Victoria’s Parliament recently passed a Bill banning 'Conversion Practices', following similar legislation in Queensland and the ACT that criminalises ‘Conversion Practices’ that target LGBTQI+ people.

Here’s what schools need to know.

What are the New Laws and When did they Happen?

As at 9 February 2021, the new laws have commenced in Queensland but not yet commenced in the ACT or Victoria.

• ACTthe Sexuality and Gender Identity Conversion Practices Act 2020 commences 4 March 2021
• Qlda new Chapter 5B was inserted into the Public Health Act 2005 on 20 August 2020
• Victhe Change or Suppression (Conversion) Practices Prohibition Bill 2020 was passed by the Upper House of Parliament on 4 February 2021. The commencement date of the legislation has not yet been announced, but will be prior to, or on, 4 February 2022.

What are ‘Conversion Practices’?

A ‘conversion practice’ is a practice that attempts to change or suppress a person’s sexual orientation or gender identity. It is sometimes referred to as ‘conversion therapy’ or a ‘change or suppression practice’.

The Queensland laws provide these examples of a conversion practice:

• inducing nausea, vomiting or paralysis while showing the person same-sex images
• using shame or coercion to give the person an aversion to same-sex attractions or to encourage gender-conforming behaviour
• using other techniques on the person such as encouraging the person to believe being lesbian, gay, bisexual, transgender or intersex is a defect or disorder.

When is a ‘Conversion Practice’ a Crime?

Across the three jurisdictions (ACT, Qld and Vic), the laws are slightly different.

ACT

From 4 March 2021, a person commits an offence if they perform a conversion practice on a “protected person” (a child or a person who has an impaired decision-making ability). It is also an offence to remove a protected person from the ACT for the purpose of performing a conversion practice on them.

The maximum penalty for both offences is 12 months imprisonment or a $24,000 fine or both.

Points to note about the ACT offences:

• the law applies only to children and other protected persons. It is not an offence in the ACT to perform a conversion practice on an adult who has full decision-making capacity
• a conversion practice on a protected person is still considered an offence even if the recipient’s parents/guardians consent to the conversion practice.

Queensland

From 20 August 2020, it is an offence for a health service provider to perform conversion therapy on another person.

If the conversion therapy was performed on a “vulnerable person” (such as a child or adult with impaired capacity) the maximum penalty for the offence is a $20,000 fine or 18 months imprisonment. Otherwise, the maximum penalty is a $13,000 fine or 12 months imprisonment.

Points to note about the Queensland offence:

• the offence only applies to “health service providers”, which is a broad term that covers all the people that you would expect, such as nurses, doctors, psychologists and dentists. This suggests that it is lawful in Queensland for a person who is not a health service provider to perform conversion therapy
• unlike the ACT offence, which only applies to conversion practices performed on children and other protected persons, the offence in Queensland applies if a health practitioner performs conversion therapy on anyone. However, penalties are more severe for performing conversion therapy on a child or other vulnerable person
• it is not an offence to take someone out of Queensland for the purposes of conversion therapy.

Victoria

The Victorian laws will make it an offence if:

• a person engages in a change or suppression practice AND
• the practice causes injury to the recipient AND
• the person was negligent about whether the practice would cause injury.

The penalties for this offence vary depending on the seriousness of the injury. For causing “injury” the maximum penalty is five years imprisonment, a fine of almost $100,000, or both. The maximum penalty for causing “serious injury” is 10 years imprisonment, a fine of almost $200,000, or both.

“Injury” in this context includes physical and mental harm. A “serious injury” is an injury (including the cumulative effect of more than one injury) that endangers life, is substantial and protracted, or results in the destruction of the foetus of a pregnant woman, whether or not the woman suffers any other harm.

The legislation also specifies that a body corporate can be guilty of the offence, in which case the maximum penalty is a fine of almost one million dollars.

Under the law, it would also be an offence to take someone out of Victoria for the purpose of a conversion practice (or to arrange for someone else to take the person out of Victoria). But this is only an offence if the recipient suffers injury and the person who sent them out of Victoria was negligent. The maximum penalty here is two years imprisonment, a fine of about $40,000, or both. The fine is bigger for corporate offenders.

Finally, under the law, it would be an offence to advertise a conversion practice. Maximum penalty for this offence is a fine of about $10,000 for a person and about $50,000 for a body corporate.

Points to note about the Victorian offences:

• in some ways the offences are broader than the ACT and Queensland versions, in that they apply to anyone (whether a health practitioner or not) who performs a conversion practice on anyone (including adults and children).
• however, the Victorian offences do not ban conversion practices per se. A conversion practice is only unlawful under this law if it caused injury to the recipient, and the perpetrator was negligent.
• the Victorian legislation lists some specific examples of conversion practices. One of these is “carrying out a religious practice, including but not limited to, a prayer based practice, a deliverance practice or an exorcism.”

What does this Mean for Schools?

The new (and forthcoming) criminalisation of conversion practices may affect the reporting obligations of school staff. Staff already have a legal obligation to report suspicions of child abuse, neglect and other harm. This usually involves reporting to one or more of: the state/territory child protection department, police, the principal.

Once the new conversion practice laws commence, staff reporting obligations may include the obligation to report a suspicion that a child is being subjected to conversion practices. Staff who fail to report may find themselves subject to legal penalties.