Impediments to Implementation

Implementation of a law reform agenda depends upon several factors, most of which are out of the control of a person devising law reform. Anyone considering reform to the regulation of male circumcision is, in fact, confronted with two realities: that there are significant problems with the current law which can only be addressed by changes to the law; and, that the reform they recommend will almost certainly not be implemented in the near future. This section briefly discusses the main reasons why the implementation of circumcision law reform is likely to take time.

Circumcision law reform is unlikely to be embraced as a priority by governments because there is little impetus for it. However, that is not to say that there is no pressure for reform. Two of Australia’s state law reform organisations have considered the law regulating circumcision in their jurisdiction, and each has suggested that the law may benefit from reform.9 _{Paul Mason, the}

former Tasmanian Commissioner for Children, was a particularly vocal Australian advocate for circumcision law reform.10 _{There are also many private individuals and organisations interested in}

improving the regulation of circumcision.11 _{Law reform initiatives have received media attention}

in Australia.12 _{Nevertheless, Australia’s nine governments and its major political parties do not}

have a policy on the issue. Circumcision is an emotive topic and its regulation is controversial. It would be politically risky for any Australian government to consider reform to circumcision’s regulatory law. Reform is, for these reasons alone, quite unlikely to be placed on the agenda of any government in Australia any time soon. Meaningful reform will also probably be expensive, which is a further obstacle to reform.

There are also significant legal and political difficulties in implementing a coherent law reform agenda across Australia’s eight state and territory legal jurisdictions. The Commonwealth Parliament cannot pass a law on a particular matter without there being a power in the Commonwealth Constitution to do so. There is no Commonwealth head of lawmaking power to pass a law regulating circumcision. There is no clearly apparent combination of heads of power which would allow the Commonwealth Parliament to enact a comprehensive national circumcision regime unilaterally.13 _{A federal regulatory regime for circumcision could only be}

enacted if each State referred their lawmaking power over the regulation of circumcision to the

9

Queensland Law Reform Commission, Circumcision of Male Infants, Miscellaneous Paper No 6 (1993); Tasmanian Law Reform Institute, Non-Therapeutic Male Circumcision, Issues Paper No 14 (2009).

10

For a discussion of the former Commissioner’s view on circumcision law reform, see: Commissioner for Children (Tasmania), Submission: Non-Therapeutic Male Circumcision: Issues Paper No 14 June 2009 (2009).

11 _{See for example: Circumcision Information Australia,}

Circumcision Information Australia Homepage (2009)

<http://www.circinfo.org/> at 20 October 2010.

12 _{See for example: Andrew Darby, ‘The “Cruellest Cut” May Also be Illegal’,}

The Age (Victoria) 3 June 2009, 3.

13

However, it is worth noting that a combination of the power to make laws as to ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’ and ‘the people of any race for whom it is deemed necessary to make special laws’ may allow the Commonwealth to pass some laws regulating circumcision, see: Commonwealth Constitution ss 51 (xxii), (xxvi). An argument, although perhaps unlikely to succeed, may also be made that the external affairs power may allow the Commonwealth parliament to enact regulation dealing with circumcision on the basis of one or more of the international human rights treaties Australia has ratified: Commonwealth Constitution s 51 (xxix). For a discussion of the potential use of the external affairs power to legislate medical ethical standards in Australia see: Loane Skene, ‘Use of the External Affairs Power in Treaty Implementation: Implications for Ethicists’ (Paper Presented at the Australasian Association of Bioethics and Health Law Conference, Adelaide, 14-16 February 2002).

Commonwealth Parliament.14 _{State parliaments are usually reluctant to relinquish lawmaking}

power. This reluctance is likely to be particularly strong in regard to such a controversial matter as the regulation of circumcision.

Governments are only likely to consider law reform if pressure for change within the community increases. This is unlikely to occur quickly without the occurrence of an event, or series of events, to rally support for reform. Reform in Sweden only occurred after the death of a child was attributed by the media to circumcision.15 _{The law reform process in South Africa only began}

after media reports of dozens of deaths occurring in circumcision schools each year.16 _{The few}

publicised failures of the current regime to protect vulnerable children in Australia from undesirable and quite disturbing circumcision practices have, as yet, failed to garner nationwide attention to generate impetus for reform.17 _{Some unfortunate events (such as the performance of}

circumcisions in less than ethical circumstances) may be being brushed aside as unfortunate but isolated problems rather than problems indicative of systemic faults. Other problems, particularly those associated with traditional circumcision practices, may not attract attention because: they seem remote to a society which, for the most part, only knows medicalised circumcision; does not wish to become involved in traditional practices of less mainstream cultures; and which now, almost more than at any time since the beginning of the twentieth century, is not being asked to consider circumcision as an option for themselves or their children.

The debate surrounding circumcision, and the proper form of circumcision regulation, is also still yet to fully mature. There are significant misconceptions, and strong, not yet well identified or articulated cultural biases impacting on the quality of the debate. Some of the empirical evidence, particularly as to circumcision’s health benefits, remains equivocal. Much of the evidence is difficult to contextualise and most of it is difficult to express in a manner which is both accurate and easy to comprehend. Most Australians, particularly in recent years, have not had cause to consider the issues surrounding circumcision thoroughly, and are not particularly interested in the issue. Many of those who have an investment in, or that have engaged with the issue, argue passionately, but, at times, are prone to oversimplify the debate, or inaccurately state the grounds being disputed. Reform will have a better chance of being enacted once the debate over circumcision, and its regulation, advances further.

It is clear from the preceding discussion that nationwide circumcision law reform is unlikely to be implemented in the near future without a significant intervening event or maturing of the public debate. However, the issues associated with implementation do not change the fact that the legal regulation of circumcision could be improved. It is also not a reason why well formulated law reform proposals should not be made in preparation for a time when there is a greater impetus for reform. The next section identifies and explains the main principles guiding the law reform recommendations made.

14

Commonwealth Constitution s 51 (xxxvii).

15 _{For a discussion to the lead up to the introduction of circumcision law reform in Sweden see: Yngve Hofvander,}

‘Circumcision of Boys in Sweden: Proposal for Government Regulation’ in George Denniston, Frederick Hodges and Marilyn Milos (eds), Understanding Circumcision: A Multi-Disciplinary Approach to a Multi-Dimensional

Problem (2001) 147.

16

For a discussion of the circumstances of the enactment of circumcision law reform in South Africa see: Thembela Kepe, ‘“Secrets” that kill: Crisis, custodianship and responsibility in ritual male circumcision in the Eastern Cape Province, South Africa’ (2009) 70 Social Science and Medicine 729; Louise Vincent, ‘Cutting Tradition: the Political Regulation of Traditional Circumcision Rites in South Africa's Liberal Democratic Order’ (2008) 34

Journal of Southern African Studies 77, 79.

17

For electronic copies of a collection of news articles on one such event, see: Circumcision Information Australia,

Case study: Forced Circumcision of Australian boys: Special Report from Bundaberg (2002)