NSW “Conversion Practices”

On March 22, 2024, the NSW Parliament passed the Conversion Practices Ban Act, a week after revealing the legislation. Despite a strong push from faith leaders and communities for improvements and clarifications, the legislation passed unamended.

Assoc Professor Neil Foster – a member of the Freedom for Faith board – has written a detailed analysis of the legislation and its implications.

Read more below…

The legislation was the result of an extended campaign beginning before the 2023 election, and negotiations with the Government. While we do have strong concerns about the Act, it is also significantly better than the legislation in Victoria, and the proposals that were around in 2023.

Limited and unclear exemptions

The structure of the Act is that it defines a “conversion practice” as anything “directed to changing or suppressing the individual’s sexual orientation or gender identity”, and then states exemptions which are not “conversion practices”. These include clear exemptions for medical practitioners, as well as more limited protections for parents talking to their children, religious teaching, exhorting people to follow religious teaching, and “genuinely facilitating an individual’s coping skills, development or identity exploration to meet the individual’s needs”.

Read the full definition and exemptions.

However, important exemptions are not written clearly, and could be interpreted differently by a tribunal or a court. The most important concerns are:

1. The key term “suppression” is not defined. The Attorney General defined it in his speech as “‘to keep in or repress’ something or ‘put an end to activities’.” This definition is much broader than the stated purpose of the legislation and could be interpreted to cover almost anything that encourages a person not to act on their sexuality
2. The religious protection clauses have a circular reference, so that they are effectively saying “a religious teaching is not a change or suppression practice unless it is a change or suppression practice”.
3. Family protections are only provided to parents, which does not recognise the broad diversity of modern family relationships – excluding guardians, grandparents with primary care responsibility, and other similar familial relationships.
4. The parental protection only protects “discussion”, however parents do far more than discussion as they raise their children, including setting family rules and behavioural standards.
5. The protection for “genuinely facilitating an individual’s coping skills, development or identity exploration to meet the individual’s needs” leaves open the question of what an individual’s needs are. If an individual asks for something and expresses that need at the time, it is unclear if a court or tribunal could rule that it was not a genuine need.

All of these issues make the protections unclear. According to the Government, most normal family and religious behaviour will be protected. However, the lines are unclear, and laws should not be unclear.

Read the major concerns in more detail

It could have been a lot worse

While the bill has problems, it is significantly better than the Victorian legislation, and the options that were proposed in NSW in 2023.

In the lead-up to the 2023 NSW election, independent MP Alex Greenwich said that a condition of his support for any new government would be a ban on “conversion therapy” with the Victorian legislation as his model. In response, Freedom for Faith assisted churches in running “candidate forums” in 35 electorates which asked the major parties about their plans. The commitments that Labor made at those forums formed the backbone of our political response for the next 18 months.

In August 2023, Alex Greenwich introduced his legislation, and the NSW Department of Justice released their proposal – both of which were copies of the Victorian model. The Department’s consultation process was hurried and limited, with an expectation of having the final legislation passed by November 2023. This gave rise to fears that the Government would push through Victorian-based legislation with little consultation.

In response, Freedom for Faith developed the Contact Your MP campaign, resulting in thousands of letters being written to MPs and almost every MP having a meeting with local faith leaders on the issue. The grass-roots pressure ensured that the Government negotiated with faith leaders and pushed the legislation past the November deadline. This negotiation introduced the exemptions which were not included in previous proposals.

The bill that was finally written was the result of a genuine negotiation with the Labor Government. While there are many aspects of the bill that we are concerned about, we also recognise that there were important concessions given to faith communities.

When the bill was finally introduced in March 2024, a second campaign called for four simple amendments that would address the concerns above. While that campaign was not ultimately successful, it did serve to counter the similar push from LGBTIQ+ advocates who were calling for the protections to be removed or watered down.

Read the history of the conversion therapy campaign in NSW

Where to from here?

Freedom for Faith will continue to support faith leaders as we engage with the NSW Government on this legislation. We have yet to see how the ambiguities in the law will impact its implementation. The Government has made clear commitments as to what will not be banned in this Act, and we will be reinforcing with them our expectation that the implementation will honour their stated intentions.

In March 2027, NSW goes back to the polls.

One of the most important elements in the campaign was the election forums leading up to the 2023 NSW election, and the commitments we extracted from both parties. Freedom for Faith is planning to again resource churches to hold candidate forums for the 2027 election – with a target of a forum in each of the 93 NSW electorates. The impact of this legislation will almost certainly be a topic of questions for those forums, including requests for any changes needed to preserve religious freedoms and parental rights.