work with them.

222. SoSAFE! uses a standardised framework of symbols, visual teaching tools and concepts to teach strategies for moving into intimate relationships in a safe and measured manner, and provides visual communication tools for reporting physical or sexual abuse. For more information go to: http://www.shfpact.org.au/ index.php?option=com_content&view=article& id=141&Itemid=128 223. Sexual Health & Family Planning ACT (SHFPACT) is a not-for-profit, non-government, membership-based organisation. Its purpose is improved sexual and reproductive health for the Canberra community, within a framework of feminist social values. See: http://www.shfpact. org.au 224. Sexual Health & Family Planning ACT (SHFPACT) Schools Disability Program, See: http://www. shfpact.org.au/index.php?option=com_content &view=article&id=39&Itemid=80 225. SECCA is a non-profit organization designed to support people with disabilities, in their efforts to learn about human relationships, sexuality and sexual health across the lifespan; as well as helping them to develop skills that will empower them to make informed choices, while acknowledging their own individual capacity to enhance the quality of their lives. See: http:// secca.org.au/ 226. A copy of Australia’s Human Rights Framework is available in PDF and Word formats at: http:// www.ag.gov.au/humanrightsframework 227.

Australian Government, Attorney-General’s Department; Australia’s Human Rights Framework, see: http://www