Submission to the Australian Law Reform Commission on reform of the family law system

IHRA has made a submission to the Australian Law Reform Commission regarding its discussion paper on reform of the family law system, with a focus on reform of the welfare jurisdiction to ensure that children with intersex variations and persons with disabilities are protected from harmful practices.

We were guided in the preparation of this submission by UN Treaty obligations, including the Convention on the Rights of Persons with Disabilities, and also by the Darlington Statement and the Yogyakarta Principles plus 10.

IHRA has additionally formally endorsed submissions by People with Disability Australia, and Dr Linda Steele.

Recommendations

IHRA is committed to processes which will protect the human rights of people born with variations of sex characteristics and persons with disabilities, including infants, children, adolescents and adults. In line with the Darlington Statement and the Yogyakarta Principles plus 10, IHRA recommends that

  1. All deferrable interventions which alter the sex characteristics of infants and children undertaken before their ability to consent on their own behalf should be prohibited. This prohibition should be embedded in legislation.
  2. All non-deferrable interventions which alter the sex characteristics of infants and children undertaken before their ability to consent on their own behalf should be identified as notifiable medical treatment outside the scope of parental consent and requiring oversight from an independent oversight body.
  3. The independent oversight body should operate within a human rights-affirming framework, with effective participation by human rights experts, child rights experts, disability and intersex community organisations. It should be tasked with, where appropriate, determining whether or not medical interventions are necessary and non-deferrable.
  4. In relation to adults with disabilities, including those born with variations in sex characteristics, provision must be made to facilitate supported decision-making on an equal basis with other adults. Intersex and disability peer and systemic/individual advocacy organisations should be resourced to assist in these matters.
  5. To ensure adherence and transparency with these provisions, the independent oversight body must be notified, post facto (after the event), of details of all cases involving either minors or adults with supported decision-making where informed consent and/or urgent non-deferrable medical necessity have been asserted.
  6. In line with Article 12 of the Convention on the Rights of Persons with Disabilities, minors must be given support to develop and exercise legal capacity. In the absence of capacity of the minor, parents must be provided with robust information and access to peer-support and advocacy groups.

More information

IHRA submission in response to the ALRC discussion paper

More about the ALRC review of the family law system