Victoria’s anti-belief law will face many obstacles

In an extraordinary act of authoritarian over-reach, the Victorian Government is intent upon regulating private prayer by monitoring who prays for whom, with whom, and to whom, about issues concerning sexual orientation or gender identity. And this has implications for those who pray outside Victoria, too.

The Change or Suppression (Conversion) Practices Prohibition Bill bans so-called ‘conversion therapy’, a practice intended to persuade an LGBTI person – often a young adult – to change their sexual orientation or gender identity.

Conversion therapy is an ugly and cruel business that exploits the vulnerable with various medical and quasi-medical techniques, some of which are invasive. Laws against such practices were passed in Queensland and the ACT in 2020.

What sets the Victorian bill apart from other laws, however, is that it extends the meaning of ‘conversion therapy’ beyond medical intervention to include prayer and religious counsel — even when that spiritual advice is sought out and requested by the person concerned. Prayer and religious counsel, per se, are not ‘conversion therapy’.

A successful prosecution under the proposed Victorian law would have to overcome some obstacles: injury to the person being prayed for would have to be proved and the person doing the praying would have to be proved to be negligent as to whether or not it might cause injury.

Even so, the bill — due to become law next month — sends an unequivocal warning to ministers of religion, religious counsellors, and all faith-based organisations: teaching or giving advice about sexual ethics based on religious doctrine could lead to hefty fines and even jail terms.

And if Victorian police can find a link between the outlawed practices and the State of Victoria, they will be able to pursue anyone in Australia suspected of providing prayer as part of conversion therapy – even though such prayer is not unlawful in that person’s own State.

Protecting personal and property rights of the individual from harm is one of the principal objects of the criminal law. But harm doesn’t have to be only physical. Mental harm — caused by threats or intimidation — is also something against which the criminal law guards.

But it requires a fair stretch of the imagination to think that the act of prayer can be a cause of either mental or physical harm. Yet that’s what the Andrews Government clearly does think. Now it wants to use law to make “all people feel welcome and valued in Victoria.”

Recently, religion — particularly Christianity — has been targeted by anti-discrimination laws. Provisions intended to protect people from discrimination on the basis of race or gender have been applied more widely to constrain religious practice and teaching.

Of course, religious belief can be no defence when the law bans a specific practice, — whether faith-based or not — that threatens the well-being of the individual. No exemption can be afforded believers who wish to evade their obligation to obey the law.

The priority that criminal law gives to the wellbeing of the individual makes it possible for people of all faiths, and none, to live together. It also makes it possible for individuals, regardless of their race, ethnicity, gender, or sexual orientation, free to pursue their best possible life.

But by proposing to extend prohibition of conversion therapy to “a religious practice, including but not limited to, a prayer based practice” — even when consensual — the Victorian government is taking its professed concern for inclusion to alarming extremes.

Any democratic society comprising citizens who enjoy equal rights of participation and association will be characterised by diversity of belief, morality and ideology. The key test of a healthy society is the extent to which it can tolerate that diversity and manage difference.

But now the concept of ‘injury’ is being deployed as a weapon to restrict one of the fundamental human rights to which Australia subscribes: the right to religious liberty.

Real harm is not threatened by permitting people to come together consensually to discuss and pray about issues of religious belief and practice. It lies in using heavy-handed law to regulate our faith.

Peter Kurti is Director of the Culture, Prosperity & Civil Society program at the Centre for Independent Studies and Adjunct Associate Professor of Law at the University of Notre Dame Australia