In 1869, a “well-meaning” Victorian government passed the Aborigines Protection Act under which Aboriginal children could be taken from their families for the first time.  

In 2007, Bruce Trevorrow was the first member of the Stolen Generation to successfully sue and be awarded damages by the South Australian government. In 2008, former Prime Minister Kevin Rudd issued a national apology in the Australian parliament to the Stolen Generation.  

In the 1950s, a “well-meaning” Australian government allowed the practice of forced adoption of babies born to unwed teen mothers.  

In 2013, former Prime Minister Julia Gillard issued a national apology to people affected by forced adoption on behalf of the Australian government and established a compensation fund.  

In 2020, “well-meaning” Queensland and ACT governments passed legislation banning “conversion therapy” broadly defined as a practice to suppress or change a person’s sexual or gender identity. Now the Victorian government is seeking to pass similar, but even broader legislation in the new year.  

This week in a landmark UK decision, Keira Bell, who is now 23 and de-transitioning after commencing her transition at 16 years, and an anonymous woman whose 15-year-old autistic daughter is on the waiting list for treatment to transition, successfully sued the Tavistock and Portman NHS Foundation Trust under the National Health Service for allowing children to consent to puberty blockers and gender reassignment surgery. The High Court found that children are unable to give informed consent to such treatment. The NHS’ Tavistock clinic has now suspended all new referrals for puberty blockers and cross-sex hormones for children under 16 years of age.  

If Australia does not heed these early warnings from overseas and passes increasingly wider so-called “conversion therapy” legislation, just like before, in decades to come there will be a need for national apologies and compensation, but these acts can never restore a person or make up for wrongs perpetrated by the hand of government against them.  

What is typically considered “conversion therapy” is already outlawed in Victoria. The intention of this legislation is not just to capture what people commonly think of when they hear “conversion therapy” and find utterly abhorrent – some kind of physical beatings or shock therapy for people experiencing same-sex attraction.  

While I do wish, as a lawyer who practised in mental health law in Victoria for many years fighting for the rights of people being treated involuntarily under the Mental Health Act, for more safeguards for people receiving such treatment, electroconvulsive therapy, psychosurgery and other interventions which might be considered torture are limited to the practice of the medical profession and are highly regulated under the Mental Health Act. Section 4(2)(d) specifically prevents such interventions on the basis of a person’s sexuality. It states that: ‘A person is not to be considered to have mental illness by reason only of any one or more of the following — that the person expresses or refuses or fails to express a particular sexual preference, gender identity or sexual orientation’.  

Nevertheless, banning practices involving torture, even if there is no suggestion that they presently occur, can have merit to safeguard against such cruel and inhumane acts in future. However, there are two major areas where what otherwise appears to be a sensible bill, surreptitiously diverges from what the public would accept as “conversion therapy”. The first of these is the banning of any formal or informal counselling or discussions around a person’s sexual orientation or gender identity unless this is to assist a person to transition, express their gender identity, provide acceptance, support or understanding, or facilitate their coping skills (section 5(2)).  Secondly, the bill expressly bans someone ‘carrying out a religious practice including but not limited to, a prayer based practice’ (section 5(3)(b)). To engage in any of these prohibited acts can attract imprisonment up to 10 years or a fine up to $198,264 if harm to mental health is deemed to have been caused. The impact of this bill is unprecedented in its attack on freedom of thought, speech and religion.  

On this first point of banning of any formal or informal counselling or discussions around a person’s sexual orientation or gender identity, the bill would prevent a competent adult from being able, of their own volition, to discuss changing their sexual orientation or affirming their gender identity if this does not concur with the way they were feeling. This view is inconsistent with contemporary thought that gender and sexual orientation are fluid and, secondly, when did the government become in charge of our sexuality? Why on earth would the government ban an adult with capacity from seeking counselling into or out of same-sex attraction, regardless of their (now apparently immutable) sexual orientation? It does not need to be the person receiving counselling who makes a complaint but any person can do so about the counselling or conversations someone else is having, even if this is something the other person wants to do of their own free will.   

Furthermore, if a child expresses a desire to transition, it would be unlawful for a parent to explore alternative treatments or pursue a second opinion. Parents could now receive criminal sanctions over and above existing laws that saw a 15-year-old, who expressed a desire to transition, being removed last year from the care of her parents by NSW police after discussing suicide online because her parents wanted to explore all underlying issues with an independent psychologist first. 

In addition, the ill-conceived widening of the definition of sexual orientation included in the bill to be ‘a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of the same or another gender or of more than one gender’ could well open the door to affirmation rather than suppression of paedophilia. Clearly, there are a number of aspects of this bill that have not been thought through at all.  

On the second point of religious freedom, it would not be possible for many religions to preach, teach or discuss critical aspects of their faith, or to engage in prayer or other religious practices if this could be seen as suppressing someone’s sexual orientation, including practising abstinence before marriage or refraining from adultery. To continue practising and teaching the fullness of their faith, religious leaders could face fines and imprisonment. There is nothing preventing an activist from attending a service or listening to teaching online about traditional marriage, feeling mentally injured and reporting this. In effect, this bill is the biggest threat to religious freedom Australia has ever seen.  

But hey, let us call this a bill opposing “conversion therapy” and who would dare argue against it. No one wants to risk being labelled as someone who wants to torture people who are same-sex attracted, and if you oppose this bill, expect to be shamed into submission. After all, the government keeps stripping away our freedoms without Victorians batting an eyelid, and religious groups keep turning the other cheek – right?  

Alas, it is yet to be seen who will be brave enough to stand against this bill. Rather it looks like, in the years to come, we will be issuing another national apology and paying compensation to those who were assisted to transition without capacity to give informed consent, those who may endure significant suffering being unable able to access the counselling they wish and those persecuted for practising their faith.