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The Change or Suppression (Conversion) Practices Prohibition Act 2021 investigations policy

This investigations policy explains how the Victorian Equal Opportunity and Human Rights Commission (the Commission) will exercise its investigations function under the Change or Suppression (Conversion) Practices Prohibition Act 2021 (the Act).

What this policy applies to

This policy applies to investigations conducted by the Commission under section 34 of the Act.

This policy does not apply to investigations conducted by the Commission under section 127 of the Equal Opportunity Act 2010.  (See Equal Opportunity Act 2010 Investigations Policy)

This policy applies to the Commissioner, all Commission staff, and persons engaged by the Commission to assist in the conduct of investigations under the Act.

This policy is a guide only and is intended to be consistent with the Act and other relevant laws (such as the mandatory reporting requirements under the Crimes Act 1958).

Commencing an investigation

To commence an investigation under section 34 of the Act, the Commission must be satisfied that it is a matter related to the Act that:

  1. raises an issue that is serious in nature or indicates change or suppression practices that are systemic or persisting; and
  2. indicates a possible contravention of the Act; and
  3. relates to a class or group of persons; and
  4. would advance the objectives of the Act.

Matters that the Commission may investigate include whether:

  1. a person or organisation has engaged in a change or suppression practice
  2. a person has taken a person out of Victoria for a change or suppression practice
  3. a person has advertised a change or suppression practices.

The Commissioner is responsible for making the final decision about whether the Commission should conduct an investigation under the Act.

The Commission has an obligation under the Act not to investigate matters under this Act in a manner that would prejudice any criminal proceedings or criminal investigations or investigations by the IBAC or the Victorian Inspectorate (section 53(1)). Accordingly, when deciding to investigate, the Commission may consult with the Director of Public Prosecutions, the Chief Commissioner of Police, the IBAC and the Victorian Inspectorate to ensure that a Commission investigation complies with this obligation in section 53(1), disclosing as little information as is necessary to determine whether there is any risk of contravening section 53(1).

The Commissioner will decide whether the Commission will commence an investigation under the Act.

Powers of the Commission when investigating

During the course of an investigation, the Commission has the power to compel a person through written notice to:

  1. provide information or documentation to the Commission if the Commission has a reasonable belief that the person is in possession of that evidence and that it is relevant and necessary to the conduct of the investigation (section 36)
  2. attend before the Commission to answer questions if the Commission has a reasonable belief that the person has information relevant and necessary to the conduct of the investigation (section 37).

The Commissioner will determine whether the powers under sections 36 and 37 of the Act should be used.

Under section 38 of the Act, penalties apply to any person that does not comply with a written notice made by the Commission under section 36 or 37 of the Act.

The Commission does not have the power to enter and inspect the premises of any person or organisation without consent.

Conducting an investigation

Under section 35 of the Act, the Commission may conduct an investigation in the manner it considers fit, however it is bound by the principles of natural justice when investigating. See the ‘Natural Justice’ section of this Policy below.

The Commission makes investigation findings based on the civil standard of proof, – the balance of probabilities. This means that the Commission will determine whether it is more likely than not that a breach of the Act occurred.

In determining whether this standard has been met, the Commission will take into consideration the nature and seriousness of the matters under investigation and the gravity of the consequences that may result from any adverse finding made.

Confidentiality

Initial assessments and investigations are confidential and are conducted in private. Investigations under the Act do not involve public hearings.

Under section 51 of the Act, the Commissioner, Commission staff and people acting under the authority of the Commission, are not permitted to disclose or communicate protected information* (e.g. information relating to a report, initial assessment or investigation or personal information about a reporter or investigated party) to any person, unless an exception in sections 51 or 52 applies to the information.

The exceptions which permit disclosure of protected information are very limited. For example, there is an exception to disclose protected information if it is necessary to comply with a mandatory reporting obligation because there is a reasonable suspicion that a child under the age of 16 has been subjected to sexual abuse and the Commission is required to report this to Victoria Police.

There is also an exception which allows disclosure where all persons or organisations identified by the information have consented to the disclosure of the information.

Natural justice

The Commission is bound by the principles of natural justice when investigating under the Act. Natural justice means procedural fairness.

Investigation outcomes

At the conclusion of an investigation, the Commission may take any action it thinks fit.

In conducting an investigation under the Act, the Commission aims to cause an investigated party to cease any current and future contraventions of the Act. At the conclusion of an investigation the Commission may do this by:

  1. entering into a legal agreement with the investigated party, or accepting an enforceable undertaking from the investigated party about steps required to comply with the Act
  2. issuing a compliance notice to the investigated party which outlines what steps must be taken for the party to comply with the Act (used when an agreement cannot be reached)

If a person fails to comply with an enforceable undertaking or a compliance notice, the Commission may apply to the Victorian Civil and Administrative Tribunal (VCAT) to enforce it, and VCAT may make an order requiring that the person comply.

The Commission may also determine not to take any further action.

The Commissioner will determine the final outcome of the investigation.

Principles

The Commission will look to use its other functions such as facilitation or education and engagement before utilising the investigation function.

The Commission will balance the wishes of the impacted person with the need to protect others from future harm.

Definitions

Review of the policy

This policy will be subject to regular review and we invite your feedback about the policy and the use of our functions more generally.

Contact the legal team

Email the Legal team

 

Updated 14 February 2022

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Address
Level 3, 204 Lygon Street Carlton Victoria 3053

General enquiries
enquiries@veohrc.vic.gov.au

Reception
1300 891 848

Enquiry line
1300 292 153 or (03) 9032 3583

Interpreters
1300 152 494

NRS Voice Relay
1300 555 727 then use 1300 292 153

Media enquiries
0447 526 642

The Victorian Equal Opportunity and Human Rights Commission acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and deep connection to the land.

We acknowledge that the Commission is on the land of the Kulin Nation and pay our respects to Elders past and present.