Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 (ACT)

Mechanically, the Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 creates an approvals regime and a criminal prohibition around certain medical and surgical interventions in relation to a person’s sex characteristics. The Act (a) defines key terms including variation in sex characteristics, restricted medical treatment and prescribed person (ss 7-9); (b) requires that restricted medical treatment for a prescribed person be undertaken only in accordance with an approved treatment plan (s 10) except in urgent circumstances (s 10(2)); (c) establishes an administrative decision‑making machinery, the Restricted Medical Treatment Assessment Board, to assess and approve treatment plans, both general (class) plans and individual plans (Pt 3, Pt 5); (d) prescribes public consultation procedures for general treatment plans (ss 21-23); (e) creates offences for undertaking restricted medical treatment without an approved plan and for arranging or authorising such treatment (ss 27-28); (f) prescribes a reporting obligation on doctors who start reportable treatment and sets record retention periods that override other territory record and health privacy laws (ss 43-45); and (g) provides an internal review process and rights of review to the ACT Civil and Administrative Tribunal (Pt 6).

The Act states its object as protecting rights and ensuring the wellbeing of people with a variation in sex characteristics in relation to restricted medical treatment (s 6). That is an explicit purpose statement and appears as the legislated rationale for the approval and safeguards model. The statute also incorporates procedural safeguards directed at assessing whether undertaking a proposed treatment is necessary to avoid significant physical or psychological harm, requiring evidence of consideration of alternatives and limits on relying on reduced discrimination or stigmatisation as a justification for treatment in certain circumstances (ss 13-16). Ministerial guidelines and regulations are available to refine how assessment committees operate (ss 17, 46), and the Act establishes publication and reporting obligations intended to ensure transparency (ss 21-23; ss 43-44).

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 A2023-23 Republication No 4 Effective: 23 December 2024 Republication date: 23 December 2024 Last amendment made by A2024-51 (republication for commenced provisions)

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au About this republication The republished law This is a republication of the Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 23 December 2024. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 23 December 2024. The legislation history and amendment history of the republished law are set out in endnotes 3 and 4. Kinds of republications The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at www.legislation.act.gov.au): • authorised republications to which the Legislation Act 2001 applies • unauthorised republications. The status of this republication appears on the bottom of each page. Editorial changes The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice. This republication does not include amendments made under part 11.3 (see endnote 1). Uncommenced provisions and amendments If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register (www.legislation.act.gov.au). For more information, see the home page for this law on the register. Modifications If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95. Penalties At the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133).

R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 contents 1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Contents Page Part 1 Preliminary 1 Name of Act 2 3 Dictionary 2 4 Notes 2 5 Offences against Act—application of Criminal Code etc 3 Part 2 Object and important concepts 6 Object of Act 4 7 Meaning of variation in sex characteristics 4 8 Meaning of restricted medical treatment 5 9 Meaning of prescribed person 5

Contents Page contents 2 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 3 Assessment of treatment plans Division 3.1 Applying for approval of treatment plans 10 Requirement for treatment plans to be approved 6 11 Application for approval of treatment plan 6 Division 3.2 Assessment of treatment plans 12 Assessment committee 8 13 Assessment criteria—general and individual treatment plans 8 14 Assessment of significant harm—children 9 15 Assessment of significant harm—adult subject to guardianship order 9 16 Assessment criteria—individual treatment plans 10 17 Ministerial guidelines 11 18 Operation of assessment committee 12 19 Request for more information 13 20 Applicant to be given any other information obtained by committee 13 Division 3.3 Assessment of general treatment plans 21 Public consultation 14 22 Public consultation submissions 15 23 Deciding the application—general treatment plan 16 Division 3.4 General treatment plans—other matters 24 Review of approved general treatment plan 17 25 Expiry of approved general treatment plan 18 Division 3.5 Assessment of individual treatment plans 26 Deciding the application—individual treatment plan 19 Part 4 Offences 27 Offence—undertaking restricted medical treatment without approval 21 28 Offence—arrange or authorise unapproved restricted medical treatment 22 Part 5 Restricted Medical Treatment Assessment Board 29 Establishment of Restricted Medical Treatment Assessment Board 24 30 Functions of assessment board 24

Contents Page R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 contents 3 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 31 Membership of assessment board 24 32 Ending appointments 25 33 Arrangements for staff and facilities 26 34 Consultants for assessment committees 26 Part 6 Notification and review of decisions 35 Definitions—pt 6 27 36 Internal review notices 28 37 Application for internal review 28 38 Appointment of internal review committee 29 39 Decision of internal review committee 29 40 Reviewable decision notices 30 41 Application for ACAT review 30 42 Review by ACAT 30 Part 7 Miscellaneous 43 Reporting treatment in relation to sex characteristics 31 44 Assessment board annual report 32 45 Restricted medical treatment records 33 46 Regulation-making power 34 47 Review of Act 35 Part 9 Transitional 49 Meaning of commencement day—pt 9 36 50 Prescribed people who received prior treatment 36 51 Expiry—pt 9 36 Dictionary 37 Endnotes 1 About the endnotes 39 2 Abbreviation key 39 3 Legislation history 40

Contents Page contents 4 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 4 Amendment history 41 5 Earlier republications 42

R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 An Act to protect rights of people with a variation in sex characteristics in relation to certain medical treatment, and for other purposes

Part 1 Preliminary Section 1 page 2 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 1 Preliminary 1 Name of Act This Act is the Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023. 3 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act. For example, the signpost definition ‘internal review notice—see the ACT Civil and Administrative Tribunal Act 2008, section 67B (1).’ means that the term ‘internal review notice’ is defined in that section and the definition applies to this Act. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)). 4 Notes A note included in this Act is explanatory and is not part of this Act.

Preliminary Part 1 Section 5 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 3 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 5 Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

Part 2 Object and important concepts Section 6 page 4 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 2 Object and important concepts 6 Object of Act The object of this Act is to protect rights and ensure the wellbeing of people with a variation in sex characteristics in relation to restricted medical treatment. 7 Meaning of variation in sex characteristics (1) In this Act: variation in sex characteristics— (a) means a congenital condition that involves atypical sex characteristics; and (b) includes a condition prescribed by regulation; but (c) does not include a condition prescribed by regulation not to be a variation in sex characteristics. (2) In this section: sex characteristics— (a) means a person’s chromosomal, gonadal or anatomical sex; and (b) includes— (i) the person’s hormones that are related to sex; and (ii) the sexual and reproductive parts of the person’s anatomy; and (iii) the person’s secondary physical features emerging as a result of puberty.

Object and important concepts Part 2 Section 8 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 5 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 8 Meaning of restricted medical treatment (1) In this Act: restricted medical treatment, in relation to a person who has a variation in sex characteristics, means the following: (a) a surgical or medical procedure or treatment (including the prescription or administration of a drug) that permanently changes the person’s sex characteristics, or which makes changes to the person’s sex characteristics that are only reversible with a further medical procedure or treatment; (b) a prescribed surgical or medical procedure or treatment (including the prescription or administration of a drug) that temporarily changes the person’s sex characteristics. (2) However, restricted medical treatment does not include circumcision of the penis. (3) In this section: sex characteristics—see section 7 (2). 9 Meaning of prescribed person In this Act: prescribed person, in relation to restricted medical treatment, means a person who— (a) has a variation in sex characteristics; and (b) either— (i) is an adult subject to a guardianship order that applies to the medical treatment; or (ii) is a child who does not have decision-making capacity in relation to the medical treatment.

Part 3 Assessment of treatment plans Division 3.1 Applying for approval of treatment plans Section 10 page 6 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 3 Assessment of treatment plans Division 3.1 Applying for approval of treatment plans 10 Requirement for treatment plans to be approved (1) A person may only undertake restricted medical treatment on a prescribed person in accordance with an approved treatment plan and any condition applying to the plan. Note 1 It is an offence under pt 4 to undertake restricted medical treatment on a prescribed person other than in accordance with an approved treatment plan. Note 2 If the prescribed person is an adult and the restricted medical treatment is a prescribed medical procedure under the Guardianship and Management of Property Act 1991, consent to the treatment from the ACAT is also required (see that Act, s 70). (2) Subsection (1) does not apply to urgent restricted medical treatment. 11 Application for approval of treatment plan (1) A person may apply to the assessment board for approval of a treatment plan for— (a) a class of prescribed people (a general treatment plan); or (b) an individual prescribed person (an individual treatment plan). (2) A person may only apply for approval of a treatment plan if— (a) for a general treatment plan—they are a person declared by the Minister; or (b) for an individual treatment plan—they are— (i) a decision-maker for the prescribed person; or

Assessment of treatment plans Part 3 Applying for approval of treatment plans Division 3.1 Section 11 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 7 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (ii) a health practitioner for the prescribed person; or (iii) a person prescribed by regulation. (3) The application must— (a) state the name and contact details of the applicant; and (b) include the proposed treatment plan; and (c) set out the reasons why the treatment plan is proposed, including evidence addressing the assessment criteria mentioned in— (i) section 13; and (ii) for an individual treatment plan—section 16; and (d) for an individual treatment plan— (i) state the prescribed person’s name and age; and (ii) state the name and contact details for each decision-maker for the prescribed person; and (iii) include a summary of any previous treatment, including restricted medical treatment, the person has received in relation to their variation in sex characteristics; and (e) anything else prescribed by regulation. (4) The president must give a copy of the application to the public advocate. (5) A declaration by the Minister under subsection (2) (a) is a disallowable instrument.

Part 3 Assessment of treatment plans Division 3.2 Assessment of treatment plans Section 12 page 8 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Division 3.2 Assessment of treatment plans 12 Assessment committee (1) As soon as practicable, and not more than 14 days after receiving an application, the president must appoint 1 assessment board member from each category mentioned in section 31 (1) (b) to a committee (an assessment committee) to decide the application. (2) The president may appoint themselves to the committee for the category mentioned in section 31 (1) (b) (i). (3) A regulation may prescribe requirements about the appointment of assessment board members to an assessment committee. 13 Assessment criteria—general and individual treatment plans (1) An assessment committee may only approve a proposed treatment plan if there is sufficient evidence that— (a) the prescribed people to whom the plan applies would be reasonably likely to suffer significant physical or psychological harm (the primary harm) if the proposed treatment or an alternative treatment option were not undertaken; and (b) alternative treatment options have been sufficiently considered; and (c) the proposed treatment is no more restrictive of the ability to make a decision about a prescribed person’s sex characteristics in the future than any alternative treatment option. (2) For this section, an alternative treatment option to a proposed treatment is a medical or non-medical treatment or procedure, including delayed treatment or procedure, which, taking into account the primary harm and any associated harm of the proposed and alternative treatment options, is as effective as the proposed treatment.

Assessment of treatment plans Part 3 Assessment of treatment plans Division 3.2 Section 14 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 9 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (3) In this section: associated harm, of a treatment of a prescribed person, means any physical or psychological harm that the prescribed person would be reasonably likely to suffer if the treatment were undertaken. Examples 1 physical side effects 2 psychological harm to the prescribed person because they are required to be away from family for extended periods to have the treatment sex characteristics—see section 7 (2). 14 Assessment of significant harm—children For section 13 (1) (a), in considering if it is reasonably likely that a prescribed person who is a child would suffer significant harm if the proposed treatment or an alternative treatment option were not undertaken, the assessment committee— (a) for an individual treatment plan—must consider any wishes the child has communicated in relation to their variation in sex characteristics; and (b) must disregard any evidence that the treatment needs to be undertaken to reduce discrimination or stigmatisation or a perceived risk of discrimination or stigmatisation. 15 Assessment of significant harm—adult subject to guardianship order For section 13 (1) (a), in considering if it is reasonably likely that a prescribed person who is an adult would suffer significant harm if the proposed treatment or an alternative treatment option were not undertaken, the assessment committee— (a) for an individual treatment plan—must consider any wishes the prescribed person has communicated in relation to their variation in sex characteristics; and

Part 3 Assessment of treatment plans Division 3.2 Assessment of treatment plans Section 16 page 10 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (b) unless the person has communicated a wish to have the proposed treatment or an alternative treatment option undertaken—must disregard any evidence that the treatment needs to be undertaken to reduce discrimination or stigmatisation or a perceived risk of discrimination or stigmatisation. 16 Assessment criteria—individual treatment plans In addition to section 13, an assessment committee may only approve an individual treatment plan if there is sufficient evidence provided to the committee by the applicant— (a) for a treatment plan for a child—that, taking into account the child’s cognitive ability, reasonable steps have been taken in assessing that the child does not have decision-making capacity in relation to the proposed treatment; and (b) that, taking into account the prescribed person’s cognitive ability, the prescribed person has been given or had access to sufficient information about the following: (i) the likely implications of the proposed treatment; (ii) the likelihood future treatment will be required or other future treatment options will be excluded if the proposed treatment is undertaken; (iii) alternative medical and non-medical options including support for the prescribed person’s psychosocial needs; (iv) the likely risks and benefits of deferring or not undertaking the proposed treatment; and

Assessment of treatment plans Part 3 Assessment of treatment plans Division 3.2 Section 17 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 11 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (c) that, taking into account the prescribed person’s cognitive ability, the prescribed person has been given, or had access to, appropriate support to assist the prescribed person in understanding the information mentioned in paragraph (b); and (d) that each decision-maker for the prescribed person has been given, or had access to, the things mentioned in paragraph (b); and (e) that, taking into account the prescribed person’s cognitive ability— (i) the prescribed person has received appropriate support to participate in decision-making about the treatment plan and to communicate their wishes freely; and (ii) any wishes the prescribed person has communicated in relation to the proposed treatment or their variation in sex characteristics have been appropriately considered. Note If a general treatment plan is approved, it is a condition of the plan that the person undertaking the restricted medical treatment on a prescribed person ensures that the matters mentioned in pars (a) to (e) are satisfied (see s 23 (3) (a)). 17 Ministerial guidelines (1) The Minister may make guidelines about— (a) the matters that an assessment committee must or may consider under sections 13 to 16; and (b) other guidance to assist an assessment committee or internal review committee to exercise their functions under this Act. (2) A guideline is a disallowable instrument.

Part 3 Assessment of treatment plans Division 3.2 Assessment of treatment plans Section 18 page 12 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 18 Operation of assessment committee (1) An assessment committee may conduct an assessment of an application in the way it considers appropriate, including informing itself in any way it considers appropriate in the circumstances. Examples—other ways of informing itself 1 relying on expertise of a committee member to research a matter 2 relying on information provided in relation to an earlier application 3 with the consent of the decision-maker for a prescribed person, talking directly to the prescribed person Note Section 20 sets out requirements for the provision to the applicant of information obtained or relied upon by the committee under this subsection and s (2). (2) Without limiting subsection (1), an assessment committee may consult, in writing, any of the following in relation to an application: (a) a health professional or health professional body not involved in the treatment of the prescribed person; (b) a quality assurance committee approved under the Health Act 1993, section 27; (c) an entity representing, or providing support to, people with a variation in sex characteristics; (d) the public advocate; (e) for an application in relation to a child—the children and young people commissioner; (f) any other person prescribed by regulation. (3) However, the committee must not, without the written consent of a decision-maker— (a) identify the prescribed person; or (b) disclose information that would allow the prescribed person’s identity to be worked out.

Assessment of treatment plans Part 3 Assessment of treatment plans Division 3.2 Section 19 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 13 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (4) A regulation may prescribe additional requirements about the operation of an assessment committee. (5) In this section: health professional means a health practitioner or other person who provides treatment, care or support to people with a variation in sex characteristics. Examples psychologist, social worker, genetic counsellor 19 Request for more information (1) An assessment committee may, in writing, request an applicant to give the committee information that the committee reasonably needs to decide the application. (2) The committee may refuse to consider the application further if the information is not provided within the period stated in the request. 20 Applicant to be given any other information obtained by committee (1) This section applies to— (a) any information relied upon by an assessment committee under section 18 (1); and (b) any information obtained by an assessment committee through consultation under section 18 (2); and (c) any submissions received under section 22. (2) The committee must give the applicant— (a) a copy of the information or submission; and (b) a reasonable period of time in which to consider the information and make any changes to their application.

Part 3 Assessment of treatment plans Division 3.3 Assessment of general treatment plans Section 21 page 14 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Division 3.3 Assessment of general treatment plans 21 Public consultation (1) After receiving an application in relation to a general treatment plan, the assessment committee must conduct public consultation about the application and give a notice about the consultation (a consultation notice). (2) A consultation notice must— (a) state that— (i) anyone may give a written submission to the assessment committee about the general treatment plan; and (ii) submissions may be given to the assessment committee only during the period starting on the day after the consultation notice is notified under the Legislation Act and ending on a stated day, being a day at least 30 days after the day it is notified (the consultation period); and (b) include the general treatment plan and any relevant supporting information included in the application for the plan. (3) A consultation notice is a notifiable instrument. (4) The assessment committee must also— (a) publish the consultation notice on an ACT government website; and (b) give the consultation notice to the relevant entities. (5) The following must not be included in the consultation notice: (a) information that identifies a prescribed person or a decision-maker for a prescribed person;

Assessment of treatment plans Part 3 Assessment of general treatment plans Division 3.3 Section 22 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (b) information that would allow the person’s or decision-maker’s identity to be worked out; (c) any information prescribed by regulation. (6) In this section: relevant entities means the following: (a) the chief health officer; (b) the Minister responsible for each of the following: (i) this Act; (ii) the Health Act 1993; (iii) the Human Rights Act 2004; (c) the children and young people commissioner; (d) the health services commissioner; (e) the public advocate; (f) any other entity prescribed by regulation. 22 Public consultation submissions (1) If the assessment committee gives a consultation notice under section 21— (a) anyone may give a written submission to the committee about the general treatment plan; and (b) the submission may be given to the committee only during the consultation period. (2) If any submissions are received during the consultation period, the assessment committee must publish the submissions on an ACT government website.

Part 3 Assessment of treatment plans Division 3.3 Assessment of general treatment plans Section 23 page 16 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (3) The following must not be published under subsection (2): (a) unless the assessment committee is satisfied that it is the prescribed person’s will and preference— (i) information that identifies the prescribed person; or (ii) information that would allow the prescribed person’s identity to be worked out; (b) any information the assessment committee considers to be sensitive or prejudicial to an individual; (c) any information prescribed by regulation. 23 Deciding the application—general treatment plan (1) After the end of the consultation period mentioned in section 21 (2), the assessment committee must— (a) consider any written submissions received during the consultation period; and (b) either— (i) approve the application; or (ii) refuse the application. Note An application must be decided in accordance with s 13. (2) A decision under subsection (1) is decided by a majority of votes of all assessment committee members. (3) An approval is subject to— (a) a condition that the matters mentioned in section 16 (a) to (e) are satisfied before the restricted medical treatment is undertaken on a prescribed person; and (b) any other condition the assessment committee considers appropriate.

Assessment of treatment plans Part 3 General treatment plans—other matters Division 3.4 Section 24 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 17 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (4) The assessment committee must give a copy of its decision under subsection (1) and the reasons for it to— (a) the applicant; and (b) each relevant entity. (5) An approval under this section— (a) is a notifiable instrument; and (b) expires 5 years after the day it commences. Note An approval may be extended under s 25 (2) (a). (6) In this section: relevant entities—see section 21 (6). Division 3.4 General treatment plans—other matters 24 Review of approved general treatment plan (1) The president may, at any time, establish an assessment committee to review the general treatment plan. (2) If the assessment committee is no longer satisfied there is sufficient evidence to satisfy the matters mentioned in section 13, the committee must revoke the general treatment plan. (3) The following provisions apply in relation to a review of a general treatment plan, as if the review were an assessment of an application: (a) section 18 (Operation of assessment committee); (b) as far as is reasonably practicable—section 20 (Applicant to be given any other information obtained by committee); (c) section 21 (Public consultation); (d) section 22 (Public consultation submissions).

Part 3 Assessment of treatment plans Division 3.4 General treatment plans—other matters Section 25 page 18 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (4) If the assessment committee revokes the approval of a treatment plan, the committee must state the day, not less than 6 months after the day the decision is made, that the revocation takes effect. (5) A revocation under subsection (2) is a notifiable instrument. 25 Expiry of approved general treatment plan (1) At least 6 months before the approval of a general treatment plan expires (the expiring treatment plan), the president must— (a) take reasonable steps to tell the person who applied for the approval, in writing, that— (i) the approval will expire on the stated expiry date; and (ii) the person may apply under section 11 for a subsequent approval of the treatment plan; and (b) give notice on an ACT government website that the approval will expire on the stated expiry date. (2) If an application made under section 11 in relation to a general treatment plan (a new treatment plan) substantially corresponds to the expiring treatment plan before the plan expires— (a) the expiring treatment plan is extended until the application for approval of the new treatment plan is finally decided; and (b) the president must give written notice on an ACT government website that the expiring treatment plan has been extended under paragraph (a). (3) A notice under subsection (2) (b) is a notifiable instrument.

Assessment of treatment plans Part 3 Assessment of individual treatment plans Division 3.5 Section 26 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 19 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (4) In this section: finally decided—an application is finally decided if— (a) the application is approved; or (b) if the application is approved subject to a condition or is refused— (i) no application for review has been made under section 41; or (ii) if an application for review has been made under section 41—the review has been finalised. Division 3.5 Assessment of individual treatment plans 26 Deciding the application—individual treatment plan (1) The assessment committee for an application for an individual treatment plan must— (a) approve the application; or (b) refuse the application. Note An application must be decided in accordance with s 13 and s 16. (2) A decision under subsection (1) is decided by a majority of votes of all assessment committee members. (3) An approval may be given subject to conditions. (4) The assessment committee must give a copy of its decision under subsection (1) and the reasons for it to— (a) the applicant; and

Part 3 Assessment of treatment plans Division 3.5 Assessment of individual treatment plans Section 26 page 20 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (b) if the applicant is not the decision-maker for the prescribed person—each decision-maker; and (c) the public advocate. (5) An approval under this section expires on the day stated in the decision, being a day not later than 3 years after the day it is given.

Offences Part 4 Section 27 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 4 Offences 27 Offence—undertaking restricted medical treatment without approval (1) A person commits an offence if— (a) the person undertakes a restricted medical treatment on a prescribed person; and (b) the restricted medical treatment is not undertaken in accordance with an approved treatment plan or any condition applying to the plan. Maximum penalty: 200 penalty units, imprisonment for 2 years or both. (2) For subsection (1), it does not matter if— (a) a decision-maker for the prescribed person consents to the restricted medical treatment; or (b) for a prescribed person who is an adult—the ACAT consents to the restricted medical treatment under the Guardianship and Management of Property Act 1991, section 70. Note If the prescribed person is an adult, restricted medical treatment may also be a prescribed medical procedure under the Guardianship and Management of Property Act 1991. (3) Subsection (1) does not apply to urgent restricted medical treatment. Note The defendant has an evidential burden in relation to the matter mentioned in s (3) (see Criminal Code, s 58).

Part 4 Offences Section 28 page 22 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 28 Offence—arrange or authorise unapproved restricted medical treatment (1) A person commits an offence if— (a) the person— (i) takes a prescribed person outside the ACT for the purpose of having restricted medical treatment undertaken on the prescribed person; or (ii) otherwise arranges for restricted medical treatment to be undertaken on the prescribed person; and (b) the person knows that if the restricted medical treatment were undertaken on the prescribed person in the ACT it would be an offence against section 27. Maximum penalty: 100 penalty units, imprisonment for 1 year or both. (2) A decision-maker for a prescribed person commits an offence if the person— (a) consents to restricted medical treatment being undertaken on the prescribed person; and (b) knows that if the restricted medical treatment were undertaken on the prescribed person in the ACT it would be an offence against section 27. Maximum penalty: 100 penalty units, imprisonment for 1 year or both. (3) For subsection (1), it does not matter if— (a) a decision-maker for the prescribed person consents to the restricted medical treatment; or

Offences Part 4 Section 28 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 23 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (b) for a prescribed person who is an adult—the ACAT consents to the restricted medical treatment under the Guardianship and Management of Property Act 1991, section 70. Note If the prescribed person is an adult, restricted medical treatment may also be a prescribed medical procedure under the Guardianship and Management of Property Act 1991. (4) For subsections (1) and (2), it does not matter if the restricted medical treatment— (a) was not undertaken on the prescribed person; or (b) was undertaken in the ACT or elsewhere. (5) Subsections (1) and (2) do not apply to urgent restricted medical treatment. Note The defendant has an evidential burden in relation to the matter mentioned in s (5) (see Criminal Code, s 58).

Part 5 Restricted Medical Treatment Assessment Board Section 29 page 24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 5 Restricted Medical Treatment Assessment Board 29 Establishment of Restricted Medical Treatment Assessment Board The Restricted Medical Treatment Assessment Board is established. 30 Functions of assessment board The functions of the assessment board are— (a) as members of assessment committees—to assess applications in relation to treatment plans and review treatment plans; and (b) to advise the Minister about, and make recommendations on, which variations in sex characteristics should be covered by this Act; and (c) any other function given to the assessment board under this Act or another territory law. 31 Membership of assessment board (1) The Minister must appoint to the assessment board— (a) a president; and (b) at least 2 members for each of the following categories: (i) human rights; (ii) medicine; (iii) ethics; (iv) variation in sex characteristics; (v) provision of psychosocial support. Note For laws about appointments, see the Legislation Act, pt 19.3.

Restricted Medical Treatment Assessment Board Part 5 Section 32 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 25 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (2) Before appointing a person to be the president or another member of the assessment board, the Minister must consult the Ministers responsible for the Health Act 1993 and the Human Rights Act 2004. (3) In appointing a person under this section the Minister must be satisfied— (a) for the president—the person has the qualities and experience necessary to exercise their functions under this Act, including as an assessment committee or internal review committee member in the category mentioned in subsection (1) (b) (i); and (b) for other members—the person has qualifications or experience in the category for which they are appointed. (4) The Minister must ensure that at least 1 person appointed to the assessment board is a person with a variation in sex characteristics. (5) An appointment must be for a period of not longer than 5 years. (6) A regulation may prescribe other criteria for the appointment of a person as a member. (7) A member’s conditions of appointment are the conditions stated in the instrument of appointment. 32 Ending appointments The Minister may end a member’s appointment— (a) for misconduct; or (b) if the member is convicted, or found guilty, of an indictable offence; or (c) if the member is convicted, or found guilty, of an offence that, if it had been committed in the ACT, would be an indictable offence; or

Part 5 Restricted Medical Treatment Assessment Board Section 33 page 26 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (d) if the member is unable to exercise the member’s functions under this Act. Note A conviction does not include a spent conviction or an extinguished conviction (see Spent Convictions Act 2000, s 16 (c) (i) and s 19H (1) (c) (i)). 33 Arrangements for staff and facilities The president may arrange with the head of service to use the services of a public servant or territory facilities. Note The head of service may delegate powers in relation to the management of public servants to a public servant or another person (see Public Sector Management Act 1994, s 18). 34 Consultants for assessment committees (1) The president may engage consultants to assist an assessment committee in the exercise of the its functions. (2) Consultants are to be engaged on terms decided by the president. (3) However, this section does not give the president a power to enter into a contract of employment.

Notification and review of decisions Part 6 Section 35 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 27 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 6 Notification and review of decisions 35 Definitions—pt 6 In this part: interested party—see section 36. internally reviewable decision means a decision made by an assessment committee— (a) to refuse to consider an application further under section 19 (2); or (b) for an application in relation to a general treatment plan— (i) to refuse the application under section 23 (1) (b) (ii); or (ii) to impose a condition on an approval under section 23 (3) (b); or (c) for an application in relation to an individual treatment plan— (i) to refuse the application under section 26 (1) (b); or (ii) to impose a condition on an approval under section 26 (3); or (d) to revoke a general treatment plan under section 24 (2). internal review notice—see the ACT Civil and Administrative Tribunal Act 2008, section 67B (1). reviewable decision means a decision by an internal review committee under section 39 (1).

Part 6 Notification and review of decisions Section 36 page 28 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 36 Internal review notices If an assessment committee makes an internally reviewable decision in relation to an application, the committee must give an internal review notice to the following (an interested party): (a) the applicant; (b) each decision-maker for the prescribed person; (c) the public advocate. Note 1 The committee must also take reasonable steps to give an internal review notice to any other person whose interests are affected by the decision (see ACT Civil and Administrative Tribunal Act 2008, s 67B). Note 2 The requirements for internal review notices are prescribed under the ACT Civil and Administrative Tribunal Act 2008. 37 Application for internal review (1) An interested party may apply, in writing, to the president for review of an internally reviewable decision. (2) The application for internal review must— (a) state the name and contact details of the interested party; and (b) set out the interested party’s reasons for making the application. (3) The application for internal review must be given to the president within 28 days after the day the interested party is given the internal review notice for the decision. (4) The making of an application for review of an internally reviewable decision does not affect the operation of the decision.

Notification and review of decisions Part 6 Section 38 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 29 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 38 Appointment of internal review committee (1) As soon as practicable, and not more than 14 days after receiving an application to review the internally reviewable decision, the president must appoint 1 assessment board member from each category mentioned in section 31 (1) (b) to a committee (an internal review committee) to undertake the internal review. (2) The president may appoint themselves to the committee for the category mentioned in section 31 (1) (b) (i). (3) The president must not appoint an assessment board member who was allocated to the assessment committee that made the internally reviewable decision. (4) A regulation may prescribe requirements for the appointment of assessment board members to an internal review committee. 39 Decision of internal review committee (1) The internal review committee must review the internally reviewable decision and make a decision as soon as is reasonably practicable, and within 28 days, after the first meeting of the committee. (2) The internal review committee must— (a) confirm the internally reviewable decision; or (b) vary the internally reviewable decision; or (c) set aside the internally reviewable decision and substitute another decision that the committee considers appropriate. (3) A decision under this section, except a decision taken to be a confirmation under subsection (4), is decided by a majority of votes of all internal review committee members. (4) If the reviewable decision is not varied or set aside within the 28-day period, the decision is taken to have been confirmed by the internal review committee.

Part 6 Notification and review of decisions Section 40 page 30 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 40 Reviewable decision notices If an internal review committee makes a reviewable decision, the committee must give a reviewable decision notice to each interested party. Note 1 The committee must also take reasonable steps to give a reviewable decision notice to any other person whose interests are affected by the decision (see ACT Civil and Administrative Tribunal Act 2008, s 67A). Note 2 The requirements for reviewable decision notices are prescribed under the ACT Civil and Administrative Tribunal Act 2008. 41 Application for ACAT review An interested party may apply to the ACAT for review of a reviewable decision. Note If a form is approved under the ACT Civil and Administrative Tribunal Act 2008 for the application, the form must be used. 42 Review by ACAT If the ACAT receives an application to review a reviewable decision, the ACAT must consider the application and— (a) confirm the decision; or (b) remit the matter to the internal review committee for reconsideration in accordance with any direction or recommendation of the ACAT.

Miscellaneous Part 7 Section 43 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 31 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 7 Miscellaneous 43 Reporting treatment in relation to sex characteristics (1) Within 3 months after starting reportable treatment in relation to a prescribed person, the doctor who was responsible for the treatment must— (a) tell the president, in writing, that the treatment has been undertaken; and (b) provide the following information: (i) if the treatment was undertaken under a treatment plan— details of the plan; (ii) the prescribed person’s age; (iii) the prescribed person’s variation in sex characteristics; (iv) anything else prescribed by regulation. (2) In this section: excluded condition means a condition prescribed for section 7 (1), definition of variation in sex characteristics, paragraph (c). reportable treatment means— (a) restricted medical treatment under a treatment plan; and (b) urgent restricted medical treatment; and

Part 7 Miscellaneous Section 44 page 32 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (c) if an excluded condition is prescribed for this paragraph—a surgical or medical procedure or treatment in relation to the condition that would be restricted medical treatment if the condition were not an excluded condition. Example—par (c) ABC syndrome (hypothetical) is a variation in sex characteristics excluded under s 7 (1), def variation in sex characteristics, par (c). Treatment of a prescribed person for ABC syndrome is, therefore, not restricted medical treatment under s 8. ABC syndrome is prescribed for par (c) above, which means treatment described in the definition of restricted medical treatment in s 8 in relation to that condition is subject to the reporting requirements under this section and s 44. 44 Assessment board annual report (1) The president must, for each financial year, prepare a report about the assessment board’s operation during the year including— (a) the number of applications made in relation to individual treatment plans and the decisions made for the applications; and (b) for each individual treatment plan approved in the year— (i) the prescribed person’s age; and (ii) the prescribed person’s variation in sex characteristics; and (iii) the date the plan was approved; and (c) the number of general treatment plans approved in the year and a description of each plan; and (d) the number of reportable treatments reported under section 43; and (e) for each reportable treatment— (i) the prescribed person’s age; and (ii) the prescribed person’s variation in sex characteristics; and

Miscellaneous Part 7 Section 45 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 33 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (f) anything else prescribed by regulation. (2) The report must not include information that— (a) identifies a prescribed person or a decision-maker for the prescribed person; or (b) would allow a prescribed person’s identity, or the identity of a decision-maker for the prescribed person, to be worked out. (3) The report must comply with any requirements prescribed by regulation. (4) The report must— (a) be given to the Minister not later than 3 months after the end of the financial year; and (b) be published on an ACT government website as soon as practicable after being given to the Minister. 45 Restricted medical treatment records (1) This section applies to a relevant record created in relation to restricted medical treatment or urgent restricted medical treatment undertaken on a prescribed person. (2) Despite anything to the contrary in the Health Records (Privacy and Access) Act 1997 or the Territory Records Act 2002, the relevant record must be kept until the later of— (a) the prescribed person’s 45th birthday; or (b) 7 years after the day the record is made. (3) In this section: health record—see the Health Records (Privacy and Access) Act 1997, dictionary.

Part 7 Miscellaneous Section 46 page 34 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au relevant record— (a) means a health record; and (b) includes— (i) an approval for a treatment plan; and (ii) an application for an internal review under section 37 and the internally reviewable decision; and (iii) an application for a review by the ACAT under section 41 and the decision under section 42; and (iv) a report under section 43. 46 Regulation-making power (1) The Executive may make regulations for this Act. (2) The Executive must consult the following people before making a regulation for section 7, definition of variation in sex characteristics: (a) the president; (b) the chief health officer; (c) the Minister responsible for each of the following: (i) the Health Act 1993; (ii) the Human Rights Act 2004; (d) the children and young people commissioner; (e) the health services commissioner; (f) the public advocate.

Miscellaneous Part 7 Section 47 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 35 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 47 Review of Act (1) The Minister must, as soon as practicable after the end of this Act’s 2nd year of operation— (a) review the operation and effectiveness of the Act; and (b) present a report of the review to the Legislative Assembly. Note A reference to an Act includes a reference to any regulation or other statutory instrument made or in force under the Act (see Legislation Act, s 104). (2) This section expires 6 years after the day it commences.

Part 9 Transitional Section 49 page 36 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 9 Transitional 49 Meaning of commencement day—pt 9 In this part: commencement day means the day section 10 commences. 50 Prescribed people who received prior treatment (1) This section applies if, before the commencement day, a prescribed person has received medical treatment in relation to their variation in sex characteristics. (2) Section 10 and part 4 do not apply in relation to the undertaking of restricted medical treatment on the prescribed person for 12 months after the commencement day. (3) For this section, medical treatment— (a) includes a surgical or medical procedure or treatment (including the prescription or administration of a drug); and (b) need not be restricted medical treatment. 51 Expiry—pt 9 This part expires 2 years after the commencement day. Note A transitional provision is repealed on its expiry but continues to have effect after its repeal (see Legislation Act, s 88).

Dictionary R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 37 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Dictionary (see s 3) Note The Legislation Act contains definitions relevant to this Act. For example: • ACAT • adult • chief health officer • child • children and young people commissioner • doctor • health practitioner • health services commissioner • Minister (see s 162) • public advocate. application means an application for approval of a treatment plan under section 11. approved treatment plan means a treatment plan approved under section 23 (1) (b) (i) or section 26 (1) (a). assessment board means the Restricted Medical Treatment Assessment Board established under section 29. assessment committee—see section 12 (1). consultation notice—see section 21 (1). consultation period—see section 21 (2) (a) (ii). decision-maker, for a prescribed person, means— (a) for a child—a person who has parental responsibility for the child under the Children and Young People Act 2008, division 1.3.2; and (b) for an adult subject to a guardianship order—the guardian. general treatment plan—see section 11 (1) (a).

Dictionary page 38 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au guardianship order means an ACAT order under the Guardianship and Management of Property Act 1991, section 7 (2). individual treatment plan—see section 11 (1) (b). interested party, for part 6 (Notification and review of decisions)— see section 36. internally reviewable decision, for part 6 (Notification and review of decisions)—see section 35. internal review committee—see section 38(1). internal review notice, for part 6 (Notification and review of decisions)—see the ACT Civil and Administrative Tribunal Act 2008, section 67B (1). prescribed person, in relation to restricted medical treatment—see section 9. president means the person appointed as president of the assessment board under section 31 (1) (a). restricted medical treatment, in relation to a person who has a variation in sex characteristics—see section 8. reviewable decision, for part 6 (Notification and review of decisions)—see section 35. treatment plan means a general treatment plan or an individual treatment plan. urgent restricted medical treatment means restricted medical treatment required to be undertaken urgently to— (a) save a prescribed person’s life; or (b) prevent serious damage to the person’s health; or (c) prevent the person from suffering or continuing to suffer significant pain. variation in sex characteristics—see section 7 (1).

Endnotes About the endnotes 1 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 39 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Endnotes 1 About the endnotes Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes. Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office. Uncommenced amending laws are not included in the republished law. The details of these laws are underlined in the legislation history. Uncommenced expiries are underlined in the legislation history and amendment history. If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering. The endnotes also include a table of earlier republications. 2 Abbreviation key A = Act NI = Notifiable instrument AF = Approved form o = order am = amended om = omitted/repealed amdt = amendment ord = ordinance AR = Assembly resolution orig = original ch = chapter par = paragraph/subparagraph CN = Commencement notice pres = present def = definition prev = previous DI = Disallowable instrument (prev...) = previously dict = dictionary pt = part disallowed = disallowed by the Legislative r = rule/subrule Assembly reloc = relocated div = division renum = renumbered exp = expires/expired R[X] = Republication No Gaz = gazette RI = reissue hdg = heading s = section/subsection IA = Interpretation Act 1967 sch = schedule ins = inserted/added sdiv = subdivision LA = Legislation Act 2001 SL = Subordinate law LR = legislation register sub = substituted LRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced mod = modified/modification or to be expired

Endnotes 3 Legislation history page 40 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 3 Legislation history Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 A2023-23 notified LR 23 June 2023 s 1, s 2 commenced 23 June 2023 (LA s 75 (1) s 10, pt 4 commenced 23 December 2024 s (2 (2)) remainder commenced 23 December 2023 (s 2 (1)) as amended by Health Legislation Amendment Act 2024 A2024-42 pt 6 notified LR 17 September 2024 s 1, s 2 commenced 17 September 2024 (LA s 75 (1)) pt 6 commenced 18 September 2024 (s 2 (1)) Variation in Sex Characteristics (Restricted Medical Treatment) Amendment Act 2024 A2024-51 notified LR 11 December 2024 s 1, s 2 commenced 11 December 2024 (LA s 75 (1)) remainder commenced 12 December 2024 (s 2)

Endnotes Amendment history 4 R4 23/12/24 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 page 41 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 4 Amendment history Commencement s 2 om LA s 89 (4) Deciding the application—general treatment plan s 23 am A2024-42 s 11; ss renum R2 LA Deciding the application—individual treatment plan s 26 am A2024-42 s 12; ss renum R2 LA Decision of internal review committee s 39 am A2024-42 s 13; ss renum R2 LA Review of Act s 47 exp 23 December 2029 (s 47 (2)) Consequential amendment pt 8 hdg om LA s 89 (3) Guardianship and Management of Property Act 1991 s 48 om LA s 89 (3) Transitional pt 9 hdg ins A2024-51 s 4 exp 12 December 2026 (s 51) Meaning of commencement day—pt 9 s 49 ins A2024-51 s 4 exp 12 December 2026 (s 51) Prescribed people who received prior treatment s 50 ins A2024-51 s 4 exp 12 December 2026 (s 51) Expiry—pt 9 s 51 ins A2024-51 s 4 exp 12 December 2026 (s 51)

Endnotes 5 Earlier republications page 42 Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 Effective: 23/12/24 R4 23/12/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 5 Earlier republications Some earlier republications were not numbered. The number in column 1 refers to the publication order. Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical. Republication No and date Effective Last amendment made by Republication for R1 23 Dec 2023 23 Dec 2023– 17 Sept 2024 not amended new Act R2 18 Sept 2024 18 Sept 2024– 11 Dec 2024 A2024-42 amendments by A2024-42 R3 12 Dec 2024 12 Dec 2024– 22 Dec 2024 A2024-51 amendments by A2024-51 © Australian Capital Territory 2024

The Act rests on a small set of statutory concepts with precise definitions and linked operational consequences.

Variation in sex characteristics (s 7). The statutory definition is a congenital condition involving atypical sex characteristics, with power in regulation to add or exclude conditions. The term “sex characteristics” is defined expansively to include chromosomal, gonadal or anatomical sex, related hormones, sexual and reproductive anatomy, and secondary physical features arising from puberty (s 7(2)). The regulation power (s 7(1)(b)-(c); s 46) means the exact scope can be adjusted by subordinate instrument after mandated consultation.
Restricted medical treatment (s 8). This covers procedures or treatments (including drugs) that permanently change sex characteristics or change them in ways reversible only by further medical intervention (s 8(1)(a)). It also includes prescribed procedures that temporarily change sex characteristics (s 8(1)(b)). The statute explicitly excludes penile circumcision (s 8(2)). Whether a particular intervention falls within the definition will therefore determine whether approval and criminal constraints apply.
Prescribed person (s 9). A prescribed person is someone who (a) has a variation in sex characteristics and (b) is either an adult subject to an ACAT guardianship order that applies to the medical treatment or a child who lacks decision‑making capacity for the medical treatment. That is a narrow class; adults with capacity are not captured as “prescribed persons” unless they are subject to a guardianship order covering treatment.
Treatment plans (ss 10-11). The Act recognises two plan types: general treatment plans (class approvals for a class of prescribed people) and individual treatment plans (for a named prescribed person). A person may only undertake restricted medical treatment on a prescribed person if it is in accordance with an approved treatment plan and any conditions (s 10(1)), subject to the urgent treatment exception (s 10(2)).
Assessment criteria (ss 13-16). The statutory threshold for approval is evidence that the prescribed people would be reasonably likely to suffer significant physical or psychological harm if the treatment or an alternative were not undertaken (s 13(1)(a)), that alternatives have been sufficiently considered (s 13(1)(b)), and that the proposed treatment is no more restrictive of future decision‑making about sex characteristics than any alternative (s 13(1)(c)). For children and adults subject to guardianship, additional constraints require consideration of any wishes communicated by the person and, unless they have communicated a wish, disregard of evidence invoking reduction of discrimination or stigmatisation as a justification (ss 14-15). For individual plans, applicants must provide evidence on capacity assessment steps and information and support given to the prescribed person and their decision‑makers (s 16).
Assessment decision‑making structures (Pt 5 and Pt 3). The Restricted Medical Treatment Assessment Board is established (s 29) with a president and multiple members appointed across categories (human rights, medicine, ethics, variation in sex characteristics, psychosocial support) (s 31). Assessment committees are constituted from board members and must be appointed within 14 days of receiving an application (s 12(1)).
Criminal offences and prohibitions (Pt 4). Undertaking restricted medical treatment on a prescribed person outside an approved plan is a criminal offence carrying a maximum penalty of 200 penalty units and/or 2 years imprisonment (s 27). Arranging or authorising treatment (including taking a prescribed person outside the ACT for that purpose) is separately an offence (s 28), with maximum penalties up to 100 penalty units and/or 1 year imprisonment. The statute expressly states that consent of a decision‑maker or ACAT consent is not a defence to these offences (ss 27(2), 28(3)). The republication notes set the penalty unit values as $160 per unit for an individual and $810 for a corporation as at the republication date (preface).
Reporting, publication and recordkeeping (ss 21-23; ss 43-45). The Act requires public consultation on general treatment plans with a minimum 30‑day consultation period and publication of submissions (ss 21-22). Doctors must report reportable treatments within 3 months of starting such treatment, providing specified information (s 43). The Act prescribes retention of relevant records until the later of the prescribed person’s 45th birthday or 7 years after the record is made, despite other territory record or health privacy laws (s 45).

These concepts interact to create a regulated pathway for non‑urgent interventions on certain persons with variations in sex characteristics, bounded by statutory criteria and overseen by a statutory board with publication, reporting and criminal enforcement mechanisms.

The Act identifies and imposes rules on several discrete groups, and assigns roles and duties to specific office‑holders.

Prescribed persons (s 9). Primary subjects are people with variations in sex characteristics who are either (a) children who do not have decision‑making capacity for the treatment in question or (b) adults subject to an ACAT guardianship order that applies to the medical treatment. Adults with capacity and not under guardianship are outside the “prescribed person” category and therefore outside the approval and criminal restrictions in many respects, unless they fall within a general treatment plan class or are later prescribed by regulation.
Decision‑makers for prescribed persons (dictionary, s 9). For children, decision‑makers are persons with parental responsibility under the Children and Young People Act 2008; for adults subject to guardianship orders, the guardian is the decision‑maker. Decision‑makers are directly affected because their consent does not override the need for an approved plan; the Act states that consent by a decision‑maker is not a defence to the offence in s 27 or s 28 (s 27(2); s 28(3)).
Health practitioners and doctors (multiple provisions). Clinicians wishing to undertake restricted medical treatment on a prescribed person must follow the approvals pathway. The application can be lodged by a health practitioner for the prescribed person (s 11(2)(b)(ii)), and doctors who start reportable treatment must notify the president within 3 months and provide specified information (s 43(1)). Failure to operate within an approved plan risks criminal liability (s 27).
Applicants for general treatment plans (s 11(2)(a)). Only persons declared by the Minister may apply for a general treatment plan. This gives the Minister a gatekeeping role over who can seek class authorisation.
The Restricted Medical Treatment Assessment Board and its members (Pt 5). The Board, its president and members are involved in assessment and review. The Minister appoints these members and must consult other ministers prior to appointment (s 31(2)). The Board must include at least one person with a variation in sex characteristics (s 31(4)).
Public Advocate, Children and Young People Commissioner, Chief Health Officer and other relevant entities (ss 11(4), 18(2), 21(6)). The president must give a copy of an application to the public advocate (s 11(4)). Assessment committees may consult the public advocate and, for children, the children and young people commissioner (s 18(2)). The assessment committee must notify and give its decision to relevant entities including the chief health officer, the Ministers responsible for this Act, the Health Act and the Human Rights Act, and the public advocate (s 21(6); s 23(4)). These bodies are stakeholders in the oversight process.
Persons and organisations making public submissions (s 21-22). For general treatment plans, the public consultation requires publication of submissions received during the minimum 30‑day period and may lead to publication on an ACT government website (ss 21(2), 22(2)), subject to redaction rules (s 22(3)).
Prosecutors and enforcement agencies. The criminal offences (Pt 4) create enforcement tasks for prosecuting authorities and require evidential capability to establish knowledge elements and to handle the statute’s urgent treatment evidential exceptions (the notes reference the Criminal Code’s evidential burden for urgent treatment, see s 27 note and s 28 note).

In short, the Act directly affects clinicians, patients who are children or adults under guardianship, decision‑makers (guardians/parents), the Minister and territory oversight bodies, and indirectly affects public and advocacy organisations by creating public consultation and reporting duties. It also constrains behaviours that would have cross‑border effects by criminalising arrangement of treatment outside the Territory where the treatment would be an offence in the ACT (s 28).

The Act creates a number of affirmative duties and procedural rights; these are concentrated on applicants, clinicians, assessment committees and the assessment board.

Key duties

Duty to obtain an approved treatment plan before undertaking restricted medical treatment on a prescribed person, except in urgent cases (s 10(1)-(2)). This duty applies to the person undertaking the treatment and is enforced by the criminal offence in s 27.
Application content duty (s 11(3)). Applicants must provide prescribed applicant contact details, the proposed treatment plan, reasons and evidence addressing assessment criteria (ss 13 and 16), and for individual plans additional patient details, decision‑maker contacts and treatment history.
Notification duty on the president to give applications to the public advocate (s 11(4)) and to convene assessment committees expeditiously (s 12(1)).
Information and support duties associated with individual treatment plans. Applicants must provide evidence that, taking into account cognitive ability, the prescribed person has been given access to sufficient information about implications, future treatment likelihood, alternatives, risks and benefits, and appropriate support to participate in decision‑making, and that decision‑makers had access to the same (s 16(b)-(e)).
Reporting duty on doctors. The doctor responsible for reportable treatment must notify the president in writing within 3 months of starting such treatment, and provide specified details including whether the treatment was under a treatment plan, the age of the prescribed person, variation in sex characteristics and anything else prescribed by regulation (s 43(1)).
Record retention duty. Relevant records relating to restricted medical treatment must be retained until the later of the prescribed person’s 45th birthday or 7 years after the record is made, regardless of other health record or territory records regimes (s 45(2)-(3)).
Public consultation and publication duties for general treatment plans. The committee must publish a consultation notice, conduct a minimum 30‑day consultation, publish submissions received and notify relevant entities (ss 21-22).

Key rights and procedural protections

Right to be assessed by an assessment committee constituted from board members within prescribed timeframes. The president must appoint committee members within 14 days of receiving an application (s 12(1)).
Right to be provided copies of any information relied upon by the assessment committee and reasonable time to respond or amend an application (s 20).
Right to internal review. Internally reviewable decisions attract internal review notice obligations and interested parties can apply for internal review to the president within 28 days (ss 36-37).
Right to ACAT review. After internal review, interested parties may apply to the ACT Civil and Administrative Tribunal for review of reviewable decisions (ss 41-42).
Publication limitations and confidentiality protections. The Act prevents inclusion in consultation notices of information that identifies a prescribed person or decision‑maker (s 21(5)), and the annual report must not include identifying information (s 44(2)).
Conditions and expiry of approvals. Approved general treatment plans expire after 5 years unless extended (s 23(5); s 25). Individual approvals expire on the day stated in the decision, not later than 3 years after they are given (s 26(5)). Approvals can be conditional and are subject to internal review and ACAT oversight (ss 23(3); 26(3); Pt 6).

These duties and rights allocate responsibility across clinicians, applicants and administrative decision‑makers, while providing procedural safeguards in the form of information rights, internal review and tribunal oversight. The Act couples administrative approval with criminal sanctions to incentivise compliance.

The Act establishes criminal offences, prescribes maximum penalties, and sets out procedural features relevant to enforcement.

Primary offences and maximum penalties

Undertaking restricted medical treatment without approval (s 27). It is an offence to undertake restricted medical treatment on a prescribed person without doing so in accordance with an approved treatment plan and any conditions. Maximum penalty: 200 penalty units, imprisonment for 2 years or both (s 27(1)). The Act expressly states that consent of a decision‑maker or ACAT consent under the Guardianship and Management of Property Act 1991 is not a defence (s 27(2)). Urgent restricted medical treatment is exempt, but the defendant bears an evidential burden on that matter (s 27(3) and note referring to Criminal Code, s 58).
Arranging or authorising unapproved restricted medical treatment (s 28). It is an offence to take a prescribed person outside the ACT for the purpose of having restricted medical treatment undertaken, or otherwise arrange such treatment, if the person knows that the treatment would be an offence under s 27 if undertaken in the ACT (s 28(1)). Maximum penalty: 100 penalty units, imprisonment for 1 year or both. A decision‑maker who consents while knowing the treatment would be an offence also commits an offence with the same maximum penalty (s 28(2)). Section 28(4) clarifies that it does not matter whether the treatment was ultimately undertaken or whether it was undertaken inside or outside the ACT. The urgent treatment exception also applies to s 28, with the defendant bearing an evidential burden (s 28(5) note).

Penalty unit values and legal context

The republication notes identify the penalty unit values at the republication date: $160 per penalty unit for an individual and $810 per penalty unit for a corporation (Legislation Act 2001, s 133). Using those values provides a concrete monetary quantum for the statutory maximums stated above, but note that penalty unit amounts may vary over time under the Legislation Act. The Criminal Code, ch 2 applies to offences under this Act (s 5 note).

Enforcement mechanics and administrative checks

The assessment Board and committees perform pre‑emptive screening through the approvals regime (Pt 3; Pt 5). Criminal enforcement would be engaged where treatment occurs without approval or where persons arrange it, including cross‑border arrangements (ss 27-28).
Evidence and burden. The Act’s notes point to the Criminal Code for general principles of criminal responsibility, burdens of proof and defences. The statute explicitly places an evidential burden on defendants asserting the urgent treatment exception (s 27 note; s 28 note). Proving knowledge in the arranging offence (s 28(1)(b)) will engage criminal evidential standards.
Administrative remedies and review. Internally reviewable decisions and resulting reviewable decisions give rise to internal reviews (Pt 6) and ACAT review (ss 36-42). These provide administrative routes to challenge committee decisions that could otherwise lead to prosecution risk if treatment were undertaken in breach of a decision.
Reporting obligations as an enforcement/compliance mechanism. The reporting duty on doctors (s 43) and the annual reporting obligations on the Board (s 44) create data flows territory agencies could use to detect non‑compliance.

In summary, the statute pairs a pre‑authorisation administrative model with criminal sanctions for non‑compliance, supported by reporting and data collection. Enforcement will require proving elements such as knowledge for arranging offences and managing evidential issues around the urgent treatment exceptions. The Act preserves ACAT and internal review remedies that are administrative precursors to prosecution risk.

The Act explicitly cross‑references and interfaces with several existing Territory instruments and statutes.

Criminal Code (territory) (s 5 note). The Criminal Code chapter 2 is stated to apply to all offences under the Act, bringing in the Criminal Code’s principles on criminal responsibility, burdens of proof, defences and definitions (s 5 note). The statutory notes also reference specific Criminal Code provisions regarding evidential burdens for the urgent treatment exceptions (see notes to ss 27 and 28).
Guardianship and Management of Property Act 1991 (s 10 note; dictionary). The Act notes that if the prescribed person is an adult and the restricted medical treatment is a “prescribed medical procedure” under the Guardianship Act, ACAT consent under that Act is also required (s 10 note). The definition of guardianship order cross‑references the Guardianship Act (dictionary). The Act also creates offences despite any ACAT consent, i.e. ACAT consent does not shield from criminal liability under ss 27-28 (ss 27(2), 28(3)). The legislation history notes prior amendments removed a cross‑reference section but the controlling text retains the interaction.
ACT Civil and Administrative Tribunal Act 2008 (Pt 6 notes). Internal review notice and procedural requirements are defined by reference to the ACAT Act (see s 3 note and Pt 6 definitions), and the Act provides for ACAT review of reviewable decisions (ss 41-42). The requirements for internal and reviewable decision notices are also governed by the ACAT Act (ss 36 note 2; s 40 note 2).
Health Act 1993 and health governance regimes (s 18(2)(b); s 21(6)). Assessment committees may consult a quality assurance committee approved under the Health Act (s 18(2)(b)). The assessment committee’s consultation list and the “relevant entities” list for general plan notification include the chief health officer and the Minister responsible for the Health Act (s 21(6)).
Human Rights Act 2004 (s 21(6); s 31(2)). The relevant entities to be notified of general plan consultation include the Minister responsible for the Human Rights Act (s 21(6)). The Minister must consult Ministers responsible for the Health Act and Human Rights Act when appointing Board members (s 31(2)). The Act itself has an object to protect rights (s 6), and the Board composition includes a human rights category (s 31(1)(b)(i)). The interaction suggests rights‑sensitive oversight is intended to be built into the appointments and consultation architecture.
Health Records (Privacy and Access) Act 1997 and Territory Records Act 2002 (s 45). Section 45 expressly overrides or displaces contrary provisions in those Acts for “relevant records”, requiring retention until the later of the prescribed person’s 45th birthday or 7 years after the record is made (s 45(2)). This is a specific records retention rule that operates despite other regime settings.
Legislation Act 2001 (preface and s 46(2) consultation obligations). The Act’s republication notes and penalty unit values reference the Legislation Act. Section 46(2) requires consultation with specified persons before the Executive makes a regulation prescribing the content of the definition of variation in sex characteristics, and the Legislation Act governs disallowable instruments for guidelines and regulations.
Regulatory instruments: Ministerial guidelines and regulations (ss 17, 46). Ministerial guidelines about matters assessment committees must or may consider are permitted (s 17) and are disallowable instruments. Regulations can prescribe particular exclusions, inclusions and operational requirements across the Act (s 46), and the Executive must consult a list of actors before making regulations that define or modify the scope of variation in sex characteristics (s 46(2)).

Overall, the Act embeds itself within existing guardianship, tribunal, health governance, records and human rights frameworks. It creates procedural dependencies with ACAT and requires interaction with chief health officers, public advocates and other statutory officers. The Act also uses disallowable instruments and regulations to delegate detail, while preserving statutory overrides for record retention and reporting.

The republished Act includes amendment and commencement history that clarifies the legislative timeline and subsequent modifications.

Original enactment and commencement: The Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 A2023‑23 was notified on the legislation register on 23 June 2023. Sections 1 and 2 commenced on 23 June 2023, while the remainder commenced on 23 December 2023 (endnote 3).
Health Legislation Amendment Act 2024 (A2024‑42). This amending Act (notified 17 September 2024) made amendments to key decision provisions: the Deciding the application,general treatment plan provision (s 23) and the Deciding the application,individual treatment plan provision (s 26) were amended by A2024‑42 s 11 and s 12 respectively; the Decision of internal review committee (s 39) was also amended (A2024‑42 s 13). The republication endnotes reflect these renumberings and text changes.
Variation in Sex Characteristics (Restricted Medical Treatment) Amendment Act 2024 (A2024‑51). Notified 11 December 2024, that amending Act commenced in part on 12 December 2024 and made further changes including inserting Part 9 (Transitional) (endnote 3 and amendment history). Part 9 sets a transitional rule that s 10 and Part 4 do not apply to a prescribed person who had prior medical treatment in relation to their variation in sex characteristics for 12 months after the commencement day (s 50), and provides expiry for Part 9 (s 51). The amendment history notes Pt 9 was inserted by A2024‑51 s 4 and that Pt 9 expires 2 years after the commencement day (s 51), with the republished amendment history indicating specific dates for expiry under the relevant instruments.
Expiry of the review requirement: Section 47 required the Minister to review the Act once the Act has had 2 years of operation and to present a report to the Legislative Assembly. That review provision (s 47) is itself subject to expiry 6 years after commencement (s 47(2)), as noted in the amendment history.
Editorial and consequential amendments: The republication includes references to editorial amendments under the Legislation Act 2001, part 11.3, and notes consequential amendments and renumberings resulting from the 2024 amending Acts. The amendment history table in the endnotes lists specific provisions altered and notes the dates of commencement for those changes (endnote 4).

Practitioners should consult the legislation history and amendment history in the republished Act and the legislative register for precise commencement dates of each amendment. The Act provides for delegated instruments (ministerial guidelines, disallowable instruments and regulations) that will further shape the operation of the scheme; the Executive’s regulation‑making power is subject to mandated consultation before prescribing the definition of variation in sex characteristics (s 46(2)). The combination of statutory amendments and subordinate instrument powers means the operational shape of the regime can change over time within the limits set by Parliament and the prescribed consultation requirements.

The republished Act and its endnotes do not record any reported judicial or tribunal decisions reviewing the legislation itself or decisions under it. The text establishes internal review and ACAT review pathways but contains no entries of litigation outcomes or precedent for interpretation.

Statutory review mechanisms embedded in the Act

Internal review and ACAT paths. The Act prescribes a two‑tiered review pathway for certain administrative decisions. Internally reviewable decisions (including refusals to consider applications under s 19(2), refusals or conditions on approvals for general or individual plans, and revocation of general plans) attract an internal review process by an internal review committee appointed by the president (ss 35-39). The internal review committee must decide within 28 days of its first meeting or the original decision is taken to be confirmed (s 39). After internal review, interested parties may apply to ACAT for review (ss 40-42). The statute references the ACAT Act for the form and content of internal review and reviewable decision notices (ss 36-40 notes).
Scope of judicial and tribunal review. ACAT’s role is to confirm the decision or remit the matter to the internal review committee with directions (s 42). This is the statutorily prescribed tribunal remedy. The Act does not itself create appeals to superior courts; any further judicial review would proceed via ordinary administrative law channels (not addressed in the Act).

Absence of case law in the source

The legislation text and the endnotes contain no named cases or reported decisions. There is therefore no statutoryly referenced interpretive precedent included in the republished material. Legal practitioners must monitor ACAT decisions and the ordinary courts for any emerging body of law interpreting the Act’s definitions (for example, what counts as a variation in sex characteristics, what treatments fall within s 8, or the meaning of “significant physical or psychological harm” under s 13).

Expected areas of future litigation

Factual application issues. Contested matters likely to arise before ACAT or courts include capacity assessments for children (s 16(a)), interpretation of “significant harm” and “associated harm” (s 13), the scope of the urgent restricted medical treatment exception (s 10(2)), and the evidential standard for urgent‑care defences referenced to the Criminal Code (s 27 note). Guidance and precedent on these points would come through tribunal determinations or judicial review over time.
Administrative law challenges. Decisions by assessment committees or internal review committees may be challenged on administrative law grounds such as jurisdictional error, procedural fairness or unreasonableness, as well as in relation to statutory construction of the terms (the Act itself provides for internal and ACAT review but does not oust other public law remedies).

Because the Act is newly implemented and the republished materials contain no litigation history, practitioners should assume an absence of controlling precedent and prepare for fact‑driven disputes to be resolved initially by the internal review process and ACAT.

This section flags specific and concrete traps in the statute where compliance or interpretation errors are likely.

Definition traps: whether an intervention is “restricted medical treatment” depends on permanence or reversibility only by further procedure, or whether it is a prescribed temporary treatment (s 8(1)). Clinicians must confirm that a proposed intervention falls inside or outside s 8, and that the person involved is a “prescribed person” (s 9). The Act permits regulation to add or remove specific conditions from the definition of variation in sex characteristics (s 7(1)(b)-(c); s 46), so counsel should check current regulations.
Gatekeeping for general plan applicants: only persons declared by the Minister may apply for a general treatment plan (s 11(2)(a)). This concentrates the ability to seek class approvals in a ministerial instrument and is not the same as open public standing for applicants.
Consent is not a shield to criminal liability: the statute expressly states that a decision‑maker’s consent or an ACAT consent under the Guardianship Act does not provide a defence to the primary offence in s 27 or to arranging/authorising offences in s 28 (ss 27(2); 28(3)). Practitioners must not rely on parental consent or ACAT approvals as legal cover if a treatment falls outside approved plan parameters.
Risk of cross‑border offence when arranging treatment: s 28 criminalises arranging or taking a prescribed person out of the ACT for treatment that would breach s 27 if done inside the ACT. Section 28(4) clarifies that the offence applies even if treatment was not ultimately undertaken or was undertaken elsewhere. This creates legal risk for agents making travel arrangements and for decision‑makers providing consent to out‑of‑jurisdiction treatment.
Urgent treatment evidential burden: the urgent restricted medical treatment exception exists (s 10(2)), but the defendant bears an evidential burden to establish urgency for s 27 and s 28 (notes referencing Criminal Code, s 58). Practitioners should document urgency contemporaneously and obtain corroboration where feasible.
Timelines and committee appointment rules: the president must appoint committee members to an assessment committee within 14 days of receiving an application (s 12(1)). Delays may occur if the president cannot assemble required category members or if conflicts arise; parties should anticipate these timeframes and plan application timing accordingly.
Information exchange and confidentiality: assessment committees may consult various external bodies and must give applicants copies of information relied on and provide reasonable time for response (ss 18(2); 20). However, committees must not identify prescribed persons or disclose information that would permit identification without written consent (s 18(3); s 21(5)). Missteps in handling sensitive identifying information during consultation or publication are likely areas for complaint and potential tribunal scrutiny.
Approval expiry and renewal mechanics: general treatment plans expire 5 years after commencement (s 23(5)); individual approvals expire within a maximum of 3 years (s 26(5)). There are procedures for extension if a new application substantially corresponds to an expiring plan (s 25(2)), but applicants who rely on expired approvals risk criminal exposure.
Record retention and privacy overrides: s 45 requires retention of relevant records until the later of the prescribed person’s 45th birthday or 7 years after the record is made, despite any contrary Health Records or Territory Records law. This may conflict with institutional retention policies and privacy protocols and will require administrative adjustments.
Limited applicant pool for individual plans: s 11(2)(b) permits only decision‑makers, health practitioners for the prescribed person, or persons prescribed by regulation to apply for an individual treatment plan. Family members without parental responsibility, advocacy organisations, or third parties may lack standing to lodge an application unless regulations provide otherwise.
Ministerial discretion and delegated rule‑making: the Minister declares who can apply for general plans (s 11(2)(a)), makes disallowable guidelines (s 17) and the Executive makes regulations that can expand or narrow the definition of variation in sex characteristics (s 46). These delegated powers can materially alter operational access to the scheme; stakeholders should monitor subordinate instruments.
Publication and redaction complexity: public consultation submissions are published (s 22(2)) subject to redaction requirements (s 22(3) and s 23(3)). Parties should be careful about what is submitted publicly and ask committees for redaction where submissions could identify individuals or contain sensitive information.

Anticipating these “gotchas” will assist clinicians, applicants and institutional decision‑makers to avoid criminal and administrative risk and to structure applications and documentation so they meet the Act’s procedural expectations.

This section provides a practical compliance checklist, mapped to the Act’s statutory duties and timelines. It is written as a procedure for clinicians, decision‑makers and institutional counsel.

Preliminary legal classification
- Determine if the person is a “prescribed person” under s 9: confirm there is a variation in sex characteristics (s 7) and that the person is either a child lacking decision‑making capacity for the treatment or an adult subject to an ACAT guardianship order covering the treatment.
- Determine if the proposed intervention is “restricted medical treatment” under s 8, including assessing whether the intervention permanently changes sex characteristics or is reversible only by further procedure. Check current regulations for prescribed temporary treatments or excluded conditions.
Urgent treatment protocol
- If the clinical situation is urgent (save life, prevent serious damage to health or prevent significant pain), document the clinical justification contemporaneously and act. The Act exempts urgent restricted medical treatment (s 10(2); see notes). Be prepared to meet the evidential burden on urgency if later questioned (Criminal Code, s 58, referenced in statutory notes).
If non‑urgent and treatment is restricted for a prescribed person
- Decide whether an individual treatment plan or a general treatment plan is required. Individual plan applications can be made by a decision‑maker for the prescribed person, by a health practitioner for the prescribed person, or by a person prescribed by regulation (s 11(2)(b)). Only persons declared by the Minister can apply for general treatment plans (s 11(2)(a)).
Prepare the application (s 11(3))
- Include applicant name and contact details.
- Attach the proposed treatment plan and set out detailed reasons why the plan is proposed, specifically addressing the assessment criteria in s 13 and, for individual plans, s 16.
- For individual plans include the prescribed person’s name and age, contact details for each decision‑maker, and a summary of previous treatment related to the variation.
- Provide evidence showing consideration of alternative treatment options (s 13(1)(b)) and evidence of the risk of significant harm without the proposed treatment (s 13(1)(a)).
- For children, document the steps taken to assess decision‑making capacity and any wishes the child has expressed (s 16(a); s 14).
- For adults under guardianship, document any wishes the adult has communicated (s 15).
Information and support duties (s 16)
- Ensure the prescribed person, taking into account cognitive ability, has been given access to sufficient information about implications, likelihood of future treatment requirements, alternative options including psychosocial supports, and risks/benefits of deferring or not undertaking the treatment (s 16(b)).
- Provide or document appropriate support to assist understanding and participation in decision‑making for the prescribed person (s 16(c), (e)) and ensure decision‑makers also have access to the required information (s 16(d)).
Procedural steps after filing
- Expect the president to appoint an assessment committee within 14 days to decide the application (s 12(1)). The president will give a copy of the application to the public advocate (s 11(4)).
- If the committee requests further information in writing, respond within the stated period; failure to do so may lead to refusal to consider the application further (s 19).
For general treatment plans: public consultation requirements (ss 21-23)
- Anticipate a consultation notice and a minimum 30‑day consultation period. Be aware that the committee must publish submissions received during the consultation period on an ACT government website, subject to redaction rules (s 22).
- Ensure any public materials are prepared with attention to confidentiality and avoid including identifying information (s 21(5)).
Decision and conditions
- If approved, carefully review conditions imposed; general plans are approved subject to a condition that the matters in s 16(a)-(e) are satisfied before treatment is undertaken (s 23(3)(a)). Individual approvals may be conditional (s 26(3)).
- Note expiry dates: general plan approvals expire 5 years after commencement (s 23(5)), individual approvals expire on a stated day not later than 3 years after grant (s 26(5)). Plan renewals should be applied for in time to avoid gaps (s 25).
Reporting obligations (s 43)
- If a doctor starts reportable treatment (defined in s 43(2)), file a written notification to the president within 3 months including details of the treatment plan status, the prescribed person’s age and variation, and anything else prescribed by regulation.
Recordkeeping (s 45)
- Maintain all relevant records (health records, approvals, internal review applications and decisions, any ACAT review documents, and reports) until the later of the prescribed person’s 45th birthday or 7 years after the record is made. Update records retention policies to reflect this override of other records legislation (s 45(2)).
If refused or conditions imposed and you are an interested party
- Expect an internal review notice if an internally reviewable decision is made (s 36). Apply for internal review within 28 days of the internal review notice (s 37(3)). Be prepared for an internal review committee to be appointed within 14 days of the application and to obtain a decision within 28 days of first meeting (ss 38-39).
- After internal review, consider ACAT review (ss 41-42). ACAT may confirm the decision or remit it with directions.
Cross‑border activity caution
- Do not arrange or assist in arranging treatment outside the ACT that would have contravened s 27 if done in the ACT, unless there is a lawful approved plan or the urgent treatment exception applies. Section 28 criminalises arranging or taking a prescribed person outside the Territory with knowledge that the treatment would be an offence in the ACT (s 28(1)(b); s 28(4)).
Monitor subordinate instruments and the Board’s annual reports
- Review ministerial guidelines (disallowable) under s 17 and regulations that may prescribe content, eligibility or excluded conditions (s 46). The Board’s annual report contains information about approvals and reportable treatments (s 44); use these reports to anticipate enforcement focus and transparency expectations.
Institutional governance
- Hospitals and clinics should identify a compliance lead to manage applications, reporting and records; allocate responsibility for notifying the president and managing public consultation material; and coordinate with institutional legal counsel where criminal exposure is a risk.

Following this checklist aligns operational practice with the Act’s substantive and procedural obligations and reduces exposure to the criminal sanctions and administrative penalties built into the regime.

Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023

Plain English Summary

Deep Dive

What it does

Current sections

Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023

Source text: opening excerpt

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply