Western Australia
"Conversion therapy"
The South Australian Model
The most recent legislation on “conversion therapy” is the South Australian Conversion Practices Prohibition Act 2024. This Act is based on the earlier NSW model, which was developed, in consultation with faith leaders, as an alternative to the controversial Victorian model.
“Conversion therapy” bans are problematic. Coercive and barbaric practices are already banned under existing legislation. Creating extra prohibitions specifically addressing this issue risks unintended consequences and infringes fundamental human rights.
Compared to the NSW model, the South Australian model has an improved definition of “conversion practices” and improved exemptions that would be an appropriate base for the Western Australian Government to start from.
However, there are still some significant weaknesses in the South Australian model. The Western Australian Government would be well-served by fixing those problems before adopting the SA approach.
New South Wales
When NSW began the development of its conversion practices legislation, it was in a conscious contrast with the Victorian model.
Leading up to the 2022 NSW election, there was great concern that a NSW law would replicate the harsh restrictions on medical practitioners, parents, and religious communities.
Announcing his policy, Opposition Leader (now Premier) Chris Minns committed:
We’re not just going to transpose the Victorian legislation and implement it into New South Wales … The reason for that is we’ve heard a critique of the Victorian legislation from the AMA, who believed that the definition was too broad
… the teachings of a religious leader will not be banned. Expressing a religious belief through sermon will not be banned. And an individual, at their own consent, seeking guidance through prayer will not be banned either.
Following the election, the NSW Government embarked on a year-long process of consultation with all stake holders, including a wide range of faith leaders.
The NSW model created clear exemptions for medical practitioners, religious teaching and prayer, and parents guiding their children. Due to a quirk of last-minute negotiations, some ambiguities were introduced in the wording of the exemptions. Regardless, the protections for faith communities, parents and medical practitioners are much stronger than those of the Victorian model.
South Australia
When the South Australian Government sought to implement its own conversion practices legislation, they chose to begin with the NSW model rather than the Victorian one. Significantly, the South Australian legislation corrected the ambiguities of the NSW model, and gave clearer definitions of parental responsibility and religious teaching and prayer.
Currently, the South Australian legislation is one of the better models for “conversion practices” legislation. It has better definitions than the Victorian model, and most importantly stronger protections for medical practitioners, families and faith communities. However, there are still some significant problems with the SA model, which need to be fixed before being adopted in Western Australia.
Protections in the SA model
The most important improvement in the South Australian model is the protections that are included in the definitions. The legislation lays out a definition of what is a “conversion practice”, and then makes clear what is not one:
- In this Act, a conversion practice means a practice, treatment or sustained effort that consists of more than 1 event or occurs on more than 1 occasion, and 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—
- 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
- Examples of health services or treatments that do not constitute a conversion practice—
- Any of the following health services or treatments assessed by a registered health practitioner as clinically appropriate—
- genuinely assisting an individual who is exploring the individual’s sexual orientation or gender identity or considering or undergoing a gender transition;
- genuinely assisting an individual who is receiving care and treatment related to the individual’s gender identity;
- genuinely advising an individual about the potential impacts of gender affirming medical treatment.
- 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 use by a person, without more, of the following expressions:
- 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, or providing guidance on, matters relating to sexual orientation, gender identity, sexual activity or religion with their children.
Weaknesses of the SA model
While the South Australian model is a dramatic improvement over the Victorian legislation, there are still some significant weaknesses that need to be corrected before Western Australia can adopt it safely.
Combining sexual orientation and gender identity
A major weakness of the South Australian model is that is combines both sexual orientation and gender identity into one piece of legislation. These issues are completely different, and are not given true justice when grouped together under a single umbrella.
The understanding of gender dysphoria is rapidly changing, take for example the closure of the UK Tavistock Clinic and the UK Labour Government’s permanent ban on puberty blockers for under 18s.
By grouping both sexual orientation and gender identity into the one piece of legislation, the Government is facing the impossible position of creating a definition of “conversion practice”, along with appropriate exemptions, that can cover both concepts.
The WA Government shouldn’t include gender identity within the definition of a “conversion practice” given the rapidly changing landscape and conflicting view regarding gender identity.
Use of the term "suppressing"
The second weakness is the inclusion of the term “suppressing” in its definition of a “conversion practice”. In its broadest sense, “suppress” means “not to do something”. In the context of this legislation, it would appear to include choosing not to exercise a sexual desire.
In Victoria, the term “suppressing” has been interpreted by the Victorian Equal Opportunity and Human Rights Commission to include celibacy, or choosing not to have sex. The Commission, which is tasked with enforcing the Victorian law, has stated that advising anyone to have self control about their sexuality is likely to be “harmful” and an illegal “conversion practice”.
The WA Government should avoid using the ambiguous term “suppression” and focus on preventing harmful and coercive attempts to enforce change.
Ambiguity around ongoing teaching
The third weakness is the lack of clarity around ongoing teaching. The exemption for religious expressions (clause 4(3)(c)) includes the proviso “without more”. however, it does not state what the “more” is.
It could be that the “more” is other actions apart from teaching and prayer. However, the Act could be interpreted to say that a single conversation is not a conversion practice, but a second conversation becomes “more” and is now illegal.
The WA Government should clarify that ongoing conversations, prayer and religious teaching are not illegal.
You can read more about the issues with the South Australian model by clicking on this link.
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