NSW Conversion Practices law, religious freedom and Government “guidance”
I commend the previous paper to readers for more details. However, the following extracts may help set the scene for my comments on the NSW government guidance. Below, I will be referring to the “Frequently Asked Questions” (“FAQ”) page produced by “Anti-Discrimination NSW” (ADNSW)- the version I am commenting on was dated 7 April 2025. (ADNSW is the “online identity” of the body formally known as the “Anti-Discrimination Board” established under the Anti-Discrimination Act 1977 (NSW); the President of the Board receives initial complaints under the Act- see s 14- and the Board has several other functions under the Act.)
The Legislation
In general, the legislation has been enacted to deal with a problem identified as persons being coerced into changing their sexual orientation or gender identity. As the earlier paper notes:
Legislation of this sort has been introduced in other jurisdictions around Australia and elsewhere. The aim of banning oppressive and violent practices designed to “convert” someone’s sexual orientation from homosexual to heterosexual is good, of course. But those practices, while they may have existed some time ago, are really no longer around. The problem with these laws now is that their drafting can be so broad that they interfere with the ordinary teaching of religious doctrines and life within families. These laws are also often premised on the assumption that “gender transition” is a good thing which should be freely available to children, whether or not with parental permission. They raise important issues of concern to all those interested in the welfare of children.
Several features of the legislation are concerning. However, I want to highlight some areas where the ADNSW guidance may be wrong.
Under the Act, there are two forms of possible unlawfulness. On the one hand, there are new criminal offences.
Part 3 of the Act creates criminal offences where deliberate “conversion practices” can be shown to have led to substantial mental or physical harm (or to endanger a person’s life) (s 5) or where a person has “transported” someone to a different jurisdiction for “conversion practices” to be performed (s 6). In the case of these criminal offences, the consent of the person to whom the practices are applied is not a defence. (However, the general exclusion of “consent” as a defence found in other jurisdictions does not apply to the civil scheme, as discussed below.) Note that this criminal offence cannot be committed by a minor, so it will not catch conversations between young people under 18 (see s 5 (5).)
However, the more commonly used provisions will probably be those in Part 4, which creates civil liability, under which individuals can take action.
Part 4 of the Act is more likely to be invoked, where a civil complaint mechanism is provided, based on a breach of s 8:
8 General prohibition on conversion practices
An entity contravenes this Act if the entity provides or delivers a conversion practice.
The Act defines “conversion practices” as follows, in s 3:
3 Meaning of “conversion practices”
(1) In this Act, a conversion practice means a practice, treatment or sustained effort that is—
(a) directed to an individual on the basis of the individual’s sexual orientation or gender identity, and
(b) directed to changing or suppressing the individual’s sexual orientation or gender identity.
The concept of “changing” sexual orientation seems fairly clear. There is a definition of “sexual orientation” in the Dictionary to the Act (Schedule 2) as follows:
sexual orientation—
(a) means an individual’s sexual orientation towards—
(i) individuals of the same sex, or
(ii) individuals of a different sex, or
(iii) individuals of the same sex and individuals of a different sex, and
(b) includes having a lack of sexual attraction to any individual of any sex.
Pastoral counselling
I have previously discussed a couple of different challenges this may present to churches and faith groups generally, who by their faith commitments, believe that the divine plan for humanity is that sexual activity should be limited to man/woman relationships in the context of marriage, and that a person’s biological sex is given by God at the beginning of life and cannot be changed. Let me take one of the situations discussed in the paper, where one-on-one counselling is involved.
The example we will use is a youth pastor approached by a young person who is same sex attracted, or feels confusion around gender identity, and is asked to advise on what the Bible says, and to help the young person live by Biblical teaching.
First, this situation may satisfy some of the parts of the definition of “conversion practice” in s 3(1). There might be a series of meetings to discuss the issues, which may look like a “sustained effort”. Is this “directed to an individual based on the individual’s sexual orientation or gender identity” (s 3(1)(a))? While an individual is involved, the first response to make is that the same answers can be provided whether or not the person feels they are attracted to members of the same sex as an “orientation”. The focus of the counselling will be on behaviour, rather than feelings. The “basis” of the teaching is the word of God and God’s perfect standards for human life, which apply regardless of our current feelings.
Suppose, however, it is thought that s 3(1)(a) is satisfied. The next question will be, is the advice “directed to changing or suppressing the individual’s sexual orientation or gender identity” (s 3(1)(b))? The answer will depend on the advice given. In many cases, the person giving advice may conclude that, as a matter of Biblical teaching, it is not a question of “orientation” but behaviour, and go on to present the goodness of God’s purposes for human sexual activity without needing to address the underlying orientation issues. On the other hand, it may be thought that the underlying feelings of attraction must be addressed. In that case, there may be a desire to change the individual’s “orientation”, based on the teaching of the Bible. If so, other exclusions may be relied on (discussed below).
In either case, the question will arise as to whether the advice given amounts to “suppressing” the individual’s sexual orientation. This seems odd- for example, it would certainly not usually be thought that advising a teenage boy that they must not have sex with their girlfriend was “suppressing” their “heterosexual orientation”. But views will differ. It is possible that a court or tribunal might take the view that advising a person they ought not to have sex amounts to “suppressing” a sexual orientation.
In that case, we will need to consider the specific exemptions. One that will apply is s 3(3)(b): “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…”
This provision seems precisely on point here. The pastor has been asked to assist someone with a felt need. They are asking for help to cope with issues around their deep faith commitments and their sexual temptations. The pastor can provide the assurance that God accepts and loves them, that God will forgive them as they turn to put their trust in Jesus, and that the pastor will support them in obeying God’s word. The pastor can also provide that acceptance and support as they live out their identity as a forgiven child of God.
Other provisions of the Act explicitly support the view that providing advice and counsel in these circumstances does not amount to a “conversion practice”: expression of a religious belief or principle and encouragement to put it into practice (s 3(3)(c)); “stating what relevant religious teachings are or what a religion says about a specific topic” (s 3(4)(a)).
Guidance from ADNSW
However, when we turn to the FAQ “guidance” from ADNSW, we find that it misrepresents the legislation. Perhaps the most egregious example is the following:
What about prayer and the teaching of abstinence and celibacy?
The Conversion Practices Ban Act 2024 does not prohibit prayer. However, praying with or over a person with the intent to change or suppress their sexuality or gender identify is unlawful. It is unlawful even if that person has asked you to pray for them to be able to change or suppress their sexuality or gender identity.
First, note that the final sentence does not correctly reflect the Act. There is a provision in Part 3, which establishes criminal offences, which is to this effect: see s 5 (4) “To avoid doubt, subsection (1) applies whether or not any of the following consents to the conversion practice being provided or delivered– (a) the individual”. (See also s 6(2), also another criminal offence provision.) But these provisions only apply where it can be proven beyond reasonable doubt that the practice has “cause[d] mental or physical harm to the individual that– (i) endangers the individual’s life, or (ii) is substantial.”
However, the general FAQ guidance does not state that its comment is limited to criminal offences. It implies that this is also true of the civil regime, and it is clearly not. General principles of statutory interpretation mean that, where this explicit rider is included in one part of the law, it cannot be “read into” another part. Of course, the role of consent in the civil regime will need to be clarified. But where s 3(3)(b) tells us that it is not a “conversion practice” to engage in “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”, it seems hard to believe that explicit statements by that individual as to what their “needs” are, should be ignored!
Second, note what is said not to be a conversion practice in s 3(c):
(c) 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-(i) an expression, including in prayer, of a belief or principle, including a religious belief or principle
There are many circumstances where a pastoral counsellor might pray with a person who has come for help to live a godly life, which will not amount to a “practice, treatment or sustained effort” to change the person’s sexual orientation or gender identity. This would especially be the case if this was an irregular, occasional meeting, and if the content of the prayer related to behaviour rather than honing in on “orientation”.
Let’s consider another warning from the FAQ page:
General comments about celibacy and abstinence in broad statements of belief are not unlawful. However, telling a person in a same-sex relationship that they must stop being sexually active and become celibate could be regarded as suppressing a person’s sexuality and may be unlawful, depending on the circumstances.
Here we can see that even the author of these comments has had to start to qualify their “guidance”. “Depending on the circumstances” is a lot like the phrase I tell my students that lawyers should always use: “It depends”! To which the response should be : “Depends on what?” When does the ADNSW think that advising a person to obey God’s word, and not to engage in sexual activity outside a man/woman marriage, will be unlawful? When it amounts to “suppressing” a person’s “sexuality”, presumably. But suppose one ignores the question of “sexuality” and just encourages behaviour under God’s word?
If I am counselling a habitual thief to stop stealing, I don’t need to address the question of their underlying tendencies; they simply need to hear what Paul says in Ephesians 4:28: “Anyone who has been stealing must steal no longer”. Perhaps a better example is Ephesians 5:18, where someone drinking to excess is told: “Do not get drunk on wine, which leads to debauchery.” Wine itself is a good gift of God, but can be used in excess and in the wrong way. Sex is also a good gift of God (see 1 Timothy 4:3-5), but can be used in the wrong way. None of us will be free of temptations to wrong behaviour in this life, but we can resist temptation with God’s help and the work of the Holy Spirit.
Finally, let’s consider this ADNSW “guidance”:
Similarly, telling an LGBTQA person that they should remain celibate and never marry or have a sexual relationship with a person of the same sex, could be regarded as suppressing a person’s sexuality and may be unlawful, depending on the circumstances.
This is similar to the previous advice. But it also goes beyond the Act. Who is doing the “telling” here? Suppose, as an ordinary member of a Bible study group, I pass on this advice based on my reading of God’s word to a fellow member of the group who has asked for my counsel over supper? I am not engaged in ongoing “practice” if that is the context. It seems hard to avoid the suspicion that this “guidance”, which again goes further than the Act itself does, is aimed at causing believers to fear having even private conversations with others on the topic of sexual morality.
In conclusion, the Act itself creates several challenges for believers. Those challenges seem even worse when the “guidance” provided by ADNSW is considered. However, guidance drafted by officials cannot extend or expand liability created by Parliament or under its authority. All additional material needs to be rigorously tested against the wording of the actual legislation.
