NSW “Conversion Practices” – Concerns

On March 22, 2024, the NSW Parliament passed the Conversion Practices Ban Act.

This bill contains a number of exemptions in the definition of “conversion practices” that protect elements of religious speech and prayer, parental guidance and medical practitioners. However, at several points the Bill remains unclear.

The combined faith leaders of NSW requested four alterations that would clarify the intent of the legislation:

The key term “suppression” is undefined

In the Second Reading speech, the Attorney General said that the key term suppression, which is not defined in the Bill, has its ordinary dictionary meaning, being “‘to keep in or repress’ something or ‘put an end to activities’.” This is too broad, and could include any recommendation or exhortation to restrain behaviour, including:

• telling a young person to reserve sex until marriage;
• counselling a married, heterosexual man to not have an affair with another woman;
• encouraging a homosexual person who wants to live accordance with their religious beliefs to remain celibate;
• consensual prayer with an individual along the lines of “Please, God, help X stay faithful sexually”

Requested amendment:

Define suppress as “means attempt to eliminate”

Circular reference in religious protections

Subsection 3(3)(c) provides an exemption for “an expression that a belief or principle ought to be followed or applied.”

However, the section qualifies those protections with the requirement that “the expression is not […] directed to changing or suppressing an individual’s sexual orientation or gender identity”.

The effect of this section is to say, “a religious teaching is not a change or suppression practice unless it is a change or suppression practice”. This makes the exemption circular and risks a lack of clarity as to how it will be interpreted by a court or tribunal.

Combined with the overly broad definition of suppression, this renders the exemption meaningless, giving no certainty as to whether a particular religious exhortation is a “suppression practice”.

Requested amendment:

Clarify the religious exemption in 3(3)(c) so that it does not use a circular reference to “change and suppression”

Parental and family protection

Subsection 4(d) only extends to “parents discussing matters … with their children”. However, this limited exemption excludes the broad diversity of modern family relationships – excluding guardians, grandparents with primary care responsibility, and other similar familial relationships.

Requested amendment:

Expand 4(d) to include a wider range of familial and care relationships.

Subsection 4(d) only extends to “parents discussing matters … with their children”. However, this limited exemption excludes the broad diversity of modern family relationships – excluding guardians, grandparents with primary care responsibility, and other similar familial relationships.

The exemption in subsection 4(d) only explicitly covers parental “discussion”, however parents do far more than discussion as they raise their children, including setting family rules and behavioural standards. The right of parents to raise their children consist with their moral and religious beliefs should be respected.

Requested amendment:

Clarify that 4(d) permits a parent or guardian to set rules or behavioural standards for a child under their care.

Allow individuals to get the help they request

The Premier promised that “an individual of their own consent seeking guidance through prayer will not be banned” and Labor candidates promised that legislation “must not outlaw individuals voluntarily seeking out […] advice and assistance regarding their personal circumstances.”

It is unclear whether the Bill fulfils these commitments.

Subsection 3(3)(b) provides protection to “genuinely facilitating an individual’s coping skills, development or identity exploration to meet the individual’s needs”. However, it is unclear who decides what the individual “needs”. A tribunal or court could impose its own view about what the individual really needed, regardless of what the individual asked for at the time. When a person seeks assistance or support, the person from whom they are seeking support needs to be able to respond to the expressed needs, without having to second guess what a court might determine was a true “need” in retrospect.

Requested Amendment:

Amend 3(3)(b) to protecting “meeting the individual’s needs or request.”