Collision of laws: the impact of Commonwealth law on the Victorian CSP law

The Victorian  Change or Suppression (Conversion) Practices Prohibition Bill 2020 (Vic) (which I will call the “CSP” law for short) passed the Upper House on 4 Feb, 2021. As I write it seems not to have yet received the Royal Assent and become an “Act” but that will no doubt happen soon. The government has signalled that the legislation will not come into operation for another 12 months (see the final sentence in this article.)

My previous posts (see here for the most recent) have expressed grave concerns about the effect of the law on religious freedom and specifically on the freedom of parents and others to encourage children to live in accordance with Biblical standards of sexual behaviour. It is astonishing that the Bill was rushed through Parliament in the face of concerns also being expressed by the Law Institute of Victoria, the Australian Medical Association (AMA) and the Royal Australian and New Zealand College of Psychiatrists (RANZCP). (See this excellent post from Murray Campbell noting these issues.) 

There are, it seems, very few legal avenues available to challenge the many problems created by this law. But in this post I want to suggest one which may be available- where the CSP Law purports to take away rights of religious freedom granted by the Commonwealth Parliament.

I need to start, however, by saying again, as I have said before, that if this legislation was simply aimed at preventing non-consensual and oppressive medical or quasi-psychiatric techniques aimed at forcing someone to change their sexual attractions, then I would not oppose it, nor would anyone else. But it is crystal clear that the words used by the legislation make many other activities unlawful, despite bland assurances given by the Minister in Parliament. The law does explicitly target “prayer-based practices”; it defines “sexual orientation” in so broad a way that the term covers sexual activity as well as sexual attraction, so that encouraging someone to not act on a sexual temptation seems designed to fall within the definition of the phrase “change or suppression practice” in s 5, by “inducing the person to change or suppress their sexual orientation”. Such encouragement is unlawful despite it being consented to (or even actively sought) by a person seeking help!

So let’s take an example of a Christian school, where a teacher is who is leading a chapel service explains that the Bible teaches that sexual activity is only right in a man/woman marriage. The teacher then encourages the students to live in obedience to the God’s words. The teacher is then approached later privately by a student seeking help- the student says that they are wrestling with same sex attraction, and asks the teacher for advice and prayer to help them resist the temptation to sin. The teacher gives that advice, and prays with the student.

This incident seems to fall within the definition of “change or suppression practice” under s 5 of the CSP Law. The advice and prayer are “conduct.. directed towards a person” (even with the person’s consent); on the basis of the person’s sexual orientation (remembering that sexual orientation in s 59(3) includes “a person’s emotional, affectional and sexual attraction to… persons of a different gender”); “for the purpose of … inducing the person to change or suppress their sexual orientation”. It certainly seems arguable that encouraging someone not to have sex with persons of the same sex amounts to “inducing” them to “suppress” their orientation (that is, not to engage in “intimate or sexual relations with” such a person, which is also a part of the definition of “sexual orientation”.) 

Now it is important to note that at this point of our hypothetical, even under the CSP Law, no criminal offence has been committed. There are criminal offences created by the law, but the main ones (in sections 10 and 11) further require proof beyond reasonable doubt of causation of “serious harm” or “harm”, along with negligence as to such harm at a criminal standard. Such harm, if it occurs, would probably require the passage of some time to detect. But even without such harm being established, the above activity, if it is indeed a “change or suppression practice” (“CSP”), is declared in s 9 to be a “contravention” of the Act; that is, it is unlawful.

The result of such a non-criminal contravention is that, under Part 3, it may trigger a “report” being made to the Victorian Equal Opportunity and Human Rights Commission (“the Commission”). Suppose the person to whom the counsel and prayer were given is later convinced this was a bad thing and they were detrimentally affected by it- they can report it to the Commission under s 24. (In fact, the report can be made by anyone– so even a friend of theirs who was upset by the advice offered may decide to file a report.) This will open up a series of powers that the Commission can exercise- to ask for information from the person alleged to have engaged in the CSP (s 26), offer “targeted education” to the alleged wrongdoer (s 28), conduct mediation and seek a formal “agreement” which can be registered (ss 32-33). Alternatively, if the initial report leads the Commission to suspect “change or suppression practices that are systemic or persisting” (ie perhaps such advice has been given to other young people seeking to live in accordance with the Bible), then under s 34 the Commission may commence a formal “investigation” which may lead to enforceable orders to change (s 45) which can ultimately be enforced by a Tribunal (s 46).

Yet- there seems to be a real tension here between the possible results of that initial prayer and counselling session under Victorian law, and the protections provided to faith-based schools in relation to alleged “sexual orientation discrimination” under Commonwealth law.  Under the Sex Discrimination Act 1984 (Cth) (the “SDA”), s 38(3) no claim for “sexual orientation discrimination” can be made against an educational institution:

in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

 Assuming that a belief that homosexual activity was not sinful would “injure” the “religious susceptibilities” of adherents to a Biblical form of Christianity, then the school would be provided with a defence under s 38 SDA to any discrimination claims made by students on the basis of their policies aimed at discouraging homosexual activity among students. There is a similar defence under s 37(1)(d) which applies to:

(d)  any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

s 37(1)(d), SDA 1984

Under s 109 of the Constitution of the Commonwealth of Australia, a valid Commonwealth law will over-ride a conflicting State law. Does this mean that the Victorian law will be over-ridden by this Commonwealth law?

The answer is not really clear, unfortunately. There certainly are cases where a State law which is on the same topic as a Commonwealth law, but imposes a penalty for behaviour permitted under the Commonwealth law, has been found to “impair the operation” of the Commonwealth law and hence to be invalid: see Bitannia Pty Ltd & v Parkline Constructions Pty Ltd [2006] NSWCA 238; Colvin v Bradley Brothers Pty Ltd [1943] HCA 41; (1943) 68 CLR 151; and Dickson v The Queen [2010] HCA 30. (I discuss these cases and their relevance to the different provisions in discrimination law found in Tasmania in a previous paper: “Protecting Religious Freedom in Australia Through Legislative Balancing Clauses” (2017) at pp 23-26.)

However, this situation is less clear, because the Victorian CSP Law is not explicitly said to be a law on “discrimination”. A court might take the view that, as the laws operate in different “fields”, there is no direct clash. Nevertheless, I would maintain that there is an arguable case that there is a clash, at least in the specific area we are considering here, which is that of “providing religious teaching on sexual behaviour”. The policy implemented in the Commonwealth SDA is that a faith-based institution can act on its religious beliefs by encouraging students not to engage in same-sex sexual activity, without fear of being accused of sexual orientation discrimination. Yet the Victorian legislation makes such behaviour unlawful under State law (see s 9, CSP Law). Even though the Victorian law gives this behaviour a different “label”, it is making the precise behaviour protected by the Commonwealth law illegal. While other provisions of the Victorian Act may be valid, it seems that where there is a direct clash relating to the ability of a Christian school to present Biblical teaching on sexual activity, then the Victorian law may be “inoperative” to the extent of that clash.

The High Court of Australia discussed the law governing s 109 in its decision in Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428, [2019] HCA 2. That case involved a different issue, but in the course of the discussion they referred to an earlier decision which is relevant to the current point:

[45] In Ex parte McLean[1], Dixon J explained that when the Commonwealth and State Parliaments each legislate on the same subject matter “and prescribe what the rule of conduct shall be”, they make laws which are inconsistent and s 109 applies.  That is so because, by providing a rule to be observed, the Commonwealth statute evinces an intention to cover the subject matter and provide exclusively what the law upon that subject matter should be.  When a Commonwealth law discloses such an intention, it is inconsistent with that law for the State law to govern the same subject matter.

[1]      (1930) 43 CLR 472 at 483.

In the hypothetical being considered here, it can be argued that precisely the same behaviour (a faith-based school-teacher encouraging a pupil at the school to live in accordance with the school’s Biblical values) is subject to the two different laws, and to allow the State CSP Law to operate would impair the operation of the Commonwealth law.

There is a recent case dealing with this sort of issue from Tasmania: Cawthorn v Citta Hobart Pty Ltd [2020] TASFC 15 (23 December 2020). There, the Full Court of the Supreme Court of Tasmania found that Commonwealth building standards relating to disabled access did not cover the field, and that more onerous State laws could still operate. An aspect of the decision which was influential for the majority decision of Chief Justice Blow, however, was that under the Commonwealth law, the relevant Minister setting out standards could have chosen to explicitly over-ride State law, and did not do so. There is no such provision in the Commonwealth discrimination legislation, and so that case and the situation being considered here are not on all fours.

It is hard to be confident about how a case involving a possible s 109 clash will be resolved. But it seems strongly arguable that the Victorian CSP Law in the circumstances I have described would be held to be “inoperative” as in conflict with a right given by the Commonwealth law.

Other features of the law which unduly interfere with religious freedom might be limited if the Commonwealth Parliament were to pass a sensible version of the proposed Religious Discrimination Act which has been previously released for discussion. (See here for some comments on the most recent draft, which still has not yet been introduced into the Federal Parliament.) In that comment I note that one aspect of the draft Bill which should be addressed is that the bar of “unlawfulness” determining what beliefs cannot be protected at all needs to be raised to mainly cover serious criminal offences. The attacks on religious freedom by the Victorian CSP demonstrate that the Commonwealth draft Bill should only exclude from its definition of “religious belief or activity” serious criminal offences which are punishable by imprisonment. To exclude behaviour which is merely “unlawful” under State law, as I said in the submission linked above, means that:

the definition still, to a large extent, leaves prevention of religious discrimination by this Commonwealth law at the mercy of any State or Territory which decides to go its own way by enacting a prohibition on some behaviour to be accompanied by even the slightest penalty. This seems inconsistent with Australia’s clear international obligations under the ICCPR art 18 (concerning protection of religious freedom) and art 26 (prohibition against discrimination on the ground of, inter alia, religion to protect “all persons”.)

To be clear, this would mean that proven criminal behaviour causing harm or serious harm under ss 10 and 11 of the CSP Law would not be covered by the federal definition. But this would allow someone who had merely counselled another person, who had sought that counselling, about sexual morality in accordance with the teachings of the Bible, to seek some protection under the federal law should it be available.

The operation of the Victorian CSP Law will arguable have a “chilling effect” on those who wish to openly discuss questions around sexual activity and gender identity, and will put a serious barrier up to prevent those who want help, from being assisted. It may be hoped that general Commonwealth law in these areas will have an ameliorating effect on the worst aspects of the law.