Hansard debates

Ms HENNESSY (Altona—Attorney-General) (10:06): 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:

This Bill delivers on a Victorian Government commitment to denounce and prohibit harmful LGBT conversion practices.

The Bill refers to LGBT conversion practices as “change or suppression practices”. These are practices which have no basis in medicine; there is no evidence that sexual orientation or gender identity can be changed or suppressed. Not only are change or suppression practices ineffective, they are deeply harmful and can cause long-term mental health issues and, in the most tragic of cases, suicide. A disproportionate number of LGBT people experience poor mental health outcomes and suicidality. According to the National LGBTI Health Alliance, for example, LGBT young people are five times more likely to attempt suicide than their peers. Transgender people are 11 times more likely to attempt suicide, and 48 per cent of transgender and gender diverse people attempt suicide in their lifetime (compared with 3.2 per cent of the general population).

Change or suppression practices often involve the subtle and recurrent messaging that with faith and effort a person can change or suppress their sexual orientation or gender identity. However, change or suppression practices are not only religious or faith based and can take other forms, including counselling, psychotherapy and support groups. In all cases however, these practices are based on a flawed ideology or pseudoscience that a person can be ‘broken’ due to their sexuality or gender identity. This could not be further from the truth.

The Bill recognises change or suppression practices as false, deceptive and seriously harmful acts, and aims to eliminate change or suppression practices in Victoria.

The Bill aims to clearly communicate that change or suppression practices are not tolerated or supported by the Victorian community in any form.

The Bill affirms all people have characteristics of sexuality, sexual orientation, gender identity and gender expression, and no combination of these characteristics constitutes a disorder, disease, illness, deficiency, disability or shortcoming.

The Bill ensures Victorians are able to live their lives authentically with pride, and makes it clear an individual’s sexual orientation and gender identity are not broken and do not need to be fixed.

Definition of change or suppression practices

The prohibition will be based on a broad definition of change or suppression practices. The term “change or suppression practices” is used—rather than other terms such as “conversion therapy”—in acknowledgement of the religious significance of the term “conversion”, and in acknowledgement that the term “conversion therapy” inappropriately legitimises these practices by suggesting they have a basis in medicine.

It is not an oversight that the term “conversion” is in the title of the Bill. It has been included because the phrase “change or suppression practices” alone would not describe the nature of the Bill to someone who was not already familiar with it. Although the Bill avoids using “conversion” for the reasons mentioned—and the Bill’s language is carefully drafted in response to stakeholder feedback—“conversion practice” and “conversion therapy” are concepts people generally understand. Including “conversion” in the title of the Bill contextualises the Bill and the new term of “change or suppression practice”.

The definition of change or suppression practice has three elements:

• First, the conduct must be directed at an individual. This ensures that conduct generally directed—such as sermons expressing a general statement of belief—is not captured. However, such conduct may be considered as part of the Legislative Assembly’s ongoing inquiry into anti-vilification protections.

• Second, the conduct must be “on the basis” of the victim’s sexual orientation or gender identity.

• Third, the purpose of the person engaging in the conduct must be to change or induce another person to change or suppress their sexual orientation or gender identity.

This definition captures a range of conduct, including:

• A counsellor recommending to a patient that they attend group therapy sessions which support people to overcome same sex attraction;

• A parent sending their child to an overseas conversion therapy camp to “cure” them of being gay;

• A person going to a religious leader seeking advice on their feelings of same-sex attraction, and the religious leader telling them they are broken and should live a celibate life for the purpose of changing or suppressing their same-sex attraction.

While some religious practices may meet the definition of change or suppression practice in certain circumstances, the definition had been carefully crafted, and is not designed to capture all religious practices or teachings or to prevent people seeking religious counsel. For example, the definition of a change or suppression practice would not capture conduct where, for example, a person goes to a religious leader seeking advice on their feelings of same-sex attraction, and the religious leader only informs this person that they consider such feelings to be contrary to the teachings of their faith, and does so only to convey their interpretation of those teachings and not to change or suppress the person’s sexual orientation or gender identity.

Similarly, the definition would not capture conduct where, for example, a person confides in a religious leader that they feel their gender identity does not align with the sex they were assigned at birth, and the religious leader only invites this person to attend a weekly prayer group for the purpose of better understanding their feelings and to support the person’s exploration of their feelings.

In addition, change or suppression practices would only attract criminal penalties where injury results from the practice and this is able to be proven.

The definition does not allow an adult to consent to change or suppression practices. This is based on feedback from survivors, who told the government that allowing an adult to consent to a change or suppression practice fails to acknowledge the insidious and coercive nature of such practices.

Importantly, change or suppression practices do not include supportive medical and psychological treatment that is in line with professional standards, including support for a person who is seeking to affirm their gender identity by undergoing gender transition. However, in certain circumstances, a failure of a health professional to refer a person undergoing gender transition to necessary supportive medical or psychological treatment may be captured by both the criminal offences and civil scheme in this Bill.

Definitions in the EO Act

The Bill relies on the definitions of “gender identity” and “sexual orientation” in the Equal Opportunity Act 2010 (EO Act). These definitions have not been updated since 2010.

In the last decade, our collective understanding and awareness of gender identity and sexual orientation has evolved. Therefore, the Bill will amend section 4 of the EO Act to update outdated definitions of “gender identity” and “sexual orientation” in line with current usage:

• “gender identity” means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, including the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal preferences;

• “sexual orientation” means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.

The Bill will also add a definition of ‘sex characteristics’ in section 4 of the EO Act:

• “sex characteristics” means a person’s physical features relating to sex, including genitalia and other sexual and reproductive parts of a person’s anatomy, chromosomes, genes, hormones and secondary physical features that emerge as a result of puberty.

This will better protect intersex Victorians from discrimination. Currently, there is no express protection for intersex Victorians in the EO Act, and the protection offered is inappropriate because it falls under the current definition of “gender identity”. However, intersex status is not the same as gender identity. Therefore, intersex protections from discrimination need to be separated from our understanding of “gender identity”. This distinction also clarifies that intersex change or suppression practices are not within the scope of this Bill. Intersex change or suppression practices often involve medical interventions and this important issue is being considered separately to this legislation by the Department of Health and Human Services.

Other reforms

The Bill will also amend the:

• Family Violence Protection Act 2008 to include an example of a practice which satisfies both the definition of a change or suppression practice and the definition of family violence. For example:

o An adult child repeatedly denigrating an elderly parent’s sexual orientation, including by telling them it is wrong to be same sex attracted and that they should change or they will no longer support them.

• Personal Safety Intervention Orders Act 2010 to include an example of a practice that meets both the definition of a change or suppression practice and harassment. For example:

o A repeatedly leaves pamphlets in B’s mailbox that state that it is wrong to gender transition and that everyone’s gender expression should match the sex they were assigned at birth.

This clarifies that survivors of change or suppression practices may be able to make use of family violence intervention orders, family violence safety notices, and personal safety intervention orders. These orders protect a person from physical or mental harm caused by someone else. A breach of these orders is a criminal offence.

Overview of the enforcement of the prohibition

The prohibition of change or suppression practices will be enforced by a scheme that has been shaped by the views of survivors of this type of harm and will continue to be shaped by survivors during implementation.

The scheme—the broad definition of change or suppression practices, the civil response scheme and the criminal offences—is designed to escalate penalties in response to the harm caused by change or suppression practices.

The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) will be responsible for the civil response scheme. VEOHRC’s focus will be on providing and developing educative materials about change or suppression practices and the harm they cause. It will be empowered to undertake investigations where there is evidence of serious or systemic practices and will have related enforcement powers which if not complied with can result in civil penalties.

Criminal offences will be created for the most serious conduct, including:

• criminal offences that ensure practices which cause injury or serious injury are treated the same way in criminal law as other conduct that causes injury or serious injury;

• an offence for taking or arranging to take someone from Victoria for the purpose of subjecting them to a change or suppression practice which causes injury; and

• a strict-liability offence for advertising change or suppression practices.

I will now explain the enforcement scheme in greater detail, starting with the civil scheme as this will be the most common response to change or suppression practices.

Survivor led civil response scheme

The civil response scheme has been designed to be trauma-informed and survivor-led, to accommodate the unique circumstances of each experience. Survivors will decide on what the response to their report will be, or if they wish to “report and leave”.

The civil response scheme will be focused on educative and facilitative functions, with investigation and enforcement powers available for serious or systemic practices. The Bill will establish the scheme within VEOHRC, but with a separate and distinct legislative basis and functions. The scheme aligns with and complements the existing powers and functions of VEOHRC.

VEOHRC will be able to:

• provide community education around change or suppression practices;

• receive reports about change or suppression practices from any person (that is, the person affected, someone on their behalf, or a third party);

• determine an appropriate response to the report on the basis of the information provided and the wishes of the person affected where they are involved in the making of the report; and

• offer education to individuals or organisations engaged in change or suppression practices.

VEOHRC will always be required to:

• focus on ensuring survivors receive the required support by directing them to appropriate support services;

• set up facilitation processes which meet the needs of the individual survivor; and

• support survivors who have been the victims of a criminal offence to report such conduct to police if the survivor wishes to do so.

Depending on the alleged conduct and circumstances, and the wishes of the survivor, VEOHRC would be able to respond by supporting and facilitating survivor led processes, including:

• helping to facilitate a resolution between the survivor and other party (for example, by speaking with the other party on behalf of the survivor about the harm the survivor experienced and receiving assurances that the other party will stop conducting change or suppression practices);

• assisting the other party to alter practices in order to comply with the prohibition through education; and

• referring survivors to appropriate support services or to more appropriate bodies (for example, mental health or housing support, or where the alleged conduct meets the standard for a criminal offence).

For each of these potential responses, VEOHRC will work closely with the survivor and other party, and act on the basis of the views of the survivor about the preferred response. Facilitation processes are voluntary and in confidence and outcomes that impact both parties must be agreed by both sides. Such outcomes may include an agreement to change or stop behaviour (verbal or written, private or public), or financial compensation.

These functions will be supported by powers to enable VEOHRC to conduct own-motion investigations (with related enforcement powers) for change or suppression which are “serious or systemic” in nature. This power would be triggered in circumstances where a report to VEOHRC:

• raises an issue that is serious in nature or indicates practices which are systemic or persisting;

• indicates a possible contravention of the prohibition; and

• relates to a class or group of persons.

In these circumstances, VEOHRC will be able to compel witnesses and the provision of documents, and be able to accept enforceable undertakings and issue compliance notices as a result of the outcomes of an investigation.

While failure to comply with a compliance notice is not an automatic offence, VEOHRC will be able to enforce compliance via VCAT and the courts. If a person or organisation fails to comply with a VCAT order, this will be an offence and liable to criminal penalties.

Criminal offences

The Bill will create four criminal offences, which prohibit a person from:

• intentionally engaging in a change or suppression practice where that conduct causes injury to another person;

• intentionally engaging in a change or suppression practice where that conduct causes serious injury to another person;

• taking another person from Victoria with the intention that person would be subject to a change or suppression practice where that practice causes injury; and

• advertising a change or suppression practice.

The criminal offences, other than the advertising offence, require an injury or serious injury to have been suffered, and for the offender to have been negligent as to causing injury or serious injury. The offences are targeted at those forms of conduct that result in physical or mental injury.

These new criminal offences reflect the input received from survivors and LGBTIQ+ support and advocacy organisations that change or suppression practices result in serious physical and mental harms, including long-term mental illness and suicide. It is important the criminal offences treat change or suppression practices equally seriously to other conduct that causes injury or serious injury. Consequently, the criminal offences map on to existing offences in the Crimes Act in terms of the significant criminal penalties available. It is also expected these criminal offences will play an educative role for the general public about the seriousness of change or suppression practices and act as a deterrence.

The criminal offences will rely on the definitions of injury and serious injury in the Crimes Act. The elements of the offence, including the severity of the injury and the fact it was caused by the change or suppression practice, would need to be established beyond a reasonable doubt. This balances the breadth of the definition, which protects all Victorians and prohibits any person from conducting change or suppression practices, with the need to respect the rights to freedom of speech and freedom of religion. While the Bill acknowledges all practices are harmful, it would not be appropriate for the criminal offences to be so broad as to capture every person that engages in change or suppression practices. This may result in a criminal penalty being imposed where an individual lacks sufficient moral culpability. Instead, the criminal offences are targeted at those practices which cause injury or serious injury.

The penalties align with the similar offences for causing injury and serious injury in the Crimes Act 1958 (Crimes Act) as follows:

• serious physical or mental injury to another—with a maximum penalty of 10 years’ imprisonment; or

• physical or mental injury to another—with a maximum of 5 years’ imprisonment.

The Bill will also create a new criminal offence prohibiting a person from taking another from Victoria with the intention that person would be subjected to a change or suppression practice where that practice causes injury.

This offence will have a maximum penalty of 2 years’ imprisonment. This is a lower penalty than the serious injury and injury offences because the conduct of the offender is different. Unlike those offences, the offender does not cause the injury, they must only be negligent as to whether an injury would be caused as a result of the change or suppression practices.

The Bill also creates a strict liability offence of advertising change or suppression practices. It will not be necessary to demonstrate injury for this offence and as such it will attract a 60 penalty unit fine and no imprisonment.

All the offences will apply also to body corporates.

Independent review of the Bill

The Bill will provide for an independent review of its effectiveness two years after the ban on change or suppression practices commences. This will enable the impacts of the ban to be assessed and for potential improvements to the legislation to be made.

The review will be conducted by an independent expert and will consider whether broader powers and a redress scheme would improve the effectiveness of the new law. The review will consider whether, among other things:

• the criminal offences are effective;

• the existing civil scheme is effective;

• broader investigation or enforcement powers are required; and

• a redress scheme should be developed.

Commencement

The Bill will commence one year after Royal Assent unless proclaimed early. This date is to allow adequate time to establish the civil scheme and ensure funding is in place.

I wish to thank all of the stakeholders who engaged with the development of this Bill. In particular, I wish to extend a sincere thank you to those survivors who took the time to share their stories and lived experiences, and acknowledge how difficult that must have been. Your contributions have shaped and strengthened this landmark legislation. Future engagement will be undertaken with survivors to inform implementation of this reform, and I wish to thank everyone in advance who will contribute to the implementation process.

I commend the Bill to the house.