This was not a right wing patriarchal plot but was being put forward by then Prime Minister Julia Gillard and Health Minister Tanya Plibersek
Only one or two prosecutions have ever happened in Australia for FGM even though we now have two specialist clinics to deal with and surgically reverse this barbarity.
It is time to make it easier for the authorities to prosecute the criminals who breach the human rights of little girls.
It is important to change the law so that parents are automatically criminally guilty of an offence if their little girl has had it happen to them.
This is my proposed addition to the draft Federal Criminal Code.
5.1.38 Parent or Guardian has Absolute liability
(1) A joint or sole or temporary parent or guardian of a child that has been subjected to female genital mutilation is guilty of an offence.
Maximum penalty: Imprisonment for 15 years. (the same as prescribed for a perpetrator)
Below is an unaltered copy of the draft Model Criminal Code as set out in the March 2013 (Gillard Govt's) proposal.
Model Criminal Code Division 9 - Female genital mutilation
5.1.33 Female genital mutilation—definition In this Division, female genital mutilation means:
(a) a clitoridectomy; or
(b) excision of any other part of the female genital organs; or
(c) infibulation or any similar procedure; or
(d) any other mutilation of the female genital organs.
5.1.34 Prohibition of female genital mutilation
(1) A person who intentionally performs female genital mutilation on another person is guilty of an offence.
Maximum penalty: Imprisonment for 15 years.
(2) It is not a defence to a charge under this section that the person on whom the female genital mutilation was performed, or a parent of that person, consented to the mutilation.
5.1.35 Removal of child from jurisdiction for genital mutilation
(1) A person who takes a child from this jurisdiction, or arranges for a child to be taken from this jurisdiction, with the intention of having female genital mutilation performed on the child is guilty of an offence. Maximum penalty: Imprisonment for 7 years. Maximum penalty (aggravated offence): Imprisonment for 9 years.
(2) In proceedings for an offence against this section, if it is proved that:
(a) the defendant took a child, or arranged for a child to be taken, from this jurisdiction; and
(b) female genital mutilation was performed on the child while then outside this jurisdiction, it will be presumed, in the absence of proof to the contrary, that the defendant took the child, or arranged for the child to be taken, from this jurisdiction with the intention of having female genital mutilation performed on the child.
5.1.36 Exception—medical procedures for genuine therapeutic purposes
(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 procedure 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
(1) It is not an offence under this Division to perform a sexual reassignment procedure 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.
(2) 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)
I am suggesting in that as set out in the said report the Federal Government uses the External affairs power to enact the above national code together with a further section.
5.1.38 Parent or Guardian has Absolute liability (No proof of mens rea guilty mind or actus reus act required)
(1) A joint or sole or temporary parent or guardian of a child that has been subjected to female genital mutilation is guilty of an offence.
Maximum penalty: Imprisonment for 15 years. (the same as prescribed for a perpetrator)
For a full copy of the Fed Govt Report go to https://www.ag.gov.au/publications/documents/reviewofaustraliasfemalegenitalmutilationlegalframework/review%20of%20australias%20female%20genital%20mutilation%20legal%20framework.pdf
For a copy of typical Govt Principles of reversals of onus of proof - go to
https://www.legislation.qld.gov.au/Publications/OQPC/FLP_Reversal_of_Onus1.pdf
John Bolton 25th April 2017