Victoria’s Conversion Practices Bill is as bad as they say it is

Many commentators concerned with free speech and religious freedom have expressed serious concerns about the Change or Suppression (Conversion) Practices Prohibition Bill 2020 (Vic), now awaiting its second reading debate in the Victorian Legislative Council (which could resume on February 2, having swiftly passed all stages in the Legislative Assembly on 10 December 2020). Others who are sympathetic to the aims of the Bill have suggested that these concerns are over-stated- that the relevant criminal offences created by the Act are only applicable where “harm” or “serious harm” can be shown to a criminal standard, and hence that there will be few such cases. For example, an editorial from The Age which supports the Bill says:

It is important to note the government’s assurance that only in cases where such practices could be shown beyond a reasonable doubt to have caused injury or serious injury would they be considered offences under this legislation.

The Age, Editorial, Dec 8, 2020

But the scope of this legislation goes well beyond the specific “injury” offences that are created (while these are problematic enough.) The Bill creates a powerful set of bureaucratic mechanisms by which religious groups presenting the classic teachings of their faith may be subject to investigation and “re-education” by human rights officers. It arguably makes the presentation of some aspects of Biblical teaching unlawful if the aim of that teaching is to encourage someone to follow that teaching in their own life. Despite the appearance of addressing horrific and oppressive quasi-psychological procedures inflicted on young people, the Bill goes well beyond this laudable goal, and will make it unlawful to provide assistance in obeying the Bible to those who explicitly and with full understanding request such help. Enactment of this legislation would be a serious mistake.

Some of the material here will replicate some of the comments I have made in previous posts, here and here. But I thought it would be helpful to bring these matters together into one place to see the overall impact of the Bill.

1. What sort of “conduct” is made unlawful by the Bill?

The core of the legislation is the definition of “change or suppression practice” (“CSP”) in cl 5. Clause 5(1) provides the main definition. Clause 5(2) then excludes certain things, cl 5(3) clarifies the definition by saying what is included, and cl 5(4) makes it clear that these practices or conduct can be carried out online or “remotely” (perhaps by email or physical letter) as well as in person.

Under cl 5(1):

5 Meaning of change or suppression practice 

(1) In this Act, a change or suppression practice means a practice or conduct directed towards a person, whether with or without the person’s consent—
(a) on the basis of the person’s sexual orientation or gender identity; and 
(b) for the purpose of— 
(i) changing or suppressing the sexual orientation or gender identity of the person; or 
(ii) inducing the person to change or suppress their sexual orientation or gender identity.

Each part of this definition is worth noting carefully.

  • Note that, despite the use of the word “practice” in the phrase being defined, the definition itself picks up “a practice or conduct“. The word “practice” may imply an ongoing pattern of behaviour; the word “conduct” seems capable of referring to a single instance of, say, counselling or advice. This broadens the prohibition substantially. This point was noted in passing by the Report of the Parliament of Victoria Scrutiny of Acts and Regulations Committee, in its Alert Digest No 13 of 2020 (Dec 2020). (This is an interesting report which is not prepared by the Minister or the Department, and provides something of an independent review of the legislation from a broadly “human rights” perspective.) The Alert Digest notes at p 10 that “the definition in clause 5(1) includes ‘conduct’ that is not a ‘practice’”, with one consequence being that it may apply to “mere speech” (a matter discussed below). The Digest also points out that similar legislation in the ACT and Queensland is narrower in scope and refers to “practice or other treatment”, not to “conduct” alone (see pp 10, 11).
  • The relevant practice or conduct must be “directed towards” a person. There may be scope for arguing that this does not cover a “mutual conversation”, but the next part of the definition makes this harder to argue.
  • The phrase “whether with or without the person’s consent” is shocking. It means that a conversation or course of conduct which has actually been invited by a person seeking assistance in overcoming what they see as an undesired temptation, may still be unlawful.
  • The relevant conduct must have been entered into “on the basis of” the person’s sexual orientation or gender identity. One argument that might be put would be to say that a conversation conveying the Bible’s view that sex should be reserved for the context of a male/female marriage, would be one that would be identical whether the person concerned was heterosexual or homosexual. The activity, not the “orientation”, would be the basis for the conversation. But such an argument would probably not be successful due to the definition of “sexual orientation” inserted into the legislation by Part 5 of the Bill. I discuss this below, but the bottom line is that the phrase is explicitly said to mean a person’s “intimate or sexual relations with” other persons. Hence any suggestion that someone should behave in a particular way in their sexual activity with others, could be seen to be “on the basis of” the person’s “sexual orientation“.
  • The conduct must, further, be for one of two purposes. One purpose is “changing or suppressing the sexual orientation or gender identity of the person”. The other is “inducing” the person to make such a change- presumably the difference is that in the second option the person themselves will be persuaded to make the change, but in the first this change is somehow made independent of their will? In any event, the goal of the relevant conduct will be a change of orientation or gender identity, or “suppression” of such. In terms of orientation, the definition noted above (and discussed in more detail below) seems to imply that any advice to a person that God’s will is that they should be “chaste” and not engage in sexual activity outside a man/woman marriage, can be seen to be at least a “suppression” (or an “inducement” of suppression) of their “intimate or sexual relations” with another person.

The effect of the above is that a “CSP” can be a one-off discussion with someone, which may have been initiated by the person themselves, where they are told of the Bible’s teaching on sex and encouraged to obey its teachings. In the explanatory material issued by the Government there is an attempt to downplay this impact on the religious freedom (of both the person seeking counsel, and the counsellor) by saying that the definition would not apply to “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; taken from the  “statement of compatibility” filed by the Government in Parliament). But the fact is that there are very few situations where someone has sought counsel from a Christian pastor where that person would simply “explain” the faith without encouraging the other person to obey what the Bible says. Indeed, the Bible itself warns against simply grasping the content of the word without obeying it:

22 But be doers of the word, and not hearers only, deceiving yourselves. 

James 1:22 (ESV)

At the heart of the Bill, then, a “conversion or suppression practice” can be seen to include Person A speaking to Person B, at Person B’s own request, to explain the teaching of the Bible and to encourage Person B to live in accordance with it. Indeed, it has to be said that the definition is so broad (“sexual orientation”, for example, including attraction to, and sexual activity with, persons of a different gender) that it would cover a parent teaching their heterosexual teenage son that he ought not to have sex with his girlfriend.

None of the “exclusions” in cl 5(2) would seem to deal with these problems. They tell us that something is not a CSP if it is “supportive of or affirms” a person’s sexual orientation; but there is no exclusion for any counsel that sexual activity might not be appropriate in some circumstances. Indeed, as I will mention below, if the view is taken (as it has been by some) that paedophilia is a “sexual orientation”, then attempting to help a person who experiences sexual attraction to children to not act on that attraction, would clearly be a CSP, and would not be exempted under this sub-clause as it does not “affirm” the sexual attraction. There is an exception under cl 5(2)(b) for conduct or practice by a “health service provider” which is in accordance with their “reasonable professional judgement”. But this exception does not apply to counselling or advice given by pastors or fellow congregation members or teachers or parents.

Under cl 5(3) we see that a relevant “practice” can include: “(b) carrying out a religious practice, including but not limited to, a prayer based practice, a deliverance practice or an exorcism”. The fact that the Bill does draw a distinction between “conduct” and “practice” may mean that cl 5(3)(b) itself might not apply to a single, isolated instance of prayer- but even this is unclear. If it is a “religious practice” for a pastor to pray for those in his or her congregation who request prayer (which sounds plausible), then a prayer for a young person seeking help in not giving in to same-sex attraction, if part of this “practice”, may be caught.

2. The unusual “denunciation” provisions

At this point it is worth asking: why is the legislation framed so broadly? Part of the answer, I think, can be seen when we turn back to the early provisions of the Bill, which set out to explicitly make an ideological point involving “denunciation”.

The notion of “denouncing” some behaviour is not very common in legislation. There is a technical use of the word “denounce” in international law concerning treaties, but apart from that, the most common use of the word is to describe one of a number of purposes of the sentencing of offenders in the criminal law. For example, in Victoria, the Sentencing Act 1991 s 1(d)(iii) says that one of the purposes of the law of sentencing is:

(iii)     providing for sentences that allow the court to denounce the type of conduct in which the offender engaged;

(emphasis added)

So the word “denounce” there describes something that a court does, expressing the community’s strong disapproval of criminal conduct that has been engaged in by the accused. But so far as I can discover, no other Victorian law (nor, indeed, any other Australian law) functions to express Parliament’s “denunciation” of certain behaviour. Perhaps one of the reasons for this is that it has been understood that human behaviour can take many different shapes, and can be accompanied by a wide range of motives and exacerbating or excusing circumstances, so that we leave the task of “denunciation” to the individual judge or magistrate who has carefully examined the circumstances of an individual offender.

But no such qualms about the limits of broad-brush legislation have disturbed the drafters of the Bill we are considering here. The word “denounce” appears up front as part of the very first of the purposes of the law, set out in cl 1(a), “to denounce and prohibit change or suppression practices”. We are then told, in the “objects” clause, cl 3(2)(a), that it is “the intention of the Parliament (a) to denounce and give statutory recognition to the serious harm caused by change or suppression practices”.

Not satisfied with “denunciation”, we are then told that Parliament (in other parts of cl 3) wishes to “ensure” that all Victorians feel certain things, and that it wishes to “affirm” various propositions about human sexual behaviour:

(b) to affirm that a person’s sexual orientation or gender identity is not broken and in need of fixing; and

(c) to affirm that no sexual orientation or gender identity constitutes a disorder, disease, illness, deficiency or shortcoming; and 

(d) to affirm that change or suppression practices are deceptive and harmful both to the person subject to the change or suppression practices and to the community as a whole. 

Clause 3(2)

When these denunciations and affirmations are seen in the context of the meaning of the term “change or suppression practice” noted above, they are deeply alarming as a statement of the sovereign will of the people of Victoria. Those who do not regularly read legislation may not realise how odd it is to find socio-political affirmations about disputed matters of personal morality being rammed home by enactment in Parliament. Most Acts in Australia are technical instruments designed to reflect the will of the Parliament, but leaving the heated moral rhetoric to the debates in the chamber. They are supposed to contain clear instructions for action or statements of actions to avoid, backed up by technical provisions allowing proof of such things, or specifying the jurisdiction of the courts.

How, it may be asked, can the Victorian Parliament possibly “ensure” (a very strong word in other contexts, meaning something like “to make certain”), as they promise in cl 3(1)(c), that “all people, regardless of sexual orientation or gender identity, feel welcome and valued in Victoria and are able to live authentically and with pride”? Indeed, it seems highly likely that those who are committed to traditional Biblical moral teaching on sexual activity feel anything but “welcome and valued”, when they are likely to be investigated for passing on the Bible’s teaching to someone who asks! How can they live “authentically” when not allowed to pass on the teachings of their faith? How can they live with “pride” when those teachings are “denounced” by the Parliament?

And why, then, does the Victorian Parliament feel the need to specifically “denounce” this particular type of wrongdoing, when it does not feel the need to also itself “denounce” murder, or rape, or incest, or robbery with violence, or any number of other crimes or civil wrongs of varying degrees of seriousness? (Noting that specific denunciation in those other criminal cases is left up to sentencing judges and magistrates who are aware of all the relevant circumstances.)

There may be many reasons, but it seems that at least one set of reasons has to do with the priority being given by some political actors in modern Australia to “personal identity”, and the pressing need to not just “tolerate” certain sexual activity which was previously seen as unacceptable, but also to affirm, and celebrate, such activity. A recent work exploring this concept and tracing its intellectual history is The Rise and Triumph of the Modern Self: Cultural Amnesia, Expressive Individualism, and the Road to Sexual Revolution by Carl R. Trueman. On this issue he comments:

“And merely tolerating certain sexual proclivities and activities would not be enough, for tolerance is not the same as recognition. Indeed, it actually implies a degree of disapproval, of nonrecognition by society. Only full equality before the law and in the culture at large can provide that. When the political struggle became a psychological struggle, it also became a therapeutic struggle.”

Epilogue to Part 3: Reflections on the Sexualisation of the Revolution; emphasis added

Clearly the “denunciations” and “affirmations” of the Bill are designed in part to push towards “cultural” full equality, and in this sense the Bill could be seen as an example of “therapeutic legislation”, a law designed to achieve psychological well-being for certain members of the community. Indeed, it seems fairly clear that the legislation is partly inspired by similar laws enacted in the United States, where a common feature is the “affirmation” (or “finding” in some US jurisdictions) that: “Being lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming.” This phrase (almost identical to cl 3(2)(c) of the Bill) is taken from the relevant New Jersey law (as linked in this Wikipedia article) and is replicated in a number of other such laws.

Whether such a goal is achievable, or even appropriate, for a piece of legislation will no doubt continue to be debated.

It seems unclear as to how a court, confronted by highly charged political and ethical affirmations of this sort, should take them into account in interpreting the law. So, for example, how should a court read the proposition affirmed in cl 3(2)(b) that “a person’s sexual orientation.. is not broken and in need of fixing”? Remember that “sexual orientation” in this legislation can now refer to “emotional, affectionate and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender” (see the definition inserted by cl 59(3) of the Bill into the Equal Opportunity Act 2010, applied to the Bill by cl 4). The phrase seems wide enough to encompass those with such an attraction to children. Does this mean that the State of Victoria now affirms that a paedophile should be completely free to act on their sexual attractions, since they cannot be held to be “broken” or “in need of fixing”? If this is not Parliament’s intention, it would seem to be necessary to clarify the point.

How should a court approach a religious group which holds to the traditional belief that homosexual activity is contrary to God’s will for humanity? Is that belief in effect not saying that endorsing such behaviour would be a “shortcoming” in a person who was created in God’s image? Does the enactment of cl 3(2)(c) mean that the Parliament of Victoria is taking a clear stance that such religious teaching is wrong? Indeed, the final “affirmation” under cl 3(2)(d) that conversion and suppression practices (of all sorts) are “deceptive and harmful” seems to be a clear public statement that churches who teach their traditional doctrine are wrong and must be brought into line.

One could take the view that these highly charged political and moral affirmations are mere “puff”, decorative statements with no real “teeth”. There are no criminal or civil penalties directly attached to cl 1(a) or cl 3. But the purpose of these introductory clauses is to provide a set of background assumptions that courts are to take into account. Under s 35(a) of the Interpretation of Legislation Act 1984 (Vic):

a construction that would promote the purpose or object underlying the Act… shall be preferred to a construction that would not promote that purpose or object

Hence these clauses will have an influence on the way that a court will interpret the legislation.

3. Is there a difference between “attraction” and sexual activity?

I have mentioned this briefly already, but it is worth highlighting. For most members of the community, I think, there would be a conceptual difference between being attracted to persons of the same sex (which would be spoken of as a “sexual orientation” of homosexuality) and actually engaging in sexual activity with that person. In theological terms, churches have often noted that having a temptation to engage in sin is not the same thing as engaging in the sin itself.

But the view that one can distinguish between orientation and activity has been rejected in a number of decisions where discrimination laws have been invoked: see my earlier comment on this (where I note one low-level decision which did distinguish between these things, but many others that have refused to). In this Bill, “sexual orientation” is defined in cl 4 to have the meaning it has in the Equal Opportunity Act 2010 (Vic) (“EOA”); but the meaning of the term in that Act is then changed by cl 59(3) of this Bill.

Under the current version of the EOA, the phrase is defined in s 4(1) to mean: “homosexuality (including lesbianism), bisexuality or heterosexuality”. Hence it seems to refer to a “state” or “condition” of attraction to others. But the Bill inserts a new definition as follows:

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;”

Here we see that the term now clearly will extend beyond “attraction” to actual “sexual relations”. This definition will mean that, as noted above, any encouragement to someone to practice chastity and not to engage in sexual activity, can be seen as an inducement to the person to “suppress” their “sexual orientation” (even if there is no intention to address the emotional attractions that the person feels.)

4. Limits of the main criminal offences, chilling effect on free speech

It is true, as others have said, that it will not be easy to prove the commission of the main criminal offences set out in Part 2 of the Bill. The offences, in summary, are:

  • Clause 10: Engaging in one or more CSP’s that cause serious injury, being negligent as to that outcome (maximum of 10 years in prison or 1200 penalty units, ie $198,264)
  • Clause 11: Engaging in one or more CSP’s that cause injury, being negligent as to that outcome (max of 5 years in prison or 600 penalty units, ie $99,132)
  • Clause 12: Taking someone outside Victoria to have one or more CSP’s that cause injury, being negligent as to that outcome (max of 2 years in prison or 240 penalty units, ie $39,652.80)
  • Clause 13: Advertising intention to engage in a CSP (max 60 penalty units, ie $9,913.20).

Note that the definition of “injury” and “serious injury” are taken from section 15 of the Crimes Act 1958 (Vic). There we read that:

“serious injury” means— 
(a)     an injury (including the cumulative effect of more than one injury) that—  (i)  endangers life; or (ii)  is substantial and protracted….

The word “injury” is defined in the 1958 Act to mean “physical injury” or “harm to mental health”, and that second term is defined as follows:

“harm to mental health” includes psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm. 

So the s 10 offence will usually require some form of danger to life or substantial and protracted impact which results in diagnosed psychological harm. The offender has to “intentionally” engage in the relevant “practice”, but they do not have to intend harm- that might be a result of “negligence”. 

Each of these offences needs to be made out “beyond reasonable doubt”, and it seems that in cll 10-12 the “causation” requirement will be fairly tricky to make out- that is, was it the “conversion or suppression practice” that caused the injury or serious injury? Still, the difficulty of this should not be exaggerated- the High Court recently affirmed in Swan v The Queen [2020] HCA 11 (18 March 2020) that “causation” in criminal law, as in civil law, does not mean that the act of the accused must be the “sole” or the “main” cause of the event for there to be liability.

In that case, a charge of murder, the court held that causation was established where the deceased did not perish on the spot after being attacked, but went into hospital, and then due to his injuries suffered a further injury (a fall), and due to his general bad “quality of life” the family and the doctors made a decision not to perform an operation which might have saved his life! So the act of the accused was part of a chain of events leading to death, but not the “direct” cause. This was still held to be sufficient to establish cause and to convict of murder.

At [24] they say: “the requirement that the act of the accused cause the death charged required the jury to be satisfied that the act of the accused was “a substantial or significant cause of death” or a “sufficiently substantial” cause.”

At [25] however they say: “It was also recognised in Royall v The Queen that there are some cases where an accused will be legally responsible for a death even if the act of the accused was not, by itself, necessary for the victim’s death but was instead “one of the conditions which were jointly necessary to produce the event”.”

They also, at [27], did not disturb (and impliedly approved) a charge given by the trial judge: “The trial judge said that causation, by substantial or significant contribution to the death of Mr Kormilets, did not require that the acts of the appellant were the only cause of death, the most important cause of death or even the only important cause of death.”

The upshot of this reasoning is that in a charge under the Victorian Bill, the person concerned may have a number of other issues in their life pointing to serious mental illness, but if they can satisfy the court that a “significant” cause of their condition is the “change or suppression practice” then the person who provided it may still be found guilty of “causing” serious harm.

It also true that another limit on these criminal offences will be the need to prove “negligence”. It seems that when used in a criminal statute, the term will usually be interpreted as meaning more than the sort of “carelessness” that might lead to civil liability in damages. The Victorian courts have held that a similar provision, s 24 of the Crimes Act 1958 (which makes it an offence to negligently do or omit to do an act that causes serious injury to another person) requires a showing of “negligence to a criminal standard”; see Gorladenchearau v The Queen [2011] VSCA 432 at [17]-[18].

But even with those limits, it seems fairly clear that the mere existence of the offence will have a “chilling” effect on speech on these issues. The possibility of a massive fine and a serious term of imprisonment if good faith counselling on sexual activity (requested at the time by the person themselves), should be seen down the track as contributing to someone’s mental health issues, would be a serious deterrent to such counselling. Some members of the community may think that suppressing Christian teaching on this issue is a good outcome. But it is a very draconian way of dealing with a problem which does not seem to be currently wide-spread.

5. Implications of unlawfulness

As well as the possibility of criminal prosecution, it should be noted that cl 9 of the Bill, seemingly innocuous, may have wide-reaching consequences. The clause simply provides that engaging in any change or suppression practice involves a contravention of the Act. Now cl 7 seems to isolate the effects of this by saying that a contravention of the Act “does not create any civil or criminal liability except to the extent expressly provided by this Act”. Presumably this means that someone cannot be sued simply for carrying out a CSP.

But, as noted by the Alert Digest No 13 of 2020 mentioned previously, an effect of cl 9 may be that it:

may potentially affect the operation of existing laws imposing civil or criminal liability, to the extent that the scope of those laws is determined by a test of legality or lawfulness.

Alert Digest No 13 of 2020 (Victorian Scrutiny of Acts and Regulations Committee) at p 8.

An example given by the Digest is a contract that may be entered into which might have involved payment for provision of counselling on these issues. Such a contract may then be void for illegality and unenforceable. Another example (not noted by the Digest) might be that, if all CSP’s are in effect “unlawful” due to cl 9, then counselling of this sort might not fall within the definition of “religious belief or activity” under the current proposed Exposure Draft of the Commonwealth Religious Discrimination Bill. As I have noted in my previous comments on this Draft (which is still awaiting introduction into the Commonwealth Parliament), the draft excludes “unlawful” activities from its definition of religion. The second draft rolled back this exclusion somewhat by not excluding “council bylaws”, but I commented in the note linked previously that this provision “may still leave the possibility of a radical State or Territory government outlawing some religious activities”. This Victorian Bill is a “radical” restriction on religious free speech of just that sort.

6. Over-reaching powers of the VEOHR Commission interfering with religious freedom

The other effect of something being an unlawful CSP is that it forms the basis for the exercise of a suffocating net of investigatory powers to be exercised by the Victorian Equal Opportunity and Human Rights Commission (“the Commission”). These powers may be used even where there is no “injury” proven to any individual.

The Commission will have the power under s 17 to investigate complaints of “change and suppression practices”, to “request further information” from persons or organisations alleged to be committing these practices,  and to “offer education” to such persons or organisations. These powers can be exercised on the basis of a “report” about CSP “from any person”- see cl 17(1)(b). The Commission is to consider, for example, under s 27(2)(b) “whether the change or suppression practice was a one-off event or a pattern of behaviour”. The result of this complaints process, in Division 2 of Part 3, may be a written report of some sort or, if the parties concerned are willing, a facilitated “agreement” under cl 32 which might be registered under cl 33 and thereafter enforced as an order of the Victorian Civil and Administrative Tribunal (VCAT).

In Division 3 of Part 3, however, under s 34(a), the Commission may conduct (of its own motion) an investigation into “change or suppression practices that are systemic or persisting”. In the course of conducting an investigation it has power under s 36 to “compel provision of information and production of documents”. More serious consequences may flow from this formal investigation process under Div 3- for example, under cl 45, the issue of a “compliance notice” specifying actions that must be taken, or not taken. If, under cl 46, there is a failure to comply, VCAT may make an order requiring compliance, and if that order is not obeyed, the person who has not complied may be guilty of an offence under s 133 of the VCAT Act 1998 (Vic).

If it is not apparent already, I think these are extensive powers with a concerningly wide reach and potential to seriously interfere with the actions of religious groups. Under s 36, for example, it seems that it would be possible for the Commission to require the delivery of copies of any sermons that have been preached concerned the Bible’s view of homosexual activity, if the preaching of that view can be characterised as part of a “change or suppression practice”. While at different points the government explanatory documents purport to exclude “sermons” from the meaning of CSP, as we have seen already it seems that any exhortation from the Bible to someone to be chaste could be regarded as an “inducement” to suppress a person’s “sexual orientation” as defined by the Bill. Even if a sermon to the whole congregation might just escape being a CSP because it is not “directed towards” a specific person, it is not hard to imagine that such documents might be required so that the Commission could determine, under cl 34(a), whether CSP’s are “systemic” in that congregation. Investigations into “systemic” practices, as mentioned, do not have to be initiated by a “report”- they may be commenced by the Commission on their own initiative.

7. Is paedophilia a “sexual orientation”, treatment of which would be unlawful under the Bill?

I hesitate to raise this next question in light of possible misunderstandings, but I am sure it needs to be considered. To be absolutely clear, I am not saying that homosexuality or any other sexual orientation is itself linked to paedophilia. But I do want to ask the question: have we reached the point today where a sexual attraction to children might be called a sexual “orientation”?

The definition of this term, inserted by the Bill into the EOA and then “cross-referenced” by cl 4 of the Bill, is as follows:

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; 

Nothing in that definition excludes a sexual attraction to, or activity with, children. In the world of psychiatry, a recent article acknowledges that some do characterise paedophilia as a “orientation”- see J. Paul Fedoroff, MD “The Pedophilia and Orientation Debate and Its Implications for Forensic Psychiatry“, J Am Acad Psychiatry Law 48:146–50, 2020 (DOI:10.29158/JAAPL.200011-20). The author argues against this view, saying that paedophilia should be regarded “not as an orientation but as a disorder of sexual interest
which is as modifiable as other interests” (at 149). But the current definition of the phrase in the Bill seems to leave the matter disturbingly open. If it is still intended to allow those with paedophilia to receive help not to act on their sexual interest in children, this needs to be made much clearer.

8. The impact of the Bill outside Victoria

The drafters of the Bill cannot be accused of setting their sights too low. Not content with reshaping the moral views of Victorian citizens, cl 8 of the Bill expresses an intention that the Bill have extra-territorial application. Conduct “outside, or partly outside” Victoria will be actionable under the Bill if it has a “real and substantial link” with Victoria. This may be established, either if a “significant part” of the conduct occurred in Victoria, or if “the effects of the conduct” occurred in Victoria. One might imagine an online counselling session where the counsellor is speaking from somewhere else (another State, for example), and this is characterised as “directed towards” someone in Victoria.

One obvious problem with this scheme is the question of enforcement. For one thing, any civil enforcement which involves a non-judicial body may fall foul of the High Court decision in Burns v Corbett [2018] HCA 15 (see my comment on this case here.) The court held that jurisdiction to make orders against a resident of another State cannot be conferred on a non-judicial tribunal. Hence the remedy of registering an “agreement” negotiated by the Commission in VCAT (under cl 33(4)) would be ineffective against a resident of another State. However, it is possible that, where injury or serious injury could be plausibly alleged and so there has been the commission of a criminal offence, a warrant for the arrest and extradition of someone in another jurisdiction to Victoria might be issued. (If this is thought to be unlikely for “human rights” issues, see the example of the cross-border arrest of the defendants for contempt of court in Ordo Templi Orientis Inc & Anor v Devine & Anor (Anti-Discrimination) [2007] VCAT 2470- see para [15]. While a similar order could not now be made by a Tribunal in Victoria (following Burns v Corbett noted above), it would seem possible for such an order to be made by a Victorian court.)

9. The Bill and “family violence”

At the end of the Bill we find an amendment to the Family Violence Protection Act 2008 (Vic) (“FVPA”). That Act aims to combat “family violence”, which in s 5(1)(a)(ii) is defined to include: “behaviour by a person towards a family member of that person if that behaviour…   (ii) is emotionally or psychologically abusive”.

Under s 7 of that Act, we see:

7. Meaning of emotional or psychological abuse

    For the purposes of this Act, emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person. 

    •     repeated derogatory taunts, including racial taunts; 
  •     threatening to disclose a person’s sexual orientation to the person’s friends or family against the person’s wishes; 
•     threatening to withhold a person’s medication; 
•     preventing a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person’s cultural identity; 
  •     threatening to commit suicide or self-harm with the intention of tormenting or intimidating a family member, or threatening the death or injury of another person.

The amendment in the CSP Bill proposes to add, as the third dot point in this list, the following example:

“• 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 must change or the adult child will no longer support them;”. 

While such behaviour as spelled out here sounds terrible enough, it is important to realise that is only an “example”, and will not necessarily be taken as defining the limits of the newly “violent” behaviour. In fact it seems clear to me that the effect of this addition will be to allow a court to conclude that something which is much more common within a family might be regarded as “family violence”. Let’s reverse the roles here. Suppose a parent, wanting to raise their child in accordance with their religious beliefs, tells their teenage child that “it is wrong” to act on same-sex attraction by engaging in homosexual sexual activity (just as it is wrong to engage in heterosexual sexual activity at an early age and outside marriage). Suppose that parent, in good faith and in kindness to their child, tells them that should stop engaging in such activity if it has been happening. (The “no longer support” threat need not be attached, it seems to me; other “threats” such as “grounding” a child from social activity might be invoked.)

The effect of this “example”, then, would seem to open the way for a court dealing with an allegation of “family violence” to be told that advice and counsel from parents to a same-sex attracted child amount to such violence. To be frank, the use of the word “violence” here stretches the term beyond all normal English usage. There need be no physical or verbal abuse in the ordinary sense of the term at all. All that would be required would be a parent calmly and lovingly explaining the tenets of their faith to the child. This extension of the power of the State into family life seems completely unwarranted.

10. The Bill and “gender identity”

Finally, so far I have made no direct comment on the “gender identity” aspect of the Bill, but it is just as bad as the other parts of the Bill. In effect, the Bill accepts all the currently fashionable views that a person can just define their own “gender” for themselves, and that a young person who is wrestling with these issues cannot be warned to slow down and not take life-changing decisions too quickly.

The important decision of a three-member bench of the English and Welsh High Court of Justice in Bell v Tavistock [2020] EWHC 3274 (Admin) illustrates the issues here. There Keira Bell, a young woman who had previously been convinced she was a man before “detransitioning”, succeeded in obtaining a declaration from Dame Victoria Sharp P, Lord Justice Lewis, and Lieven J that the practice of the Tavistock and Portman NHS Foundation Trust, through its Gender Identity Development Service (GIDS), of prescribing puberty-suppressing drugs to persons under the age of 18 who experience gender dysphoria was generally not lawful.

To be more precise, the court concluded that:

151. A child under 16 may only consent to the use of medication intended to suppress puberty where he or she is competent to understand the nature of the treatment. That includes an understanding of the immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences for a child. There will be enormous difficulties in a child under 16 understanding and weighing up this information and deciding whether to consent to the use of puberty blocking medication. It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers. It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.

152. In respect of young persons aged 16 and over, the legal position is that there is a presumption that they have the ability to consent to medical treatment. Given the long-term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment.

The case has been helpfully analysed in detail by other commentators- see this excellent summary from Quillette, and here from CapX. But for present purposes we may note that what the English and Welsh High Court recommends (that puberty blockers not be freely administered to children at their own, or their parents’, request) would seem to involve relevant health professionals not “assisting” a gender transition, but on one view of the Bill, “suppressing” the young person’s “gender identity”. Actually the health professionals concerned would probably have a good defence under cl 5(2)(b) of the Victorian Bill where they make a “reasonable professional judgement”. But what about the parents of the child? They would seem to have no defence, nor would a pastor from the child’s church or a concerned youth worker or teacher who was urging caution, taking into account the acknowledged fact that the vast majority of children who experience “gender dysphoria” actually settle down to be happy with their biological sex by the time they reach adulthood.

(In passing it may be noted how ridiculous the definition of “gender identity” inserted into the EOA by cl 59(1) of the Bill is- “gender identity means a person’s gender-related identity”! Other things are then said to be relevant to this (“personal sense of the body”, “expressions of gender, including dress, speech, mannerisms, names and personal references”) but the core part of the definition is completely circular.)

There is a very good critique of the Bill’s impact in the “gender identity” area in this post from the Victorian Women’s Guild.

Concluding comments

To sum up, this legislation if enacted will work a gross infringement of the human rights of many Victorians- of religious persons who may want to teach, or to learn, about the traditional teachings of their faith, and of any young person who is confused about their sexual attractions or gender identity, and wants honest advice and counsel. It will arguably make unlawful the teaching of traditional religious beliefs. There is a serious danger that the law will prevent help being given to those who are sexually attracted to children, to resist such temptations; and it has to be said, a corresponding danger that children may then be harmed by those persons. It is a bad law and ought not be enacted.

Article originally published at Neil Foster’s Law and Religion Australia blog.


Neil Foster is an Associate Professor in Newcastle Law School at the University of Newcastle. He has a combined Arts/Law degree from the University of NSW, a degree in Theology from the Australian College of Theology, and a research Master of Laws degree from the University of Newcastle. He teaches Torts, Workplace Health and Safety Law, and an elective in “Law and Religion”.