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Change or Suppression (Conversion)
Practices Prohibition Bill 2020
Introduction Print
EXPLANATORY MEMORANDUM
General
The Change or Suppression (Conversion) Practices Prohibition Bill 2020
introduces an Act to denounce and prohibit change or suppression practices
(sometimes referred to as "conversion practices"). Change or suppression
practices are harmful practices that seek to change or suppress an individual's
sexual orientation or gender identity.
The Bill establishes a civil response scheme within the Victorian Equal
Opportunity and Human Rights Commission (the Commission). The Bill
provides the Commission with powers to consider and resolve allegations of
change or suppression practices through the facilitation of survivor-led and
trauma-informed outcomes in relation to matters raised by reports, survivor
support and education. Where the Commission becomes aware of serious or
systemic change or suppression practices, the Bill provides the Commission
with own-motion powers to investigate and enforce this prohibition. The Bill
also provides the Commission with powers to promote a greater
understanding of, and compliance with, the prohibition of change or
suppression practices.
The Bill creates new criminal offences relating to change or suppression
practices. These offences apply to persons who engage in forms of change or
suppression practices which cause serious injury or injury, persons who
advertise change or suppression practices, and persons who take other
persons from Victoria for the purpose of a change or suppression practice.
591143 1 BILL LA INTRODUCTION 25/11/2020
The Bill also amends definitions of sexual orientation and gender identity in
the Equal Opportunity Act 2010 (referred to as the "EO Act" in this
explanatory memorandum) and includes amendments to include sex
characteristics as a protected attribute, to better protect intersex Victorians
from discrimination.
The Bill also makes consequential amendments to the Family Violence
Protection Act 2008 and Personal Safety Intervention Orders Act 2010 to
include examples that make it clear that in some circumstances change or
suppressions practices can be considered a form of family violence or
harassment and that persons affected by these practices have access to the
relevant protections under these Acts.
Clause Notes
Part 1--Preliminary
Division 1--General
Clause 1 sets out the main purposes of the Bill.
The main purposes of the Bill are to introduce a new Act to--
• denounce and prohibit change or suppression practices;
• establish a civil response scheme within the
Commission to promote understanding of the
prohibition of change or suppression practices, consider
and resolve reports of change or suppression practices,
and investigate serious or systemic change or
suppression practices;
• to prohibit engaging in change or suppression practices,
including by creating offences in relation to engaging in
change or suppression practices and other related
activities;
• amend the definitions of sexual orientation and gender
identity in the EO Act; and
• to include sex characteristics as a protected attribute
under the EO Act.
It is also a purpose of the Bill to consequentially amend the
Family Violence Protection Act 2008 and Personal Safety
Intervention Orders Act 2010 to insert examples of change or
suppression practices that would also fall within those Acts.
2
Clause 2 is the commencement provision, which provides that the
provisions of the Bill come into operation on a day or days to be
proclaimed, or 12 months after the Bill has received Royal
Assent if not proclaimed before that date.
This is to allow sufficient time for the establishment and
implementation of the civil response scheme set out in the Bill.
Clause 3 sets out the objects of the Bill, which include to--
• eliminate change or suppression practices so far as
possible in Victoria;
• promote the rights set out in the Charter of Human
Rights and Responsibilities (referred to as the "Charter"
in this explanatory memorandum); and
• ensure 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.
The rights intended to be promoted by the Bill include the right
of LGBTIQ+ people to recognition and equality before the law
(section 8 of the Charter), the right to life (section 9 of the
Charter), the right not to be treated or punished in a cruel,
inhuman or degrading way (section 10 of the Charter), the right
to freedom of thought, conscience, religion and belief (section 14
of the Charter) and the right of every child to be protected by
society and the State (section 17 of the Charter).
Subclause (2) states that the Bill reflects the intention of
Parliament to--
• denounce and recognise the serious harm cause by these
practices;
• affirm that no sexual orientation or gender identity
constitutes a disorder, deficiency, or shortcoming, and
that a person's particular sexual orientation or gender
identity is not broken or in need of fixing; and
• acknowledge that change or suppression practices are
deceptive and harmful both to the person subject to the
change or suppression change and to society as a whole
(by propagating myths and stereotypes about sexual
orientation or gender identity).
3
Clause 4 sets out the various words and expressions used in the Bill.
The definitions of injury and serious injury adopt the meanings
used in the Crimes Act 1958.
The definitions of health service and health service provider
adopt the meanings used in the Health Practitioner Regulation
National Law.
The definitions of Commission, Commissioner, gender identity
and sexual orientation adopt the meanings used in the EO Act
(as amended by Part 4 of the Bill).
The definition of change or suppression practice is set out in
clause 5 of the Bill.
The meaning of a person affected by a change or suppression
practice is defined as a person towards whom a change or
suppression practice is being or has been directed. This is to
clarify that this does not include people who may be affected by
these practices but have not been subjected to them personally
(for example partners or children of a person who has been
subjected to a change or suppression practice).
This clause also sets out the definitions of associate, Australian
Health Practitioner Regulation Agency, board of directors,
Chief Commissioner of Police, compliance notice, corporate
culture, Director of Public Prosecutions, enforceable
undertaking, Health Complaints Commissioner, IBAC,
investigation, officer, Ombudsman, organisation, police officer,
produce, protected information, Tribunal, Victoria Police and
Victorian Inspectorate for the purposes of the Bill.
Clause 5 sets out the definition of change or suppression practice. It is
defined as a practice or conduct directed towards a person that is
based on the person's sexual orientation or gender identity which
seeks to change or suppress or induce the person to change or
suppress their sexual orientation or gender identity. It includes a
practice that occurs with or without the person's consent.
While intersex people will be protected where they experience a
change or suppression practice on the basis of their sexual
orientation or gender identity, medical interventions in relation to
intersex infants are not intended to be captured by the Bill as they
are being dealt with through other work.
4
Subclause (2) outlines conduct that does not constitute a change
or suppression practice. This includes conduct that is supportive
of or affirms a person's gender identity or sexual orientation such
as practices that assist a person undergoing (or considering) a
gender transition, assist a person to express their gender identity,
provide acceptance and support or facilitate a person's coping
skills, social support and identity exploration and development.
It also excludes practice or conduct of a health service provider
that is necessary to provide a health service or comply with their
legal or professional obligations.
Subclause (3) sets out some examples of a change or
suppression practice, which includes providing a psychiatry or
psychotherapy consultation, treatment or therapy or any other
similar consultation, treatment or therapy and religious practices
such as prayer based practice, a deliverance practice or
exorcisms. Another example provided is giving a person a
referral for the purposes of a change or suppression practice to be
directed against them. 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.
Subclause (4) states that a change or suppression practice can
occur remotely, including online.
Clause 6 provides that the Bill is to bind the Crown.
Clause 7 states that a contravention of the Bill does not create any civil or
criminal liability outside of that expressly provided for in the
Bill.
Clause 8 sets out the extra-territorial application of the Bill. It states that
where a person engages in conduct that falls outside, or partly
outside Victoria and there is a real and substantial link between
the conduct and Victoria then the Bill applies as if the conduct
had occurred wholly within Victoria. A real and substantial link
with Victoria exists where a significant part of the conduct occurs
in Victoria or the conduct occurred outside of Victoria but the
effects of the conduct occurred wholly or partly in Victoria.
5
Division 2--Change or suppression practices are prohibited
Clause 9 provides a general prohibition on change or suppression
practices, making it clear that if a person or organisation engages
in a change or suppression practice they will have contravened
the Bill. This may result in a report being made under the civil
response scheme in Part 3, or, in the case of a person, they may
be charged with a criminal offence under Part 2.
Part 2--Offences relating to change or suppression practices
Division 1--Offences
Clause 10 makes it an offence for a person to intentionally engage in a
change or suppression practice (or practices) directed towards
another person that cause serious injury, where they are negligent
to as to whether engaging in the change or suppression practice
(or practices) would cause serious injury. The offence set out in
subclause (1) applies to a single incident of a change or
suppression practice, and the offence set out in subclause (2)
applies where a number of incidents have occurred that, taken as
a group, have caused a serious injury. The inclusion of "any or
all" in subclause (2)(b) indicates that the prosecution is not
required to prove that all of the practices caused the serious
injury.
Serious injury is defined in section 15 of the Crimes Act 1958
as an injury (including the cumulative effect of more than one
injury) that--
• endangers life; or
• is substantial and protracted; or
• the destruction, other than in the course of a medical
procedure, or the foetus of a pregnant woman, whether
or not the woman suffers any other harm.
This definition of serious injury differs from the requirement that
for a matter to be considered "serious or systemic" under
clause 316 of the Bill for the Commission to be able to conduct
an own-motion investigation. A "serious" matter in this context
would be interpreted according to its regular usage and in light of
the objectives and intentions of the Bill. The Commission may
determine that a matter is sufficiently serious and systemic
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enough for it to undertake an investigation without that practice
necessarily falling within this offence.
The penalty for this offence for a natural person is level 5
imprisonment (10 years maximum) or a level 5 fine
(12 000 penalty units maximum) or both. This is an indictable
offence under section 112 of the Sentencing Act 1991 that can
be heard and determined summarily under section 28 of the
Criminal Procedure Act 2009. The maximum penalty for a
body corporate for this offence is 6000 penalty units.
Clause 11 makes it an offence for a person to intentionally engage in a
change or suppression practice (or practices) directed towards
another person that causes injury, where they are negligent to as
to whether engaging in the change or suppression practice
(or practices) would cause injury. The offence set out in
subclause (1) applies to a single incident of a change or
suppression practice, and the offence set out in subclause (2)
applies where a number of incidents have occurred that, taken as
a group, have caused an injury. The inclusion of "any or all" in
subclause (2)(b) indicates that the prosecution is not required to
prove that all of the practices caused the injury. The penalty for
this offence for a natural person is level 6 imprisonment (5 years
maximum) or a level 6 fine (600 penalty units maximum) or
both. This is an indictable offence under section 112 of the
Sentencing Act 1991 that can be heard and determined
summarily under section 28 of the Criminal Procedure
Act 2009. The maximum penalty for a body corporate for this
offence is 3000 penalty units.
Clause 12 makes it an offence for a person to take another person from
Victoria (or arrange for another person to be taken from Victoria)
with the intention that a change or suppression practice
(or practices) will be directed towards that person outside
Victoria, where the change or suppression practice (or practices)
causes an injury, and where they are negligent to as to whether
the change or suppression practice (or practices) would cause
injury. The offence set out in subclause (1) applies to a single
incident of a change or suppression practice, and the offence set
out in subclause (2) applies where a number of incidents have
occurred that, taken as a group, have caused an injury.
The inclusion of "any or all" in subclause (2)(d) indicates that the
prosecution is not required to prove that all of the practices
caused the injury. The penalty for this offence for a natural
7
person is level 7 imprisonment (2 years maximum) or a level 7
fine (240 penalty units maximum) or both. This is an indictable
offence under section 112 of the Sentencing Act 1991 that can
be heard and determined summarily under section 28 of the
Criminal Procedure Act 2009. The maximum penalty for a
body corporate for this offence is 1200 penalty units.
Clause 13 makes it an offence for a person to publish, display or authorise
the publication or display of an advertisement or notice that
indicates that a person intends to engage in a change or
suppression practice (or practices), other than for the purposes of
warning of the harm caused by such practices. This is intended
to capture advertising of paid and unpaid services or practices.
The penalty for this offence for a natural person is a level 9 fine
(60 penalty units maximum). This is a summary offence.
The maximum penalty for a body corporate for this offence is
200 penalty units.
Subclause (2) sets out a defence to the offence in subclause (1) if
the accused can prove that they took reasonable precautions and
exercised due diligence to prevent the publication or display of
an advertisement or notice of a change or suppression practice.
Clause 14 provides the Commission with the power to require a person to
produce documents specified in a notice for the purposes of
proceedings under clause 13. Subclause (2) makes it an offence
for a person to refuse, without reasonable excuse, to provide a
document as requested by the Commission. The penalty for this
offence for a natural person is a level 9 fine (60 penalty units
maximum). This is a summary offence. The maximum penalty
for a body corporate for this offence is 300 penalty units.
Division 2--General matters relating to offences against this Part
Clause 15 sets out that relevant conduct engaged in by or knowledge of an
associate of a body corporate must be attributed to a body
corporate for the purposes of a proceeding against a body
corporate under the Bill.
Intention by the body corporate's board of directors or an officer
of the body corporate or any other associate of the body corporate
(where a corporate culture existed that directed, encouraged,
tolerated or led to the formation of that intention) must also be
attributed to the body corporate.
8
Subclause (2) states that if an officer of a body corporate engages
in conduct that constitutes an offence under this Part, the body
corporate is also taken to have engaged in that conduct. It is a
defence to this charge if the body corporate can prove that it
exercised due diligence to prevent the contravention.
Clause 16 sets out that proceedings for an offence under clause 13 of the
Bill (relating to the advertising of a change or suppression
practice) can be brought by the Commission, a police officer or a
person authorised to do so by the Commission. In addition, the
Commission is able to bring proceedings in relation to those
offences that relate to its functions. This includes, for example,
clause 14 (which makes it an offence to refuse to provide a
requested document to the Commission) and clause 38
(which makes it an offence to fail to comply with a notice of the
Commission).
Part 3--Civil response scheme
Division 1--Functions and powers of Commission
Clause 17 outlines the functions and powers of the Commission under the
civil response scheme. These include to--
• develop and provide education in relation to change or
suppression practices;
• receive reports of change or suppression practices;
• request further information from persons who make a
report or persons or organisations that are alleged to be
engaging in change or suppression practices;
• determine appropriate responses to reports on the basis
of information provided and the wishes of persons
affected;
• offer education to persons and organisations engaged in
change or suppression practices;
• establish processes for facilitating an outcome in
relation to matters raised in certain reports that meet the
needs of affected persons;
• refer affected persons to appropriate support services;
9
• support affected persons who have been the victim of
criminal offences to report conduct to police where they
consent;
Subclause (2) provides the Commission with all the powers
necessary to enable it to perform its functions under the Bill.
Clause 18 provides that the Commission must undertake information and
education programs on change or suppression practices and
promote and advance the objectives of the Bill.
Clause 19 provides that the Commission may undertake research into any
matter arising from the Bill that it considers would advance the
objects of the Bill. It also provides that the Commission may
collect and analyse information and data relevant to the Bill.
Clause 20 provides that the Commission may report on its educative or
research functions to the Attorney-General at any time.
Clause 21 sets out that the Commission must facilitate outcomes in relation
to the matters raised by persons affected by change or
suppression practices where it receives a report from an affected
person (or receives a report made on their behalf) and establish
policies, procedures and directions for its facilitation function and
dealing with reports.
Clause 22 states that staff employed under the Bill are to be employed under
Part 3 of the Public Administration Act 2004.
Clause 23 allows the Commission to delegate any of its functions, duties or
powers under the Bill to the Commissioner or a member of staff
referred to in clause 22 other than the power of delegation.
This provision does not apply to the Board.
Division 2--Reporting change or suppression practices to
Commission
Clause 24 provides that a person affected by a change or suppression
practice (or any other person) may make a report to the
Commission. A report must be in the prescribed form (if any).
Clause 25 sets out the principles for the Commission when responding to
reports. These include providing responses to the person who
made the report which are informed by the needs and wishes of
the persons affected by the change or suppression practice, and
10
ensuring that responses are appropriate, fair and consistent with
the objects of the Bill.
Clause 26 allows the Commission to request more information from a
person who has lodged a report or a person or organisation who
is alleged to be engaging in change or suppression practices if it
considers it necessary to assist it to determine a response to a
report.
Clause 27 requires the Commission to have regard to a number of factors
(as far as practicable) when responding to a report where it is
satisfied that a person has engaged in a change or suppression
practice. These include the wishes of a person affected by a
change or suppression practice, whether the change or
suppression practice was a one-off event or a pattern of
behaviour, the number of people impacted by the practice, the
nature and extent of harm caused by the practice, and any steps
taken by the person or organisation to stop engaging in change or
suppression practices, or address the harm caused by their
practices.
Clause 28 provides the Commission with options for responding to reports,
including providing education to individuals or organisations
reported to have engaged in change or suppression practices,
offering facilitation of an outcome in relation to the matters in the
report to affected persons, referring the report to another person
or body under clause 29 or declining to respond to the report
under clause 30. It confirms that participation in facilitation of
an outcome in relation to a matter in a report is voluntary.
It is the intention that any processes developed by the
Commission to facilitate the resolution of matters in reports be
survivor led and trauma informed.
Clause 29 allows the Commission to refer reports to other bodies, including
to the Health Complaints Commission, Australian Health
Practitioner Regulation Agency, Ombudsman or Victoria Police
if it considers that the report would be more adequately dealt with
by another person or body. The Commission requires the consent
of the person affected by the change or suppression practice to
refer a report, unless it is required to do so by a law dealing with
mandatory reporting.
11
Clause 30 provides the Commission with the discretion to decline to
respond to a report where the persons or organisations referred to
can no longer be located, there is no longer sufficient
information, the conduct has been adequately dealt with
(or would be more adequately dealt with) by another forum or the
Commission considers it is not appropriate having regard to all
the circumstances.
Clause 31 allows a party to withdraw from facilitation of an outcome in
relation to a matter in a report at any time by notifying the
Commission.
Clause 32 allows persons who have engaged in the facilitation of an
outcome in relation to a matter raised in a report who have
reached agreement to request (within 30 days) a written record of
agreement to be prepared by the parties or the Commission.
The record of agreement must be signed by both parties and
certified by the Commission (who must then give a copy to both
parties). Refusal of the Commission to certify the record of
agreement does not affect the validity of the agreement.
Clause 33 allows a party to lodge a copy of the signed and certified record
of agreement with the Victorian Civil and Administrative
Tribunal (the Tribunal), after providing written notice to the other
party. The Tribunal must register the agreement and give a
certified copy to each party unless it considers that it may not be
practicable to enforce or supervise compliance with the
agreement (in which case it may refuse to register the record or
part of the record). Once an agreement is registered it can be
enforced as a Tribunal order. If the Tribunal refuses to register
the record of agreement (or any part of it) this does not affect the
validity of the agreement.
Division 3--Investigations
Clause 34 allows the Commission to conduct an investigation into any
matter relating to the Bill that--
• raises a serious issue or indicates change or suppression
practices that are systemic or persisting; and
• indicates a possible contravention of the Bill; and
• relates to a class or group of persons; and
• would advance the objects of the Bill.
12
Clause 35 allows the Commission to conduct an investigation in the manner
it considers fit and states that the Commission is bound by the
principles of natural justice (unless expressly provided in
Division 3).
Clause 36 provides the Commission with the power to compel production of
information or documents by written notice where it reasonably
believes that a person is in possession of information or a
document relevant to the investigation and the information or
document is necessary for the conduct of the investigation.
The notice must specify that the person must provide the
information or documents within a reasonable period or on a
reasonable date and at a reasonable time. A document containing
information required by the notice must be signed by the natural
person or officer of the body corporate.
The Commission may take possession of the document provided,
make copies of it, and retain possession of it for as long as
necessary for the purposes of the investigation.
Clause 37 provides the Commission with the power to require a person by
written notice to attend the Commission (at a reasonable time and
place) to answer questions if the Commission reasonably believes
they have information that is relevant and necessary to an
investigation. Subclause (2) provides that a person required to
attend the Commission under this clause is entitled to be paid a
reasonable sum for their attendance and to have a legal or
personal representative accompany them.
Clause 38 makes it an offence for a person to fail to comply with a notice of
the Commission issued under clauses 36 or 37 without reasonable
excuse. The penalty for this offence for a natural person is a
level 9 fine (60 penalty units maximum). This is a summary
offence. The maximum penalty units for a body corporate are
300 penalty units.
Clause 39 allows a natural person to refuse to give information or produce a
document where it may incriminate them, consistent with the
right to protection from self-incrimination.
Clause 40 allows the Commission to prohibit the disclosure of the identity
of a person who has provided evidence, information or
documents to the Commission where they believe it is necessary
to protect the person's rights under the Charter or to prevent
victimisation.
13
Clause 41 provides the Commission with the ability to issue directions
prohibiting or limiting the publication of any evidence,
information or document provided to the Commission as part of
an investigation and sets out a list of reasons that the Commission
must consider when making this decision.
Clause 42 states that the Commission may take any action it considers
appropriate after conducting an investigation, including taking no
action, entering into an agreement with a person for them to
comply with the Bill, accepting an enforceable undertaking or
issuing a compliance notice.
Division 4--Remedies
Clause 43 sets out that the Commission can accept a written undertaking
from a person where it believes that a change or suppression
practice has occurred, is occurring or is likely to occur.
Clause 44 states that the Commission may keep a public register of
enforceable undertakings.
Clause 45 provides the Commission with the ability to issue compliance
notices to require a person who is wholly or partly responsible for
a change or suppression practice to take or refrain from taking
specified actions in relation to a change or suppression practice
and sets out the further action that the Commission can take.
A person can apply for review of the compliance notice to the
Tribunal within 28 days. It is intended that compliance notices
could be issued to office holders of a corporation if they were
involved in a change or suppression practice, even if they did not
personally engage in the practice, without them being held
personally responsible for all of the actions of the organisation.
Clause 46 allows the Commission to apply to the Tribunal to enforce an
enforceable undertaking or a compliance notice and provides that
the Tribunal may make an order requiring the person to comply
with the undertaking or notice. Non-compliance with an order of
the Tribunal constitutes an offence under section 133 of the
Victorian Civil and Administrative Act 1998.
14
Clause 47 provides that, for the purposes of Part 3 of the Bill, if a natural
person engages in a change or suppression practice in the course
of employment (including as a volunteer) both they and their
employer or principal are taken to have engaged in the change or
suppression practice and a person may report either the natural
person and/or the employer or principal to the Commission.
Subclause (2) provides an exception to this vicarious liability if
an employer or principal can prove, on the balance of
probabilities, that they took reasonable precautions to prevent the
natural person from engaging in the change or suppression
practice.
Clause 48 provides that the Commission, a police officer or a person
authorised by the Commission may bring proceedings for an
offence under Part 3 of the Bill.
Clause 49 provides that where an organisation is alleged in a report to have
engaged in change or suppression practices, the Commission may
request information from the organisation, provide targeted
education to the organisation, and officers of the organisation
may be a party to facilitation of an outcome related to matters
raised in a report.
Part 4--General matters
Division 1--Secrecy
Clause 50 defines protected information as any information obtained by a
person (or organisation) to whom clause 51 applies, in the course
of performing functions or duties under the Bill or as a result of
another person performing functions or duties under the Bill.
The intention is for these secrecy provisions to apply to natural
persons, body corporates and organisations.
Clause 51 is a secrecy provision that provides that any person acting under
the authority of the Commissioner (including the Commissioner
or staff) must not make a record, disclose or communicate
protected information unless--
• it is necessary to do so for the purposes of, or in
connection with, the performance of a function or duty
or the exercise of power under the Bill; or
15
• it is necessary to do so to prevent a credible and
imminent threat of harm to a person; or
• it is necessary to do so to comply with a mandatory
reporting obligation; or
• it falls within the exceptions listed in clause 52
(regarding disclosing information in a court); or
• the information is already public; or
• the information does not identify any person
(or organisation); or
• consent has been provided to the disclosure.
A level 9 penalty (60 penalty units maximum) applies to this
offence.
Clause 52 sets out some exceptions to the above secrecy provision in
relation to courts. It provides that a person can disclose or
communicate information in a court only if it is necessary for a
prosecution under or arising out of Part 3 of the Bill, is required
by a court order for a criminal proceeding or if the person
(or organisation) to whose affairs the information relates consents
to its disclosure. These circumstances do not constitute an
offence under clause 51.
Division 2--Provisions relating to certain proceedings
Clause 53 prevents the Commission from any actions that would prejudice
any criminal proceedings or investigations, or investigations by
the IBAC or Victorian Inspectorate and allows the Commission
to consult with these entities to ensure that this does not occur.
Clause 54 states that it is presumed that the person bringing a proceeding
was authorised to bring it (in the absence of evidence to the
contrary).
Clause 55 provides that the Commission may assist a court as amicus curiae
in proceedings where the Commission considers that orders may
be made which may affect rights in relation to change or
suppression practices, where there may be significant
implications for the administration of the Bill or where it would
be in the public interest for the Commission to assist the court or
tribunal.
16
Division 3--Annual report and review of Act
Clause 56 provides that the Commission must include a description of its
functions in relation to change or suppression practices in its
annual report.
Clause 57 provides that an independent review of the Bill must occur
2 years after its commencement, to be completed within
6 months. This review must be undertaken by a person who is an
expert in relation to change or suppression practices and must
consider whether the criminal offences and civil response scheme
are effective, including whether broader investigation and
enforcement powers are required, and whether a redress scheme
should be developed. The intent is that these matters listed for
review are not exhaustive (additional matters may also be
considered).
A copy of the review must be tabled in Parliament by the
Attorney-General within 15 sitting days of receiving the written
report.
Division 4--Regulations
Clause 58 provides a general power for the Governor in Council to make
regulations to prescribe forms and for any other matter required
or permitted to give effect to the Bill.
Part 5--Amendment of definitions in the Equal Opportunity
Act 2010
Division 1--Amendment of definitions
Clause 59 substitutes and inserts a number of definitions in section 4(1) of
the EO Act with new definitions to reflect current practice.
These definitions draw on the Yogyakarta Principles on the
application of international human rights law in relation to
sexual orientation and gender identity.
Subclause (1) substitutes a new definition of gender identity,
which focuses on an individual's experience of their
gender-related identity, which may differ from their designated
sex at birth and includes their personal sense of the body and
other expressions of gender. Unlike the Yogyakarta Principles,
this definition of gender identity does not include the words
17
"deeply felt" to ensure the definition is not inadvertently
narrowed.
Subclause (2) inserts a definition of sex characteristics, based on
the definition in the Discrimination Act 1991 (ACT), which
focuses on a person's physical features relating to sex.
Subclause (3) substitutes a new definition of sexual orientation
which 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.
Clause 60 inserts sex characteristics as a protected attribute in section 6 of
the EO Act (as new subsection 6(oa)). The purpose of this
insertion is to better protect intersex Victorians from
discrimination. There is currently no express protected attribute
which protects intersex people from discrimination in the
EO Act. Existing protections are inappropriate as they fall under
the definition of gender identity.
Division 2--Transitional provisions
Clause 61 This clause inserts a new Division 3 after Division 2 of Part 14 of
the EO Act, as one of several that create a Division structure in
that Part. The heading to Division 3 is "Transitional provisions
relating to the Change or Suppression (Conversion) Practices
Prohibition Act 2020".
Section 197 of this new Division defines the commencement day
as the date on which Part 5 of the Bill comes into operation.
Old Act is defined as the EO Act as in force immediately before
this commencement day.
Section 198 of this new Division sets out that the old Act applies
to any conduct engaged in, or dispute brought to the Commission
that had not ended, or investigation of the Commission that had
not been finally determined prior to the commencement day (as if
the amendments made by Part 6 of the Bill had not been made).
Part 6--Consequential amendment of Acts
Division 1--Amendment of the Equal Opportunity Act 2010
Clause 62 amends section 185(1) of the EO Act to insert the words "or the
Change or Suppression (Conversion) Practices Prohibition
Act 2020". This amendment makes it an offence for a person to
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hinder or obstruct the Commissioner, a member of staff of the
Commission or a member of the Board who is performing a
function under the Bill. The penalty for this offence is 60 penalty
units for a natural person or 300 penalty units for a body
corporate.
Clause 63 amends section 186 of the EO Act to insert the words "or the
Change or Suppression (Conversion) Practices Prohibition
Act 2020". This amendments makes it an offence for a person to
give a false or misleading statement or information to the
Commission or Commissioner (or a person acting on their behalf)
in the exercise of their powers or functions under the Bill if the
person knows it is false or misleading. The penalty for this
offence is 60 penalty unit for a natural person or 300 penalty
units for a body corporate.
Division 2--Amendment of the Family Violence Protection
Act 2008
Clause 64 inserts an example of a change or suppression practice that could
also constitute a form of emotional or psychological abuse into
section 7 of the Family Violence Protection Act 2008. This is
to make it clear that change or suppression practices can also
constitute a form of family violence and a person affected by a
change or suppression practice engaged in by a family member
may be able to access the protection available under this Act
(including Family Violence Intervention Orders).
Division 3--Amendment of the Personal Safety Intervention
Orders Act 2010
Clause 65 inserts an example of a change or suppression practice which
could also constitute a form of harassment into section 7 of the
Personal Safety Intervention Orders Act 2010. This is to
make it clear that some forms of change or suppression practice
can also constitute harassment, entitling the person affected by
that practice to access the protections available under this Act
(such as Personal Safety Intervention Orders).
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Part 7--Repeal of amending provisions
Clause 66 provides for the automatic repeal of Parts 5 and 6 of the Bill on
the first anniversary of the first day on which those Parts are in
operation. The repeal of these Parts does not affect in any way
the continuing operation of the amendments made by these parts
(see section 15(1) of the Interpretation of Legislation
Act 1984).
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