Submissions close next Wednesday on the government’s Conversion Practices Prohibition Legislation Bill. (Hardly central to the post, but reflecting on the title I’m at something of a loss to know what the word “legislation” is doing in it.)
It is a muddle of a bill in many respects. Even the officials – who mostly seem to be cheering the government on – recognise that the whole process was rushed, and the Regulatory Impact Assessment wasn’t up to scratch (and has at least one absurd and frankly offensive feature). Past select committees have cast doubt on whether – even on the aggressively secularist approach held by those with the commanding heights of New Zealand public life – whether there was any case at all for legislation, but never mind….it was a Labour Party promise, championed even more aggressively by the Green Party, and so it will be rushed into law. What one might think of as the the vacuity of it all was evident in media interviews – and the New Zealand media is hardly unsympathetic to “progressive” (decadent) causes – when neither the Prime Minister nor her Minister of Justice could clearly and specifically articulate what behaviour or speech they were seeking to criminalise (and note that these offences are not just $1000 fine offences, but carry only prison sentences, of up to five years). It is a shocking way to make law – albeit increasingly common – since it stands completely at odds with the established principle that people should be able to know, with some certainty, what is and isn’t lawful and not have to wait, perhaps for years down the track, for judicial interpretations (no doubt on appeal) to say what Parliament’s law actually means,
It is also a dishonest bill (or political process). The government and their officials like to claim there isn’t much of an abridgement of free speech, but we know – because they are consulting on it – they are cooking up (so-called) hate-speech laws at the same time, and it is quite likely that much of whatever space they claim to have left in the current bill will in turn be outlawed (or rendered subject to years of judicial uncertainty, and police harassment) when the “hate speech” bill finally emerges.
As it is, even under the bill before the House the abridgement to freedom of speech and to the free exercise of religion is considerable. And Ministers and officials – even those notionally charged with a Bill of Rights perspective – seem to cheer that on. The principal Opposition party in Parliament seems very keen on the bill, so long as there is some sort of carve-out for parents talking to minor children, and in the first reading debate in Parliament (full text here) as far as I could see only one member – from the ACT Party – even touched on the free exercise of religion issues. In some New Zealand political commentary much is made of the (so it is claimed) presence of a phalanx of evangelical Christians in the National Party caucus. If they exist, they were awfully quiet in that debate.
In many respects the key thing about the bill is that it expresses the vituperative hatred by the political powers that be (dominated by the “progressive” left) of (a) an orthodox Christian sexual ethic (sex between one man and one woman only within a marriage entered into with the intention that the relationship be “until death alone parts us”) and (b) of any serious space for ideologies, lifestyles, practices or truths they happen not to hold, the most egregious of those in today’s New Zealand is orthodox Christianity itself. (No doubt, traditional Islam would be even more troublesome for them, but (a) it is inconvenient politically to say so, and (b) the numbers are small and not generally mainstream.)
Some will be reluctant to go that far, but even if you wanted to bend over backwards to take the best view of the government and its allies, they show not much sign of understanding what a serious religion amounts to. But I don’t think that is the heart of the problem – even if it leads to odd anomalies like that phrase “conversion practices” (isn’t conversion and progressive putting on of Christlikeness at the heart of the gospel?). They have some sense of what the gospel calls for, and they will not stand for it. If they tolerate a church, it will only be an neutered one, accommodated to their alternative set of truth claims – in the sexual area “anything anyone wants, so long as it is consensual, goes”). Meanwhile, they have no sense of sin, of (resisting) temptation, let alone of atonement, forgiveness, grace, renewal, discipleship and transformation.
In a way, of course, it is just honest. There are (deeply) conflicting sets of truth claims, and they – and not some “process liberalism” – tend to shape the world. All societies organise themselves around dominant narratives, truth claims, world views, “religions’, and at best minorities are relegated to the margins. It was so in the long Christian era in the West. It seems likely it will be again as the wreckers and libertines claim the commanding heights (and numerical support). The last few decades were, most probably, just a transitional phase.
But few church leaders seem to recognise this, and if any do fewer seem to speak and operate in ways to prepare those who would be faithful for the new world as an embattled and (for now anyway) shrinking minority. How then should we live, faithful Christians and congregations should be asking of leaders who have discerned the times. Instead, accommodationism seems to be the order of the day – as it too often was in the USSR, in communist eastern Europe, in Nazi Germany, in apartheid South Africa.
But what of (a) the Act itself, (b) the advice/analysis from officials, and (c) the Minister’s speech introducing the bill?
Take the bill first – which is what the courts will have to apply (if passed unchanged).
Clause 3 reads this way
The purpose of this Act is to—
(a) prevent harm caused by conversion practices; and
(b) promote respectful and open discussions regarding sexuality and gender
(b) appears to have been added to lay some sort of false trail. As we’ll see, it was part of how Crown Law reckoned this legislation was okay, but there is nothing in the rest of the bill that has the slightest chance of promoting “open discussions” – when the whole point of the bill is to make clear that certain views on sex, sexuality etc are simply unacceptable to the Labour government. As for “respectful” that might be a laudable goal but (a) there is nothing in this bill to promote “respectful discussion”, and it is pretty clear that the champions of the bill regard advocacy of an orthodox Christian perspective on these issues as disrespectful on its face. They’d probably have the same view if the church called out against adultery, or envy, or idolatry – or anything that isn’t presently unlawful (hopefully they’d make an exception for bestiality or theft, altho – as we shall see – even the former isn’t certain, going by the words of this bill).
The heart of the bill is to outlaw anything called a “conversion practice”: (emphasis added)
In this Act, conversion practice means any practice that—
(a) is directed towards an individual because of the individual’s sexual orientation, gender identity, or gender expression; and
(b) is performed with the intention of changing or suppressing the individual’s sexual orientation, gender identity, or gender expression.
A key problem – really for anyone, champion or opponent of this bill – is that none of those terms (“sexual orientation”, “gender identity”, or “gender expression”) is defined in the bill.
The bill goes on to tell us what doesn’t count as a “conversion practice”
However, conversion practice does not include—
(a) a health service provided by a health practitioner in accordance with the practitioner’s scope of practice; or
(b) assisting an individual who is undergoing, or considering undergoing, a gender transition; or
(c) assisting an individual to express their gender identity; or
(d) providing acceptance, support, or understanding of an individual; or
(e) facilitating an individual’s coping skills, development, or identity exploration, or facilitating social support for the individual; or
(f) the expression only of a religious 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.
I guess it is the weird thing about this alternative ideology that, on the one hand, we are often told that your “identity” is anything you want to be (I can identify as a tree if I’m crazy enough), on the other there is this implied sense in the bill – and speeches from its supporters – of there being some “true” identity that each individual has to discover and explore. I guess adopted as heirs of Christ probably doesn’t count.
Note that “health practitioners” – not just doctors – can do all sort of things but (notably) priests, pastors, parents, counsellors can’t.
And what of (d), which in many ways captures the spirit of the bill. It seems one can only ever legitimately “accept, support, and understand” an individual and never confront, challenge, call-out, or discipline one – not even within family structures (family foundational to the now-departed civilisation), religious communities, or whatever, not even (as we shall see) when voluntarily adhered to. A church that, for example, exercised church discipline and expelled a member who repeatedly and unrepentantly committed adultery, or homosexual acts, or distributing (legal) pornography among the youth group would – it seems clear – be in breach of this government’s bill.
Ah, but what about (f). The Minister’s introductory speech says that – very late in the piece (a week before the first reading) – he talked to some “church leaders” who had expressed “questions about the religious freedoms they enjoy”, and that in response “I hope that since that time…they have seen that we have put in protections for the expression of their religious principles and beliefs”. Presumably (f) was that addition.
Well, bully for him. Religion – serious religion – has never been just about articulating abstract principles or preferences, but about conforming people to the ways, purposes, and laws of (in the Christian case, and I presume Muslim) God. And although government MPs and officials claim that this clause protects sermons (and presumably newsletters, podcasts etc), it isn’t clear that even that is secure – not just because of the coming ‘hate speech’ laws, but because it is hardly unknown for someone sitting through a sermon to feel that the preacher was aiming his or her talk at that person, and their sin. That may sometimes have been the intention, but often it won’t – it will be what we might call the conviction of sin, the work of the Spirit and so on. Sometimes the pastor may not even know the individual concerned was struggling with that sin. And there is nothing in the bill that protects against such a person – later aggrieved and resentful, having abandoned their faith – laying a complaint about that sermon. Is it likely? Who knows, but (a) no doubt the bill will be used to harass pastors (in particular) who proclaim a traditional Christian orthodoxy, and (b) even if a complaint never ends up in prosecution, the pastor concerned can face big legal expenses and disruption (in many cases, constraining their willingness to speak in the first place), and (c) the bill doesn’t just have a criminal offence regime (imprisonment and all) where the consent of the Attorney-General is required for prosecution, but it also has a civil complaints provision through the Human Rights Commission where i) the test is only on the balance of probabilities, and ii) where there is no cap on the potential financial penalties (see 1(c) in particular at that link).
Church discipline – of a Matt 18:15-17 type – is clearly outlawed by the provisions of this bill for any matters sexual. And yet not a word from the establishment church leaders.
There are two specific criminal offences in the bill. The first (and probably the biggest concern) is clause 8:
(1) A person commits an offence if the person performs a conversion practice on an individual and knows that, or is reckless as to whether, the individual—
(a) is under the age of 18 years; or
(b) lacks, wholly or partly, the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to their health or welfare.
(2) A person who commits an offence under subsection (1) is liable on conviction to a term of imprisonment not exceeding 3 years.
Now, remember, it is quite clear – and other government documents confirm this – that prayer or counselling or conversation is covered here. Not only can you not discourage your 12 year old from choosing to adopt some arcane self-chosen “gender identity” and whatever “gender expression” goes with that, but it isn’t clear (a) that you can strongly discourage your child from having (heterosexual) sex at age 14, even though that act itself would be illegal, or (b) that you can discourage your child – or any other young person – from engaging in bestiality (surely some sort of gender expression) without opening yourself up to the threat of five years prison. Doctors and nurses can encourage your child to make some sort of “transition”, perhaps even to mutilate their body irreversibly, and you can do nothing to dissuade or discourage or penalise them. It is the ideologies – the child is the state’s, and just anything goes – in full voice. A teenager who is struggling with pornography, masturbation, or just a temptation to sleep with his (her) girlfriend (boyfriend) can ask a priest, a pastor, a parent, a youth worker for assistance, support, and prayer to resist these temptations, but if any of those people agree and meet the request they face the risk of three years in prison.
You would have to hope that those people would take the risk to do what is right – there are laws higher than those of the New Zealand government, duties much stronger than any to the state – but, realistically, many won’t. Young people struggling with temptation will be left sheep without a shepherd, with only the wolves of the state (and its ideology) to pull them downwards. It is evil, from a government that has no sense of sin, of temptation, of struggle, of overcoming.
Oh, and I almost forgot to point out the way the clause is structured: paralleling those under 18 with those (others) unable to be counted on to make decisions for themselves. Actually, we usually put young people in that category – it is why we have a notion of legal minors – and yet under this legislation young people are considered able to make every decision about any sexual matter, at any age, and no one is allowed to call them out, call them back to some other standard. It is juvenile at one level, and utterly corrosive at another.
The second offence section is clause 9.
1. A person commits an offence if the person performs a conversion practice on an individual that causes serious harm to the individual and the person—
(a) knew that performing the conversion practice would cause serious harm to the individual; or
(b) was reckless as to whether the performance of the conversion practice would cause serious harm to the individual.
(2) A person who commits an offence under subsection (1) is liable on conviction to a term of imprisonment not exceeding 5 years.
Even for this offence – presumably mainly relating to those 18 and over – there is no defence of consent.
I’m presuming that a) is a dead letter (it would be impossible to prove that someone knew their “conversion practice” would cause serious harm to the individual, except perhaps for things that amount to physical assault and are already unlawful. “Serious harm” is defined in the bill
serious harm, in relation to an individual, means any physical, psychological, or emotional harm that seriously and detrimentally affects the health, safety, or welfare of the individual.
None of that is very clear (especially “safety” or “welfare”) but is it unreasonable to suppose again that church discipline – exercised biblically for the redemption of the individual and the protection of the congregation – would again fall foul of the law, if used on any matter of “gender expression”? And would someone who refused to do business with a repeated adulterer – because of his or her adultery, hoping to bring about a change of behaviour – also run a risk of prosecution. Is (to perhaps an absurd extreme) a wife who walks out on an adulterous husband, and says “I’m not coming back unless you change your ways” exposed when the vindictive husband claims his “welfare” has been seriously harmed? I suppose not, but you could read it that way.
One of the curious features of the bill is this belief that conversion practices (including prayer) can do great harm, and needs to be outlawed on pain of imprisonment, all coming from an atheistic government, and highly secular public service, who generally look on prayer only to scoff at or pity the pray-er. I believe – have lived, and seen – in the power of prayer to change lives. The government is running scared of that. They want no part of holiness – at least as it relates to sexual aspects of people’s live, and they want no part of anyone (other than them) ever doing anything active to seek to change the behaviour of others. And yet that is the call to repentance.
The final element in the criminal section of the bill is the provision (that exists in a few other pieces of legislation) that no prosecution can be brought without the consent of the Attorney-General. It is better that that provision exists than not (will act as some check, say, on Police reckoning they will prosecute every complaint, frivolous or not, and leave it to the courts to sort out) but it is worth remembering that the Attorney-General is a Cabinet minister, a senior member of the Labour government that is ramming this legislation through, and with no regard for difference, let alone Christian orthodoxy. He might be keen to make an example of one or more people. It is no protection of religious freedom at all, despite the claims of Crown Law.
So that is the bill, egregious – and yet poorly drafted and loose – as it is, a severe abridgement of freedom of expression and of freedom religious practice.
But there are various other official documents that she some light. There is, for example, the Minister’s speech. It is loose too – claiming that a prosecution would require proof of harm (clearly not the case for section 8 offences). But it also captures that ideology. If there is any concept of right and wrong – in sexual matters – it is all just about “whatever feels good, do it”, just at odds with every serious society ever. He talks strangely of “a fundamental right” we supposedly all have to “decide who they are”, as if people construct themselves from scratch (this decade I’ll be a tree, next decade a sheep, the following decade perhaps a husband and father – or more seriously think of people who have gone one way in a some trans-gender transition and then regretted it and sought to reverse that), and of course he spins a line about freedom of religious (principles and beliefs, but not practices) expression, with not a mention of the hate speech laws he is cooking up. And – as with so many other MPs – we get all the talk about the alleged “serious harms” conversion practices have done with (a) no evidence, and (b) no attempt to distinguish among types of what he calls “conversion practices”. Is prayer that powerful Minister? Or are these alleged harms some mix of (a) practices already illegal (at least without consent, and (b) serious mental health problems already latent in some of the individuals concerned?
And there are three other pieces of “analysis” (mostly a generous description) undertaken by officials.
The first is a Departmental Disclosure Statement prepared by the Ministry of Justice. Mostly it is a hoop-jumping bureaucratic process document, but I noticed a few things. The first is the adamant statement that “research emphasises that conversion practices do not work”, but with no attempt (again) to distinguish any of the numerous types of so-called conversion practices. Presumably at the Ministry of Justice prayer can only do harm and never good? It is both ignorant and dogmatically anti-Christian. No serious Christian is going to rule out the possibility of miracles – of healing, of transformation. They might be rare, but they aren’t unknown. But our government is not just indifferent but actively hostile – criminalising any prayer for (sexual) healing, on pain of a heavy prison sentence.
And then there was the obligatory Treaty of Waitangi section where the officials assert – with no argument or evidence whatever – that “the Crown has a Treaty obligation to take positive action to reduce the disparities experienced by takatapui Maori” (this is apparently a phrase that meant intimate same sex partner, but now reportedly applies to all sort of sexual abominations). Just to note that it seems doubtful Samuel Marsden, Henry Williams, William Hobson, Lord Melbourne, Queen Victoria, or many of those Maori chiefs who had already received the gospel saw things quite that way. Incidentally, in the parliamentary debate it was notable how hostile various Labour and Greens Maori members were to the gospel or to any sort of Christian sexual ethic.
And finally there was the “external consultation” section, where it became clear that all the consultation was with people and agencies that supported the bill. Governments do that sort of stuff I suppose, but it is scarcely good practice – especially with the bill being rushed through select committee while the country is distracted by Covid.
Then there was the Regulatory Impact Assessment, again prepared by the Ministry of Justice (and vetted by other staff in the Ministry who concluded it didn’t do a particularly good job). These are often backfilling jobs undertaken by officials to back up the Minister’s political priors, and this seemed to be a clear example. The Ministry didn’t seem that keen on the rushed job (“a more extensive consultation process may have resulted in a better-informed understanding of the nature and scale of the problem”), but they are right-on with the anti-religion, anti traditional sexual ethics approach, with little serious regard for rights of minorities (what one once counted on the Ministry to stand up for).
They champion the bill on grounds that include the hope that the “attitudes” – presumably beliefs – of those that use “conversion practices” (remember how widely that net is, whether as regards family or church) “would change to align more closely to those of wider society”. It isn’t enough that the majority likes this stuff, and disregards any since of sin and judgement, but legislation is deployed to try to convert the holdouts to the new world of licence and dissipation. They are quite clear that they practices they want to target are “prayer, fasting, spiritual deliverance, 12-step type programmes (ok for alcohol but not sex apparently?), and individual, group and online counselling”. There is no doubt they know the extent of the repression they sign up to.
They end a canter through various options with a set of evaluation criteria. Remarkably – from a Ministry of Justice – there is no mention of considerations of freedom, individual rights, civil society (ability to make own rules) etc. The only way “fairness” is counted is as regards being “fair just and proportionate for all people at risk of conversion practices”, but even that is of course only defined against a standard where there is no right or wrong, just impulses.
We are also told that “all stakeholders we talked with were, at least in theory, supportive of a legislative ban on conversion practices”. Which of course tells you about the sort of people either the Minister told them to talk to, or their own anti-religious libertine philosophy drew them to. Talking to “people like us” works well for officials, you get back just what you want to hear.
There was the extraordinary claim – so preposterous it is hard to believe any senior manager let this document out of the building – that passing legislation of this sort, as opposed to taking no action, would – with high certainty and high impact – be beneficial to practitioners of “conversion practices” (parents, priests, supportive friends?) because “they would have greater clarity and certainty that conversion practices are prohibited for everyone and cannot be performed with or without consent”. Against a benchmark of no legislation it doesn’t even make sense.
If there was any doubt the government was coming for churches, parents, and anyone taking seriously traditional Christian ethics and a process of sanctification, the Ministry makes it quite clear in two paragraphs on page 22 of the RIA.
And finally there is the Bill of Rights consistency vet, undertaken by Crown Law. There isn’t much to it, and you have to wonder a bit about the degree of detachment applied given who the head of Crown Law is, but what there is seems almost laughably light weight – at least if there were not an agenda to champion, never mind the rights of minorities.
Recall that under the (non-binding) New Zealand Bill of Rights Act there are these provisions
14 Freedom of expression
- Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
15Manifestation of religion and belief
Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.
Crown Law recognises that freedom of expression could be at risk (talking of a “potentially chilling effect on legitimate expressions of opinion within families” they claim with a straight face (apparently) that these concerns are “substantially mitigated” in three ways
7.1 The Bill is clearly expressed to ban only practices that are intended to change or suppress rather than merely confront or reject the individual’s sexual orientation, gender identity or gender expression.
7.2 One of the purposes of the Bill is expressed to be the promotion of respectful and open discussions regarding sexuality and gender.
7.3 Attorney-General consent is required for any prosecution.
Just officials desperate to support repression. As noted above 7.2 is just a (rather sick) joke, since the whole bill works in the opposite direction. 7.1 isn’t much better, at very least without a proper definition of “gender expression”. Crown Law don’t even engage with freedom of expression within religious or other communities. And if just possibly the Attorney-General provision might limit actual prosecutions, they won’t limit Police harassment, perhaps under social media pressure, potentially large legal bills, and a general chilling effect.
What about freedom of religion? The author of the opinion clearly knows little or nothing about Christianity, has no sense of a sermon as (potentially) a call to conversion or reformation(think of Ezra and mixed marriages) and then falls back on this question-begging line
The conversion practices could themselves constitute the manifestation of a genuinely held religious or other belief. To the extent that they do given the profound harm they cause to the individuals that are subject to them, their
prohibition is demonstrably justified in a free and democratic society.
No evidence, no differentiation of one type from another, just the bald assertion that all conversion practices cause “profound harm” to individuals . It is laughably bad – worse I suppose if one took the Bill of Rights more seriously.
Which brings us to the end of the documents.
Perhaps in the end the Select Committee will make a few minor changes to the bill – hopefully at least to the grosser absurdities – but the core issue with the bill is fundamental: it is the extreme antagonism of today’s governing elite to orthodox religion and the demands that faith places on individuals and congregations, and to any sense of self-restraint, discipline, of channelling and limiting the expression of sexual desire, of right and wrong (beyond the criminal law of the particular day). That won’t change. It appears deeply held, and as such restrictions have their own perverse logic as the expression of a newly dominant faith.
And that is why I’m not bothering to put in a submission to the Select Committee. Even the centre-right members basically go along with this attack on orthodox Christianity: I suppose they feel they have to keep close to the median voter. As for the government, recall that this is just another step in the agenda to normalise what Christianity has long seen as sinful conduct, with “hate speech” laws next. Dominant ideologies will do what they must. But the challenge for the church – which so many church leaders seem to be abdicating – is how do we form people and communities to live faithfully under Christ, even if we face persecution – small or great – for following His way. It is all too easy to seek to adapt, to minimise differences, to avoid hard choices, and in the process erode all the makes the way of the Cross a radical counterculture – one that is supposed to threaten dominant ideologies, that may mean a path of imprisonment, job loss, fines, or social stigma. Those are hard choices, and all the harder when leaders do not prepare people, do not proclaim the sort of world we now live in.
I wrote here some time ago about Franz Jagerstatter, the Austrian Catholic layman who went to the executioner’s block in Nazi Germany rather than serve in Hitler’s armies, out of faithfulness to Christ. That sort of discipleship takes great courage for anyone, but almost unbearably so for many when left to themselves when the church leadership offers no clear call to the way of the cross, even unto death.
I’ve tried to be clear in this post – and if not then, here now – that the church is not uniquely concerned with sexual sin (important, almost foundational in some respects, as it is), but with all manifestations of sin – in areas that are currently socially respectable and those that are not. Greed is a serous issue many struggle with, but we aren’t to be prohibited from actively addressing that in our people and in our midst. It is the New Zealand government that wants to single out sexual sin: it wants to prohibit churches and Christians from treating it seriously. It has chosen a path that is openly and aggressively anti-Christian. They and their supporters like to bemoan “culture wars”, but they launched a whole new round themselves.