This article applies to organisations that operate public and private health facilities and religious organisations in Victoria.
Change or Suppression (Conversion) Practices Prohibition Bill 2020 (Vic)
Please be advised that the Change or Suppression (Conversion) Practices Prohibition Bill 2020 (Vic) (the Bill) passed the Victorian Parliament on 4 February 2021 and received Royal Assent on 16 February 2021. The Bill is due to commence on a day to be fixed by proclamation, or within 12 months of assent.
The Bill denounces and prohibits ‘change or suppression practices’ (also known as conversion practices) that seek to change or suppress a person’s sexual orientation or gender identity in Victoria, allowing all Victorians to live authentically and with pride, eliminating the view that an individual’s sexual orientation and gender identity are “broken” and needing to be “fixed”. The Bill empowers the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) to investigate reports of conversion practices. The Bill aims to protect LGBT Victorians by creating criminal offences relating to conversion practices that cause injury or serious injury.
Notably, under the Bill a change or suppression practice does not include a practice by a health service provider that, in the provider’s reasonable professional judgement:
- is part of the clinically appropriate assessment, diagnosis or treatment of a person, or clinically appropriate support for a person; or
- enables or facilitates the provision of a health service for a person in a manner that is safe and appropriate; or
- is necessary to comply with the provider’s legal or professional obligations.
The following are examples of the types of practices to which conversion therapy does not include:
- assisting a person who is undergoing a gender transition; or
- assisting a person who is considering undergoing a gender transition; or
- assisting a person to express their gender identity; or
- providing acceptance, support and understanding of a person; or
- facilitating a person’s coping skills, social support and identity exploration and development.
New offence – Change or suppression practices
Organisations need to be aware that the new offences that prohibit change or suppression practices can be applied to persons engaged in conversion practices outside of Victoria, where it can be established that there is a real or substantial link between the prohibited conduct and Victoria. A real or substantial link can be established where the prohibited conduct or its effects, can be found to have partly occurred in Victoria.
In addition, unlike similar legislation recently passed in Queensland and the ACT, the Victorian Bill goes a step further by banning harmful practices not only in healthcare settings but also in religious settings.
Under new sections 10 and 11, those individuals who subject others to change or suppression practices that cause injury will face a maximum fine of up to 600 penalty units (currently $99,132), 5 years imprisonment or both and organisations face a maximum of 3,000 penalty units (currently $495,660). For those individuals who cause serious injury, the maximum penalty will increase to 1,200 penalty units (currently $198,264), 10 years imprisonment, or both and organisations face a maximum fine of 6,000 penalty units (currently $991,320).
Under new section 12, those individuals who try to take their conversion practices outside of Victoria could face a maximum fine of 240 penalty units (currently $39,652.80), 2 years imprisonment, or both and organisations face a maximum fine of 1,200 penalty units (currently $198,264).
Under new section 13, those advertising conversion practices would also incur a fine of up to 60 penalty units (currently $9,913.2) for an individual and 300 penalty units (currently $49,566) for an organisation.
Lastly, a person may be compelled to appear before VEOHRC under new sections 36 and 37, for the purpose of providing information or documentation relevant to an investigation, and a failure to comply with a notice to appear, will result in a fine similar as set out in the above paragraph.
Organisations need to also be aware that new section 47 creates vicarious liability between a person (including volunteers) who engages in conversion practices and their employer/principal. There is an exception to this, if an employer or principal can prove, on the balance of probabilities, that they took reasonable precautions to prevent the natural person from engaging in the change or suppression practice.
Definitions EO Act amended
The Bill will also amends the definitions of “gender identity” and “sexual orientation” in section 4 of the Equal Opportunity Act 2010 (the EO Act) to bring them more in line with current times. The Bill also makes “sex characteristics” a new protected attribute, which affords intersex Victorians better protection from discrimination under the EO Act.
Please click here to access the full Bill.
For further information please contact the Law Compliance team:
Phone: 1300 862 667