Further information about Victorian “Conversion Practices” Bill

This is just a brief update to my last post about the recently released Change or Suppression (Conversion) Practices Prohibition Bill 2020. I have since had an opportunity to read some other documents released to the Victorian Parliament when the Bill was introduced, which give some more insight into what the Victorian Government views as the impact of the Bill on churches and other religious groups.

Sermons may be OK

The two new documents I have consulted are the Second Reading Speech (“2RS”) (tabled by the Minister by way of an explanation of the Bill, designed to be slightly less formal than the Explanatory Memorandum which I referred to previously), and the “statement of compatibility” (“SoC”). This latter statement is required by the Victorian Charter of Human Rights and Responsibilities Act 2006, and is designed to signal the impact of proposed laws on the rights spelled out in the Victorian Charter. These documents, pursuant to s 35(b) of the Interpretation of Legislation Act 1984 (Vic), would be able to be considered by the courts in interpreting the Bill if enacted.

These documents state that it is not the purpose of the Bill to target general teaching given in a church or other religious setting by way of a “sermon”, which is not “targeted” at an individual. The SoC recognises that the Bill does impair somewhat religious freedom, but says this:

Although broad, the definition has been carefully designed to exclude conduct that is not directed at an individual, to reduce its impact on religious practices such as sermons. It also requires conduct be engaged in for the purpose of changing or suppression a person’s sexual orientation or gender identity (or inducing a person to change or suppress) to limit impact on 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.

SoC, Legislative Assembly Hansard 26 Nov 2020, p 17 (emphasis added)

The 2RS also says something similar, but with an interesting qualification:

First, the conduct must be directed at an individual. This ensures that conduct generally directed— such as sermons expressing a general statement of belief—is not captured. However, such conduct may be considered as part of the Legislative Assembly’s ongoing inquiry into anti-vilification protections.

Second Reading Speech, Legislative Assembly Hansard 26 Nov 2020, p 21 (emphasis added)

So again there is an expression of the intention not to capture “general statements of belief”, such as a sermon on Romans 1 or 1 Corinthians 6 explaining that homosexual behaviour is contrary to God’s will. However, the Minister could not resist including something of a “warning” about future legislative intentions! While general sermons may not be classified as a “change or suppression practice”, they might be targeted in the future by laws about “vilification”. In Victoria at the moment there is no general law prohibiting “vilification” on the grounds of homosexuality, unlike in, for example, NSW- see s 49ZT of the Anti-Discrimination Act 1977 (NSW).

However, the NSW law sets a fairly high bar for unlawful activity (“incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons…”) which would probably not be breached by a clear presentation of the Bible’s teaching on the topic of homosexuality. In addition, the NSW law contains a specific exemption for something said “in good faith, for… religious instruction”. It is somewhat concerning to see the Minister in Victoria suggest here that a possible future Victorian law on this topic might be applicable to a “general statement of belief” such as a sermon, which may imply that the protection for such speech provided in NSW would not be provided. Time will tell.

But encouraging chastity may be a problem…

However, outside the context of sermons, the description of behaviour which might be seen as a “change or suppression practice” shows how fine the line may be, between a conversation presenting the Bible’s view of these matters, and what will now be regarded as unlawful. In the 2RS we read:

This definition captures a range of conduct, including:… A person going to a religious leader seeking advice on their feelings of same-sex attraction, and the religious leader telling them they are broken and should live a celibate life for the purpose of changing or suppressing their same-sex attraction. While some religious practices may meet the definition of change or suppression practice in certain circumstances, the definition has been carefully crafted, and is not designed to capture all religious practices or teachings or to prevent people seeking religious counsel.

For example, the definition of a change or suppression practice would not capture conduct where, for example, a person goes to a religious leader seeking advice on their feelings of same-sex attraction, and the religious leader only informs this person that they consider such feelings to be contrary to the teachings of their faith, and does so only to convey their interpretation of those teachings and not to change or suppress the person’s sexual orientation or gender identity…

Second Reading Speech, Legislative Assembly Hansard 26 Nov 2020, p 21 (emphasis added)

The intention is there to distinguish between the two examples given; the essence seems to whether something was said “for the purpose of changing or suppressing” the person’s same-sex attraction”, or for some other purpose. But it seems that a busy pastor or priest or group leader may find it hard to know where to draw the line between “conveying their interpretation of teachings” and the point where there is encouragement to change behaviour. The explicit condemnation of an encouragement to “live a celibate life” is disturbing.

The fact is that it would be possible to urge someone not to act on their sexual desires for another person, outside the context of a man/woman marriage, without in any way seeking to “change” their “sexual orientation” or to “suppress” such.

The fine lines this legislation draws seem unrealistic in practice. It would seem to create large areas of the Christian life where pastors and small group leaders will be reluctant to have free discussions for fear of crossing these murky boundaries. In that sense it will be a serious impost on religious freedom.