Sexuality and Gender Identity Conversion Practices Act 2020

The central definition is “sexuality or gender identity conversion practice” in section 7(1): a treatment or other practice the purpose, or purported purpose, of which is to change a person’s sexuality or gender identity. The inclusion of “purported purpose” is significant. It means the prosecution does not need to prove that the practice actually had the capacity to change sexuality or gender identity, nor that the practitioner genuinely believed it would. It is enough that the practice was held out or presented as having that purpose. This lowers the evidentiary burden on the prosecution relative to requiring actual purpose, and potentially captures practices sold as “cures” even if the practitioner knows they are ineffective.

The definition is then narrowed by two categories of exclusions. The first, in section 7(2), lists practices that are not conversion practices even if they relate to sexuality or gender identity. These include: assisting a person undergoing or considering a gender transition; assisting a person to express their gender identity; providing acceptance, support or understanding of a person; and facilitating a person’s coping skills, social support or identity exploration and development. Examples given in the Act include diagnosis and assessment of gender dysphoria, gender-affirming hormone treatment, speech pathology for transgender clients, and support for exploring and expressing sexuality. The Act also includes a note stating that a mere expression of a religious tenet or belief is not intended to constitute a conversion practice, referencing the right to freedom of thought, conscience and religion under the Human Rights Act 2004. However, this note is not a legislative exception: it is explanatory only and does not create a defence. The second exclusion, in section 7(3), applies to practices by a health service provider that, in the provider’s reasonable professional judgment, are necessary to provide a health service in a safe and appropriate manner or to comply with legal or professional obligations. This exclusion is narrower than the first: it only applies to registered health service providers as defined by the Health Act 1993, and it requires that the practice be necessary in the provider’s reasonable professional judgment.

The term “protected person” is defined in the dictionary. It means a child, or a person who has impaired decision-making ability in relation to a matter relating to the person’s health or welfare. “Child” is not separately defined in this Act, but the Legislation Act 2001 dictionary defines “child” as a person under 18 years. “Impaired decision-making ability” is defined by reference to the Guardianship and Management of Property Act 1991, section 5. “Sexuality” and “gender identity” are defined by cross-reference to the Discrimination Act 1991 dictionary. That Act defines “gender identity” as the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person, whether by way of medical intervention or not, and includes the personal sense of identity. This means the definitions incorporate any future amendments to those Acts, which could expand or contract the scope of the conversion practice definition indirectly.

The Act directly affects any person who performs a practice on a child or an adult with impaired decision-making ability that is aimed at changing that person’s sexuality or gender identity. This includes counsellors, therapists, religious leaders, church workers, prayer ministers, parents, guardians, and any other individual, whether in a professional or personal capacity. The offence applies to anyone physically within the ACT, and the removal offence in section 9 extends to any person who removes a protected person from the Territory, regardless of where the conversion practice itself occurs. This could capture parents who take a child interstate or overseas to undergo conversion therapy, even if the practice occurs outside the ACT.

Health professionals are affected but have the benefit of the exclusion in section 7(3) if they are acting within their reasonable professional judgment. However, that exclusion only applies to health service providers as defined by the Health Act 1993, which includes registered medical practitioners, nurses, psychologists, and others. It does not extend to unregistered counsellors, religious advisers, or family members. For these groups, the only available exclusions are those in section 7(2), which require that the practice be for the purpose of providing acceptance, support, understanding, coping skills, social support, or identity exploration and development, rather than for change.

The Act also affects the Human Rights Commission, which may receive complaints about conversion practices under the Human Rights Commission Act 2005, as noted in section 6 of the Act. While the criminal offences are enforced by police and the Director of Public Prosecutions, the Commission’s complaint handling process provides an alternative avenue for redress without criminal prosecution. This could subject individuals to investigations, conciliation, and potential adverse findings even if no criminal charges are laid.

Adults with capacity are not protected persons under this Act, meaning that conversion practices performed on them are not criminal. However, if an adult has impaired decision-making ability in relation to their health or welfare, they become protected persons. This creates a grey zone for adults with fluctuating capacity or those with intellectual disabilities who may be able to consent but are deemed to have impaired decision-making ability under the Guardianship and Management of Property Act definition.

Religious organisations face particular exposure. The note about religious expression is not a defence. A religious leader who leads a person in prayer with the stated purpose of changing their sexual orientation could be caught, even if the leader believes the practice is religiously motivated. The Act does not exempt practices performed in a religious context, unless they fall within the section 7(2) exclusions. A prayer meeting aimed at “converting” a person from homosexuality to heterosexuality would likely be captured, regardless of the religious setting.

The Act imposes one core duty: not to perform a sexuality or gender identity conversion practice on a protected person. This duty is absolute in the sense that the consent of the recipient or their parent or guardian is not a defence. Section 8(2) explicitly states that the offence is committed “whether or not the recipient, or a parent or guardian of the recipient, consented to the practice.” This removes any argument that a parent’s consent to treatment of their child can exonerate the practitioner. It also removes any argument based on the recipient’s own consent, though that is less relevant given that protected persons are by definition children or people with impaired decision-making ability, who may lack legal capacity to consent anyway.

There is also a duty not to remove a protected person from the ACT for the purpose of a conversion practice, whether or not the practice itself occurs in the ACT. This extends territorial reach and prevents circumvention of the prohibition by transporting a person to a jurisdiction where conversion practices are legal.

The Act does not create any positive rights for protected persons, such as a right to compensation, a right to sue for damages, or a right to injunctive relief. The only enforcement mechanism is criminal prosecution. However, the Act notes that a person may make a complaint to the Human Rights Commission about conversion practices. That complaint process may lead to conciliation, recommendations, or referral to other agencies, but does not itself provide monetary compensation.

The Human Rights Act 2004 is referenced in a note to section 7, but the note does not create a right to engage in conversion practices as a manifestation of religion. It states only that it is not intended that a mere expression of a religious tenet or belief would constitute a conversion practice. This is a statement of intent, not a defence. In any prosecution, a court may consider the note in interpreting the scope of the definition, but the note is not binding law. A religious practice that goes beyond “mere expression” could still be captured.

The Act does not create any limitation period for prosecution. As a criminal offence, the general provisions of the Criminal Code and the Legislation Act apply. The maximum penalty for the offence is relatively low (12 months imprisonment), which may limit the time within which summary prosecution must be commenced, but the Act itself does not specify a time limit.

Each offence carries a maximum penalty of 150 penalty units, imprisonment for 12 months, or both. At the republication date, one penalty unit is $160 for an individual and $810 for a corporation. For an individual, 150 penalty units equals $24,000. For a corporation, 150 penalty units equals $121,500. The availability of imprisonment indicates that the offence is considered serious enough to warrant a custodial sentence.

Section 5 confirms that the Criminal Code 2002 applies to offences against this Act. This means that all general principles of criminal responsibility apply, including fault elements. Unless a contrary intention appears, the prosecution must prove that the accused intended to perform the practice (physical element of conduct) and intended or was reckless as to the purpose of changing sexuality or gender identity. Strict liability does not apply to the essential elements except where expressly provided, and no strict liability is specified in the Act. The requirement to prove purpose or purported purpose introduces a mental element that the prosecution must establish beyond reasonable doubt.

The consent of the recipient is expressly irrelevant to the offence under section 8(2). This means that even if a protected person appeared to consent, or their parent consented, the practitioner is still liable. This is a strong policy choice that overrides the common law principle that consent can be a defence to assault or other offences. It also means that a practitioner cannot argue that they believed the recipient had capacity to consent if the recipient is a protected person.

Enforcement is through the standard criminal process: police investigate, the Director of Public Prosecutions decides whether to prosecute, and the matter proceeds in the Magistrates Court or Supreme Court depending on the election of the parties. The Act does not create a private right of prosecution. Complaints to the Human Rights Commission may lead to investigation, but the Commission cannot itself prosecute. The Commission may refer matters to police.

The Act originally contained a review provision in Part 3, requiring a review of the Act within three years of commencement. That provision expired on 4 March 2024. There is no ongoing requirement for a statutory review. This means that unless the government voluntarily reviews the Act, there is no legislative mechanism for assessing its operation, including whether the exclusions are working as intended, whether any unintended chilling effects have occurred, or whether the penalties are proportionate.

The Act interacts with several other ACT laws. First, the Criminal Code 2002 applies to all offences against the Act, as specified in section 5. This imports the Code’s provisions on fault elements, defences, burden of proof, and terminology. For example, the Code defines “intention,” “recklessness,” and “strict liability,” and these definitions will govern the interpretation of the conversion practice offence.

Second, the dictionary cross-references definitions from the Discrimination Act 1991 for “sexuality” and “gender identity.” This means that any amendment to the Discrimination Act’s definitions will automatically affect the scope of this Act. Similarly, the definition of “health service provider” is taken from the Health Act 1993, section 7, and “health service” from section 5 of that Act. Changes to those definitions will flow through.

Third, the Human Rights Act 2004 is referenced in a note to section 7. The note states that a mere expression of a religious tenet or belief is not intended to constitute a conversion practice. This may be used by courts as an interpretative aid, but it is not a free-standing exemption. The Human Rights Act also protects the right to freedom of thought, conscience, and religion. If a prosecution were brought, a defendant could argue that the offence infringes that right, but the note suggests the legislature considered this and concluded that a “mere expression” would not be caught. The interaction between the criminal prohibition and religious freedom is likely to be the most contested legal issue under the Act.

Fourth, the Act does not repeal or affect any other criminal laws. For example, an assault committed during a conversion practice could also be prosecuted as assault, with higher penalties possible. The Act adds a specific offence but does not displace other offences.

Fifth, the Human Rights Commission Act 2005 is referenced in the objects provision. Division 4.2D of that Act allows complaints about conversion practices to be made to the Commission. The Commission can investigate and attempt conciliation, but cannot impose penalties. This civil complaint pathway operates in parallel to the criminal offence.

Sixth, the Act does not interact directly with Commonwealth laws. However, the removal offence in section 9 may involve crossing state or territory borders. There is no equivalent Commonwealth offence for conversion practices, so the ACT offence relies on the person being subject to ACT jurisdiction if they remove the protected person from the ACT. If the removal is to another state or overseas, the ACT’s power to prosecute depends on the person having sufficient connection to the ACT.

Seventh, the Guardianship and Management of Property Act 1991 definition of “impaired decision-making ability” is incorporated. This imports the test of temporary or permanent incapacity to make decisions about health or welfare, as assessed under that Act. This may create uncertainty about whether a person with fluctuating capacity is a protected person at the time of the practice.

The Sexuality and Gender Identity Conversion Practices Act 2020 (A2020-49) was notified on the ACT legislation register on 4 September 2020. Sections 1 and 2 (name and commencement) commenced on that date. The remainder of the Act commenced on 4 March 2021.

The Act has not been amended by any substantive legislative change. The republication note states “Act not amended.” The only changes reflected in this republication are the expiry or omission of certain provisions due to the operation of the Act itself. Part 3, which contained section 10 requiring a review of the Act within three years, expired on 4 March 2024 under its own terms. The heading of Part 3 and section 10 have been omitted from the republished text as a result. Part 4, originally containing consequential amendments and schedule 1, has been omitted under the Legislation Act 2001, section 89(3), because those provisions had already been given effect.

The only amendment history recorded is the omission of section 2 (commencement provision) under the Legislation Act, section 89(4), which is standard editorial practice after commencement. The consequential amendments in Part 4 and schedule 1 have been omitted for the same reason. There are no amendments from other Acts or legislative instruments.

The Act was republished twice: first as Republication No 1 on 4 March 2021 for the commencement of the Act, and then as Republication No 2 on 5 March 2024 for the expiry of Part 3. The Act is not subject to any current modification or uncommenced amendment.

The absence of amendment history means that the Act has operated in its original form since commencement. No review has been conducted as required by the now-expired Part 3, or if a review was conducted, it has not resulted in legislative change. Practitioners should note that the Act’s definitions and exclusions remain as originally enacted, and judicial interpretation has not been clarified by amendment.

The Act has been in force since March 2021 but, as of the republication date, there is no reported litigation history mentioned in the source material. No cases are cited, and no court decisions interpreting the Act are recorded in the endnotes. This is a relatively short period, and the Act may not yet have been the subject of a contested prosecution.

However, the absence of litigation does not mean the Act has no impact. The threat of criminal prosecution may lead to compliance without court testing. Potential areas of future litigation include: the meaning of “purported purpose” and whether it captures practices where the practitioner disavows any change purpose but the setting or language suggests otherwise; the scope of the exclusion for “identity exploration and development” and whether it can be used to cloak conversion practices; the application of the religious freedom note and whether it can be raised as a defence under the Human Rights Act; and the definition of “child” for protected person purposes, particularly in relation to a person under 18 who is married or has capacity to consent to medical treatment under other legislation.

Another potential litigation issue is the interaction between the removal offence and the Constitution. The offence criminalises removing a protected person from the ACT for a conversion practice. If the removal is to another Australian state, there could be questions about the extraterritorial application of ACT law and the limits of ACT legislative power. The ACT is a self-governing territory with plenary power, but its laws must be consistent with Commonwealth laws and the Constitution. A prosecution under section 9 would need to establish jurisdiction over the removal itself, which occurs within the ACT, even if the practice occurs elsewhere.

The Act does not contain a defence of medical necessity or religious belief beyond the exclusion for health service providers. A defendant could argue that the practice was necessary to comply with a genuine religious obligation, but the note suggests this is not intended to be a defence. The Human Rights Act could be invoked to argue that the criminal prohibition disproportionately infringes religious freedom, but the ACT Human Rights Act generally does not override other Acts unless there is a declaration of incompatibility. This area is ripe for constitutional or human rights challenge.

Several features of the Act may catch parties unaware. First, the definition of conversion practice includes practices with a “purported purpose” of change. This means that if a counsellor markets a program as being able to change sexual orientation or gender identity, they can be prosecuted even if the program is ineffective and they do not genuinely believe it works. The prosecution does not need to prove the practice could achieve its purpose.

Second, the consent of the recipient or their parent is no defence. A parent who consents to a conversion practice for their child is not immune from prosecution, and the person performing the practice cannot rely on the parent’s consent. This overrides the common law position that parents have authority to consent to treatment for their children, and it means that parents themselves could be liable if they perform the practice.

Third, the offence applies whether or not the practice is performed in a private setting or in a religious context. The note about religious expression being a “mere expression” does not create a safe harbour for religious counselling, prayer, or teaching that goes beyond a simple statement of belief. A religious leader who prays with a person with the express purpose of changing their same-sex attraction could be captured.

Fourth, the removal offence in section 9 applies even if the conversion practice occurs entirely outside the ACT. A parent who takes a child to another state or overseas for conversion therapy can be prosecuted in the ACT for the removal, even if the other jurisdiction permits the practice. This creates an extraterritorial reach that could be difficult to enforce but is a real risk for ACT residents.

Fifth, the Act does not define “child.” The Legislation Act 2001 defines a child as a person under 18 years, but that definition is not expressly incorporated. However, it is likely to be applied by default. This means that a 17-year-old is a protected person even if they have capacity to consent to medical treatment under the age of 16 provisions in other ACT health laws. The Act creates a blanket protection for all under 18s regardless of maturity.

Sixth, the exclusion for health service providers in section 7(3) requires that the practice be “necessary” in the provider’s “reasonable professional judgment.” This is a high threshold. A provider cannot rely on the exclusion if the practice is merely convenient or preferred by the patient. The provider bears the burden of establishing the exclusion on the balance of probabilities as a defence.

Seventh, the Act does not create a statutory defence for parents who are seeking to affirm their child’s gender. The exclusions in section 7(2) cover acceptance, support, understanding, and identity exploration, but a parent who pressures a child to conform to a particular gender role or to suppress their identity could fall outside those exclusions if the purpose is change.

Eighth, the dictionary definition of “protected person” includes a person with impaired decision-making ability in relation to health or welfare. This could include an adult with dementia, an intellectual disability, or a temporary mental health crisis. A practitioner working with such a person must ensure they are not performing any practice that could be construed as having a change purpose, even if the person appears to consent.

Compliance requires careful assessment of any practice that could be perceived as aiming to change a person’s sexuality or gender identity. The safest approach for any person dealing with children or adults with impaired decision-making ability is to avoid any practice that has the purpose or purported purpose of change. Instead, practitioners should ensure their practices fall within one of the statutory exclusions.

For health service providers, the exclusion in section 7(3) provides a pathway: document the reasonable professional judgment that the practice is necessary to provide a health service safely or to comply with legal or professional obligations. Keep records of the clinical reasoning, the patient’s history, and why the practice is considered necessary. This applies to gender-affirming care, diagnosis of gender dysphoria, and other treatments that are not conversion practices. However, even health providers must ensure they are not using the exclusion as a cover for conversion. If a practice is not necessary for a health purpose, it is likely prohibited.

For non-health practitioners, including counsellors, religious workers, and educators, the exclusions in section 7(2) are the only safe harbours. These exclude practices that are for the purpose of: assisting a person undergoing or considering gender transition; assisting a person to express their gender identity; providing acceptance, support or understanding; or facilitating coping skills, social support, or identity exploration. To fall within these exclusions, the practitioner must genuinely hold that purpose. The onus is on the practitioner to demonstrate the purpose, though in a criminal prosecution the burden is on the prosecution to prove the conversion practice purpose beyond reasonable doubt.

Religious organisations should review any programs, counselling, or prayer ministries aimed at persons questioning their sexuality or gender identity. If a program has any element of encouraging change of orientation or identity, it is high risk. A program that simply provides support, acceptance, and allows individuals to explore their identity in a non-judgmental setting should fall within the exclusion. However, any language or practice that suggests an outcome of change could be fatal. The note about religious expression is not a substitute for the statutory exclusions.

Parents and guardians should be aware that they can be prosecuted if they perform a conversion practice on their child or remove the child from the ACT for that purpose. Allowing a child to see a counsellor who offers conversion therapy could also expose the parent to liability if the parent arranged the attendance with knowledge of the purpose. The safest approach is to seek counselling or support services that explicitly affirm the child’s sexuality or gender identity and do not aim to change it.

Training for staff in health, education, and religious settings is essential. Staff should understand the definition of conversion practice, the exclusions, and the fact that consent is irrelevant. Policies should prohibit any practice that could be seen as conversion, and complaints procedures should be established. The Human Rights Commission may handle complaints, so organisations should also familiarise themselves with that process.

Legal advice should be sought before implementing any program that involves intensive counselling, prayer, or therapy around sexuality or gender identity for persons under 18 or those with impaired decision-making ability. The Act does not provide a grace period for compliance, and the penalties are significant.