Overview

In February 2019 the Victorian Government committed to prohibiting harmful LGBT conversion practices.

Conversion practices are any practices or treatments that attempt to change or suppress a person's sexual orientation or gender identity.

We’re asking Victorians to have their say. We want to know how you think the law can prevent the harm caused by LGBT conversion practices and protect and support LGBT Victorians.

The feedback you give us will inform the way the government approaches the ban and help shape the law.

The commitment to the ban follows the Health Complaints Commissioner Inquiry into Conversion Therapy report (HCC Report) which recommended the introduction of legislation to ban the practices in Victoria.

Give us your feedback

To give your feedback we invite you to read the discussion paper and consider the questions it asks. To help you think about the issues at play, the paper asks you to look at four key areas:

  • Definition: what practices should be banned?
  • Protection: who should the ban protect?
  • Regulation: through what legal method should we apply the ban?
  • Religious freedom: how should we balance the human rights affected by a ban?

You have two ways to provide your responses to the four key areas. You can either fill in the survey or you can submit a prepared document.

Submissions close 24 November 2019.

When providing your feedback you are not required to identify yourself unless you want to. Your privacy is important to us. The Department of Justice and Community Safety will handle your feedback and personal information in line with Victoria's privacy laws. If you identify yourself the department will not disclose it without your consent, except where required to by law.

Please refer to the department's privacy policy for more information.

If you require support or require immediate help, please contact 000 or Lifeline on 13 11 14 (24 hour service).

Contribute to our survey

Definition

The Health Complaint Commissioner (HCC) defines conversion practices relatively broadly as:

(i) any practice or treatment that seeks to change, suppress or eliminate an individual’s sexual orientation or gender identity,

(ii) including efforts to eliminate sexual and/or romantic attractions or feelings toward individuals of the same gender, or efforts to change gender expressions.

Refer to the Discussion paper attached on this page for more information.


Do you agree with the HCC’s definition of conversion practice?
Should the definition of conversion practices be broad enough to capture the practices that do not involve health services or counselling?


Protection

Protection could be limited to a specific group such as children or vulnerable people or apply broadly to cover all persons.

It is important to think about whether those engaging in conversion practices are in a position of power and influence.

Some existing schemes could be amended to include protection from conversion practices.

For example, in Victoria, there are already systems set up to protect children from a range of activities that may cause significant physical, emotional or psychological harm.

Certain conversion practices may already amount to child abuse due to the harm they cause and an option could be to amend existing child abuse regulation to clarify that they include conversion practices.

Other laws are designed to protect members of the community in general – regardless of age or particular vulnerability.

Examples include civil laws of negligence that require a person who has a duty of care to another person to take reasonable care to avoid injury or loss. The criminal law also creates general offences to protect all community members.

Refer to the Discussion paper attached on this page for more information.


Should protection be limited to children and people experiencing vulnerability?
Should protection be available to all members of the community?


Regulation

Victorian law already has some regulatory schemes in place for particular professionals or service providers.

Some could be adapted or offer models for use in the context of conversion practices. These are discussed below.

Health services

Regulations regarding ‘health services’ which include therapeutic counselling and psychotherapeutic services may be extended to some conversion practices including prayer or pastoral care that occurs in conjunction with counselling (although not those that consist only of pastoral care or prayer).

Family violence

Family violence intervention orders can protect a person from emotional or psychological abuse, defined as behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person.

This may already cover some conversion practices performed by a family member but this could be clarified, for example by including ‘subjecting a person to practices to change, suppress or eliminate an individual’s sexual orientation or gender identity’.

Negligence

A claim for negligence may be brought where a person who has a duty of care for another, fails to take reasonable care and causes injury or loss to that person. It is not currently clear whether survivors of conversion therapy would be able to make a claim in negligence.

If conversion therapy was not prohibited by law, it may be possible to amend the Wrongs Act 1958 to clarify that those who offer conversion therapy owe a duty of care. This could be limited to professionals or cover all people who provide conversion therapy.

It could also be possible to create a duty of care for certain institutions to take reasonable steps to ensure that individuals within their institutions do not provide conversion therapy. This could include schools, health services, but also religious organisations.

Refer to the Discussion paper attached on this page for more information.


Who do you think should be banned from providing conversion practices?


Private or public practices

Regulation could also be limited to professional settings or it could include actions that happen in a private setting.

For example the mandatory reporting of child abuse applies to professional settings such as schools, disability providers, hospitals children's services, religious bodies and housing services.

Whereas child abuse offences and family violence laws cover behaviour wherever it occurs, whether in public or private.

Refer to the Discussion paper attached on this page for more information.


How should conversion practices be regulated?


Civil or criminal law

A key decision is where to regulate conversion practices, under criminal or civil law.

The key differences between these different mechanisms are described below:

Criminal law

  • Investigation and prosecution is by police or specially appointed enforcement officers with powers of search and arrest
  • Prosecutors bear the costs of prosecution
  • Courts decide whether a person is guilty beyond reasonable doubt
  • Courts can convict, impose penalties like fines, community based orders or imprisonment
  • Victims may be entitled to state funded compensation or the offender may be ordered to pay compensation to the victim

Civil regulatory schemes

  • Individuals make complaints to a regulator
  • Regulators investigate or audit a person governed by the scheme
  • Regulators decide whether laws have been broken, usually on the balance of probabilities
  • Regulators may have powers to impose civil penalties, limit rights to operate, put conditions on operation. They can deregister or impose disciplinary action.
  • Costs of regulation are usually borne by those being regulated by industry or professional fees.

Civil laws (such as negligence)

  • Individuals sue the person who owes them a duty of care and seek compensation for injury or loss
  • A court decides if compensation should be paid, on the balance of probabilities
  • The individual bringing the case to court pays the costs of the case unless the court orders the other party to pay. If the individual loses the case the court may order that they pay their own costs and those of the other party.

Refer to the Discussion paper attached on this page for more information.


Do you think conversion practices should be regulated through:


Religious freedom

Both the HCC and Human Rights Law Commission (HRLC) Reports highlight that many modern LGBTIQ conversion practices are religious rather than medical in nature in that they involve, or consist entirely of, pastoral and prayer activities.

Manifestation of religious belief through religious practice is protected by the right to freedom of religion.

This right to manifest is not absolute and some argue that it is not clear that it extends to practices that seriously harm others.

The impact of a ban of conversion practices on right to freedom of religion may be justified given the nature and extent of the harm described in the HCC and HRLC Reports.

Legislation to implement the government announcement of a ban on conversion therapy needs to demonstrate that it is necessary, effective, and proportionate to protect LGBT individuals from harm.

Refer to the Discussion paper attached on this page for more information.


Can the impact on these rights be justified in light of the harm conversion practices cause?


About you

Please note you don't have to tell us anything about yourself - these questions are optional. We want to know which communities are providing feedback and this information will not be used to identify you.

I identify as

Please select if you identify with the following

Submit your response as a document

About you

Please note you don't have to tell us anything about yourself - these questions are optional. We want to know which communities are providing feedback and this information will not be used to identify you.

I identify as

Please select if you identify with the following