You are here:

Print this Page

Australian and Other Relevant Laws

In this Page

1. Assault.
Any intervention that interferes with a person's bodily integrity through the use of force, no matter how small, is, in law, a trespass to the person. A trespass to the person is either a crime (called "an assault") that can be punished under State and Territory criminal laws, or it can be a tort or civil wrong (assault and/or battery), for which, under State and Territory laws, the person injured can claim damages or compensation from the person who committed the trespass. Most trespasses committed intentionally - for example, where a person deliberately punches another - are both crimes and civil wrongs.
2.Current State/Territory laws of relevance:

Based on advice received from the States and territories, the following summarizes the current position under the Criminal laws of Australia. In the case of WA additional information about the Criminal Code was supplied in the submission from the WA Attorney-General:

New South Wales: The following provisions of the Crimes Act 1900 (NSW) are relevant: section 61 (common assault), section 59 (assault occasioning actual bodily harm) and section 35 (malicious wounding or inflicting grievous bodilyharm). 
Victoria: Opinion at officer level in the Justice Department and the Department of Health and Community Services in Victoria is that existing laws on assault cover the situation in that State. 
Queensland: The Criminal Code (Queensland) contains a number of provisions of relevance including section 245 (definition of assault), section 246 (Assaults unlawful), section 355 (common assault) and section 320 (grievous bodily harm). Section 1 of the Criminal Code contains definitions of "bodily harm" and "grievous bodily harm". 
South Australia: The South Australian criminal law contains "the usual array of non-fatal offenses against the person and sexual offenses against minors." 
Western Australia: Section 222 of the Criminal Code (WA) provides that any application of force to the person of another without that person's consent is assault and any assault (unless authorized, justified or excused by law) is unlawful and constitutes an offense. Apart from the general provisions in Chapter 5 of the Code relating to criminal responsibility, various circumstances in which an assault will be lawful are set out in the Code. For example, section 257 provides that it is "lawful for a parent or person in the place of a parent to use by way of correction towards the child ... under his care, such force as is reasonable in the circumstances." 

The WA code defines "bodily harm" as "a bodily injury which interferes with health or comfort". "Grievous bodily harm" means any bodily injury of such a nature as to endanger life or to cause, or be likely to cause, permanent injury to health. 

Tasmania: Tasmania expressed the view that "a surgeon who performed genital mutilation on a girl would be guilty of an assault under section 184 of the Criminal Code unless that surgeon's conduct was covered by section 51 of the Code." Section 51 of the Code relates to consent to medical procedures on children. (The Tasmanian respondent made no reference to the situation where female genital mutilation is performed by elder women or "midwives".) 
Northern Territory: Assault is dealt with in section 186, 187 and 188 of the Criminal Code (Northern Territory). Section 187 defines "assault" as "the direct or indirect application of force to the person without his consent or with his consent if the consent is obtained by force.." Section 186 states that any person who unlawfully causes bodily harm to another is guilt of a crime and is liable to imprisonment for 5 years or, upon summary conviction, to imprisonment for 2 years. Section 188(2) states that if a person is assaulted under 16 years of age and the offender is an adult, the offender is guilty of a crime and is liable to imprisonment for 5 years or, upon summary conviction, to imprisonment for 2 years. The NT respondent said that under NT laws "it may be difficult to succeed in an assault charge where there was consent." 
Australian Capital 
The ACT said that, as elsewhere in Australia, existing criminal law in the ACT would apply to the practice of female genital mutilation. 
<Back to Top>

3. The Common Law. At common law some trespasses are not crimes or civil wrong as the law regards them as justified. This will be the case where, for example, a valid and effective consent to the trespass has been given by a person whom the law regards as competent to give consent.

4. In 1989 the Commonwealth Government (at this time responsible for criminal law in the ACT) produced a working paper containing proposals to reform ACT criminal legislation, specifically in relating to offenses against the person. Included in that working paper was a specific recommendation to prohibit female circumcision. However, responsibility for criminal legislation in the ACT fell to the ACT Government before the proposal was implemented.

5. Child Welfare legislation. All States and Territories have child care and protection legislation which authorizes State/Territory authorities to intervene where a child is at risk of abuse or ill-treatment. Section 4, 10 and 11 of the Community Welfare Act (NT), for example, empower the authorities to take a child "in need of care" into custody.

6. Section 71 of the Children's Services Act of 1986 (ACT) defines the circumstances for intervention by the ACT Family Services Branch, the Community Advocate or the Court when a child is in need of care. One of the circumstances is where the child has been, or is likely to be, physically injured. Children may also be considered in need of care where they have suffered psychological damage of such a kind that their emotional or intellectual development has, or will be, endangered. Section 139 of the Children's Services Act 1986 (ACT) creates offenses involving ill-treatment of a child. The Act provides protections for medical practitioners, police officers and welfare authorities to take such steps as are considered necessary for the immediate safeguarding of a child who has been ill treated.

7. In the case of child abuse allegations made by parties to applications under the Family Law Act, for example, the actual investigation of the allegations is carried out by State authorities which have the expertise and the personnel, supported by legislation, to do such investigations. Council notes that there are requirements for the reporting of abuse or suspected abuse and that child welfare authorities are the appropriate bodies for referral of allegations of abuse under the Family Law Act.

8. Civil actions. In addition to female genital mutilation being an assault, for which criminal sanctions might be imposed, it would also constitute a civil wrong - a trespass to the person (assault and battery) for which personal injury damages might be available. And, under State and Territory criminal injury compensation legislation, a person who has had the procedure performed on her may seek compensation for the injuries she has suffered.