Practices seeking to change or suppress a person’s sexual orientation or gender identity (conversion practices) have been banned in Victoria following the passing of the Change or Suppression (Conversion) Practices Prohibition Bill. The bill has been passed, but will not become law until February 2022.
Among other things, the new law:
- introduces a general prohibition on change or suppression practices;
- makes it an offence for a person or organisation to:
- intentionally engage in a change or suppression practice (or practices) if that practice (one event or cumulatively) negligently causes injury and the person or organisation is negligent as to whether the practice will cause injury;
- take someone from Victoria or arrange for them to be taken from Victoria for the purposes of a change or suppression practice (or practices), if that practice (one event or cumulatively) causes injury and the person or organisation is negligent as to whether the practice will cause injury;
- advertise a change or suppression practice; and
- empowers the Victorian Equal Opportunity and Human Rights Commission to:
- receive and respond to reports about change or suppression practices from any member of the community;
- conduct investigations into change or suppression practices; and
- direct a person or organisation to take, or refrain from taking, certain actions, to comply with the Act; and
- requires the Victorian Equal Opportunity and Human Rights Commission to establish information and education programs in relation to change or suppression practices.
Penalties apply under the new law – up to ten years’ jail or $218,088 for individuals or up to $1,090,440 for organisations.
What is a change or suppression practice?
A change or suppression practice is a practice or conduct:
- directed towards a person;
- on the basis of the person’s sexual orientation or gender identity; and
- for the purposes of changing or suppressing or inducing the individual to change or suppress that identity.
Change or suppression practices are prohibited regardless of whether the person has requested or given consent to the practice or conduct.
A change or suppression practice includes but is not limited to:
- psychiatry or psychotherapy treatment (or similar);
- religious practices, including prayer-based practices, deliverance practices or exorcisms;and
- giving a person a referral for the purposes of a change or suppression practice being directed towards the person.
The Explanatory Memorandum released with the bill notes that the new law is “intended to capture a broad range of conduct, including, informal practices, such as conversations with a community leader that encourage change or suppression of sexual orientation or gender identity, and more formal practices, such as behaviour change programs and residential camps.”
What is allowed?
A practice is not a change or suppression practice if it is supportive of or affirms a person’s gender identity or sexual orientation. The bill expressly confirms that the following are not change or suppression practices:
- assisting a personundergoing or considering undergoing a gender transition;
- assisting a person to express their gender identity;
- providing acceptance, support or understanding of a person; or
- facilitating a person’s coping skills, social support or identity exploration and development;
The bill also protects a practice that is (in the health service provider’s reasonable professional judgement), necessary to provide a health service or comply with the health service provider’s legal or professional obligations. This will not be a change or suppression practice under the new law.
When can an organisation be held responsible?
Organisations may be held liable under the new law for the actions of employees and agents (including volunteers within the organisation) acting with their actual or apparent authority as well as officers (including directors or committee members). An organisation may be deemed to have intended for a practice to take place if the corporate culture within the organisation directed, encouraged, tolerated or led to the formation of the intention to carry out that practice.
It may be a defence if an organisation can demonstrate that it exercised due diligence or took reasonable precautions to prevent conversion or suppression practices by an individual.
What about sermons or general discussions about religious beliefs?
The bill was accompanied by a Statement of Compatibility (a requirement to confirm that a proposed law is compatible with the Victorian Charter of Human Rights). That Statement says:
Although broad, the definition has been carefully designed to exclude conduct that is not directed at an individual, to reduce its impact on religious practices such as sermons. It also requires conduct be engaged in for the purpose of changing or suppression a person’s sexual orientation or gender identity (or inducing a person to change or suppress) to limit impact on general discussions of religious beliefs around sexual orientation or gender identity that aim to explain these beliefs and not change or suppress a person’s sexual orientation or gender identity. (emphasis added)
The legislation has been crafted to reduce or limit the impact on sermons and general discussions of religious beliefs. However, it remains possible that a sermon or discussion about religious belief could contravene the new law if it is found to be directed at an individual and to have a purpose of changing or suppressing the person’s sexual orientation or gender identity.
What happens next?
The law will not come into effect for a further twelve months to allow for the Victorian Equal Opportunity and Human Rights Commission to prepare for implementation. During this period, the Commission will develop guidance on how it considers the law should be interpreted and applied.
Should you do anything in the meantime?
This is uncharted territory in Victoria. For organisations and institutions whose activities include personal counselling, instruction or teaching regarding sexual orientation or gender identity or the teaching or expression of religious belief, the new law will require careful consideration.
As the VEOHRC develops guidance and communicates its plans on how it intends to exercise its new powers, appropriate preventative (or remedial) measures for organisations will become apparent. In the meantime, here are some that are immediately clear:
- Organisations should ensure that relevant officers, staff and volunteers are aware of the restraints in the new law.
- Churches, religious organisations and faith-based institutions should consider whether they need to review current practices within their organisations.
- In order to avoid corporate liability, organisations should:
- clearly confirm what counselling or personal instruction relevant staff or volunteers are authorised to provide; and
- prepare to adopt a policy on change or suppression practices and implement training for staff and volunteers – this is likely to be informed by the VEOHRC guidance.
How we can help
For more information or advice on how the reforms may affect you or your organisation, please do not hesitate to contact us.