Humanists New Zealand supports ban on so-called “conversion therapy”

On 7 September the Humanist Society made a submission in support of the ban of so-called “conversion therapy”. You can read our full submission below.

About Humanist Society of NZ (Inc.)

The Humanist Society of New Zealand (Inc.) is a secular organisation that supports Human Rights. Humanism embodies a secular approach to ethics and morality, and we have long supported the rights of LGBTQI+ communities. Our society strongly believes that conversion therapy practices are unethical, ineffective and harmful, and should be stopped.

Broadly speaking, we support the goals of the Conversion Practices Prohibition Legislation Bill, and believe that the outlawing of conversion therapy practices is long overdue. However, we believe the Bill can be enhanced to better protect the rights of those who are subjected to conversion therapy practices in New Zealand.

Preferential treatment of religious belief

The exemption in section 5(2)f is discriminatory. It conflicts with Article 18 of the Universal Declaration of Human Rights (UDHR), Article 18 of the International Covenant of Civil and Political Rights (ICCPR), which binds New Zealand, sections 13 and 15 of the New Zealand Bill of Rights Act 1990, and sections 21 (1) (c) & (d) of  the Human Rights Act 1993 which refers to both “religious belief” and “ethical belief”. Under international legal conventions, both religion and belief must be included to avoid discrimination. The words “religion or belief” are used to conform with the UDHR and the ICCPR and the New Zealand Bill of Rights Act while the NZ Human Rights Act would require “religious belief” and “ethical belief”. This needs correction. 

While we would prefer to see this exemption deleted, we consider that an amendment to include non-religious belief would also be acceptable.

We would like to see:

  • (Preference) The removal of section 5(2)f; or
  • (Alternative) That 5(2)f is amended to include non-religious exemptions: The expression only of a religious or ethical principle or belief made to an individual that is not intended to change or suppress the individual’s sexual orientation, gender identity, or gender expression.

No option of a fine

The Bill provides for imprisonment for up to 3 years under section 8 and 5 years under section 9. However, the alternative of a fine is not provided. This lack of fine is unusual under NZ law, and differs from the new law in Victoria, Australia, for example, where either a fine or imprisonment is allowed.

The option of a fine has the following benefits:

  • Can be applied to institutions,
  • Reduces the barriers to prosecution,
  • Does not have the cost of imprisonment, and
  • Does not cause the imprisoned person to be further entrenched in a criminal mindset.

We would like to see:

  • The option of a fine as well as imprisonment in the Bill.

No penalties for institutions

The new crimes created by the Bill allow for a person who “performs a conversion practice” to be imprisoned. However, the Bill has no penalties for organisations or institutions, or for the officers of those organisations or institutions that may have incited, organised, or condoned the criminal act. We consider this a significant omission. For clarity, examples of “institution” include (but are not limited to) company, charity, church, body corporate, and incorporated society.

In contrast, the Australian state of Victoria, as an example, allows fines for a body corporate that are five times higher than for an individual. An organisation or institution may employ a person or persons to carry out the conversion therapy practices, and we believe the organisation or institution and its officers should be liable for inciting or conducting the conversion therapy practices.

We feel this is important: many organisations that conduct conversion therapy practices are well funded, and a minor fine is unlikely to provide a suitable deterrent.

We would like to see:

  • Penalties with higher fines for organisations and institutions (including churches and charities) that breach the Act than for individuals; and

Officers of institutions should be personally liable

Officers of an institution should be personally liable if the institution they control provides conversion therapy practices. This has a precedent in New Zealand law: officers of an institution are liable for health and safety breaches.

For example, consider the following scenarios:

  • An individual conducting conversion therapy practices who is a low paid employee of a church is held responsible and penalised under the proposed law, while the persons ultimately responsible for organising the therapy are not; and
  • The people who are ultimately responsible for organising the conversion therapy practices may have protected themselves behind the protection of limited liability companies.

This is an important change which is needed to ensure that the individuals ultimatly responsible for organising the conversion therapy practices are held responsible.

We would like to see:

  • Officers of an offending organisation to be held personally liable for breaches of the Act.
  • The liability for any sentence to be applicable to the controlling organisation of the organisation that was sentenced.

Option of criminal offence when no serious harm found

The NZ Bill makes it a criminal offence to carry out conversion therapy practices on a person under age 18, or to carry out conversion therapy that causes serious harm. This is a positive change, but in all other cases for people over 18 where no harm has been proven (to the standard required for criminal prosecution), the offence becomes civil rather than criminal.

We consider that conversion therapy is harmful and should not be allowed under any circumstances regarless of age. Consequently, we would like to see the age limit and conditions removed from section 8.

We would like to see:

  • The option of a criminal offence if the person is over 18 and no harm has been proven.
  • Section 8  amended to read as follows:

8 Offence to perform conversion practice on any person 

(1) A person commits an offence if the person performs a conversion practice on any individual.

(2) Consent is not a defence under subsection (1).

(3) A person who commits an offence under subsection (1) is liable on conviction to a term of imprisonment not exceeding 3 years.

Barriers to prosecution

We are concerned that the proposed law will not be used because of the barriers to prosecution and consequently will prove ineffective and not be a deterrent. We see several barriers to prosecution:

First, because imprisonment is the only sentencing outcome, this may lead to a reluctance to prosecute. Those deciding if prosecution should proceed may consider that the case is not serious enough to warrant imprisonment.

Second, because the harm caused by conversion therapy is more likely to be psychological rather than physical, it will likely be difficult to prove that harm has occurred. This will provide a further barrier to prosecution.

Third, under section 12 of the Bill prosecutions require the consent of the Attorney-General. This is usually the case for crimes where a very high threshold is required for prosecution. However, in this case, this inclusion is likely to prove to be a significant impediment to prosecution. Because the New Zealand Attorney-General is a member of an elected political party, they may also be susceptible to political influences and could conceivably prevent warranted prosecutions.

Fourth, section 5 (1) (b) of the Bill specifies that conversion therapy practices have to be performed with the intent of changing someone’s sexual or gender orientation. Proof of intent is complex, and we would prefer to see a lower bar of proof of action.

As the crimes are not in the Crimes Act, police may not be aware of the crimes and may not investigate or prosecute.

We would like to see:

  • The addition of a fine as a sentencing option;
  • Removal of the requirement for the Attorney-General to approve proceedings;
  • Additional offence(s) for providing conversion therapy practices where intent to convert cannot be proven; and
  • Removal of intent from the definition of conversion therapy.

No support for Victims and Survivors

While criminalising and banning conversion therapy practices is laudable, we cannot ignore that these practices have not only been conducted in the past, but will also likely be conducted in the future – even after they are outlawed.

People who have undergone conversion therapy practices often need help to recover from the mental injury they might have suffered due to the practice. We would like the process for victims receiving help to be as seamless, and as focused on the victims and survivors, as possible.

We would like to see:

  • An extension to the scope of ACC to cover mental injury as a result of conversion therapy practices; that is conversion practices should be added to the list of criminal offences in schedule 3 of the Accident Compensation Act 2001.