Crimes Amendment (Prohibiting the Strip Searching of Children) Bill 2026, Crimes Amendment (Prohibiting Shackling During Childbirth) Bill 2026
Senator McALLISTER (New South Wales—Minister for the National Disability Insurance Scheme) (10:00): I rise to speak on the two bills before the chamber at the moment, the Crimes Amendment (Prohibiting the Strip Searching of Children) Bill 2026 and the Crimes Amendment (Prohibiting Shackling During Childbirth) Bill 2026, and I'll deal with them in that order.
The government acknowledges the concerns raised about stripsearching persons under the age of 18, and the government also acknowledges the important issues that are raised by the bill, including recognising the rights of children and young people. Responsibility for the criminal justice system predominantly rests with states and territories. Searching powers for state and territory police are regulated by states and territories.
These powers are used sparingly. For example, ACT police have only performed a search on a child once in the last five years. Senator Thorpe: No, that's incorrect.
You've got the old report. That report was corrected. The ACTING DEPUTY PRESIDENT ( Senator Polley ): Order!
The minister has a right to be heard in silence, as you were. Senator Thorpe: That's wrong information. She's telling lies.
The ACTING DEPUTY PRESIDENT: I am asking you to come to order so that we can proceed. Senator Thorpe: They did not record strip searches for the past 25 years. It's incorrect information.
The ACTING DEPUTY PRESIDENT: Order! Senator Thorpe, these are your bills. Everyone has a right to be heard in silence.
You had your opportunity— Senator Thorpe: I get your point. Move on. The ACTING DEPUTY PRESIDENT: to speak.
Allow other senators to make their contribution. Senator Thorpe: I'm not going to be told by you. The ACTING DEPUTY PRESIDENT: If you can't sit and listen, then I invite you to leave the chamber.
Senator McALLISTER: The government notes the inquiry into the bill by the Legal and Constitutional Affairs Legislation Committee. The government acknowledges the evidence provided to the committee through submissions and public hearing, including the impact that stripsearching has on children and young people. The committee found that existing protections in Commonwealth legislation are sufficient to preserve the rights of the child and recommended the government engage with states and territories to address the concerns identified in the report, including training, accountability and transparency.
The government acknowledges the important issues raised in the Crimes Amendment (Prohibiting Shackling During Childbirth) Bill. This includes the harm suffered by the mother and child when subjected to such restraints. We are concerned by the appalling stories raised about the practice of shackling pregnant women who give birth under custodial sentences.
The government recognises the importance of strong safeguards and oversight in relation to the exercise of restrictive practices, including those used on vulnerable individuals, such as those in labour. This bill seeks to ban the shackling of pregnant women who give birth while under custodial sentences. The bill does this by inserting a section 87A into the Crimes Act to prohibit restraint of people while they are giving birth.
The bill includes a broad definition as to what is considered a restraint, which includes physical, mechanical, environmental and chemical restraints. As the bill states, the proposed section applies to a person who is detained in prison or a hospital or is otherwise in custody. Laws and policies related to this fall within the remit of the criminal justice system of the state or territory in which this person is held.
The responsibility of the criminal justice system is one that predominantly sits with state and territory governments. It's on this basis that the government does not support the bill. The government notes the inquiry into the bill by the Legal and Constitutional Affairs Legislation Committee.
The committee considered two main questions in relation to the bill: firstly, whether the use of restraints during childbirth is a serious concern; and, secondly, when the bill provides an appropriate, effective and legally sound means of addressing that concern across states and territories. The government acknowledges the evidence provided to the committee through submissions and through public hearings.
This evidence raised serious concerns about the practice of restraining women while giving birth in custody. Anecdotal evidence demonstrated the use of this practice in different jurisdictions and the personal impact it has on the health of a mother and a child. Several submitters highlighted the specific impact the practice of shackling during childbirth has on Aboriginal and Torres Strait Islander women.
The committee also heard about the lack of reliable statistical data on the use of shackles during childbirth in Australian correctional facilities. It was highlighted that the lack of uniform data collection has resulted in a gap in understanding about how often this practice is used and how it applies across different jurisdictions. When assessing whether the bill is the appropriate vehicle to address what is a very serious issue, the committee concluded that these issues are most appropriately addressed by states and territories through their corrective services legislation, policies and accountability frameworks.
The committee ultimately made two recommendations: first, that the Commonwealth consider appropriate pathways to engage with states and territories to address issues raised by the bill, and, second, that the Australian government work with the Australian Institute of Health and Welfare and the states and territories to collect data around how many women are pregnant and give birth while in custody in Australia each year.
The government will consider these recommendations in detail. In November 2023, the Department of Health, Disability and Ageing commissioned the Nous Group to undertake the National review of First Nations healthcare in prisons on behalf of the Aboriginal and Torres Strait Islander Health Collaboration, which comprised Commonwealth, state and territory government health officials and First Nations health sector representatives.
The review noted the shackling of women during childbirth for the safety of health staff as an example of where interactions with custodial staff and security requirements can inhibit access, quality or delivery of health care. In December 2024, Commonwealth state and territory health ministers jointly endorsed this review. They committed to developing a national approach to implementation of its six recommendations for reform.
This included a recommendation for health and justice ministers to investigate evidence and take steps to cease any practices that violate prisoners' rights. The development of— Senator Thorpe: The deaths in custody royal commission, 1991, has the answers. It was 35 years ago!
The ACTING DEPUTY PRESIDENT ( Senator Polley ): Order! I will remind you, Senator, that you have the right to reply when the debate is coming to an end. So I invite you to make some notes and you can respond in your comments rather than interjecting now.
Senator McALLISTER: I was indicating that the Commonwealth, state and territory health ministers have jointly endorsed that review. They have committed to developing a national approach to implement the six recommendations for reform. This included a recommendation for health and justice ministers to investigate evidence and to take steps to cease any practices that violate prisoners' rights.
The development of this national approach has been led by the health collaboration in partnership with governments and First Nations stakeholders from the health and justice sectors. On 3 September, the health collaboration provided their advice to health ministers at the 2026 Aboriginal and Torres Strait Islander health roundtable. This advice is now being considered by governments.
At the health roundtable, ministers reaffirmed their commitment to continue to work together to achieve improvements to the health and wellbeing of First Nations people in places of detention and upon their release. The government believes that all Australians are entitled to safety and dignity, including those in custody.