The report offers 14 recommendations -
1 The Institute supports the enactment of legislation to reform the law governing circumcision.
2 The Institute recommends reform to provide a clear legislative basis for the legality of circumcision performed at the request of an adult or capable minor.
3 The Institute recommends the enactment of a new and separate offence generally prohibiting the circumcision of incapable minors in Tasmania. The new legislation ought to create an exception for the performance of some well-established religious or ethnicity motivated circumcision on incapable minors.
4 The Institute recommends the enactment of legislation to require joint parental authorisation for the circumcision of an incapable minor.
5 The Institute recommends the enactment of a law to require court authorisation for a circumcision whenever parents disagree about the desirability of performing a circumcision.
6 The Institute does not recommend the enactment of legislation mandating court authorisation for the circumcision of minors.
7 The Institute recommends the enactment of a law to require that all circumcisers provide accurate information as to:
• the financial cost of the procedure;
• the non-therapeutic nature of the operation;
• the purpose and function of the foreskin;
• the procedure itself;
• the procedure’s effect on the functioning of the penis;
• the risks of the procedure;
• the nature and significance of the evidenced prophylactic benefits of circumcision in an Australian context;
• the potential for children to grow up into adults who resent their circumcision (this may include a discussion of the common rationales and prevalence of circumcision);
• the availability of the procedure in adulthood; and • the legality of the procedure.
8 The Institute recommends that health policy, community and industry leaders use non-legislative avenues of reform to improve the dissemination of accurate information on the known and potential effects and significance of circumcision.
9 The Institute recommends the enactment of a criminal law that sets general principles against which to judge the acceptability of a circumciser’s practice. These principles should set minimum standards that all circumcisers of incapable minors must meet in the provision of their service. Parliament should give an existing health regulatory body the responsibility of formulating regulations to qualify the general standards set in statute. The Institute recommends the setting of standards as to matters such as:
• the pain relief provided;
• the instruments used;
• the skill of the person performing the operation;
• the skill with which the procedure is performed;
• the adequacy of the wound care and post-procedure monitoring.
The standards set by statute and in regulations ought to reflect the minimum standards the community would expect circumcisers to meet at the time of the operation in the circumstance in which they are operating. In particular, the standards should ensure that no minor be put at a needlessly high risk of pain or complication from a circumcision.
10 The Institute recommends further investigation into whether the law governing the use and sale of human tissue would benefit from reform.
11 The Institute does not recommend reform to the law regulating the commercial aspects of a circumciser’s service.
12 The Institute recommends the enactment of reform to create a uniform period in which individuals harmed by a circumcision as a minor may bring an action against their circumciser. This period should extend for an appropriate time after the harmed person has reached the age of majority. This new limitation period should be enacted in a provision in a new Circumcision Act.
13 The Institute recommends the enactment of legislation to require circumcisers to transmit information relevant to actions that may be brought for harm they cause to a minor to an appropriate government authority.
14 The Institute does not recommend the enactment of a no-fault compensation scheme for harm caused by a circumcision performed upon an incapable minor.The report follows the more problematical 2007 ‘First Do No Harm’ the Liability of Medical Practitioners Performing Non- therapeutic Male Circumcision on Minors in Tasmania Discussion Paper by the Tasmanian Office of the Commissioner for Children and the Institute's 2009 Non-Therapeutic Male Circumcision issues paper. As I've elsewhere commented, non-therapeutic circumcision poses interesting legal philosophical and regulatory problems because of tensions between perceived injury to minors and respect for the deeply-held values of particular communities.
The Institute's 2009 issues paper asked eight questions - (
1. Do you think the criminal law relating to non-therapeutic circumcision requires clarification?
2. Under what circumstances do you think a non-therapeutic circumcision should be lawful (under the criminal law)?
3. Do you think the law relating to the authorisation of non-therapeutic circumcision requires clarification?
4. Under what circumstances should a parent be able to legally authorise the circumcision of their child?
5. Should the authorisation of a court, or some other form of independent body, be required to legally perform a circumcision in some, or in all, circumstances?
6. Should the law clearly establish that medically qualified and non-medically qualified circumcisers have the same legal duties in the provision of their service?
7. Should the law set specific duties for circumcisers in the provision of their service?
8. Should there be a special limitation period for civil law actions brought by an adult for a circumcision performed on them as a minor?It was released after consultation with members of Tasmania’s Jewish, Muslim and health communities. The paper
took no position on the appropriateness of non-therapeutic male circumcision from a medical, religious or ethical viewpoint.
It found that there has not been significant legal action relating to, or legislative regulation of, male circumcision in Tasmania. The Institute also found that there is a dearth of current, thorough and reliable commentary on the application of the law to circumcision in Australia. The Institute concluded that uncertainties abound in the application of Tasmanian law to circumcision.
