NSW Conversion Practices Ban Act 2024
The Conversion Practices Ban Act was developed during confidential consultation with a small group of faith leaders and other stake holders. Unfortunately, the Act has significant problems and ambiguities in it, as a result of the narrow consultation, last-minute changes to the bill before introduction, and speeches from the Attorney General and the Leader of the Government in the Legislative Council.
Read more about the development of the Act
The ambiguities are significant enough that the new law can be interpreted in ways that would not protect basic religious freedoms.
Most concerningly, Anti-Discrimination NSW have made it clear that they intend to interpret the law and enforce it in ways that break the Government’s promises.
Definition of “conversion practice”
The core of the Act is the definition of “conversion practices”:
- In this Act, a conversion practice means a practice, treatment or sustained effort that is—
- directed to an individual on the basis of the individual’s sexual orientation or gender identity, and
- directed to changing or suppressing the individual’s sexual orientation or gender identity.
This definition also includes a section that states what is not a conversion practice:
- A conversion practice does not include—
- a health service or treatment provided by a registered health practitioner that—
- the registered health practitioner has assessed as clinically appropriate in the registered health practitioner’s reasonable professional judgement, and
- complies with all relevant legal, professional and ethical requirements, or […]
- genuinely facilitating an individual’s coping skills, development or identity exploration to meet the individual’s needs, including by providing acceptance, support or understanding to the individual, or
- the following expressions if the expression is not part of a practice, treatment or sustained effort, directed to changing or suppressing an individual’s sexual orientation or gender identity—
- an expression, including in prayer, of a belief or principle, including a religious belief or principle,
- an expression that a belief or principle ought to be followed or applied.
- a health service or treatment provided by a registered health practitioner that—
- To avoid doubt, the following are examples of what does not constitute a conversion
practice under this section—
- stating what relevant religious teachings are or what a religion says about a specific topic,
- general requirements in relation to religious orders or membership or leadership of a religious community,
- general rules in educational institutions,
- parents discussing matters relating to sexual orientation, sexual activity or religion with their children.
Ambiguities in the protections
Unfortunately, the section defining what is not a “converion practice” contains some significant ambiguities due to both the wording of the Act and the Second Reading speeched from the Attorney General and the Leader of the Government in the Legislative Council.
(3)(b) – Artificially limiting “genuinely facilitating”
- A conversion practice does not include—
- genuinely facilitating an individual’s coping skills, development or identity exploration to meet the individual’s needs, including by providing acceptance, support or understanding to the individual, or
This is a very important clause and is one of the primary reasons the legislation received support from faith communities.
However, the AG severely restricted the application of this exception when he said during Parliamentary debate:
It is important to note that exclusion only applies to genuine conduct … That qualifier is to ensure that change or suppression practices will continue to be caught by the legislation even if they claim to be about providing support or understanding. That includes structured programs or services which have as a predetermined outcome that a person ought to suppress their sexual orientation or gender identity.
This statement appears to say that, if that person is a member of a faith that holds that sexual activity should only be within a heterosexual marraige, then “providing acceptance, support or understanding to an individual” can be given but it cannot include the “predetermined outcome” that they should live in a manner that is faithful to their faith. That is, a faith leader cannot encourage a member of their faith to follow that faith.
The Attorney General’s interpretation of the Act appears to remove any protection for faith communities to provide support for people who wish to follow their faith in the expression of their sexuality.
(3)(c) – Circular Exemption in religious protections
- A conversion practice does not include—
- the following expressions if the expression is not part of a practice, treatment or sustained effort, directed to changing or suppressing an individual’s sexual orientation or gender identity—
- an expression, including in prayer, of a belief or principle, including a religious belief or principle,
- an expression that a belief or principle ought to be followed or applied.
- the following expressions if the expression is not part of a practice, treatment or sustained effort, directed to changing or suppressing an individual’s sexual orientation or gender identity—
This clause provides the “religious” protections in the Act, saying that expressions, prayers and teachings, including religious, are not conversion practices. However, it is the only clause that starts with a condition “if the expression is not part of a practice, treatment or sustained effort directed to changing or suppressing an individual’s sexual orientation or gender identity …”.
This introduction clause is entirely circular because it simply re-states the definition of a conversion practice, as highlighted below:
- In this Act, a conversion practice means a practice, treatment or sustained effort that is—
- directed to an individual on the basis of the individual’s sexual orientation or gender identity, and
- directed to changing or suppressing the individual’s sexual orientation or gender identity.
- A conversion practice does not include—
- the following expressions if the expression is not part of a practice, treatment or sustained effort, directed to changing or suppressing an individual’s sexual orientation or gender identity—
- an expression, including in prayer, of a belief or principle, including a religious belief or principle,
- an expression that a belief or principle ought to be followed or applied.
- the following expressions if the expression is not part of a practice, treatment or sustained effort, directed to changing or suppressing an individual’s sexual orientation or gender identity—
As a result, if a practice falls under the heading description in clause (1), then it is impossible for it to fall under the “exemption” in clause (3)(c). Since (3)(c) is a circular reference to (1), there is no circumstance that the exemption in (3)(c) applies.
In essence, the circular wording of the exemption is saying that a prayer or teaching is not a conversion practice … unless it is.
On the face of it, clause (3)(c) provides no protection to faith communities, and in fact does not change the law at all.
This reading of the Act matches with comments made by Governmental representatives about religious teaching during the Parliamentary debate. In almost all of these statements, protections for prayer and religious teaching are qualified with words that express the limitation at section 3(3)(c) (for example, provided the teaching ‘is not directed to changing or suppressing an individual’s sexual orientation or gender identity.’)
The law gives no clarity to faith leaders as to whether their preaching, praying, or conversations with the faithful could be interpreted as a “conversion practice”.
(4) – Exemptions or examples?
- To avoid doubt, the following are examples of what does not constitute a conversion
practice under this section—
- stating what relevant religious teachings are or what a religion says about a specific topic,
- general requirements in relation to religious orders or membership or leadership of a religious community,
- general rules in educational institutions,
- parents discussing matters relating to sexual orientation, sexual activity or religion with their children.
At the time that the Act was negotiated and introduced, faith leaders were led to believe that the examples in section 3(4)(a) of the Act showed that the Premier’s promises had been fulfilled.
However, during debate in the Legislative Council, Penny Sharpe argued against an Opposition amendment to subsection 3(4) because it:
converts the scenarios in section 3(4) from examples of excluded contact to full exclusions. That has never been the purpose of these listed examples, which is to add further clarity to the operation of the definition under section 3(1) and the exclusions under section 3(3). The examples are an open list and non-exhaustive by design.
The same understanding underpins the Attorney-General’s similar clarification, offered when commenting on the self-help groups exception at section 3(3)(b):
The Government has added clarification to this exclusion through the examples under section 3(4)(d) around parental discussions … the examples reflect what the definition of “conversion practices” and the exclusions under section 3 achieve.
That is, section 3(4) is to be read as a statement of the interaction between the prohibition in section 3(1) and exclusion in section 3(3)(c). Section 3(4) is not an exclusion and does not expand the domain of conduct permitted by section 3(3)(c).
Therefore, on the Government’s account, the examples at section 3(4) are not properly considered as either ‘exemptions’ or ‘exclusions’. They are examples that clarify the operation of the prohibition at section 3(1) and the exclusions at section 3(3). However, if they are examples, they are vaguely worded and broad, and fail to provide any clarity to the function of the Act.
(4) – Limitation to “general rules”
The uncertainty concerning the allowance that ‘general rules’ may be adopted at section 3(4) is considerably amplified by the following statement made by the Attorney-General:
General rules that apply to all people would not be able to satisfy this limb of the definition and could not be considered conversion practices. For example, school rules that apply to all students would not meet this element of the definition, while a direction made to an individual student because of their sexual orientation or gender identity would satisfy this element.
All general rules, by their very nature, are applied to individuals if they are to impose expectations. Similarly, Penny Sharpe made clear in the Legislative Council that even “rules of general application” can be “targeted to changing or suppressing an individual’s sexual orientation or gender identity”.
The uncertainty concerning celibacy illustrates this concern. In the Second reading Speech the Attorney General said, “requirements, such as for seminarians to be celibate … are of a general nature … and so would not be a conversion practice.” It is clear that the AG’s comment may well be true for a Catholic seminary which only admits non-married persons. That seminary rule is ‘general’ because it applies to both heterosexuals and homosexuals without distinction.
However, it is unclear how the Attorney-General’s comment on celibacy applyies to a seminary that admits married priests. To illustrate, if an ordinand within a religion that allows priests to marry is heterosexual, they will be counselled to ‘remain celibate until marriage’. However, if asked about same-sex marriage, they will be counselled that they ‘must not marry a person of the same biological sex.’ It is unclear if this would be a conversion practice.
