The Bill seeks to ensure a uniform standard of care across Australia by overriding any inconsistent state or territory laws, asserting that the practice of shackling serves no legitimate security purpose during labor and delivery.
The explanatory memorandum states that shackling is "medically damaging to the parent and child, to be traumatising and degrading... and to be ineffective as a deterrent and risk mitigation measure" [Explanatory Memorandum page 2]. The legislation relies on the Commonwealth's external affairs power under section 51(xxix) of the Constitution to meet international obligations [Explanatory Memorandum page 3]. This includes compliance with the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture (CAT). From the explanatory memo:
Ending this practice will promote the protection of a range of rights, including the right to life, health, non-discrimination, humane treatment in detention and the prohibition against torture.[Explanatory Memorandum page 4]
The Bill specifically highlights the impact on Aboriginal and Torres Strait Islander peoples, who are disproportionately affected by these practices due to overrepresentation in the criminal justice system [Explanatory Memorandum page 5]. It affirms that any state or territory law inconsistent with this federal prohibition will no longer have effect [Explanatory Memorandum page 2].
The case for this Bill is rooted in the fundamental right to bodily integrity and the protection of human dignity. Shackling a person during childbirth is a clear violation of the prohibition against "cruel, inhuman or degrading treatment" under international law.[1] By implementing a total ban, the Bill ensures that no individual is subjected to a practice that is medically dangerous and serves no legitimate security purpose during delivery [Judgment].
Furthermore, the Bill addresses systemic inequality. As noted in the explanatory memorandum, this practice "disproportionately affects" Aboriginal and Torres Strait Islander peoples. Ending it is a necessary step toward protecting Indigenous rights and ensuring "humane treatment in detention." The use of the Commonwealth's external affairs power is a justified intervention to ensure a uniform standard of human rights protection across Australia [Judgment].
See Article 7 of the ICCPR and Article 15 of the CRPD.
An objection can be raised regarding the necessity of a federal override. From a value-neutral perspective, the Bill lacks a detailed evidentiary breakdown of the current frequency of this practice across all jurisdictions. If the practice is already largely prohibited by state-level departmental policies, a federal legislative "full ban" may be a redundant use of parliamentary resources that creates unnecessary legal complexity and jurisdictional friction [Judgment].
From a Hobbesian perspective, which prioritizes the state's role in maintaining security, a blanket prohibition might remove necessary discretion from correctional officers in high-risk scenarios. While childbirth is a medical event, the individuals remain in state custody. A rigid ban may prevent authorities from responding to exceptional security risks or escape attempts during transit to or from medical facilities, potentially compromising public safety [Judgment]. Critics might argue that such matters are better handled through operational guidelines rather than a blunt legislative instrument that overrides state-based correctional expertise.
2026-08-18
Senate
Before Senate
THORPE, Sen Lidia
Unspecified
Criminal Law Reform, Discrimination / Human Rights, Indigenous