Parents and religious groups will be criminalised under a proposed bill to ban conversion therapy if they attempt to "change or suppress the sexual orientation, gender identity or expression of children within the family".
The timing of the proposed bill, alongside changes to hate speech laws, meant there was likely to be "particularly intense" public debate around freedom of expression, with a need for "clear communication" from the Government.
Ministry of Justice officials made the observations in their Regulatory Impact Assessment of the Conversion Practices Prohibition Legislation Bill, announced on Friday by Justice Minister Kris Faafoi.
A proposed ban has majority support of politicians, and comes after years of advocacy.
Measures proposed in the bill were aimed at ending conversion practices which didn't work, were widely discredited, and caused harm to rainbow communities and the wider community, Faafoi said on Friday.
Officials said in their advice to the Government interactions within a family would also be captured if they met the definition of conversion practices.
"It would be a criminal offence for parents, or other members of a family, to attempt to change or suppress the sexual orientation, gender identity or expression of children within the family.
"This would align with other existing regulatory controls on parental behaviour that could harm children."
Under the bill, it will be an offence to perform conversion practices on a child or young person aged under 18, or on someone with impaired decision-making capacity. Such offences would be subject to up to three years' imprisonment.
It would also be an offence to perform conversion practices on anyone – irrespective of age – where the practices have caused serious harm, and would carry up to five years' imprisonment.
Establishing what constituted "harm" would be one of the key implementation issues, as with other offences where harm or injury may not be physical.
This was also one of the concerns raised by some stakeholders.
"However, the threshold and burden of proof for a criminal offence should be high given the proposed penalty of up to five years' imprisonment," officials said.
"This is intended to act as a deterrent as well as provide a criminal justice process."
Officials also noted there had been no public consultation ahead of announcing the bill, and timing meant it would likely go through select committee and public submissions at the same time as changes to hate speech laws, both likely to "generate public debate about freedom of expression".
"With the two processes occurring at similar times, the media and public debate may be particularly intense," officials said.
"Clear communication on what the proposals are and how they engage human rights would be necessary to inform the debate."
Consequently officials recommended "active engagement" by ministers involved to promote public understanding of the proposals and their limits.
Officials gave the Government four options, including increasing public education without a ban; criminalising the behaviours only for those under 18 and those with impaired decision-making capacity; including civil and criminal redress along with the first two; and covering all three but including protections for "any person".
Officials recommended the latter, stating this would meet "all policy objectives by protecting all people, regardless of age", which the Government ultimately adopted.
Officials also noted as one of the risks of implementation was a lack of any data around conversion therapy occurring in New Zealand, meaning it was difficult to estimate the true costs and impacts of the proposed regulatory changes.
There was also a risk that in response to the prohibition practitioners could change the
language around conversion practices, making it more difficult to identify and prosecute.
The defining features of a conversion practice include the intent to change or suppress a person's sexual orientation, gender identity or gender expression.
Conversion practices are generally a pattern of behaviours, rather than a one-off interaction.
Officials said proposals could raise concerns within faith communities regarding Government interference in church practices and beliefs and regulating the content of sermons and prayer.
Conversion practices that took the form of prayer and counselling that were directed towards an individual would be captured by the preferred option, but "general expressions of religious beliefs or tenets about sexual orientation and gender issues" was intended to be excluded.
"Sermons would not generally fit the definition as they are directed towards a congregation rather than an individual," officials said.