Tasmania

Greens' Conversion Practices Bill

This draft combines an exceptionally broad definition of “conversion practice” with severe criminal, civil and regulatory consequences. As a result, a single conversation, prayer or piece of parental guidance could potentially be prosecuted as an indictable offence, trigger an investigation by the Anti-Discrimination Commissioner, or be classified as “child abuse”.

The poorly drafted legislation is not only a serious threat to parental rights and religious freedom, but also raises significant concerns about legal certainty, procedural fairness and the proper limits of regulatory power:

Employs an excessively broad and uncertain definition of “conversion practices” that can include a single consensual conversation.
Protections for parents and faith communities include circular clauses that render sections of the legislation meaningless.
Extends the definition of “child abuse” to include a single conversation, prayer or parental guidance.
Creates criminal offences carrying significant penalties even in situations where no harm occurred
Holds an organisation responsible for the actions of its employees or volunteers, even if those actions were not authorised in any way, declaring the organisation to be guilty unless proven innocent.
Allows any person to make a complaint to the Commission regardless of whether they have any connection to the alleged incident or people involved, opening the door to vexatious, ideological or grievance-driven complaints.
Empowers the Commissioner with sweeping investigatory powers including coercing testimony that can be used in later criminal proceedings.
Provides the Commissioner with powers to interfere with religious communities in a way that risks violating religious freedom and breaching the Tasmanian Constitution.

Definition includes a single conversation or prayer

The draft defines a “conversion practice” extremely broadly:

In this Act, a conversion practice means a practice or conduct directed towards a person, whether with or without the person’s consent –
- on the basis of the person’s sexual orientation or gender identity; and
- for the purpose of –
  - changing, suppressing or eradicating the sexual orientation or gender identity of the person; or
  - inducing the person to change, suppress or eradicate their sexual orientation or gender identity.

The draft does not confine conversion practices to organised programs, treatment, repeated conduct or sustained efforts. The words “practice or conduct” are broad enough to capture a single act or isolated interaction. This includes a single conversation, prayer, or parental guidance.

The definition also states that consent is irrelevant, so a single, requested, interaction between two adults could be included.

The definition is not limited to direct attempts to change or eradicate a person’s sexual orientation or gender identity, it also includes the vague concept of “supressing” sexual orientation or gender identity and “inducing the person to change, suppress or eradicate their sexual orientation or gender identity”.

Advice about chastity, relationships or sexual conduct could be characterised as “inducing suppression”, even where the person freely seeks the advice and remains free to accept or reject it.

Protection for parents and faith communities is ineffective

Section 5(3)(c) appears to exclude prayer, statements of belief, religious teaching, religious membership and leadership requirements, and parental discussions. However, the entire list is subject to the following qualification:

This makes the protection circular. It effectively says that prayer, religious teaching or parental discussion is not a conversion practice – unless it is a conversion practice.

If the conduct satisfies the broad definition in s 5(1), the exclusion provides no protection. If it does not satisfy the definition, the exclusion is irrelevant.

The provision is highly deceptive and bad legislation; creating the appearance of a safeguard for parents and faith communities without providing any actual protection.

All “conversion practices” classified as child abuse

The consequential amendments treat all “conversion practices” directed towards a child as “child abuse” for important purposes under the Limitation Act 1974 and the Civil Liability Act 2002.

This classification applies through the broad definition in s 5, so a single conversation, prayer or parental guidance may be placed in the same statutory category as sexual and physical abuse, even where it causes no injury.

Churches, mosques, temples, synagogues, schools, charities and other organisations may consequently be required to treat any alleged conversion practice as child abuse for the purposes of safeguarding, supervision, training, insurance and civil liability.

The classification also carries exceptional stigma. An individual or organisation may be publicly labelled with “child abuse” from a single conversation.

Criminal liability without actual harm

Section 9 applies where a person engages in a conversion practice and:

… is reckless as to whether the conversion practice will cause injury to the person.

This means that, even if no injury occurs, a person may face criminal liability because they were said to have disregarded a risk of injury. If a court accepts activist’s claims that all “conversion practices” are harmful by definition, then any single conversation might be considered to be “reckless” and risk criminal prosecution.

In relation to children, Section 10 expressly provides:

It is not necessary to prove that the child suffered injury as a result of the conversion practice.

A single consensual and non-coercive interaction may therefore attract indictable criminal liability even where no injury occurred.

Organisational criminal liability

Section 16 states that, if a employee, contractor or volunteer in an organisation performs a “conversion practice”, then

… the employer or principal is taken to have committed the same offence.

The organisation need not have authorised, encouraged or known about the conduct. The provision is not even confined to conduct undertaken within the course of the person’s duties or authority. It may therefore expose an organisation to liability for conduct that was personal, unauthorised and contrary to its policies.

Instead the organisation is assumed to be guilty, and needs to prove its innocence by proving that:

the employer or principal could not, despite taking all reasonable precautions and exercising all due diligence, have known of or prevented the commission of the offence.

This reverses “innocent until proven guilty”, and the organisation is now assumed to be guilty unless it can conclusively prove that it is innocent.

A church, mosque, temple, synagogue, school or charity could therefore be deemed to have committed an indictable offence because of a single unauthorised conversation by a volunteer.

An expansive civil enforcement regime

Any person may make a report to the Commissioner. They do not need to be the alleged recipient and need not have experienced any personal wrong. Third parties, advocacy organisations or people operating from a prejudice against a faith group may therefore initiate the Commissioner’s processes.

The Commissioner can then launch a wide-ranging investigation of an organisation, compel information and documents, require attendance and answers, seek enforceable undertakings, issue compliance notices and publish outcomes. A disputed allegation concerning one interaction could lead to broad examination of religious teaching, policies, training materials, internal communications and membership or leadership standards.

The Commissioner’s powers extend beyond responding to a particular incident and can affect how an organisation operates more broadly. Through undertakings, compliance notices, recommendations and systemic investigations, the Commissioner may pressure churches, mosques, temples, synagogues, schools and other religious organisations to alter their policies, practices and even theological teaching. This gives the Commission significant power to interfere with religious autonomy, governance and the internal ordering of religious communities without any proof that unlawful conduct has occurred.

Evidence may be compelled for use in a criminal prosecution

Section 40 removes the ordinary protection against self-incrimination:

A person is not excused from answering a question or providing information or a document on the ground that the answer, information or document may tend to incriminate the person or make the person liable to a penalty.

The draft also contains no express derivative-use immunity preventing compelled answers from being used to locate witnesses, communications or other evidence.

This departs from a fundamental principle of the Australian criminal justice system – that an accused person is not required to assist the prosecution in proving the case against them. The privilege against self-incrimination and the related right to silence protect the accusatorial character of criminal proceedings by placing the burden of proof upon the prosecution.

The civil response scheme may therefore operate as an evidence-gathering process for a subsequent criminal prosecution without any of the protections normally accorded to criminal investigations.

May violate the Tasmanian constitution

Section 46(1) of the Constitution Act 1934 contains an express guarantee of religious freedom:

Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

The draft legislation burdens both freedom of conscience and the practice of religion by criminalising a single prayer, religious conversation or act of parental guidance, even where it is consensual, non-coercive and causes no injury. It may also prevent a person from obtaining religious assistance that they freely seek in order to live consistently with their own beliefs. These restrictions are not confined to conduct threatening public order or morality.

Conclusion

These problems are not peripheral matters that can be resolved through minor amendment. They arise from the fundamental scope, structure and enforcement model of the draft. The legislation in its current form should therefore be withdrawn.

Any future proposal should be substantially redrafted and subject to further public consultation, with a clear focus on harmful and coercive conduct and effective protection for legitimate parental, religious and professional activity.