Involvement of the relevant communities. 6.13 There is clearly a need to work in cooperation with the vulnerable communities which are going to be directly affected by government policy in this area. A number of respondents stressed this. For example:
We believe the ethnic community must be enlisted to develop the education campaigns and disseminate the information in an acceptable format out into the migrant community. [Women’s Electoral Lobby (NSW)] ...it is apparent that State/Territory based inter-agency working groups need to be established to cooperate with the communities concerned, to develop an education and information strategy for health, welfare, education and legal professionals who may encounter cases of [female genital mutilation] in their work and those specific groups who may practise [female genital mutilation]. [SA Children’s Interests Bureau] We believe there should be endorsement of the work of existing groups...Careful attention should be given to who the educators should be. [Women’s Electoral Lobby (NSW)]
Funds for education. 6.14 A number of submissions stressed the need for adequate funding to be provided to ensure that proper education is carried out. The ACT Women’s Health Network Inc. put the matter in the following terms:
[W]e would like you to stress in your final report that the Australian community must ensure that adequate funds are provided by the Health and/or Community Services portfolios for the required community education campaigns.
Recommendation 1 Education 6.15 Council agrees that education must be a first priority in any program for the elimination of female genital mutilation. To this end it recommends that: (a) A national communication and education program on female genital mutilation be developed by the Commonwealth Department of Human Services and Health, in consultation with the States and Territories and the relevant communities, and that the campaign be integrated with Australia’s health advancement and child value and protection agendas; (b) The education program’s primary focus be on members of vulnerable communities coming from countries where female genital mutilation is practised and that wherever possible these education programs should be conducted by members of the communities themselves with the assistance of others, such as health workers; (c) It is essential that vulnerable communities be involved in planning, as well as delivering education programs, and that adequate funds be provided for education. (d) Other target groups for education include child protection workers, care providers (including doctors, midwives, nurses, educators, child and ethnic care workers, social workers and community workers), police and the Courts and legal profession. (e) The Commonwealth Department of Immigration and Ethnic Affairs cooperate in the development and delivery of an effective information program for newly arrived migrants from countries which practice female genital mutilation ; and (f) The Commonwealth Government provide adequate funds for community education.
The role of legislation 6.16 Will education alone result in the elimination of female genital mutilation? Others seem to suggest that the problem can be eradicated by education alone and that legislation tends to be counter productive in such situations. For example, in a recent article a Melbourne gynaecologist is reported as saying:
The best way to stop the practices continuing among migrants is through education, not laws. She believes legislation may alienate the women involved and make them fearful of approaching doctors in case they are accused of child abuse...” We must change their attitude through education - it won’t take more than one generation” she said...60 6.17 The best interests of children. Adult members of the vulnerable communities, especially those who are already working for the elimination of the practice, have made a plea that education be the first priority. The adult members of the relevant communities concerned have to be convinced that this practice is not acceptable in Australia. They have also made it clear that strong legislation, on its own, could be counter productive.
6.18 There is a concern, however, that adults are working out with adults what is best for adults. Does an emphasis on the adult sensitivities involved operate against the best interests of children who may be genitally mutilated while adults are sensitively convinced of the need to stop this practice? Just as warnings have been sounded against an undue emphasis on legislation, is there a need to be cautious about too little emphasis on legislation?
6.19 Who is speaking for the children concerned? The children being mutilated are not being consulted and it is therefore necessary to ask: Where do their best interests lie? Australia is bound by the Convention on the Rights of the Child to “take effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children”. Additionally it is well established in Commonwealth family law that the best interests of the child are the paramount consideration; paramount, that is, over the interests of the parents.
6.20 Sensitive assistance to the relevant communities concerned through a properly funded and well prepared and delivered education program is essential in the interests of the adults involved. However, in the interests of children this must, in Council’s view, go hand in hand with strong laws which are backed up, when necessary, by strong action. Anything less does not give paramount consideration to the best interests of the children concerned.
6.21 Council is not convinced that education alone will eliminate this practice for the following reasons:
• Education has been operating in a number of countries for some time and to date there is no evidence that education alone is achieving significant changes in attitude. Equally, legislation has existed and has not succeeded in eradicating the practice.
• The aim of education is to change attitudes by raising awareness about the issue. It is a fact of life that not all people’s attitudes will be changed by education alone.
• A major thrust of education programs is to convince people that female genital mutilation is a dangerous practice on health grounds. It is evident that some members of the communities do not accept that all types of female genital mutilation are dangerous.
• Education can lead to friction between family members (for example, between mothers and daughters). This, in turn, can lead to antagonism against the education program in parts of the communities concerned and has already been the cause of some people withdrawing from those programs.
• Education programs are not compulsory and do not, therefore, provide a guarantee that all sections of all of the communities involved will be reached.
6.22 Council’s conclusion. Council has concluded that legislation is necessary because education alone will not result in the elimination of female genital mutilation, at least in an acceptable time frame.
The purpose of legislation. 6.23 The objections of those who oppose legislation are based on the following:
• The existing criminal laws are adequate to cope with the practice;
• Legislation will drive the practice underground;
• Legislation will make people afraid to go to doctors; and
• Special legislation is not warranted when the incidence of the practice is low.
6.24 The comments opposing legislation included the following:
Drive underground. ...rushing legislation through may cause more harm and conflict as it may alienate the communities involved, particularly the women, and make them fearful of seeking any medical treatment or intervention in the event that they may be accused of child abuse. [Working Group on Female Circumcision] Legislation not warranted where practice is minimal. The enactment of special legislation to cover a practice involving a minute proportion of the population places the practice rather sensationally in the criminal sphere. It is also unlikely to assist in eliminating the practice. [Tasmanian Council of Social Service Inc] 6.25 In its submission the Eritrean Community in Australia (ECA) concludes:
...the ECA is of the firm view that it will be education rather than legislation which will eradicate female genital mutilation. However, the submission goes on to add:
...the two strategies are not mutually exclusive, in fact the two strategies could complement each other if implemented appropriately. It is the ECA’s position that the community education aspect requires the greater emphasis. Council supports these statements.
6.26 The Family Law Council considers that full and clear legal support should be available for those within the affected communities who wish to oppose the practice. Council is of the view that the law and education are both essential tools in the eradication of female genital mutilation in this country - the law for the protection and support it offers to the women and children who want to resist the practice and education because people need to be informed of the law relating to the practice, the dangers of the practice and the support and assistance available to them.
6.27 In Council’s view education without the law favours those who wish to continue the practice over those who wish to resist it. If there is no law there is no real deterrent against those who want the practice to continue.
Are existing laws otherwise adequate? 6.28 Some respondents to Council’s discussion paper considered that existing laws were adequate to cope with female genital mutilation. For example:
[National Council of Women of Victoria] is of the opinion that there are adequate laws in Australia. These should deter anyone from causing [female genital mutilation] to be performed... Priority and resources would be better placed in providing information and training health workers who come into contact with families where [female genital mutilation] has occurred, to ensure that they deal with the family in an informed and sensitive manner. [Islamic Society of Victoria] IIt would seem there are laws in force which cover occasions of physical, mental and/or sexual abuse of children, as well as assault. If these laws are adequate then is there any logical reason to legislate against this particular practice definitively? [Independent Islamic Sisterhood] 6.29 It has been suggested by the Australian Law Reform Commission that female genital mutilation would constitute an “assault” under statute law.61 In Australia, laws dealing with offences against the person largely fall within the domain of the State and Territory Governments.
6.30 A number of States are known to be looking into the issue of female genital mutilation at the present time. Council was advised by the NSW Attorney-General’s Department that the Attorney-General recently announced a legislative proposal to make the practice of female genital mutilation a criminal offence by amendment to the (NSW) Crimes Act 1900. The South Australian Minister for Family and Community Services advised Council in his submission that his State “will as a matter of urgency, examine the range of options, including State legislation, to eliminate the practice of female genital mutilation”.
6.31 The Queensland Law Reform Commission released a research paper on female genital mutilation in December 1993. The paper indicates that the Commission is considering recommending that specific legislation be introduced. Council notes that in its submission the WA Department of Health suggests that unless legislation applies equally to males and females it “may be viewed as sexually discriminatory”. Council notes the substantial disagreement which exists on the isue of whether male circumcision can be equated with female genital mutilation. However, Council considers that the issue of female genital mutilation should not be compromised or delayed while the debate on this issue is resolved.
6.32 The WA Attorney-General advised Council in her submission that she has raised the question whether this matter should be included on the agenda for the next meeting of the Standing Committee of Attorneys-General, which is due to be held in Brisbane on 8 July 1994.
6.33 The Human Rights Branch of the Attorney-General’s Department wrote to all States and Territories on 1 June 1993 seeking information on “the adequacy of existing State and Territory laws to deal with [female genital mutilation]”. In general, the States and Territories said that their existing criminal laws on assault would be adequate to cover any instance of female genital mutilation. Relevant State and Territorial criminal laws are briefly summarised at Appendix B along with some overseas laws of relevance.
6.34 In its discussion paper, Council said that without better knowledge of the incidence of female genital mutilation, it is difficult to conclude that existing mechanisms are adequate to deal with the problem. One submission made the following comment:
I am doubtful about the conclusion expressed here. The adequacy of the law has never been tested, because as far as I know there has never been any case where a prosecution has been seriously considered. In other words, there is no available evidence of anyone doing it in Australia, which could even be considered to support a prosecution... 6.35 Council, in fact, had in mind existing mechanisms which were available for identifying occurrences of the practice and for bringing matters before the Courts. What Council was suggesting was that if no one had specific responsibility for “policing” the matter in a pro-active way, it is perhaps not surprising that there have been no prosecutions.
6.36 It is assumed by some that child abuse is intentional, whereas female genital mutilation is said to be done with loving intent and so child protection measures are inappropriate. Fear that the child will be removed from her family is widespread in the communities concerned. However, the use of child protection mechanisms does not necessarily mean that the child will be removed from the family. Indeed, the focus of child protection legislation is to ensure the safety of the child and the provision of supports which are considered necessary to ensure the child’s safety.
6.37 Council considered whether there is a need for special legislation to clarify the legal position in relation to female genital mutilation in this country. There are several reasons for special legislation. These are:
• There are some doubts about the adequacy of the existing criminal laws to ensure that female genital mutilation will, in all circumstances, be regarded as “assault” under existing laws;
• There is also what one submission described as “the logical, if not legal, inconsistency in focussing on the practice as ‘assault’ or ‘child abuse’ when it is recognised that the intent of the act is quite dissimilar from that of usual assault or child abuse”. Council points out that its aim is to bring the children concerned within the ambit of the State child protection mechanisms. Having in mind the patriarchal basis for female genital mutilation and the effects discussed in chapter 3 of this report, Council considers that the practice undoubtedly constitutes child abuse;
• Having a clear statement of the law on the issue will be a necessary part of community education about the practice;
• There should be no doubt in any person’s mind that all forms of female genital mutilation are offences under Australian law; and
• It is most important that there be visible laws against the practice of female genital mutilation, both as a deterrent to would-be perpetrators and as a protection and support for women and children who wish to resist the continuation of the practice. Such laws would also assist health workers and others in refusing to take part in such practices.
6.38 A number of respondents to the discussion paper supported the need for special legislation which clarified the law in relation to female genital mutilation. Some of the comments made to Council by individual members of the public were:
Consideration should be given to legislating specifically to ban the practice and to publicise, both within the community, and particularly within the communities where it is likely to be practised, and amongst the medical profession, that the practice is not permitted in any form and that the penalties for those involved in it would be severe. I...make the following recommendation...Specific legislation against non-medical female genital mutilation practices involving minors and unconsenting adults be inserted in the criminal code of all States and Territories in Australia... ...the law should be strengthened with appropriate penalties to eliminate such violence... 6.39 A number of organisations also supported specific legislation being passed. Comments made included the following:
The [NT Women’s Advisory] Council supports your recommendations...that the law should be clarified to make it clear that all forms of female genital mutilation are a crime and that female genital mutilation constitutes child abuse in Australia. It is apparent that if Australia does not take some stand on this matter then families will continue to migrate here without understanding the practice is specifically condemned, and Australia may inadvertently contribute to the continuance of the practice by appearing to provide a legal haven or shelter for the practitioners of this mutilation. [Women Lawyers Against Female Genital Mutilation] The [National Children’s and Youth Law] Centre therefore supports the position of the Family Law Council... ...the law should be clarified to make it clear that female genital mutilation is a crime and constitutes child abuse. [Reproductive Technology Working Group, ACT Women’s Health Network Inc.] The Women’s Electoral Lobby (NSW) fully endorses the Family Law Council’s preliminary conclusion that the law should be clarified to make it clear that female genital mutilation is a crime and that it constitutes child abuse in Australia. 6.40 Council does not agree with the arguments against special legislation and considers that legislation is necessary for the reasons stated in paragraph 6.37 above. While the current legal situation may well be clear to lawyers and judges, it is not clear within the general community and there are those who believe that as there is no specific law against female genital mutilation in Australia, the practice is permitted here. The law needs to be made clear.
6.41 Council’s conclusions.Council considers that because of: (a) doubts about the adequacy of the existing laws, (b) the desirability of having a clear legislative statement on the issue, (c) existing doubt within the general community about the status of the practice in this country, and (d) the need to give the protection and support of the law to women and children who wish to resist the practice within their communities, there should be special legislation which makes it clear that female genital mutilation is an offence in Australia. One member dissented from Council’s conclusion on the basis that she considers introduction of special legislation as not the most effective way of discouraging the practice and takes no account of the historical and cultural context of the practice and the likelihood of its being sent underground. Women in the affected communities are themselves taking action to eradicate the practice. This member sees legislation as a form of cultural imperialism which does not allow the affected communities to take responsibility for the elimination of female genital mutilation.
Section 116 of the Commonwealth Constitution. 6.42 Council has concluded, from the available evidence, that female genital mutilation is not supported by any of the major religions, although there is some evidence that some people who follow the tradition may regard the practice as a religious one. Council is not aware of any sound evidence that ties the practice directly to the teachings of any religion. In the circumstances, on the available evidence, Council does not consider that section 116 of the Commonwealth Constitution needs to be further considered. That provision states:
116. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. 6.43 None of the submissions on the discussion paper opposed Council’s conclusion on this matter, although the Uniting Church in Australia (NSW Synod) made the following observation:
...even were there some religious groups which support the practice, religious freedom is within the framework of law which must be obeyed by all groups in society in order to best preserve the human rights of all. In this case, the basic rights of all women and children not to be mutilated takes precedence over the rights of any particular religious group.
Who should legislate? 6.44 There are two main legislative options. Existing State and Territory laws could be amended to give effect to the proposals set out earlier in this paper. This option would involve amendments to the eight criminal codes and the various State/Territory child protection statutes. The second option would be for the Commonwealth to pass legislation under its external affairs power to meet Australia’s international obligations, especially under Article 24(3) of the Convention on the Rights of the Child, but also under the Convention on the Elimination of All Forms of Discrimination Against Women and other international instruments.
6.45 The State and Territorial Governments have established facilities for reporting and investigating allegations of child abuse and for the general protection of children from abuse. It is important, in Council’s view, that use be made of these existing services and that duplications be avoided. Any legislative proposal, therefore, should make use of the current mechanisms.
6.46 Since Council’s discussion paper was released Council has become aware that the issue of female genital mutilation has been raised in State and Territory legislatures and that in some States legislation on the issue is being considered. There would appear to be a view among Australian Members of Parliament generally that legislation should be passed banning the practice of female genital mutilation in this country.
6.47 Council considers that the Commonwealth Parliament has constitutional power to pass legislation under its external affairs power and for legislation to be effective it should cover those elements contained in recommendation 2 below. Commonwealth legislation could be a model for Australian legislation and, by virtue of section 109 of the Commonwealth Constitution, Commonwealth legislation would provide full protection for all Australians by prevailing over any State legislation which does not provide the protections of the Commonwealth legislation.
6.48 A number of submissions simply endorsed Council’s preliminary conclusions on the question of who should legislate and others did not address the question of whether there should be State or Commonwealth legislation. Those who did make specific comment were divided on the issue. Comments from organisations included the following:
• The Australian Education Union...has requested that the Federal Government take action to outlaw the “circumcision” of females in Australia. • It is imperative these become Federal laws. Legislation not uniform throughout the country would encourage ‘forum shopping’ and cultural enclaves for the worst possible reasons. [Humanist Society of Victoria Inc.] • The [National Children’s and Youth Law] Centre strongly believes that the most efficient method of achieving this is through Commonwealth legislation which would hopefully build on existing State legislation and services. • National legislation should take the form of either (i) Commonwealth legislation implementing international conventions or (ii) model, uniform State/Territory legislation. Consultation is required on the preferable option, particularly with the Standing Committee of Attorneys-General. [Children’s Interests Bureau SA] • Additional legislation merely requires additional bureaucracies, police and our increasingly expensive legal system to enforce the law. [The Islamic Society of Victoria] • The Department [of Community Services NSW] is not opposed to the Commonwealth using its external affairs powers to create legislation to prohibit the practice in order to achieve conformity throughout the States. 6.49 However, Council notes the comments of a number of State Ministers and is also aware that the issue of female genital mutilation was discussed at the Commonwealth and State Health Ministers conference in Perth on 21 March 1994. The official record of the meeting records that:
Ministers affirmed that female genital mutilation is a totally unacceptable practice in Australia and noted that the Family Law Council had issued a discussion paper proposing Federal legislation in this area and has invited submissions by 31 March 1994. Ministers agreed that all States, Territories and the Commonwealth take whatever steps are necessary to put an end to the practice of female genital mutilation. Ministers also endorsed the view that legislation in itself is insufficient to put an end to the practice of female genital mutilation and supported each State and Territory implementing community consultation and education programs. 6.50 The Health and Community Services Ministerial Council subsequently issued a press statement stating that:
“female genital mutilation was totally unacceptable in Australia and agreed that the Commonwealth/State Governments would take whatever steps were necessary to put an end to the practice...” 6.51 In his submission in response to the Family Law Council’s discussion paper, the South Australian Minister for Family and Community Services, the Hon David Wotton MP, said:
Decisions regarding the issue of whether federal legislation should be enacted to make female genital mutilation a criminal offence, is a matter for the Federal government although South Australia has some reservations about this approach. At the Joint Health and Community Services Ministerial Council in Perth, March 21st 1994, it was resolved that the Commonwealth and State/Territory governments would take whatever steps necessary to put an end to this practice. This State strongly supports this resolution and will as a matter of urgency, examine a range of options, including State legislation, to eliminate the practice of female genital mutilation. 6.52 In her submission the WA Attorney-General, the Hon Cheryl Edwardes MLA, said that Commonwealth legislation is not appropriate because “criminal law is a matter within State power and authority”. Mrs Edwardes suggested that the question of uniformity of legislation could be considered by the Standing Committee of Attorneys-General. She also said that existing State law may already be adequate to deal with offences beyond the boundaries of one State:
For example, section 14 of the WA Criminal Code makes it an offence to procure the doing of an act outside Western Australia which if done within Western Australia would be an offence. 6.53 Council considers that special legislation on female genital mutilation is required in Australia and that the Commonwealth Parliament should pass that legislation. The following are the main reasons why Council has reached this conclusion:
• Legislation will be the first step in the educative process.
• Legislation is necessary to meet Australia’s international obligations.
• Australia should be seen to condemn the practice. As the NSW Department of Community Services said in its submission: “failure to condemn the practice will simply perpetuate the abuse”.
• There is a need to prevent ‘forum shopping’, which could result if different laws applied in different States and Territories.
• There is a need for uniformity. In its submission the Young Lawyers Section of the Law Institute of Victoria made the following comment:
If a single set of provisions regulated the issue throughout Australia, the perpetrators of female genital mutilation would be prevented from taking advantage of discrepancies between the legislation in different States. Thus a perpetrator would be unable to avoid a prohibition on a particular practice in one State simply by taking the person involved across a State border into a jurisdiction where that practice might be permitted. It allows standard prohibitions to be enforced more effectively throughout the Commonwealth. Further, a uniform law would assist education on the issue by creating only a single set of provisions to be taught and disseminated. 6.54 There is some uncertainty whether State/Territory legislation will be required if the Commonwealth were to introduce uniform legislation. This is a matter which might be discussed by the Standing Committee of Attorneys-General, but is ultimately an issue for the States/Territories to decide.