LGBT Justice with Nicholas Stewart

Transcript

That day to be honest. I think you've added a lot of value yourself. Thank you.

All right, I've noticed that it's just after six o'clock and we do want to try to keep to time tonight because some people have events on at seven o'clock. I'd like to start by just welcoming everyone tonight and this is our sixth Brennan Justice Talk series and tonight we'll be focusing on LGBTQI justice issues. My name is Jane Wangmann and I am one of the co-directors of the Brennan Justice and Leadership Program here in the Faculty of Law at UTS. I'm joined tonight by a few key members of our Brennan team. I have Mark Samuel who is standing in for my fellow co-director from the Law Student Society, Erika Serrano, Professor Lesley Hitchens who is the Dean of the Faculty of Law, Maxine Evers our Associate Dean Education, Eleanor Tong our Law Alumni Team Member, Crystal McLoughlin our Brennan Administrator, Paul Redmond our former co-director and most importantly our special alumni guest and presenter this evening, Nicholas Stewart.

Tonight we have the unique pleasure of not only having our UTS Law students here tonight but also our UTS Law alumni, all who are passionate about social justice issues.

Before we start the proceedings, I'd like to acknowledge the traditional owners of the land on which we are sitting and participating in this Zoom session. I am coming to you from the land of the Gadigal people of the Eora Nation and I pay my respects to their elders past and present. I acknowledge that some of you might be coming from other traditional lands and I acknowledge those traditional elders as well. I'd also like to extend a very warm welcome to any Aboriginal and Torres Strait Islanders who are in the room participating in this session tonight.

Before I introduce our guest speaker, I just have a couple of housekeeping items to just make sure that we're on top of everything for the event. First up, this Zoom session is being recorded for teaching and learning and event purposes. Only the key speakers and those people that ask questions will be recorded in any recording of this session. As you are probably aware by now, having been in many Zoom events over the last half of the year, each of you have the ability to hide your camera, show your camera, as well as mute and unmute your microphone. We do ask that you mute your microphone when you are not speaking to prevent any background noise distracting the speakers. And if your bandwidth allows and you feel comfortable doing so, it would be great if you could have your camera on, particularly when you're asking a question. This does make it feel like a more interactive event and it's great to see friendly faces. If you do have your camera on and you're finding that it's freezing, just hide your camera and it might free up some bandwidth for you.

Lastly, for those of you who are Brennan students, could you please enter your full name as it appears in the UTS system in the chat box so that we can record your participation for ROJ points. To all members of the audience tonight, you can also use the chat box to ask questions and we will also have ample time at the end of this session for you to ask questions directly of our speaker.

So now after all that housekeeping is settled, it's my great pleasure to introduce to you our guest speaker tonight, Nicholas Stewart.

Nicholas is one of our UTS alumni, graduating with his law degree in 2009. He is a partner at the out, loud and proud Dowson Turco Lawyers, which is a boutique and prominent LGBTI law firm based in Newtown here in Sydney. Prior to this position, he worked at Minter Ellison and Singtel Optus. He has appeared before the Australian Crime Commission, the Children's Court of New South Wales, the District Court of New South Wales and the Federal Court of Australia. Nicholas has also appeared in prominent constitutional and human rights cases before the High Court of Australia. Nicholas is known for his successful prosecution of a large discrimination case brought by four gay police officers who suffered homosexual discrimination while employed at the New South Wales Police Force. He is also the lawyer for Alan Rosendale, a gay bashing victim of the 1980s who believes his assaulters were part of an organised group of law enforcement members who engaged in systematic gay bashings during that time.

Nicholas has a long-standing and strong commitment to social justice issues. In 2009, he was awarded the Elizabeth Hastings Memorial Human Rights Award and the UTS Law Alumni Association Prize after many years of working on social justice in East Sydney. In 2018, Nicholas also received the UTS Community Alumni Award. Nicholas is a Public Interest Litigation Chair and Executive at Australian Lawyers for Human Rights and a member of the Diversity and Inclusion Committee at the Law Society of New South Wales. Nicholas is also, in his spare time, Vice President of the New Theatre in Newtown, Australia's second oldest community theatre.

Nicholas was a leading advocate for the New South Wales Legislative Council's inquiry into gay and transgender hate crimes that took place between 1970 and 2010 in New South Wales. This inquiry commenced in October 2019, it has been receiving submissions all this year and hearings will start to take place in November.

Tonight, Nicholas is going to cover a wide range of justice issues that face the LGBTI community here in Australia and it's a great pleasure to have Nicholas here as our Justice Talks keynote tonight and to have such a large and interested audience here to hear and speak.

So over to you, Nicholas.

Thank you so much Jane for that lovely introduction. Thank you everyone for joining us tonight. I'm going to share my screen now and just bring up some slides which I will talk to, but I imagine that there's going to be a lot that you'll want to know after and you might want to ask questions and that's probably the best time for me to go into issues that I haven't covered. There are quite a few slides here and in that respect I might move fast, so if there are questions you want to ask or issues that you have in anything I've talked about, just make a note and then that way you can raise that later in the session. You should all now see my slides. I'm going to start the slideshow.

So as Jane mentioned, I am a partner at an out loud LGBT law firm, Dowson Turco. I joined the firm 10 years ago as a partner after years working as a corporate lawyer, and I think I was drawn to the firm because I had this inner passion for the LGBT community and I really wanted to work with humans and problem solve. I loved my work at Minter Ellison and I often wonder what my life would have been like if I'd stayed there, but this was my calling and I've always put into life what I want out of life, and in that respect this firm has really been the vehicle for that. It's allowed me to take charge of my career and take on matters that are really interesting to me but also to help the community.

I'm on LinkedIn and my firm often advertises paralegal positions and lawyer positions on LinkedIn, so I would encourage you all to connect with me on LinkedIn. I like to share stuff on LinkedIn. I think it's a great platform for lawyers and people in the community to share interesting articles and also learn about each other. You'll build a network and you'll often be surprised as to where your friends and colleagues from university are going, and I think LinkedIn is a great platform for that because it isn't Twitter, it isn't a place where people attack each other. It's generally a professional space where you can share interesting ideas and connect with people who may be useful to you in the future, so please don't hesitate to connect with me.

My firm is known for all kinds of reasons and Jane mentioned some of them, including that New South Wales police case. I'm not going to speak much about the police case in my slides but I'll be happy to in the questions at the end because that case was an enormous case and having come from corporate law where I've acted in large-scale litigation in the Federal Court involving billions of dollars of claims, I have to say that that litigation for those four gay police officers was the biggest I've ever been in. It took a huge toll on them as litigants and it took a huge toll on me as a lawyer for them, and I'm happy to say that we won that case and we won it quite well, but it really took it out of me and I'm not sure I'll do it again.

A few years back, the firm also took on a friends with benefits case involving a same-sex partnership that was primarily sexual. There was no sharing of a life together, there was no romance so to speak, and when the parties broke up, the poorer party sought to make a claim that the parties were in fact in a de facto relationship and brought property proceedings. We ran an argument that they were effectively in a friends with benefits arrangement. There wasn't a marriage, there wasn't a de facto relationship and we won that case, and that was one of the first cases of that kind in the Federal Circuit Court and at its time was a landmark, but there's been plenty since then.

I also represented Jesse Willesee, who's the son of Terry Willesee, a former current affairs host in the USA. Jesse is an advocate for decriminalisation of marijuana and in his words, "blazed a joint on the steps of Town Hall" while inviting the media to come and watch him smoke marijuana in a protest against the criminalisation of drugs. He was arrested and charged with administering a prohibited substance and I represented him in the Local Court in what was quite a significant set of proceedings because it was the public use of drugs in a protest when there were other means of protest and other ways to advocate for change without committing a crime. I found myself arguing this to effectively help him escape conviction in circumstances where he had committed a crime and he'd done so in public.

I've also represented, and Jane mentioned that I've been in the Crime Commission. I was in the Crime Commission, which is a very unique jurisdiction to be in. My client had been summoned to appear before the Crime Commission and was not permitted to disclose why he was going there to anyone, including his wife, his employer, and couldn't really explain his long absences for work because he would be committing a crime to do so. I'm happy to answer questions about that later on.

Tonight I'm going to cover four issues if I can in the time frame we've got. I'm going to talk about balancing religious freedom with LGBTIQ rights. I'm going to talk about Australia's history of LGBT hate crimes. I'm going to talk about Mark Latham's Education Legislation Amendment (Parental Rights) Bill and then finally I'm going to talk to you about how you can get involved and how you can be a change maker.

When I talk about LGBT discrimination and religious freedom, I often make a point of saying that I personally and many of my friends in the LGBT community space are not against people having the right to express their religion or practice their religion. But the principle that we talk about at Australian Lawyers for Human Rights and from an international law perspective is that human rights are not in a hierarchy. Religious freedom is not superior to LGBT rights to be free from harassment. All human rights are equal and when they conflict we need a mechanism and a structure for resolving those conflicts, and that's why a Human Rights Act is so important, and New South Wales doesn't have one.

In New South Wales, and because I am a graduate of the university and it's a New South Wales university, I'm going to talk about probably the worst anti-discrimination law that exists in Australia, and that is the New South Wales Act. I might mention that it is before a parliamentary committee at the moment. It's up for review and that review is desperately needed.

I've got there an image of George Michael painted as a saint, and some of you may know that that mural existed in Newtown for quite some time and was defaced by people I referred to in a column I wrote for the Sydney Morning Herald a few years ago, who were Christian warriors who were seeking to deface that mural on the basis that it offended their religion.

Section 56 of the Anti-Discrimination Act in New South Wales says that nothing in the Act affects any other practice when it comes to propagating religion, doctrines of that religion and any susceptibilities of the adherents of that religion. It's effectively a carte blanche permission for people within or religious organisations to discriminate, to exclude people that they disagree with. For example, the Wesley Mission under this provision is permitted to deny services to, say, gay men seeking to foster if they want to, if that is offensive or offends adherents of that religion.

Now, what is probably most concerning in the Anti-Discrimination Act is that there is no protection for people in relation to religious discrimination. Someone who experiences religious discrimination does not have any rights under the New South Wales Anti-Discrimination Act, and so I'm a proponent for legislative change, for drafting within the Act to facilitate a mechanism for someone who is discriminated against on religious grounds to be able to take an action. But I object to this kind of carte blanche exemption of religious organisations from their own discrimination against, say, LGBT people in circumstances where there is no hierarchy of rights and religious freedom is not a superior right. But I do want the New South Wales Anti-Discrimination Act to have a provision for religious protection, and I might just give you an example of how that plays out.

My firm is currently acting for a Saudi gay man who is suing an educational provider in circumstances where, in a class, the teacher of his class made comments which were offensive to his religion. He made a complaint to the Anti-Discrimination Board without us, without legal representation, and the complaint was declined by the President because, in the President's words, the respondent organisation had taken steps, made efforts to remedy the issue. He then came to my firm and wanted to prosecute a discrimination claim. Now he can't. In New South Wales, he can't prosecute a religious discrimination complaint. It has to be race or it has to be homosexual or transgender. It can't be religious. And that's an example, and the matter's about to settle quite favourably to him because we ran a quasi-race, ethno-religious argument and I think the respondent probably saw that we were going after them. But what I want to say there is it's peculiar because he was a gay man and that wasn't the issue. He was Saudi, but that wasn't the issue. He is Muslim and that is the issue, and yet he has no protection under New South Wales law. So that's just an example of how that plays out.

Now, this mural here was defaced and it was a very sad day for the LGBT community because that mural represented freedom and liberation and all the good things about being a member of our community. The people who defaced it were charged with property offences and tried to run religious freedom arguments in the court where they failed.

When it comes to homosexual vilification, that is inciting hatred towards homosexuals, the New South Wales Act contains this provision which says it's effectively unlawful to, by a public act, incite hatred, but there are exemptions and they are many. Nothing in this section renders unlawful a fair report of a public act, so the news can report on a vilifying act and not be then the subject of a claim. There's also the issue of absolute privilege, which defamation students would know all about, and there's also this issue of an act done reasonably and in good faith for academic, artistic, religious, instructional or research purposes or for other purposes in the public interest, whatever that means, including discussion and expositions of any act or matter.

Now, all of the constitutional students would know that Australia doesn't have free speech; we have an implied right to freedom of political communication, and yet people who want to vilify the homosexual or LGBT community say that they have the right to say whatever they want. But I would argue that words can be extremely hurtful and damaging, and there have been many cases in the public arena where the LGBT community has been vilified. During the postal survey episode that we went through with gay marriage, you would have seen a lot of statements in some areas of the press which I would argue are vilifying, but which would probably have one of these exceptions, including public interest or discussion or exposition of an actual matter. So vilification laws are just not up to where we are up to in society. This Act was drafted at a time when Twitter and Facebook and social media as a whole didn't exist, and it really gives rise to all kinds of issues.

I would argue that the law in New South Wales has to balance religious freedoms with LGBT rights, that LGBT people need more protection, but people with religious convictions also need protection. We need a Human Rights Act and we need probably a jurisdiction to hear disputes about conflicting rights. In Canada, there are examples of judicial commissions or courts that can hear arguments between plaintiffs and respondents in respect of conflicting rights, and I would argue that if you've got practitioners in that space who are familiar with human rights and how they're applied, you can resolve conflicts, but at the moment I don't think our legal system in New South Wales anyway can deal with them sufficiently.

I'm happy to answer any further questions about that at the end. I might just say that my firm acted for Gary Burns, who's a prominent LGBT activist, and he had made a vilification complaint against a person who had run for political office down in Victoria. That person had said in her campaigning as a member of the Christian Democratic Party that all gay men are paedophiles or words to that effect. Gary took her on and brought proceedings in the New South Wales Civil and Administrative Tribunal for vilification, and the matter went all the way to the New South Wales Court of Appeal after various appeals. The question ultimately for the Court of Appeal was whether the tribunal, the Civil and Administrative Tribunal, had jurisdiction to hear a dispute between residents of different states.

In a world where communication such as vilification happens online as if it is happening next door—you know, what that political candidate said down in Victoria, she may as well have said it on the front steps of parliament in New South Wales—and it's an example of a tribunal that was set up to deal with discrimination disputes being incapable of dealing with a dispute like that because it infringed the constitution for it to do so. It's not a chapter three court. We acted in the High Court for Gary. I think we knew what the answer was but it had to go to the High Court as a public interest case for the High Court to determine that, and that case you can see online. My firm worked with Allens Linklaters and Lander & Rogers in that case for Gary and obviously we lost. We were trying to argue that for the intents and purposes of the Discrimination Act that NCAT was a jurisdiction for that dispute. Now Gary has effectively had to run all these proceedings again in New South Wales in a chapter three court to bring that prosecution.

The next thing I want to talk about is LGBT hate crimes, and this is quite a passionate issue for me. Some of you may have clicked on that link when I was on The Drum a few years ago talking about this inquiry, but my passion for this issue comes from me working as a teenager at KFC in Artarmon. One Saturday night, a relief manager was appointed from the Kings Cross store, and anyone who knows Kings Cross in the 90s knew it as quite a colourful place where gay men and lesbians and transgender people and drag queens went out at night.

When this manager came into my store, he was wearing the pink shirt which was ordinarily worn by female managers. The male managers wore blue and the female managers wore pink, but he wore pink. I remember him being quite a nice guy. He was really kind, he was supportive, he wanted to get the shift done, and then all of a sudden one of my colleagues in the store came up to me and whispered to me and said that he and his friends would go out looking for people like that manager on the northern beaches with a view to robbing them, bashing them and chucking them off cliffs.

As a 14-year-old, I wasn't even out, I hadn't even worked out my own sexuality. I think I knew that I was gay but I hadn't said it to myself, and yet I had this person telling me that he was effectively brutalising my community, he was hunting people down because of their sexuality. I didn't have the confidence to stand up to him then but I tell you what, I'm going after everyone like him and I'm going to hold them to account because there is an awful history of gay murders and bashings in this state. South Australia has it too, Victoria has it as well, and as a society we cannot move on until the people who committed these awful crimes are held to account.

So I've pasted some images of some of the deceased here and I realise that might be triggering for a lot of you, but I want to really raise this issue because it's undetermined and it needs to be in the mainstream. Our society can't move on until we've dealt with this issue.

You'll see the top left-hand corner is Ross Warren. Ross was a newsreader from Wollongong. He parked his car just near Marks Park in Bondi and he was never seen again. No one knows what happened to him, although there was a coronial inquest and that inquest only came because Ross's mother was writing to the New South Wales Commissioner of Police saying, "My son is missing, can you please help me find my son, I think something's gone wrong, this isn't like him, I need your help." Her first letter was ignored and then a few weeks later she wrote again, she said, "Commissioner, please, I really need some help, I think something's gone astray here." She was ignored, and then she wrote a third time and said, "It's been a year, my son's missing, there's been no investigation, I want an inquest." She was ignored.

It was only because of a beautiful police officer working in the eastern suburbs who came across Ross's file and found all of his mother's letters and thought something is going on here—and this is not a gay cop, this is a straight cop, beautiful, beautiful man—and he looked into the matter and he organised surveillance and you name it, he thought he'd identified some gangs of youth that were hunting gay men. Anyway, he referred the matter to the New South Wales Coroner's Court and Jacqueline Milledge, who was a coroner at the time, conducted an inquiry and she determined that Ross Warren was murdered and his body's never been found.

Gilles Mattaini, the guy in the black and white next to Ross, no one's been found for him either and he also disappeared in Bondi.

John Russell below, John was found at the bottom of a cliff, deceased, and he had in his hands hair, presumably the hair of his attackers, and that exhibit went missing. Critical evidence that may have led to the prosecution of the person that killed him is missing. So that's why I'm campaigning for this, I'm campaigning for a judicial commission of inquiry.

We've got a parliamentary inquiry going right now, it's been fantastic to put on the record this awful history and allow victims—because there are survivors—and you'll see in the bottom right-hand corner my client Alan Rosendale with Paul Simes, the redhead on the left. There are survivors who want to tell their stories and a parliamentary inquiry has been a great vehicle for that because it's put onto Hansard, on the parliamentary record, the stories of victims of hate crimes.

Alan, who you see there in the right-hand corner, was bashed in 1989 on South Dowling Street. He was at a gay beat. He admits that he was there for sex, but that doesn't give the right to anyone to abuse him or assault him. A car pulled up and out of that car jumped four or five men who then popped the boot and grabbed what Alan originally thought were planks of wood, but we're not sure what they were. They chased all of the gay men out of that beat and Alan tripped and fell and then he was bashed in the gutter and bashed unconscious.

The guy on the left in the red hair is Paul Simes and he didn't know Alan at the time but he was walking across the street, he'd gone to get some milk and he saw Alan being bashed and he reported it to the New South Wales Police Force, who confirmed that the vehicle registration that he saw was a New South Wales police vehicle.

Alan put that matter to the back of his head. He was taken to hospital, the hospital notes that we've obtained said that he was bashed by skinheads, but he never said that he was bashed by skinheads, so the person investigating Alan's assault had kind of created a bit of a narrative.

Rick Feneley, who's a beautiful journalist at the Sydney Morning Herald, wrote about Alan's bashing, but at that time didn't know that it was Alan who was bashed, he was only relying on Paul Simes's account. Alan read about Paul Simes's account of his bashing and thought, "Hang on, that's me," and then contacted Rick Feneley and they retraced their steps.

Paul Simes says that he went to a meeting of the top brass of the New South Wales Police Force who accepted that there was a police vehicle involved in the bashing, but the New South Wales Police Force says that that was another bashing, that that wasn't Alan's bashing, and we don't have anything. So that's still going and I look forward to finding out what happened to Alan all that time ago, but it's people like Alan that we need to come forward to talk about that.

The purpose of the parliamentary inquiry was to raise awareness of Sydney's dark history, put evidence of hate crimes on Hansard and the parliamentary record, but also to allow victims to be heard. We also wanted to develop government policy around LGBT safety and justice, we wanted the government to really take this on as an issue because LGBT people still aren't safe. We wanted to identify issues of further investigation and we wanted to build a pathway to a judicial commission.

A lot of people said to me, "Why didn't you go for a royal commission? Why weren't you campaigning for a judicial commission of inquiry?" Quite frankly, I just didn't think it would get up. I thought that a parliamentary inquiry was probably the first soft step to put these matters on the record, with my end game knowing I would eventually go for this judicial commission of inquiry, and that's what I'm going for now and my firm's working with ACON and NSW to get that on board and I think it'll eventually happen.

The parliamentary inquiry was a really important first step and those of you who don't know, there is a big difference between a parliamentary inquiry and a judicial commission and I've set out those differences here. Judicial commissions really have investigative powers. They can summon witnesses and interrogate evidence. They can compel production of documents from private citizens and government departments and corporations and they can question the investigative methods and strategies and they can then provide a report.

I would like the officers who originally were contacted about Ross Warren's disappearance to explain why his mother's letters were ignored. I want John Russell's investigators to explain how the only exhibit that would probably lead us to his murderer went missing. I want people who wrote off gay deaths as suicides to explain why they held the prejudices they did and why leads weren't followed, why weren't witnesses spoken to, why was evidence lost.

I think we need to get to the bottom of that and for those people I don't want them to be disciplined, I don't want them to be punished, but I think we need answers, we need to identify, call it out, that there were at the time parts of government that were not responsive to our community and we were ignored.

In that respect, I think the AIDS crisis—some of you won't know, but in the 80s there was a campaign, a health campaign to slow down the AIDS virus which was killing gay men. HIV was a massive thing and there are some parallels with the COVID pandemic, believe it or not—but the health campaign depicted the Grim Reaper throwing bowling balls down a bowling alley, wiping out children and families. It was a very effective campaign, it helped slow the AIDS crisis, it helped bring awareness to gay men about the dangers of unprotected sex, it was a very effective health campaign, but the other collateral consequence was that gay men were alienated, we were put onto the fringe, we were pitched as perverts, as a sexual minority unworthy of equal rights, and I put this gay bashing issue down to a lot of that and a lot of the prejudice that flowed from that.

Jane, how are we going for timing?

It's 37 past six so if we want to try to leave enough time for questions maybe to 45 and then have 15 minutes of questions if that's possible.

Sure, okay. So with that in mind, I'm going to skip Mark Latham's education bill other than to tell you that at the moment Mark Latham is a New South Wales Member of Parliament, he's the former Federal Opposition Leader for the Labor Party, he's now a member of One Nation and he has put forward an amendment bill to the Education Act in New South Wales to amend that Act and effectively remove any kind of education that might help gay and trans kids understand who they are.

So for example, he wants to prohibit schools from teaching that trans and gender diverse people exist and should be treated with respect. This is a law that is before the New South Wales Parliament right now and it attempts to do this. He wants to prohibit school counsellors from affirming a trans or gender diverse student or providing them with any support. He wants to put teachers at risk of losing their job when they support trans or gender diverse students. He wants to enshrine biological fallacies and describe intersex people as disordered. He wants to allow parents to deny their children access to lessons. He wants to require schools to present discredited counter-narratives. For example, when discussing evolution he says that teachers should be able to talk about creationism, and he says when talking about science and biology that teachers should be able to talk about anti-vaccination theories, and he says that when talking about Indigenous incarceration, teachers should be able to talk about their own ideologies about over-representation.

I just want to put that out there because that's a really concerning piece of legislation and when you're in law school you think that the law is law and it's there to regulate society and as lawyers we are there to navigate the law and advise clients about the law. Let me tell you something, the law doesn't have to always be the law and you are all in a position to change the law, and when pieces of legislation like this come out, I would say that it's every lawyer's obligation to write to their local member, write to the Premier and express dissatisfaction with any government support.

I'm not saying the government supports this bill but it is the subject of a committee and an inquiry and it has gotten the attention of various MPs and I would say it's an attack on the LGBT community and it's pretty disgusting.

Anyway, the final thing I want to say before we go into questions is that you can all effect change and you can all get involved and I want to show you how.

As Jane mentioned, I sit on the Executive of Australian Lawyers for Human Rights. I'm the Public Interest Litigation Chair and I'm also the LGBT Subcommittee Chair. At ALHR we have thematic committees and I'm not saying you all have to come and join the LGBT committee but you're welcome. We have a Women and Girls Committee, we have a Children's Rights Committee, we have a First N