The prevalence of FGM in Australia is not well documented. However, the practice exists among emigrant communities and some aboriginal tribes. Each Australian territory has its own laws regulating the practices and analysis will be limited to a few territorial jurisdictions about regulating FGM. This section will set out the cir- cumstances under which a person can be held criminally liable for an FGM offence, the available defense under the law and the issues related to enforcement of the law.
9.4.1 Criminal Liability
In South Australia FGM is an offence punishable under Criminal Law Consolidation Act 1935 (Sections 32–33B) (initially enacted by the Statutes Amendment (Female Genital Mutilation and Child Protection Act 1995). In Victoria, the law clearly prohibits the performance of any type of FGM (Female Genital Mutilation Act 1996). In the Australian Capital Territory, six out of eight states in Australia have adopted specific laws that proscribe FGM, whereas other states prosecute FGM under general criminal law. The Australian Capital Territory enacted the Crimes (Amendment) Act (No. 3) 1995, which takes FGM to mean: (a) clitoridectomy or the excision of any other part of the female genital organs; (b) infibulation or a similar procedure; or (c) any other mutilation of the female genital organs. Under the 1995 Act, a person is liable to FGM criminal charges if he or she intentionally performs female genital mutilation on another person. If found guilty, the person may be imprisoned for 15 years. In the jurisdiction of New South Wales, the Crimes Act 1900 (Section 45) was passed (initially enacted by Act (No. 58 of 1994) to amend the Crimes Act 1900 to prohibit female genital mutilation, 22 September 1994).
9.4.2 Extra-Territoriality
The 1995 Act also makes it unlawful for a person to take a child from the Australian territory or to arrange for a child to be taken from the territory for the purpose of undertaking an FGM procedure on the child. The offence of removing the child for FGM attracts a penalty of 7 years imprisonment (Section 92x (1)). In other words, under the Crimes Amendment (Female Genital Mutilation) Act 2014 No 15, it is an offence to remove a person from the state for female genital mutilation. Such a per- son is guilty of an offence if he or she takes another person from the state, or arranges for another person to be taken from the state, with the intention of having female genital mutilation performed on her. The maximum penalty is imprisonment for 21 years.
In proceedings for an offence under subsection (1), and in the absence of proof to the contrary, it is to be presumed that the accused took another person, or arranged for another person to be taken, from the state with the intention of female genital mutilation being performed on her if it is proved that:
(a) The accused took the person, or arranged for her to be taken, from the state, and;
(b) Female genital mutilation was performed on her while outside the state.
(c) It is not a defense to a charge under this section that the person taken from the state consented to being taken.
(d) In this section female genital mutilation means an act referred to in Section 45 (1);
(e) The performance of which would be an offence against that section if performed in the state.
9.4.3 Defenses
A person accused of an offence under Australian law can adduce evidence to escape conviction. There are a number of defenses under the law, which are considered below.
9.4.3.1 The Genuine Medical or Therapeutic Purpose Defence
Under Australian law medical practitioners and midwives charged with an FGM offence can rely on the ‘genuine medical or therapeutic defence’. In other words, such defen- dants must prove that FGM was necessary for the health of the circumcised victim or that the procedure was performed on a person in labour, or who had just given birth for medical purposes connected with that labor or birth (Section 92Y 2(a) and (b)).
The defence to the charge of FGM is set out in the Crimes Act 1900. Section 45 of the 1900 Act (3) stimulates that, it is not an offence to perform a surgical opera- tion where such ‘operation:
(a) is necessary for the health of the person on whom it is performed and it is per- formed by a medical practitioner, or
(b) it is performed on a person in labour or who has just given birth, and for medical purposes connected with that labor or birth, by a medical practitioner or autho- rised professional, or
(c) it is a sexual reassignment procedure and is performed by a medical practitioner.
(d) In determining whether an operation is necessary for the health of a person, only matters relevant to the medical welfare of the person are to be taken into account.
(e) It is not a defense to a charge under this section that the person mutilated by or because of the alleged acts consented to them.
(f) This section applies only to acts occurring after the commencement of the section.
(g) In this section:
‘Authorised professional’ means:
(a) A registered midwife, or, (b) A midwifery student, or,
(c) In relation to an operation performed in a place outside Australia—a person authorized to practice midwifery by a body established under the law of that place having functions similar to the functions of the Nursing and Midwifery Board of Australia, or (d) a medical student’.
Under the law, a ‘medical practitioner’, in relation to an operation performed in a place outside Australia, includes a ‘person authorized to practise medicine by a body established under the law of that place having functions similar to the Medical Board of Australia’.
‘Medical student’ means:
(a) A person registered as a student in the medical profession under the Health Practitioner Regulation National Law, or,
(b) In relation to an operation performed in a place outside Australia—a person undergoing a course of training with a view to being authorized to be a medical practitioner in that place.
‘Midwifery student’ means:
(a) A person registered as a student in the nursing and midwifery profession under the Health Practitioner Regulation National Law, or,
(b) In relation to an operation performed in a place outside Australia—a person undergoing a course of training with a view to being authorised to be a midwife practitioner in that place.
‘Sexual reassignment procedure’ means a surgical procedure to alter the genital appearance of a person to the appearance (as nearly as practicable) of the opposite sex.
1. It is not an offence under this Division to perform a medical procedure that has a genuine therapeutic purpose or to take a person, or arrange for a person to be taken, from this jurisdiction with the intention of having such a medical proce- dure performed on the person.
2. The fact that a procedure is performed as, or as part of, a cultural, religious or other social custom is not to be regarded as a genuine therapeutic purpose.
5.1.37 Exception—sexual reassignment procedures
3. It is not an offence under this Division to perform a sexual reassignment proce- dure or to take a person, or arrange for a person to be taken, from this jurisdiction with the intention of having such a procedure performed on the person.
4. A sexual reassignment procedure means a surgical procedure to give a female, or a person whose sex is ambivalent, the genital appearance of a particular sex (whether male or female).
9.4.3.2 The Gender Reassignment Defence
The defense that FGM was necessary to accommodate gender re-assignment needs is also set out under Section 92Z of the 1995 Act. An accused can argue that FGM was necessary for gender re-assignment purposes, that is, to give a female person whose sex is ambivalent the genital appearance of a person of the opposite sex or of a particular sex (whether male or female).
9.4.3.3 The Consent Defence
It could be argued that in the case of infants and young children, parents generally have the power to give consent on the child’s behalf. ‘Parents have a duty to maintain
and protect the child, from which is derived the right to consent to the child’s medical treatment. This power can only be exercised in the child’s best interests, and the Supreme Court may overturn a parental decision to consent to treatment if it deems the decision is not in the child’s best interests’ (See Re B and G 2015).
However, since the law prohibits the performance of any type of FGM, any medi- cal practitioner administering FGM would commit an offence even if the child or adult were consenting. However, under Australian law (Section 92w of the 1995 Act), no defense will avail the defendants where he or she shows that the victim consented to the procedure or that the procedure was undertaken in line with cul- tural, religious and/or social customs (Section 92Y (3)). This means that the civil law concept of informed consent is not applicable in FGM cases.
9.4.3.4 Other Common Law Defenses
Because Australia also operates within the common law tradition, it is argued that the defendant can avail the defense of duress of circumstances (as would apply in England and Wales and any other commonwealth jurisdiction).
9.4.4 Enforcement
One way to measure the effectiveness of legislation is to look at the extent to which the law has been enforced. In Reeves v. the Queen 2013, (Reeves v The Queen 2013) the court heard an offence of inflicting grievous bodily harm. The offence arose out of a surgical procedure undertaken by the applicant on a patient (‘CDW’) on 8 August 2002. The applicant initially stood trial in November 2010, charged with an offence under Section 33, along with an alternative charge under Section 45 (female genital mutilation). The Crown elected to proceed with the Section 45 offence and the jury, which observed the applicant being cross-examined over a number of days, could not agree on a verdict. At the re-trial, a recording of the applicant’s evidence was played to the jury.
Despite being extensively criminalized for a number of years, feedback from jurisdictions indicate that very few, if any; Female Genital Mutilation offences have been successfully prosecuted in Australian courts. Eight people have been charged with performing FGM in New South Wales and further accusations have surfaced in Western Australia.
Three people were charged over the genital mutilation of two girls, aged six and seven, in 2010–12. The accused were the mother, a retired nurse, Kubra Magennis, and a ‘sheikh’ (i.e. Islamic community leader), Shabbir Vaziri, from Auburn. Police stated that the cutting was performed for ‘cultural reasons’. The charges against the girls’ father, a Sydney doctor, were dropped. When the trio
appeared in court, their defence lawyer sought to argue that the girls were not victims of genital mutilation because they had received no more than ‘a nick’ to their clitoris. The magistrate dismissed the submission, stating that under the section of the NSW Crimes Act covering female genital cutting, ‘any cut or nick to the clitoris will amount to mutilation’. This report identifies a number of opportunities to improve the detection and enforcement of existing laws. These opportunities could be progressed by cooperative inter-jurisdiction and inter- agency efforts. These include: (a) improved information- sharing between the health and legal systems; (b) establishing liaisons with community groups in populations that could be vulnerable to female genital mutilation; (c) improving access to, and willingness of, interpreters to assist police in investigating sus- pected cases of female genital mutilation; (d) the provision of targeted educa- tion programmes, and (e) improving awareness of Australia’s laws overseas.
Many of these initiatives could be progressed through the broader efforts to combat female genital mutilation being led by the Commonwealth Minister for Health.
9.4.5 Immigration and FGM
However, the case law has addressed FGM in relation to claims of asylum. In RRT Case No. 0808751 (2009) the Australian Refugee Review Tribunal reviewed the decision to refuse to grant the applicant, a citizen of Uganda, a protection visa on the grounds of fear of FGM/Cupon her return to Uganda. The tribunal found that the applicant should be granted protection based on the convention’s grounds of mem- bership of a particular social group.
In RRT Case No. 1101038 (2011) the Australian Refugee Review Tribunal reviewed the decision to refuse to grant the applicant, a citizen of Uganda, a pro- tection visa on the grounds of fear of being subjected to a forced marriage and FGM/C upon her return to Uganda. The tribunal found that the applicant should be granted protection, since in Uganda she ‘would be persecuted for reasons of her membership of a social group, namely that of [uncut] female members of the Sabiny tribe’.