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Wednesday, 26 August 2020

Criminal offence a heavy handed approach to conversion therapy

The ACT Law Society is opposed to the reprehensible practice of 'conversion therapy', and recognises the harm it causes to members of our LGBTQI+ community.

The Law Society strongly supports the policy intent behind the Sexuality and Gender Identity Conversion Practices Bill 2020, however we do not agree with the creation of a new criminal offence in this case.

Chair of the Law Society's Criminal Law Committee, Michael Kukulies-Smith said, "The government has alternative options available to it to regulate this behaviour, for example using the civil regime provisions provided for in the Bill, health regulations or suitability criteria for Working With Vulnerable People Cards.

"The Bill's definition of 'sexuality or gender identity conversion practice' is simply too broad and vague to be a proper basis for a proposed criminal offence.

"If the definition of conversion therapy was limited to circumstances where coercion was present, then the carve out of exceptions contained in proposed subsection 7(2) of the Bill would be unnecessary. The offence provision would be more easily understood and better focused.

"As it stands, the breadth of the language used in the offence provision necessitates extensive exceptions. This of itself is an indication that the proposed Bill has not gotten the offence definition right in the first place."

The Society notes that the Bill also provides for civil penalties, giving ACAT the power to issue orders against people complained about, and to order redress and compensation. These mechanisms are adequate and fit for purpose.

When it comes to the offence provision outlined in the Bill, the aspect that makes it an offence is the fact that the therapy is conducted on a protected person (such as a child). In the ACT, individuals working with protected persons must be the holders of a Working With Vulnerable People Card. An alternative to creating a criminal offence could be the revocation, or ineligibility, for people who carry out conversion therapy for this accreditation. This would be an effective deterrent preferable to the imposition of a further criminal offence. It would also be a preventative measure.

"The criminal law is a blunt instrument when it comes to modifying behaviours. Not every legislative initiative needs to be supported by an offence provision," said Mr Kukulies-Smith.