Law and Religion Australia blog 26 November 2020
A bill dealing with the topic of what elsewhere has been called “conversion therapy” has been introduced into the Victorian Legislative Assembly: the Change or Suppression (Conversion) Practices Prohibition Bill 2020. Along with the Bill, there is an important Explanatory Memorandum which gives insight into what the Victorian Government thinks the Bill means.
The Bill is lengthy and complex and will warrant a great deal of careful study. But in this initial post I want to highlight some seriously concerning features. It seems at least arguable that the Bill will make it unlawful for some churches and other religious bodies to openly teach and proclaim the doctrines of their faith in Victoria.
I recently posted on the topic of “conversion therapy” laws that have already been passed in Australia, in Queensland and the ACT. These laws alone are quite dangerous for religious freedom; the Victorian law seems to be even worse.
Let me say very clearly at the outset that no sensible person in Australia supports invasive medical and other oppressive procedures designed to over-ride a person’s natural sexual desires, such as the example I referred to from the Queensland legislation: “inducing nausea, vomiting or paralysis while showing the person same-sex images”. I certainly don’t. And indeed it has become accepted now, it seems, that such practices are not now happening on any scale, if at all, in Australia. But what is disturbing is that activists now are moving to attack any views that do not completely accept as “normal and natural”, sexual activity which is regarded by religious groups as wrong and sinful.
There is only space in this preliminary comment to mention some of the more disturbing features of the new Bill. The core is the definition of “change or suppression practice” in cl 5:
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.
Let’s take a concrete example. A young Christian reads the Bible and discovers that the Bible says that the only appropriate context for sexual activity is between husband and wife within marriage. He knows that he experiences sexual attraction to persons of the same sex. He approaches his Bible study leader and asks for advice on how he should live to please God. Is the Bible study leader in giving such advice, and counselling the young man to be chaste (not to have sex outside a man/woman marriage), engaged in a “change or suppression practice”?
The leader is not trying to “change” the “sexual orientation” of the person. But by counselling chastity would he would fall foul of the prohibition on “suppressing the sexual orientation”? It is likely that some would argue that any attempt to not freely indulge sexual desires is “suppression”. And note the jaw-dropping fact that it is completely irrelevant that this is all being done with the consent of the young person! Even if they genuinely and freely want to change because of their own religious conviction on the matter, offering counselling seems to be regarded as an unlawful “change or suppression practice”.
But can that be right? Is offering counselling based on the Bible a “practice”? Well, under cl 5(3) we read:
(3) For the purposes of subsection (1), a practice includes, but is not limited to the following— …
(b) carrying out a religious practice, including but not limited to, a prayer based practice, a deliverance practice or an exorcism;
It is clear that a “religious practice” is caught. Conversations around the meaning of the Bible and its application to a person’s life are not explicitly mentioned, but we are (twice!) told that the meaning of the term “includes, but is not limited to” the specific examples of prayer, deliverance or exorcism. And when we consult the Explanatory Memorandum (“EM”) which accompanies the Bill, this becomes crystal clear. There we read:
These examples are illustrative only and do not narrow the definition in subclause (1) which 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. EM, p 5
Notice of course that, while we are told that it is attempts to change “orientation” that are objectionable, the example here refers to a program of “behaviour change”. The intention seems to be to attack any advice which would lead to a person changing their “behaviour” so as not to engage in same-sex sexual activity.
It is worth noting that the EM is not itself part of the law of Victoria. But the general principles of statutory interpretation applied by the courts in reading legislation, allow a court to refer to the explanatory memorandum in interpreting the law (for Victoria, see s 35(b)(iii) of the Interpretation of Legislation Act 1984.)
It could be countered that discussion in a pastoral context about God’s purposes for sex as revealed in the Bible, where undertaken at the request of the person struggling with the issue, is not conduct “directed towards” a person, but is rather a mutual exchange of views. It could be argued that such a discussion is not undertaken “on the basis of the person’s sexual orientation or gender identity”, but rather on the basis of the person’s request for advice about the Bible’s teachings (and the content of the conversation would be pretty much the same if it took place with a young heterosexual bloke asking about sleeping with his girlfriend.)
But while those matters “could be argued”, the fact is that the wording of the legislation is broad enough to cover the example I have given. If the proponents of the legislation want to say “of course, that isn’t what we intend”, then the only option is for the law to say that explicitly. Assurances given in private or even in the course of debates on the floor of Parliament are not, unlike explanatory memoranda, able to be taken into account by the courts. If this situation is not intended, then the Bill should be amended to make that crystal clear.
However, the fact that at least some people supporting this legislation do want to shut down the teaching of the Bible (and other holy books such as Torah and the Qur’an) can be seen from a graphic being circulated by Amnesty International, which explicitly refers to a young person hearing a sermon at church, being counselled in a pew, and having a casual conversation with a Christian, linking all these things to implied “suicidal thoughts”.
Legal structure of the Bill
How does the Bill deal with these “change or suppression practices” (CSP’s)? It has two main divisions. Part 2 creates criminal offences. Part 3 sets up a “civil response scheme”.
(a) Criminal offences
Under Part 2, s 10 creates a criminal offence where a CSP (or a combination of CSP’s) results in a “serious injury”. This term takes its definition (in s 4) 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 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”. The maximum penalty is 10 years imprisonment or a fine of 1200 penalty units (currently in Victoria, nearly $2 million).
It is not clear to me whether the s 10 offence would be committed where, to take an example sometimes given, someone was counselled from the Bible that homosexual behaviour was sinful, and then went off and began self-harming. Could this be said to be a situation where the practice “caused serious injury” to the person? It would be a horrible outcome but would the imposition of a criminal penalty be the appropriate response?
To summarise, there are a couple of other offences in Part 2. Section 11 has a lesser penalty where “harm” (not reaching the level of “serious harm”) has been caused by a practice. Section 12 makes it an offence to take someone out of Victoria for a relevant practice which results in injury. Section 13 penalises any advertising by a person “that the person or any other person intends to engage in one or more change or suppression practices”.
(b) Civil response scheme
Part 3 of the Bill moves away from the “criminal” model, but gives extensive powers to “the Commission” (defined in the Equal Opportunity Act 2010 (Vic) to mean the Victorian Equal Opportunity and Human Rights Commission). 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. It 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”. Under s 34(a) it may conduct 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”.
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”.
Protection of religious freedom?
Given the potential for a serious impact on the life of religious groups, then, does the Bill contain any protection for genuine religious freedom? Not a single word is said in the Bill about this. The only passing reference which would provide a slight comfort to religious groups would be that s 3(1)(b) tells us that one of the purposes of the Bill is “to further promote and protect the rights set out in the Charter of Human Rights and Responsibilities”. The EM, then, decides to spell out what is hidden here by alleging that the rights to be promoted by the Bill include:
the right to freedom of thought, conscience, religion and belief (section 14 of the Charter) EM, page 3.
But how precisely the right to religion and belief is protected by a Bill that seems designed to marginalise and ignore deeply held religious convictions about sexual behaviour and how these can be taught in religious communities, is not explained. From the point of view of the young man mentioned above seeking help to live his life in accordance with the word of God, his “freedom of religion and belief” is ignored and suppressed by a Bill that defines Biblical teaching as harmful and tells him that no-one can give it to him, even if he consents!
Coincidentally, a similar piece of legislation has just recently been found to be unconstitutional in the United States, by the US Court of Appeals for the 11th Circuit, in Otto v City of Boca Raton, Florida (No. 19-10604, 20 Nov 2020). That decision was based on the strong protection provided to free speech under the First Amendment to the US Constitution, and the fact that the relevant law (like this Victorian Bill) targeted the content of certain communications between persons. Applying the standard of “strict scrutiny” the majority of the court found that the law had not been clearly shown to be beneficial. Indeed, the court commented:
a report from the American Psychological Association, relied on by the defendants, concedes that “nonaversive and recent approaches to SOCE [“Sexual Orientation Change Efforts”] have not been rigorously evaluated.” In fact, it found a “complete lack” of “rigorous recent prospective research” on SOCE Otto, p 21.
In Australia, there is no such wide-reaching protection for free speech (it seems likely that little, if any, of the speech attacked here would be sufficiently “political” to be protected by our “implied freedom of political communication”, although perhaps its impact on some public sermons might need scrutiny.) Nor will s 116 of the Constitution afford any protection for religion freedom in the face of a State law like this one (that provision only applying to laws enacted by the Commonwealth Parliament). If the Bill is to be challenged, it will need to be challenged through the ordinary political process.
This Bill will, it seems, not be passed this year. It is to be hoped it will be scrutinised carefully by all members of the Victorian Parliament. If it is not designed to do the bad things noted here, then that needs to be spelled out clearly. If it is, it should not be enacted.