Wednesday, 3 December 2025

 Mary-Anne THOMAS (Macedon – Leader of the House, Minister for Health, Minister for Ambulance Services) (11:21): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Health Safeguards for People Born with Variations in Sex Characteristics Bill 2025:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Health Safeguards for People Born with Variations in Sex Characteristics Bill 2025 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I have this opinion for the reasons outlined in this statement.

Overview of the Bill

The purpose of this Bill is to establish a new legislative scheme for supported medical treatment decision-making for persons who have an innate variation in sex characteristics.

The primary features of the legislative scheme provided for in this Bill are:

• The introduction of informed consent safeguards, including:

• a framework for assessing a person’s capacity to give informed consent before performing a medical treatment that modifies the sex characteristics of that person;

• the requirement for a registered medical practitioner to seek and obtain informed consent for a treatment, including by providing adequate information and a reasonable opportunity to make a decision;

• The establishment of an independent specialist oversight panel, called the ‘Restricted Medical Treatment Oversight Panel’ (Panel), whose function is to hear and decide applications for approval of treatment plans which authorise a medical treatment that will modify the sex characteristics of a person who does not have capacity to give informed consent;

• The introduction of a prohibition against knowingly or recklessly providing unapproved medical treatment in certain circumstances;

• The provision of new oversight functions and enforcement powers to the Secretary; and

• The introduction of a requirement for health service providers to report the performance of certain medical treatments.

The provisions of the Bill are to be interpreted having regard to the principles of bodily integrity, children’s agency, precaution and medical necessity, so that decisions about restricted medical treatment are deferred, where possible, until a child is able to make their own decision, and finally, independent oversight, given the risks associated with providing this treatment (clause 6).

The importance of the Bill

The Bill serves an overall protective purpose intended to promote human rights in the Charter. The new legislative scheme established by this Bill is designed ensure the rights of persons with innate variation in sex characteristics are protected and that such persons are supported to make decisions about their own bodies, and avoid preventable harm arising as a result of unnecessary treatments.

Persons (particularly infants and children) with an innate variation in sex characteristics can be subjected to deferrable or medically unnecessary treatments that vary their sex characteristics. These treatments have typically been justified on the basis of cultural norms, such as to allow a child to develop in a more ‘typical’ male or female way, or psychosocial rationales, such as to avoid bullying or discrimination. These treatments can lead to negative impacts, including permanent infertility, scarring, pain, decreased genital sensation, sexual dysfunction, mental health impacts and life-threatening infection.

While many people born with variations and their families receive appropriate healthcare support to meet their needs, it is known that medically unnecessary interventions on people’s sex characteristics still occur, particularly on infants and young children. There is a body of research, including reports by the Australian Human Rights Commission, which record the negative impact of unnecessary intervention and advocate for reform to better protect rights of this group. Multiple United Nations bodies, along with local human rights organisations, have recommended the adoption of legislative provisions prohibiting unnecessary medical intervention on people born with variations in sex characterises without their free and informed consent.

In response to these concerns, the proposed legislation is intended to address a gap in healthcare for this cohort by establishing legislative safeguards to better support their rights. This Bill is also a key part of implementing commitments by the Victorian Government made in (i) Am Equal: Future Directions for Victoria’s Intersex Community and Pride in our future: Victoria’s LGBTIQA+ strategy 2022–23 to establish a scheme to improve the treatment and care of people with innate variation in sex characteristics, particularly infants and children.

Human rights issues

The human rights protected by the Charter that are relevant to the Bill are:

• Right to protection from discrimination (section 8)

• Right to life (section 9)

• Right to protection from medical treatment without consent (section 10(c))

• Right to privacy (section 13)

• Right to protection of families and children (section 17)

• Right to property (section 20)

• Right to fair hearing (section 24)

• Right to presumption of innocence (section 25(1))

Decision-making in relation to treatment where a person does not have capacity to provide informed consent

The legislative scheme provided for by this Bill broadly applies to a person who has an innate variation in sex characteristics (definition of ‘applicable person’ in clause 3). Clause 10 requires the assessment of a person’s capacity to give informed consent to restricted medical treatment, being treatment which changes an applicable person’s sex characteristics. Where a person is assessed as not having this capacity (defined as a ‘protected person’ in clause 4), the Bill allows for a medical treatment decision maker to make decisions in relation to restricted medical treatment on their behalf (clauses 11, 30(4), 38(2)(c) and (6), 46(2) and 52) and provides for independent oversight by the Panel who must provide approval for restricted medical treatments (clause 16(1)(a) and Part 6).

Right to protection from medical treatment without consent (section 10(c)) and right to privacy (section 13(a)).

Section 10(c) of the Charter provides, relevantly, that a person has the right not to be subjected to medical treatment without their full, free and informed consent. In addition, section 13(a) of the Charter protects a person’s right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought. The right to privacy is broad in scope and extends to privacy in the sense of bodily integrity, which involves the right not to have our physical selves interfered with by others without our consent. The purpose of these rights together is to protect the individual’s personal autonomy and integrity. They recognise the freedom of individuals to choose whether or not they receive medical treatment. Additionally, section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. This includes an obligation to take measures to protect a child’s enjoyment of their Charter rights, particularly in light of their vulnerability.

These rights may be engaged by provisions which allow for a medical treatment decision maker and the Panel to make decisions about restricted medical treatment on behalf of a protected person. Section 10(c) may be limited as treatment can occur in situations where a person is not able to give their full, free and informed consent, while a person’s bodily integrity pursuant to section 13(a) may also be limited by the performance of such treatments. However, as I will discuss below, I consider that the limit on s 10(c) is justified pursuant to s 7(2) of the Charter and that the interference with s 13(a) will be lawful and non-arbitrary, such that these provisions are compatible with human rights.

As outlined above, there is a body of research documenting the harm that can result from unnecessary medical intervention and highlighting the need for greater protection of the rights of people with innate variation in sex characteristics and oversight of treatment decisions. This Bill is designed to pursue the legitimate purpose of providing greater protection for these rights.

The Bill is confined in its terms and provides a series of safeguards to ensure that treatment can only be provided to protected persons where it is medically necessary and where it is not possible to defer until the person is able to make their own decisions about their body. These safeguards include:

• Part 3 of the Bill provides for a robust and detailed process for assessing and obtaining a person’s informed consent. This Part promotes the rights under sections 10(c), 13(a) and 17(2) (where the person is a child) by ensuring applicable people are supported to make an informed decision in relation to treatment where they have capacity to do so. These provisions also provide clear guidance to practitioners on how to assess whether a person is able to provide informed consent, ensuring decisions are only allowed to be made on behalf of a person by a medical treatment decision maker and the Panel where necessary;

• Restricted medical treatment, apart from urgent treatment necessary to preserve life or prevent serious harm, is not able to be provided to a protected person without the consent of at least one of the person’s medical treatment decision makers (clause 11(1)(a)). The offence in clause 7 reinforces this prohibition and provides further protection against treatment being undertaken without the consent of the applicable person or a person authorised to make decisions on behalf of a protected person;

• The Bill requires that the views of a protected person are still taken into account, despite not being able to provide informed consent, and that they are supported to obtain information and provide these views (clauses 11(2)(a)(i), (2)(a)(iii), (3), (5) and 37(1)(b));

• Clause 35 provides that treatment plans can only be approved by the Panel where there is sufficient evidence that the person would suffer significant physical or psychological harm if the treatment proposed in the plan were not provided and that there is no alternative treatment option available which is both as effective as the treatment proposed in preventing significant physical or psychological harm and less restrictive of the person’s or persons’ ability to make a decision about their sex characteristics in the future. Clause 35 also provides that evidence that a treatment must be provided to reduce a risk of discrimination or stigmatisation is not a relevant consideration to the approval of a treatment plan. This clause works to ensure treatments are medically necessary and are unable to be deferred until the person is able to make their own decisions about their body and not informed by improper considerations, such as to allow a child to develop in a more ‘typically’ male or female manner, that have historically been used to justify restricted medical treatments;

• Approval decisions in relation to individual or general treatment plans are subject to internal review (Part 8) and external review by VCAT (clause 52) providing for additional oversight of treatment decisions; and

• Clause 6, as outlined above, requires the Bill is to be interpreted having regard to the principles of bodily integrity, children’s agency, precaution, medical necessity and independent oversight.

There are also a series of safeguards which apply to and guide the decision making of a medical treatment decision maker.

A medical treatment decision maker is defined to have the same meaning as in the Medical Treatment Planning and Decisions Act 2016 (MTPD Act). Pursuant to section 55 of the MTPD Act, an adult’s medical treatment decision maker is a person reasonably available and willing to make a medical treatment decision and, in order of priority, is: their decision maker appointed under the Act (if any), their guardian under the Guardianship and Administration Act 2019 (if any), provided that the guardian has power to make medical treatment decisions, or a person in a close and continuing relationship with them, being their spouse or domestic partner, primary carer, adult child, parent or adult sibling. The medical treatment decision maker of a child is the child’s parent or guardian or other person with parental responsibility for the child who is reasonably available and willing and able to make the medical treatment decision.

These provisions allow for a person to exercise some control over their future treatment by appointing someone they trust to make decisions on their behalf should they lose capacity to provide informed consent. Alternatively, a protected person will have decisions made on their behalf by a person with whom they are in a close and continuing relationship, who can reasonably be expected to act in their best interests and to understand, and therefore make decisions based on, the person’s preferences and values.

The MTPD Act also contains further safeguards that apply to all medical treatment decision makers (for example under section 61, the medical treatment decision maker must make the decision that they reasonably believe the person would have made if the person had decision making capacity) and are subject to oversight by the public advocate and VCAT (e.g. see sections 62 and 67).

On the basis of the above, I am satisfied that the limit imposed on the right in section 10(c) by allowing treatment to still occur where a person is unable to provide consent is proportionate and reasonably justified having regard to the importance of the identified purpose and the safeguards in place to ensure any treatment is medically necessary to prevent significant harm and is unable to be deferred until the protected person can make a decision for themselves. For these same reasons, I am also satisfied there will be no limitation of the section 13(a) right as treatment will be authorised under an appropriately circumscribed law, which is subject to sufficient protections to protect against a decision being made arbitrarily or unreasonably.

Accordingly, I am satisfied these provisions are compatible with the rights under sections 10(c) and 13(a) of the Charter.

Right to protection from discrimination (section 8)

Section 8(2) of the Charter provides that every person has the right to enjoy their human rights without discrimination. Section 8(3) of the Charter relevantly provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect.

‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 on the basis of an attribute in section 6 of that Act, which relevantly includes sex characteristics. Direct discrimination occurs where a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. Indirect discrimination occurs where a person imposes a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a protected attribute, but only where that requirement, condition or practice is not reasonable.

Section 8(4) of the Charter provides that measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination. Section 8 as a whole is concerned with substantive equality. This means that any measure taken for the purpose of assisting or advancing a group disadvantaged because of discrimination, such as people with innate variation in sex characteristics, will not constitute discrimination where it satisfies the test for establishing a special measure. This includes demonstrating that the disadvantage to be targeted by the measure is caused by discrimination, that the measure is reasonably likely to advance or benefit the disadvantaged group, and that it addresses a need and goes no further than is necessary to address that need.

The application of this scheme to people with innate variations in sex characteristics, including by requiring this group to obtain additional approval from the Panel to undergo certain medical treatments, may be seen to be disadvantaging or treating this group unfavourably. I am of the view, however, the legislative scheme established by the Bill, particularly the informed consent safeguards and the oversight provided by the Panel, does not amount to discrimination as it constitutes a special measure under section 8(4) of the Charter. This is because their purpose is to support substantive equality in the enjoyment of the human rights of people with innate variations in sex characteristics who, as outlined above, continue to face the risk of the performance of medically unnecessary treatments in the absence of their informed consent. They constitute a proportionate and justified measure having regard to the various safeguards in the Bill as outlined above which promote rights or minimise any limitation of the rights of an applicable person.

For these reasons, I am satisfied that the creation of these measures specifically for people born with innate variation in sex characteristics is not discriminatory and therefore does not limit the right to equality under the Charter.

Emergency medical treatment

Clause 8 provides that restricted medical treatment can be provided without consent, or otherwise obtaining authorisation from the Panel, where a medical practitioner believes on reasonable grounds that the treatment is necessary, as a matter of urgency, to save the person’s life, to prevent serious damage to the person’s health, or to prevent the person from suffering or continuing to suffer significant pain or distress. Pain or distress is defined to not include actual or a perceived risk of discrimination or stigmatisation, or emotional pain arising from such discrimination or stigmatisation.

Right to protection from medical treatment without consent (section 10(c)) and right to privacy (section 13(a)).

As outlined above, section 10(c) and s 13(a) both protect an individual’s personal autonomy and recognise the freedom of individuals to choose whether or not they receive medical treatment. Both these rights are engaged as this provision allows for medical treatment without first obtaining a person’s consent. However, I consider that the limit on section 10(c) is justified pursuant to section 7(2) of the Charter and the interference with section 13(a) will be lawful and non-arbitrary such that this provision is compatible with human rights.

Clause 8 promotes the right to life under section 9 of the Charter, which includes the right not to be arbitrarily deprived of life. Its purpose is to enable the expedient provision of emergency treatment that is necessary to save someone’s life or prevent serious harm and operates to ensure the provision of treatment to a person who is unable to provide informed consent is not delayed by the process of applying to the Panel for the approval of the treatment or compliance with the informed consent processes under Part 3.

Clause 8 is proportionate to its legitimate purpose and strikes an appropriate balance between the right to life and the right not to be subjected to medical treatment without consent or the protection against unlawful or arbitrary interference with privacy. As outlined above, clause 8 only allows emergency treatment in specified and exceptional circumstances, establishing a high threshold for treatment without obtaining consent. Importantly, by excluding the risk of discrimination or stigmatisation from being sufficient to authorise emergency treatment, clause 8 ensures such reasons are not used to circumvent the operation of the scheme and proper oversight from the Panel.

For these reasons, I consider that emergency medical treatment allowed for by clause 8 is compatible with the rights under sections 10(c) and 13(a) of the Charter.

Powers of the Secretary and assessment committees to obtain and share information

The Bill grants the Secretary with additional functions and powers to monitor and enforce compliance with the requirements under the Bill (clause 12). As part of this oversight function, clause 13 provides that the Secretary may request that a person (other than an applicable person, parent, guardian or carer of an applicable person) provide information or

a document that is necessary to determine whether there has been a breach of a provision of the Bill. This provision authorises a person to provide the requested information and expressly provides that any disclosure does not alone amount to a breach of professional ethics or amount to unprofessional conduct (clause 13(2)–(3)). The Secretary is also empowered to disclose information to certain bodies, including Australian Health Practitioner Regulation Agency or the Director of Public Prosecutions, for the purpose of assisting that body to perform functions or exercise powers under any Act (clause 14).

Clause 38 relevantly allows an assessment committee to inform itself in any way that is appropriate, including by speaking to a protected person with the consent of their medical treatment decision maker or seeking advice from an expert relevant person or body. The provision further provides that in consulting with or obtaining advice from an expert relevant person or body, the committee must ensure that information that might identify the protected person is not disclosed to the expert unless required. If such disclosure is required, or the expert is required to assess the protected person, the consent of their medical treatment decision maker must be obtained. Clause 40 allows an assessment committee, in assessing an application or proposal, to request further information about or relating to the relevant treatment plan.

Right to privacy (section 13(a))

As outlined above, this right protects against unlawful or arbitrary interference with a person’s privacy. The information gathering and sharing powers discussed above which allow sensitive personal and health information to be shared with the Secretary, the assessment committee and other bodies may constitute an interference with privacy rights under the Charter.

However, I consider that any such interference is lawful and not arbitrary. These provisions further the legitimate purpose of allowing for the effective administration of the Bill including the investigation of possible non-compliance with the Bill and proper consideration of applications or proposals for approval of a treatment plan, ultimately serving to protect persons with variation in sex characteristics against unnecessary medical intervention. The provision of, or sharing of, information under these provisions would be pursuant to legislation which is appropriately confined to achieve this purpose. As outlined above, a request from the Secretary or assessment committee for further information is non-compulsive and can only be made for particular purposes, being compliance or in assessing an application. Information can only be shared by the Secretary with other bodies to assist with the performance of statutory functions or powers. The assessment panel can only speak with the protected person, disclose identifying information or arrange assessment of a protected person with the consent of their medical treatment decision maker. Further, the personal information of applicable or other persons will continue to be subject to the protections afforded under the Privacy and Data Protection Act 2014 and the Health Records Act 2001. Accordingly, I consider that any interference with privacy is neither unlawful nor arbitrary.

Reporting requirements

Pursuant to clause 54, applicable providers are required to provide a report to the Panel on certain information in relation to the provision of restricted medical treatments to applicable persons annually. Under clause 55(1)–(2), the Panel is required to submit an annual report to the Secretary including certain information about the volume and nature of restricted medical treatments performed in Victoria.

Right to privacy (section 13(a))

I do not consider these provisions will impose any limitation of the right to privacy, as there will be no disclosure of personal or health information which would allow for the identification of an individual, or that such disclosure will be lawful and not arbitrary.

Clause 55(3) expressly provides this protection, requiring that any annual report of the Panel must not include any identifying information of an applicable person, their medical practitioner or their medical decision maker. It is not intended that clause 54 operate in a way which requires a health service provider to report identifying information to the Panel.

However, in the event that the information required at clause 54(1) could be used to identify a person, I consider that the disclosure of this information will be pursuant to legislation which is sufficiently circumscribed to meet a legitimate purpose. I consider the reporting of this information is necessary to allow the Panel to monitor and analyse data for various purposes, including to inform and improve the exercise of its functions, such as informing any recommendations to the Secretary about the improvement of care, support and outcomes for applicable persons (clause 16(b)). The collection of this data over time will also assist in the review of the Bill required under clause 56. This information will be held and used by the Panel and Secretary for these particular purposes and will not be publicly disclosed, noting the protection in clause 55(3).

For these reasons, I consider that the degree to which an individual may be identified in the disclosure of this information, such disclosure will be according to law and non-arbitrary and so will not limit the right to privacy under section 13(a) of the Charter.

Criminal prohibition

Clause 7 creates an offence for a person to provide restricted medical treatment to an applicable person who does not have capacity to give informed consent where the provider knows or is reckless as to whether the treatment is ‘restricted medical treatment’ and knows the applicable person does not have capacity to give informed consent or is reckless as to whether they have this capacity.

Clauses 8 and 9 provide for exceptions to this offence, namely where the treatment is urgently necessary, or where the treatment provided in accordance with an approved treatment plan.

Presumption of innocence (section 25(1))

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

As these offences are summary offences, section 72 of the Criminal Procedure Act 2009 will apply to require an accused who wishes to rely on any exception in clause 8 or 9 to present or point to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish the exception. In other words, the provision imposes an evidential onus on an accused when seeking to rely on the defence. Case law has held that an evidential onus imposed on establishing an excuse or exception does not limit the Charter’s right to a presumption of innocence, as such an evidential onus falls short of imposing any burden of persuasion on an accused. Once the accused has pointed to evidence of a reasonable excuse, the burden shifts back to the prosecution who must prove the elements of the offence.

Accordingly, I do not consider that the offence provision and exceptions in clauses 7–9 do not limit the right to be presumed innocent in section 25(1) of the Charter.

Statutory immunities

Clause 27 provides that a Panel or committee member is not personally liable for anything done or omitted to be done in good faith in the exercise of a power or discharge of a duty under the Act as a Panel member, or in the reasonable belief that the act or omission was in exercise of such a power or discharge of a duty. Clause 27(2) provides that any liability which, but for subsection (1), would attach to a Panel or committee member, instead attaches to the State.

Property rights and right to fair hearing (sections 20 and 24(1))

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or the common law, are confined and structured rather than unclear, are accessible to the public, are formulated precisely and do not operate arbitrarily.

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The right may be relevantly limited if a person faces a procedural barrier to bringing their case before a court.

The fair hearing right is relevant where statutory immunities are provided to certain persons as this right has been held to encompass a person’s right of access to the courts to have their civil claim submitted to a judge for determination. Similarly, insofar as a cause of action may be considered ‘property’ within the meaning of section 20 of the Charter, clause 27 may also engage this right.

The exclusion from personal liability does not deprive a person of their property rights nor interfere with the right to a fair hearing, because parties seeking redress are instead able to bring a claim against the State (clause 27(2)). The provision also serves a necessary purpose by ensuring that a Panel or committee member is able to exercise their functions effectively without the threat of personal repercussions and overall interference that responding to court claims has. Additionally, the Panel or committee member will still remain personally liable for any conduct not performed in good faith or outside their statutory functions. Accordingly, this provision does not limit property rights or the right to a fair hearing under the Charter.

Conclusion

I am therefore of the view that the Bill is compatible with the Charter.

The Hon. Mary-Anne Thomas MP

Minister for Health

 Mary-Anne THOMAS (Macedon – Leader of the House, Minister for Health, Minister for Ambulance Services) (11:21): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

Today I introduce the Health Safeguards for People Born with Variations in Sex Characteristics Bill 2025, a Bill that affirms our government’s commitment to the health and wellbeing of people born with variations in sex characteristics, especially infants and young children.

Being born with a variation in sex characteristics, sometimes referred to as ‘intersex’, means your body does not fit typical definitions or understandings of male or female bodies. This can include physical traits, like reproductive organs; chromosomes; or hormones. This should not be confused or conflated with being trans or gender diverse.

This legislation is the culmination of years of advocacy, consultation, and reflection.

It responds to the lived and living experiences of people born with variations in sex characteristics who have courageously shared their stories of medicalisation, trauma, and resilience. It is also informed by the growing international consensus that unnecessary medical interventions on infants and young children with variations must end.

It empowers parents and guardians to make decisions that are truly in their child’s best interests – not just in the moment, but for life. And finally, it supports clinicians who work tirelessly to provide the best possible care to all Victorians by enshrining a best practice, contemporary approach to the care and treatment of people born with variations in sex characteristics.

Importantly, there will be no change regarding urgent treatment required to save a person’s life or prevent serious, significant damage to their health. Urgent treatments will be able to proceed without additional oversight or delay. We will rely on the expert advice of dedicated clinicians to determine urgency and proceed appropriately.

This Bill is not about ideology. It is about healthcare. It is about ensuring that our health system does no harm. It is about recognising that diversity in sex characteristics is a natural part of human variation, and that every person deserves the right to make decisions about their own body.

The problem we are addressing

For decades, around the world, infants and young children born with variations in sex characteristics have undergone medical procedures so that their body can appear more typically male or female. These interventions, including surgical or hormonal treatments, were often not medically necessary, irreversible, and performed well before the person was able to consent.

While the intention has often been benign, the consequences can be devastating and lifelong. They can include sterilisation, pain, sexual dysfunction, psychological trauma, and a deep sense of violation.

These practices have been condemned by people with lived and living experience, as well as human rights bodies and medical ethicists around the world.

Victoria wants to do better. And with this Bill, we will.

What the Bill does

The Bill establishes a clear legal framework to protect people with variations in sex characteristics, particularly infants and young children, from harm. It does so through 4 key mechanisms.

The first mechanism is informed consent safeguards. These safeguards ensure that all people born with variations in sex characteristics, and the families of infants and young children, get the information and support they need to make healthcare decisions.

This will include providing a person with tailored information about their variation, treatment options, and what would happen if they did not receive treatment. It can also include being able to talk to a peer worker or counsellor about healthcare needs and options.

If the person has capacity, they will be able to consent to approved treatment. If the person does not have capacity to consent to approved treatment, they will be supported to contribute to decision making as appropriate for their age and developmental stage, with additional oversight.

In the case of infants and young children, an oversight panel will need to approve the treatment first. Then the parents or guardians will be able to consent to the treatment going ahead. This Bill will not replace parent and guardian decision making. Parents and guardians must still give consent for treatment to proceed on their child, in line with an approved treatment plan. Families will be supported with accurate, clearly understandable information and a reasonable period of time to consider any decision.

The second mechanism is a new independent, legislated oversight panel that will approve general and individual treatment plans. The panel will also develop guidance and report on treatment data.

The panel’s role is not to obstruct care but to ensure that irreversible decisions are made with the utmost care and accountability. The panel will ensure that children and their parents and

guardians are better supported in their decision making, while also reducing risks of decision making for clinicians and health services.

The third mechanism is treatment plans, which provide approval for treatments that vary sex characteristics. This can include pre-approved general treatment plans, which apply to more than one person for common treatments where there is an established evidence base, and individual treatment plans, which apply to one person for less common treatments. Treatment plans will often be developed and proposed by the treating clinician for approval.

General treatment plans in particular are a flexible and responsive way of managing oversight and reducing regulatory burden and duplication.

The fourth mechanism is a prohibition with consequences for non-compliance. The criminal prohibition addresses intentional or reckless provision of restricted medical treatment to a protected person – that is, a person born with variations in sex characteristics who does not have capacity to consent to a proposed medical treatment.

Consequences for non-compliance with the Bill will largely be supported through existing regulatory mechanisms. For example, if a clinician does not meet their informed consent obligations, they can be referred to the Australian Health Practitioner Regulation Agency for unprofessional conduct. However, there is one proposed summary offence for breaches of the prohibition.

The maximum penalty for the most serious, intentional, and/or repeated breaches is to be 2 years’ imprisonment or 240 penalty units. This is an important deterrent to non-compliance, given how devastating and lifelong the consequences can be for people born with variations in sex characteristics.

Cultural change

This legislation is important. However, legislation alone is not enough. Cultural change is needed – within medicine, within families, and within society. This Bill is a foundation, not a finish line.

Because legislation alone is not enough, the proposed reforms will be supported by complementary system enhancements, including improvements to the model of care; data collection to provide better visibility of variations and procedures; and resources, guidance, and education to support understanding of roles and responsibilities under the scheme.

And we will not rush implementation. We will continue to work with clinicians and people with lived and living experience to ensure that people are at the centre of new processes, including people born with variations in sex characteristics and those who care for them.

Conclusion

This Bill reflects our government’s commitment to evidence-based policy, human rights, and inclusive healthcare.

It is the result of deep consultation with people with lived and living experience, clinicians, and legal experts.

I want to thank the brave people who were born with variations in sex characteristics for their leadership, their courage, and their generosity in sharing their stories.

I also want to recognise the clinicians who are already practising in line with the principles of the Bill, who helped shape the proposed reforms and who will be leaders in this next healthcare chapter.

This Bill is not just about healthcare. It is about justice. We cannot undo the harms of the past, but we can ensure that moving forward, every Victorian, regardless of their sex characteristics, has the right to make decisions about their own body, to access compassionate and informed care, and to live free from harm.

I commend the Bill to the House.

 James NEWBURY (Brighton) (11:22): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 17 December.