Part 1 - "The Commission" -

Change or Suppression (Conversion) Practices Prohibition Bill 2020 VIC Summary and Analysis

Below is the summary of the bill written by the lawyer Kath Deves, part 2 will detail the impact of this bill

The main purpose of the Act is to denounce: to condemn or Censure openly or publicly

The Act creates a Civil Response Scheme within the Victorian Equal Rights and Human Rights Commission (“the Commission”):

·      Non-judicial and non-elected politically appointed body

·      Non-judicial therefore not subject to the rules of evidence, or practice and procedure

·      Empowered to create offences

·      Empowered to amend Acts (only parliament has that power)

·      Redefines words (sexual orientation) and introduce ideological concepts (gender identity, sex characteristics)

·      Officers are employed as Public Servants in VIC

·      The powers of the Commission may be delegated to any member of staff of the Commission.

Objects of Act

The object empowers the right to denounce (i.e. condemn or censure a person openly and publicly) a natural person or any organisation for failing to acquiesce to the legislation, backed by significant criminal sanctions and substantial fines.

It is not normal legislative drafting, emotive position statements with no legal meaning are being made “feel welcome and valued in Victoria” and “live authentically and with pride”, “broken and in need of fixing”, “shortcomings”, and in the absence of evidence that such conduct are “deceptive and harmful” to individuals and the community “as a whole”.

The legislation empowers the Commission to publicly excoriate anyone who causes “serious harm” or “harm” to a person by failing to affirm their sexual orientation or gender identity.

These two concepts are defined in the legislation, but they are sufficiently broad as to be rendered meaningless (see below) and could be interpreted to be applied to any feeling a person may experience towards another person, or their name, dress, mannerism or subjective feelings about themselves.

A contravention of the Act is any conduct that is not supportive of or affirms a person’s gender identity or sexual orientation.

It means that if a person fails to affirm another person’s “gender identity” their employer can be held accountable, as can anybody corporate that they are employed by or act for.

Suppression is not given a definition, it relies on the initial premise and fails as an illogical fallacy, and it is given sufficiently broad scope as to mean anything that does not affirm or support a person’s “gender identity” or “sexual orientation”.

The Act has extra-territorial application, meaning it can apply to conduct occurring outside of Victoria, provided there is a “real and substantial link” to Victoria such as the harm caused occurring inside Victoria even if the person who contravenes the Act is outside the State.

“Sexual orientation” is redefined as same “gender”, by doing so it erases the concept of homosexuality – same SEX attraction, and fails to define “gender”

If a person consents to treatment for their gender dysphoria, and they want assistance reconciling with their natal sex, anyone assisting them in this could be held liable

Any person is able to report another person to the Commission for breach of the legislation

The language used is archaic and medieval – they refer to “deliverance practices” and “exorcisms” s5(3)(b) and denouncement s1 in the legislation.

The scope for prohibited conduct not only covers in-person interaction but online communications s5(4).

The penalty is up to 10 years imprisonment and 1200 penalty units ($198,264.00) or 6000 penalty units for an organisation ($991,320.00) if “serious injury” is caused.

Serious injury is a legal term defined in the Crimes Act 1958 VIC s15

·      Life has been endangered; or

·      An injury that is substantial or protracted;

·      But under this Bill, the Commission is entitled to determine “serious” as it sees fit - depending on the regularity of the conduct, and in consideration of the objects of the Bill.

The penalty is up to 5 years imprisonment and 600 penalty units ($99,132) and/or 3000 penalty units for an organisation ($495,660) if “injury” is caused.

Injury is a legal term defined in the Crimes Act 1958 VIC s15

·      Physical injury; or

·      Harm to mental health;

·      Whether permanent or temporary.

·      “Harm to mental health” includes psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm

·      Note: for psychological harm a mental illness such as depression, anxiety or PTSD must be established

The penalty is up to 7 years imprisonment and/or 240 penalty units ($39,652.80) if you take someone out of Victoria for the purpose of a “change or suppression” practice.

If anyone advertises about change or suppression practices they can be fined up to 60 penalty units ($9,913.20), and an organisation up to 200 penalty units ($33,044). The Commission is empowered to demand any person produce any documents and will be fined up to 60 penalty units ($9,913.20), and an organisation up to 200 penalty units ($33,044). should they fail to do so.

A corporation will be held criminally responsible for any associate who engages in conduct, if they are aware of any associate engaging in conduct, or if there is a “corporate culture” that encourages or tolerates conduct, that has the intention of contravening the act.

The Commission

The Commission has placed themselves as judge, jury and executioner. They are empowered to assign authorisation for any of their powers to any person.

They are empowered to:

·      Create the message;

·      Conduct research to create the message

·      Educate the community;

·      Enforce compliance including criminal sanctions and substantial fines.

The Commission is empowered to perform their functions against:

·      A natural person;

·      An organisation or corporation;

·      An employer, principal, organisation or corporation who will be held vicariously liable for all employees, agents, officeholders and volunteers, unless they took steps (proven on the balance of probabilities) to prevent the contravention.

The Commission is fully empowered to perform these functions:

·      Receive reports from any person about any other person or organisation;

·      Request any information from any person or organisation who has allegations made against them;

·      Establish the policies and procedures for reporting;

·      The report does not yet have to be in any proscribed form;

·      Conduct any investigation if it advances the objectives of the Act in any manner it sees fit

·      If the investigation contravenes the principles of natural justice, it is allowed to do so if the Act allows for that;

·      A person or organisation can be compelled to provide the information, if they fail to do so they can be fined up to $9,913.20 as a person or $49,566.00 as an organisation;

·      A person or organisation can be compelled to attend if the Commission deems it necessary and relevant;

·      Although a person may refuse to do so on the grounds they may incriminate themselves;

·      Establish the processes for determining the outcome;

·      Determine the outcome, along with the complainant;

·      The response is determined by the needs and wishes of the person affected by the contravention;

·      Facilitate the outcome;

·      That anyone bringing proceedings under this Act is authorised to do so;

·      The Commission may take any action it sees fit in relation to an investigation and enforce compliance or any other undertaking to refrain from or agree to take certain actions;

·      These enforceable undertakings will be made public;

·      Determine whether the parties are entitled to anonymity or not, or whether documents or information should be released publicly;

·      The Commission or anyone empowered with authority by the Commission can determine whether any information can be disclosed to the public;

·      This person empowered to make these disclosures must not be required to provide any document containing information the Commission deems to be protected to a court unless it is to prosecute someone for a contravention of the Act, criminal proceedings or with consent;

·      The parties can reach an “agreement” by consent to be certified and registered by the Commission which can then be enforced;

·      Provide “targeted education” the person or organisation in contravention, including the principals and office-holders;

·      Provide support to complainants to report contraventions to police;

·      Report the contravention to any other public body or agency, including the police;

·      The Commission is entitling itself to provide advice to the court in relation to contraventions of this Act.

Redefinition of Words “Gender Identity”

means a person's gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal preferences;".

This definition is broader than the Commonwealth definition as it has removed the words “deeply held” leaves limitless scope for application.

Sex Characteristics

“Physical features relating to sex” replacing the concept of biological sex, and breaks the body in parts instead of treating the human form holistically.

Sexual orientation has been redefined as:

“a person's emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender;".

This completely erases the concept of homosexuality – same-sex attraction – and replaces it with an ephemeral, subjective description that could apply to anyone’s feelings of any kind about anyone else.

Amendment of Family Violence 2008 and Personal Safety Intervention Orders Act 2010

The practical application of this is that if a child or spouse declares a sexual orientation or gender identity, they are entitled to have a member of their family or their spouse charged with domestic violence and a bring an Intervention Order against them if they fail to affirm or support them.

The practical application of this is that the transitioning family member can retaliate against family members who refuse to support or affirm, or even remain neutral, in light of their SOGI. It will enable people to impose criminal sanctions on their families – with respect to the stories of ROGD girls, AGP males, and trans-widow and trans-orphan survivors, it is completely foreseeable and predictable the havoc and harm these amendments will wreak on families and relationships.

Explanatory Memorandum

·      Promote the rights of LGBTIQ+ people under the law; with the passing of the same-sex marriage statutory provisions people with a same-sex orientation achieved legal equality under Australian law.

·      Under our law, people claiming a gender identity or with an intersex condition are protected under the Sex Discrimination Act

·      Queer is not a protected characteristic recognised or defined anywhere in Australian law.

·      LGBTIQ has the right to “freedom of thought, conscience, religion and belief”, if the Act is enacted, these rights will be denied to those whose conscience, thoughts or belief systems do not acquiesce to gender identity ideology.

·      Egregiously, they claim to rely on human rights protections for children to be protected by society and the State: it is arguable that affirming children to set them on a medical and surgical pathway on the basis of a belief they hold that is factually impossible (that they change sex) protects children.

·      That failure to acquiesce to, and openly criticising, gender identity ideology is “propagating myths and stereotypes about sexual orientation and gender identity”