Children taken outside Australia for the purposes of female genital mutilation. 6.55 Council has considered whether the law is adequate to deal with those instances where a child is taken outside Australia for the purposes of female genital mutilation. In this regard Council notes the current law in the United Kingdom and legislation passed by the Canadian Parliament earlier this year. Extracts from the legislation of both countries are set out at Appendix B. Council considers that the following inadequacies exist in Australian law:
• Existing Australian laws do not appear to prevent a person from taking a child, normally resident in Australia, outside Australia for the purposes of having the procedure performed on that child, even if the authorities are aware, or reasonably convinced, of the person’s intention.
• On return to Australia of a person who has taken a child overseas for the purposes of having the child genitally mutilated, there is doubt that the person responsible could, at present, be prosecuted under Australian law.
6.56 Most respondents to Council’s discussion paper did not oppose Council’s preliminary conclusion that legislation should be passed with a view to preventing international offences by Australian residents. Some respondents who were generally opposed to legislation on female genital mutilation may have been indicating opposition to extra territorial legislation also. A few respondents were pessimistic about practical aspects of legislation designed to stop international offences.
6.57 Comments by individual respondents included:
I agree that it should be an offence to take a child abroad for the purpose of violating the rights of the child. I would put it as broadly as that. I agree with the Council’s preliminary conclusion that legislation should be passed to make it quite clear that any person responsible for taking a child overseas for the purpose of genital mutilation commits an offence and this should be extended to cover persons who assist in the process, including any parent or relative who permits a child to be taken overseas. Legislation should also empower Federal Police to prevent the removal of a child where it is reasonably suspected that the child is being taken from Australia for a purpose which includes female genital mutilation.
6.58 Comments by organisations on the issue included the following:
Australian legislation should also provide a means of preventing anyone from taking a child overseas in order to have her operated on. [Defence for Children International - Australia] Women’s Electoral Lobby (NSW) fully endorses the Family Law Council’s preliminary conclusion that legislation should be passed to put the issue of taking children outside Australia for the purposes of female genital mutilation beyond doubt. Legislation to protect children resident in Australia from being taken overseas for genital operations, perhaps along the lines of the recent Canadian legislation, should be developed. [Commonwealth-State Council on Non-English Speaking Background Women’s Issues] Commonwealth legislation should be passed to prevent girls from being taken out of Australia to be mutilated. [ACT Women’s Health Network] ...I would like to ask our Government to implement a law...to confiscate the passport(s) of any person attempting to take a young girl out of Australia to have such an operation done. [North Adelaide Multicultural Services] 6.59 Council does not underestimate the range of problems which will militate against the success of legislation which aims at preventing children from being taken overseas for the purposes of female genital mutilation. The question of intention will be a major problem. As the National Council of Women of Victoria (NCWV) said in its submission:
NCWV feels that it would be almost impossible to police any law prohibiting female children from being sent to their country of origin to have [female genital mutilation] performed. Many families visit their home countries for a genuine holiday and while there [female genital mutilation] is performed on the children without the knowledge or consent of the parents... 6.60 Evidential problems will also be a factor. However, Council is of the view that the legislation could be made clear to persons by authorities when passports and visas are sought. The legislation may tend to prove somewhat cosmetic in practice but it should have some successes (and hence save some children from mutilation) and it may, in the long term, have some deterrent effect. Council considers, therefore, that legislation in this area is better than no legislation and would indicate Australia’s seriousness about carrying out its international treaty obligations.
6.61 Council draws attention to the Crimes (Child Sex Tourism) Amendment Bill 1994 which was introduced in the House of Representatives by the Minister for Justice, the Hon Duncan Kerr MP on 23 march 1994. Council considers that some of the difficulties it envisages in relation to evidence and intention are addressed in that Bill.
6.62 Council does not support legislation which cuts across other legislation concerning passport issue and migration status. Public interest criteria, including criminal conviction, are already covered by the Migration Act 1958.
6.63 Council wishes to make it clear that it is not proposing that where children are taken out of Australia for the purpose of visiting a country which practices female genital mutilation, they should not be subject to search or checking by officials, unless there are sound reasons for taking such action.
6.64 Council’s conclusions. There are doubts about the capacity of the present law to cope with international offences against the rights of the child. In the circumstances, and having in mind the serious consequences for the children concerned in relation to matters such as female genital mutilation, Council has concluded that legislation should be passed to put these issues beyond doubt and to provide as much protection as possible for the children and women concerned.
Recommendation 2 Commonwealth/State legislation 6.65 Council recommends that: (a) In order to achieve uniform legislation without delay, the Commonwealth Parliament immediately pass legislation making it clear that the practice of female genital mutilation is a criminal offence and also that it constitutes child abuse under Australian child protection legislation; (b) The Commonwealth pass legislation which provides children taken out of Australia with the same protections from female genital mutilation as they would have in Australia; (c) The Standing Committee of Attorneys-General consider whether State/Territory legislation may also be necessary. Ultimately the matter is one for the States/Territories; (d) Legislation cover those matters identified in Recommendation 4 below.
The question of timing 6.66 The question of the timing of education programs and of any legislation is of considerable importance to the communities involved. The persons involved are mainly refugees (with all of the attendant problems such as language and employment difficulties) and many of them are recent arrivals in Australia. These people have been confused and bewildered by media reports about female genital mutilation and have been subject to stereotyping in the press. In many respects they are the most vulnerable people in the community. The media treatment of female genital mutilation has left the communities confused, fearful and angry and this needs to be taken into account.
6.67 Council has concluded that the vulnerable communities’ discussions on female genital mutilation are not at an advanced level at this stage. There are substantial cultural, gender and language barriers which are only now being addressed.
6.68 Timing of education and legislation has become a very important issue as a result of submissions and discussions with the relevant communities. The Ecumenical Migration Centre said in its submission:
There is an extraordinary silence about the practice...While it is very clearly women’s business, it is not a subject freely or openly talked about in those countries where it is practised. The significance of this needs to be taken seriously by those considering legislative responses...The realisation that circumcision is not a requirement of Islam is quite shocking to many of the communities. The historical silence surrounding this issue means that the first time many of these women have been called upon to talk on the issue is in relation to its criminalisation in Australia. 6.69 There is a need to find a compromise which will not result in delaying action but which accommodates the communities’ current situation and their state of mind; that is, there is a need to find a satisfactory balance.
6.70 No amount of delay is going to overcome the problem that irrespective of when legislation comes into effect there will be others who arrive in this country after that legislation comes into operation. Future migrants should be made aware of this country’s laws and attitude on female genital mutilation as soon as they arrive in this country.
6.71 In Council’s view, however, the proposed education program should be in place as soon as possible and prior to the legislation coming into effect. Council’s report should be the first step in the education process. (Consideration needs to be given to translating it into some of the relevant languages, including Eritrean and Somali. This should be discussed with the communities.) In the meantime, any extreme cases requiring legal intervention could be handled under existing legislation if this is necessary.
6.72 Council considers that precipitate and non-consultative legislation could have negative repercussions.
Recommendation 3 Timing of education and legislation 6.73 Council recommends that: (a) Immediate steps be taken to implement an education program along the lines proposed in recommendation 1; and (b) Criminalising aspects of the legislation should not become operative until the education program is satisfactorily established and operating.
The contents of legislation 6.74 Council’s discussion paper suggested that legislation should cover the following matters:
(a) It should put the issue beyond doubt that female genital mutilation, in all of its forms, is a criminal offence;
(b) It should be made clear that female genital mutilation, in all of its forms, constitutes child abuse under Australian child protection legislation;
(c) There should be appropriate sanctions for professionals who perform female genital mutilation;
(d) Appropriate sanctions should apply to non-professionals who perform the procedure and on those who aid and abet such persons as well as those who arrange for their children to be genitally mutilated;
(e) There should be mandatory notification to State/Territory authorities of prospective or actual incidences of female genital mutilation; and
(f) There should be legislation making it an offence to take, or to propose to take, a child outside Australia to be genitally mutilated.
6.75 Two of these issues require comment: penalties and mandatory notification of instances of female genital mutilation. These issues are further considered below.
6.76 Penalties. If legislation is to be effective, it will need to contain penalties which are relevant to the seriousness of the offence. With this in mind, Council is of the view that the law should distinguish between the following categories of offender:
Parents The best interests and protection of the child should be important factors in determining appropriate penalties for parents who arrange for their children to be genitally mutilated. For instance, if the child’s protection can be assured it may be that depriving the child of her parents may not be in her best interests.
Where parents, in full knowledge of the law or in reckless disregard for the law, offend or where they offend more than once, there should be appropriate penalties, including, as a last resort, imprisonment. However, if the education program is properly carried out this should minimise the need for extreme action.
Council regards it as generally inappropriate to imprison people who are loving and caring parents.
Professionals Council is of the view that severe penalties, including imprisonment, should applies to any professionals who perform, or assist in the performance of, the procedure.
The AMA has advised that a doctor who performs female genital mutilation, other than a recognised medical procedure, would be liable to be deregistered.
Non-Professionals Council is of the view that severe penalties, including imprisonment, should apply to non-professionals (including relatives) who perform the procedure.
Institutions Institutions, such as hospitals and clinics, in which the procedure is carried out should, on conviction, be fined. It is noted that such matters would no doubt be considered by government in licensing and accreditation decisions.
6.77 Council stresses that there will be a need to balance the bests interests of the child with any proposal to separate the child from its parents. In all cases it will also be necessary to take into account the type of procedure involved, but it should be clearly accepted that all forms of female genital mutilation constitute an offence.
6.78 Notification. Legislation should build upon existing arrangements for notification under child protection legislation. It is Council’s view that notification of instances of genital mutilation, and of fears or suspicion of genital mutilation, should be mandatory and that the list of persons required to notify instances, or suspicion, of female genital mutilation should be as wide as possible. Council is aware that, while the legislation of most States/Territories make notification mandatory, in two States/Territories notification is voluntary. Provisions for notification and access to counselling and other forms of assistance should be covered in education programs.
6.79 Council stresses that mandatory reporting would apply only to children; that is, persons under 18 years of age. The requirement would not operate in respect of women who are 18 years of age or more. In Council’s view, the special needs which apply in relation to children are not present so far as adults are concerned.
Recommendation 4 Contents of legislation 6.80 Council recommends that to be fully effective legislation should cover the following matters: (a) It should put the issue beyond doubt that female genital mutilation, in all of its forms, is a criminal offence; (b) It should be made clear that female genital mutilation, in all of its forms, constitutes child abuse under Australian child protection legislation; (c) The law should take into account the best interests, and protection, of the child in relation to imposing penalties on parents who allow this procedure to be carried out on their children. Other relevant factors should include whether the parent has offended previously, whether the parent acted in knowledge of the law and the type of procedure performed on the child; (d) There should be severe penalties, including imprisonment, for professionals who perform female genital mutilation; (e) There should be severe penalties, including imprisonment, for non-professionals (including relatives) who perform the procedure and for those who aid and abet such persons, including those who arrange for children to be genitally mutilated; (f) Appropriate sanctions should apply to institutions at which female genital mutilation is carried out. Officers of the institution should be liable for criminal prosecution; (g) Mandatory notification should apply to State/Territory child protection authorities of prospective or actual incidences of female genital mutilation. Ideally, subject to Constitutional power, the widest possible list of persons required to notify should apply; (h) Legislation should make it an offence to take, or to propose to take, a child outside Australia to be genitally mutilated. The legislation should be based on the Canadian model; and (i) The legislation should acknowledge the importance of education programs and of counselling and other forms of assistance.
Child Protection Protocols 6.81 Because of the cultural nature of female genital mutilation and because the practice has a number of differences in relation to other offences against children, it is likely that special arrangements may be necessary for dealing with the matter. The South Australian Child Protection Council recommended the development of:
...a national practice paper on a set of standard procedures and guidelines to be used by Health and Community Service professionals when dealing with cases that come to their attention. 6.82 In Council’s view there is a need for special child protection protocols to be developed for the specific purpose of dealing with the question of female genital mutilation. In Council’s view, the appropriate body to examine this question would be the Joint Health and Community Services Ministerial Council.
Recommendation 5 Child Protection Protocols 6.83 Council recommends that the Joint Health and Community Services Ministerial Council be asked to develop protocols specifically for the purpose of dealing with instances of female genital mutilation.
Reconstructive surgery 6.84 In its discussion paper Council considered a number of aspects of the question of reconstructive surgery especially those relating to the consent. The general feeling of respondents was for minimal involvement by the Courts. Most respondents who addressed this issue said that, except for emergency situations, the children or their parents should decide on reconstructive surgery.
6.85 Some of the responses made included the following:
Every effort should be made to facilitate reconstructive surgery, [Humanist Society of Victoria Inc.] Children are operated on for numerous conditions including corrective surgery for congenital abnormalities and after accidents with just the parents or guardians permission. Intervention by the court is only warranted where parents refuse to allow reconstructive surgery when it is deemed essential for the health and well being of the child. ... In Melbourne young adult women have requested reconstructive surgery prior to commencing a family. DCI-Australia believes that any operation to repair a previous circumcision should be done only with the child’s informed consent when she is old enough to understand the process. The child has a right to be protected from any further traumatic intrusions into her body until she is ready for it. The only exception should be when there is an immediate medical reason for treatment. [Defence for Children - Australia] Women’s Electoral Lobby (NSW) is of the view that the young woman herself, and/or her parents should be the only ones to authorise reconstructive surgery on her body. An external arbiter may be necessary where there is a conflict between the child’s wishes and those of the parents. Consent to reconstructive surgery would only be an issue where the child was below the age of consent and there were conflicting views between parents or guardians and the child. [SA Child Protection Council] 6.86 Council considers that existing Medicare arrangements are adequate to cover reconstructive procedures. Council also agrees that the question of reconstructive surgery should be one for the child herself when she is old enough to make an informed judgment about the medical procedure which she will need to go through. Much of the damage done by female genital mutilation is not reversible. Reconstructive surgery will not be of any value in relation to clitoral circumcision or excision. In the case of infibulation, surgery will mainly enable the vagina to be reopened, but will not repair other damage.
6.87 Two problems arise. The first relates to cases where a medical emergency develops and corrective surgery needs to be done immediately. In Council’s view existing arrangements on consent to medical procedures would be adequate to deal with such matters. The second problem would arise where there was a conflict between the parents and the child about reconstructive surgery. Again, Council considers that existing arrangements would be adequate to cope with such cases.
Recommendation 6 Reconstructive surgery 6.88 Council is of the view that further legislation is not necessary to enable young women to have reconstructive surgery where they so desire.
Counselling and support services. 6.89 Council has a major concern relating to the women and children who refuse the practice of female genital mutilation. There is a distinct fear that this may, in some instances at least, lead to their ostracism by their communities. Women and children in this position will need considerable support and assistance. While education will play an important part in assisting the women concerned, they will need to have access to counselling, advisory and other support services on a range of matters, including reconstructive surgery. Again, the importance of education in confronting such deeply felt views is underlined and the essential role of education is stressed.
6.90 The Office of Multicultural Interests (WA) drew attention to the need for practical assistance in the form of support services for those who are pressured to have the procedure done. The Office said:
We feel strongly that irrespective of whether mandatory notification is introduced, a “hot line” or other accessible service should be set up for mothers who are pressured to have the procedure performed on their daughters, to enable them to get immediate assistance. Education of the mothers must be accompanied by practical assistance if they are to resist pressure (which will amount to challenging the power structures within the family and community). Council agrees with this comment and adds that such services should be available to the children involved as well as the mothers.
Recommendation 7 Counselling and support services 6.91 Council considers that provision must be made for counselling and support services for women and children, including those who reject the practice of female genital mutilation.
Jurisdiction 6.92 Which court(s) should deal with female genital mutilation? Council sees no need for special legislation covering the issue of jurisdiction. Criminal offences should be a matter for the appropriate State Court and matters relating to the care and protection of children should be handled by the same Courts as currently deal with such matters.
6.93 A few respondents suggested that the Family Court should have jurisdiction to determine the matter and others suggested that the State Courts should have jurisdiction. Council does not see any strong reason to amend the existing jurisdictional arrangements. Council also notes that its Medical Powers Committee is currently looking into the issue of medical procedures on children.
Recommendation 8 Jurisdiction 6.94 In Council’s view there is no need for special legislation on the jurisdiction of the courts in relation to female genital mutilation. However, Council is of the view that proceedings relating to female genital mutilation should be conducted in a closed Court.