Review of the Special Commission of Inquiry into LGBTIQ Hate Crimes

Transcript

Good evening, everyone, and it's my absolute pleasure to welcome you to the first event in the Brennan Justice Talk series for this session, and tonight's presentation, which is entitled The Special Commission of Inquiry into LGBTQI Hate Crimes: Exposing Historical Wrongs and Improving Current Practice. My name is Dr Anthea Vogel, and I'm the Faculty Co-Director of the Brennan Justice Program. It's a delight to see you all here, and I'm really looking forward to this evening's presentation. I am joined tonight by a few key members of our Brennan Justice team: one of my fellow Co-Directors from the Law Student Society, the wonderful Chloe McKay; Crystal Meikle, our Student Programs Coordinator; former Brennan Justice Co-Director, Associate Professor Jane Wangmann; and most importantly, our special guest and presenter for this evening, Nicholas Stewart.

Before we officially begin, I would like to acknowledge that we are meeting on the lands of the Gadigal people of the Eora Nation, and it's on these lands that the City Campus of UTS now stands. I would like to pay my respect to Elders past and present, and acknowledge them as the traditional custodians of knowledge for this land, over which sovereignty has never been ceded. Tonight, we have the pleasure of being connected with UTS Law students across multiple stages in their degrees and locations, all passionate about social justice.

I'll take a moment before we launch into tonight's proceedings to lay out some light Zoom housekeeping, which many of you from your many Zoom classes will be familiar with, but just some reminders that this event is being recorded for teaching, learning, and event purposes only. Only key speakers tonight, and those who ask a question in discussion time, will appear in the Zoom recording. You, of course, each have the ability to hide and show your cameras, as well as to mute and unmute your microphones. As you know from your classes, when you are not speaking, please put your microphone on mute. There will be time for questions at the end, and I encourage you all to engage following the talk. You can do this by raising your hand at the close of the presentation, but you can do this throughout the talk as well, by popping a question into the chat, or after the presentation, too. Tonight, we expect a lot of the Brennan community to tune in, so please do turn the camera on when you are asking a question in discussion time. We'd love to see your face. Lastly, student ROJ points will be automatically accrued by tuning into this talk, but please do shoot Crystal a quick message in the chat if your display name is different to the name listed on your CareerHub.

Now, after all that housekeeping is settled, I'd like to formally introduce you to our special guest and key speaker tonight, Nicholas Stewart. Nicholas is a partner at Dowson Turco Lawyers, based in Macquarie Street, Sydney. He is the Vice President of the Australian Lawyers for Human Rights, a casual lecturer with the Diplomacy Training Program, Vice President of the New Theatre, and a long-time member of the Diversity and Inclusion Committee of the Law Society of New South Wales, where he is also Chair of the Women's Advancement Subcommittee. Nicholas has passionately led the campaign for two inquiries and a Judicial Commission of Inquiry into LGBTQI hate crimes in New South Wales. He holds a Bachelor of Commerce and a Bachelor of Laws. In 2008, Nicholas was awarded the Elizabeth Hastings Memorial Human Rights Award and the UTS Law Alumni Association Award. In 2018, Nicholas was awarded the UTS Alumni Award for Community Collaboration. Nicholas is a Friend of Distinction at UTS and an Adjunct Fellow at UTS Law. In 2023, Nicholas was awarded the ACON NSW President's Award, and in 2022, he was awarded the prestigious Law Society of NSW President's Medal. He is a long-time supporter and valued contributor to the Brennan Justice Program here at UTS Law.

Before I hand over so you can hear from Nicholas himself on the topic of tonight's talk, I wanted to also note the devastating news of the alleged murder of Jesse Baird and his partner, Luke Davies, by a serving police officer, and acknowledge the grief, immense suffering and loss for both men's friends and families, and the pain that they are experiencing right now, as well as the pain being experienced by members of the broader LGBTQI community. I really appreciate that we're all able to come together as a Brennan community to reflect on the themes and questions of justice that will be the subject of tonight's talk. And so over to you, Nicholas. Thanks so much.

Thank you so much, Anthea. And thank you everyone for having me tonight. Before I start, I want to acknowledge the Gadigal people of the Eora Nation. They're the traditional custodians of the land that I am coming to you from, and I pay my respects to the Elders, both past and present.

I always start any student talks by encouraging people to contact me or connect with me on LinkedIn. It's a professional network where students are welcome, and I find it's the best place to engage with the legal profession, share ideas and content that is of interest to us, and build your career networks. I encourage all of you to connect with me and message me because I'll make sure that I reply.

The first big issue I want to talk about before we get into the substantive talk is that members of our First Nations community in Australia still need justice. Even though the LGBT community is on the path to justice—and I always question what does justice mean—but from a First Nations point of view, Australia should be looking at a Royal Commission into historical unsolved deaths of First Nations people. Too many First Nations people have died at the hands of murderers, and their deaths have not been investigated at all, or have been investigated and those deaths have wrongly been written off as suicides or misadventures. I want to call that out because I acknowledge the very privileged position I'm in, and because of my education and the colour of my skin, I've been able to bring about justice or some form of justice for the LGBT community, but I'm conscious that the First Nations community is still wanting that.

Tonight, I'm going to be talking to you a bit about the background to how this all came about and why it's so important that we focus the lens on the truth of our history in New South Wales, but also finding the perpetrators who've committed atrocious crimes. I then want to talk to you about the legal foundations of a Special Commission of Inquiry compared to, say, a Royal Commission, just primarily for students, so that you understand the differences. And then I want to talk about the Judicial Commission of Inquiry into LGBT hate crimes and what it examined and recommended in terms of the future.

People often ask me why I have become involved in this, and it's a story I tell a lot, but I think it's an important story to tell. When I was 14, I worked at a KFC store on the lower North Shore, and one Saturday night, a relief manager was appointed to run the store from the King's Cross KFC operation. He arrived at the store wearing a pink shirt, which was ordinarily associated with female managers, not with men—the men wore blue shirts back then. His name was Alan, and he was so beautiful—not aesthetically, but as a really good manager. He made sure we all knew what we were doing that night, he introduced himself, he was friendly, he wasn't stressed, and he ran a really tight ship. I was so young and naive, and I just thought this guy was amazing and doing a great job. At that time, I wasn't out; I didn't even know that I was a gay man, or a gay kid at that time.

Anyway, one of my colleagues came up to me and whispered in my ear, while pointing at Alan, and said, "You know, at night, we hunt down people like that and we bash them in parks. We find them where they go to be together." I just couldn't believe what I was hearing, and that night I just kind of went into my shell. I never spoke about it again, but it's just so important that we get truth and justice because gangs of youths, gangs of adults, men and women, went out onto the streets to target the LGBT community for bashings, killings, and robberies. And you know what, I'm not going to stop until we get some prosecutions, because there are people walking with impunity out there. They've been able to set up their own families and have their own lives when they've committed atrocious crimes.

These are some of the images of people who have either been murdered or bashed, and I realise that's really confronting, but I want to put on the record that these people have been talked about in the past, and you can see the nature of these publications is that they are historical. It's really important that we show their faces and we speak their names because they shouldn't be forgotten. The people I've chosen here are relevant to this talk because there were a lot of things that came out of the inquiry related to these people, and I'm going to talk in depth about them now.

Another thing I want to talk about is the Grim Reaper campaign, which many people won't know was a campaign run by the federal government to educate the wider community in the early 90s about the HIV/AIDS epidemic. That campaign depicted women and children in heterosexual families being bowled over by a bowling ball thrown by the Grim Reaper. The effect of the campaign was to use shock and awe tactics to really get change because people were dying, and it was actually a really scary time. I was really young during that time, but I still remember this advertising campaign. What I've learned over the many years that I've been working in pursuit of truth and justice is that this campaign had negative impacts for the LGBT community: it alienated us, it made us look like a fringe group that was carrying this disease, and we've all just been through the COVID pandemic—we know what that's like. Imagine if the only people who were thought to have COVID were members of the LGBT community, and think about how society might have reacted then. That's what happened in the 80s and 90s. It was associated with gay men, and unfortunately, this campaign just pushed us to the fringe. But it also came at a time when we were a liberated group across Australia—our relationships were decriminalised, we were allowed to have intimate relationships, and so we became more visible and liberated: we were out on the streets, wearing colourful clothes, going to nightclubs, and trans people felt a little bit more comfortable to dress in their chosen gender. Drag queens were everywhere. But that was also at a time when people who'd seen this advertisement and held deep prejudices towards our community targeted us, and we were a target because we were also a liberated group.

John Russell is someone who was murdered, and his body was found in 1989 at the base of cliffs in Marks Park in Bondi. He had recently inherited money from his grandfather and parents to build a home on his father's property. He was having dinner with a friend to say goodbye before he went on this adventure, talking about having the best time of his life and looking forward to the future, but unfortunately, that future never came about. The interesting issue about John's death is that when he was found at the base of cliffs, his legs were pointed towards the ocean and his head was facing the cliffs. That was unusual. Another unusual aspect was that when he was found, there were human hairs found in his palm, and those hairs were bagged and placed into an exhibit by NSW Police investigating officers, but the exhibit was lost, and so unfortunately, the person whose hair was in John's hand has never been identified. The other really sad factor of John's death is that investigative police suggested that it was accidental and that he simply met with misadventure, and the effect of those prejudices—and I say that there were prejudices, and the Commission found that there was a lot of prejudice when it came to police officers investigating the deaths of gay men and trans people—was that the investigation was closed and there was no in-depth investigation into who might have harmed him or if his death was even an accident.

Gilles Mattaini was a French national who also, as the coroner has found, was murdered around the same time as John Russell, but he's never been found. Mr Mattaini had a relationship here, and all of the evidence points to him living a really good life here, although there was some suggestion that he experienced mental health episodes back in France. I would speculate that maybe that was connected to him not being able to live his true life, and I think from all the evidence, he was having a good time in Australia. He was not known to go to beats or engage in sexual acts in public, but he was known to just take in our beautiful city and coastline and observe the natural beauty of it. Sadly, he did that one night, and it's believed that he was set upon by people who don't like gay men and was murdered. The image I've got there is of a memorial that's been created and funded by Waverley Council, the NSW Government and ACON NSW, which is in memorial of all members of the LGBT community who have fallen victim to murder and hate crimes, but particularly those who lost their lives at Marks Park on the cliffs of Bondi. I would encourage you all to have a look at that because it's a beautiful monument, and I was lucky enough to attend a memorial at sunrise last weekend, which was really beautiful.

The image I've got there is Justice John Sackar, who presided over the Special Commission of Inquiry into LGBT hate crimes. His Honour is a Supreme Court Judge and his efforts during this inquiry were just exceptional. The amount of work that went into this inquiry—I don't think anyone's ever seen anything quite like it—and it's a testament to NSW, really, because we're the first jurisdiction in the world to conduct an inquiry like this. So thank you to Justice Sackar.

Ross Warren is the third person I want to talk about in that kind of trilogy of cases because he was another person who went missing at Marks Park around 1989. He was a well-known newsreader from Wollongong and had no reason to want to kill himself. He went missing after having a night out with some friends. He drove up to Sydney from Wollongong, met up with some friends, and then late that night he went for a drive, and his friends said that he drove off towards the east—they didn't know where he was going, but he was on Oxford Street heading to the east. His car was eventually found close by in Kent Street, just near Marks Park, and his disappearance was reported to police.

Unfortunately, one of the features of this case is that it wasn't police who found Mr Warren's keys to his car—it was his friends who found them the next day—and that just kind of shows probably the approach of police officers to his disappearance. As the years went on and Ross's body was never found, his mother wrote to the Commissioner of Police multiple times, I think about six times, and her letters were ignored. Her letters were effectively, "My son has gone missing and I want police to do something about it and I want to be able to finalise his affairs." Anyway, it was because of a really good police officer that Ross's death, John Russell's death, and Gilles Mattaini's death all became the subject of a coronial inquest presided over by Jacqueline Milledge, who's a phenomenal magistrate in NSW and who was at the time Deputy State Coroner. I'll talk more about that in due course.

I'm showing images here of two members of the LGBT community who were murdered last week, and the reason—Anthea talked about their deaths at the opening of this session—but the reason I've put them here is because I want to draw your attention to the comments on YouTube from a news bulletin from 10 News about their deaths. What I'm saying here is that we are still a vulnerable group and we are still exposed to hatred, ridicule, contempt and violence every day, and you only have to look at social media to see just how deep-seated people's prejudices are. The comments on these posts are absolutely disgusting, and people just feel so free to say whatever they want on social media, and it's probably time that we had laws that were tighter in terms of prosecuting people. I would argue, as a criminal lawyer, that some of these people have engaged in criminal offences. Anyway, I just want to put that there because this is last week and a lot of the cases I'm talking about are 30 years ago, but people have feelings which I would suggest are equivalent to the people who murdered John Russell, Gilles Mattaini and Ross Warren. Those people are commenting on social media now.

Justice Sackar made these comments in relation to his findings, and I wanted to put them there in text so everyone can see, but he said that all of the deaths that his inquiry looked at—most of them experienced lonely and terrifying deaths, and their lives were cut short. In many cases, the immediate effect of violence was compounded by responses of the NSW Police Force and from some of its members who were indifferent, negligent, dismissive or hostile towards us. His Honour went on to say that he is hopeful that his comments and recommendations will be endorsed and acted upon so that he and the public of NSW can feel confident in returning these cases to their attention. You'll see why he made these comments as I move through this session.

There were 32 deaths that were reviewed by the Commission of Inquiry, and 25 of those were determined to be deaths resulting from bias. This inquiry followed an internal inquiry by the NSW Police Force called Strike Force Parabell, and made various criticisms of the Parabell investigation and report. I don't want to get into that too much now, but Strike Force Parabell formed the basis for the Commission's review, among other things. One of the primary findings of Justice Sackar was that the Bias Crimes Indicator Review form, which was used by Strike Force Parabell—that is, by the police officers who were conducting a review of LGBT hate crimes in the past—was just not an appropriate document to be used. In my research, this kind of hate crime review is very structured, very hard in how it looks at crimes; it doesn't look for nuance, it doesn't allow for subjective features. It's an FBI tool, which was just completely inappropriate for a review of LGBT hate crimes. His Honour, Justice Sackar, said that there was a significant degree of collaboration between the Parabell team and academics who were engaged to review the findings of police, but that resulted in an academic review that was not conducted at arm's length or in a manner which inspires confidence in its rigour and independence. In other words, Parabell was put forward as "this is what happened", but really it didn't have the features of a Judicial Commission of Inquiry, which is why we pushed for that so hard.

Now, just some technical aspects. Royal Commissions and Special Commissions of Inquiry are often talked about in our society. You talk to any minority group who's been affected by some kind of injustice and you'll hear them talk about "we need a Royal Commission". Look, I wanted a Royal Commission as well for LGBT hate crimes, but really in terms of their differences, Royal Commissions and Special Commissions of Inquiry aren't that different. I'd probably suggest that a Royal Commission should have far-reaching terms of reference, and it might be appropriate that a Royal Commission is created at the Commonwealth level to look at LGBT hate crimes historically across all states and territories, because it's not just NSW that was affected by this dark, dark history. The Royal Commissions Act of NSW—and there's a federal act as well—allows for witnesses to be summoned and documents to be interrogated and requested. Warrants can also be issued, and people generally cannot refuse to give evidence in a Royal Commission, but at the same time, the rules allow for protection from self-incrimination, for example. Special Commissions of Inquiry mirror Royal Commissions. So far as I'm concerned, and in relation to this inquiry, the only difference really, apart from the optics and the funding, is this limitation as to evidence, because in a Special Commission of Inquiry, generally speaking, only evidence that can be admitted in a criminal or civil court can end up in a final report of a commissioner. In other words, hearsay evidence or evidence that's not considered relevant, that hasn't jumped through the hurdles within the Evidence Act—that is the main difference. In a Royal Commission, there's a wider scope for evidence and the rules of evidence don't necessarily limit what can go into a Royal Commission, whereas generally speaking, Section 9 in the Special Commissions of Inquiry Act in NSW has a limit in terms of what evidence can find its way into a report.

Now, this Special Commission of Inquiry into LGBTQ murders came about because we just had two parliamentary inquiries, and those inquiries were slowly uncovering this mess—that is, men being targeted by groups for killings and bashings, trans people being targeted for the same, and a response of the NSW Police Force or government agencies that probably was not what was expected from the community. These are the terms of reference for the inquiry, and they were sufficiently broad to allow His Honour to really delve into a lot of the issues, although I'd suggest that perhaps a Royal Commission with even broader terms of reference might have achieved a lot more in terms of looking at why people held certain prejudices or the impact of the Grim Reaper campaign. There's a lot that we can go into, but at the same time, this Special Commission of Inquiry really had a lot of resources and went for a long time and extended its reporting date twice because of the volume of documents that it was considering.

Now, you'll remember that I talked about Ross Warren, John Russell and Gilles Mattaini, and the reason I brought them together is because they were the subject of Operation Taradale. The image there I've got is of a police officer, Stephen Page, who was working at Rose Bay Police Station one day and uncovered a bunch of old files, and in one of those files he found letters from Kay Warren—that is, Ross Warren's mother—and he looked at these letters and realised that no one had responded to them. Remember I said that Kay was writing to the Commissioner saying, "I need to finalise my son's affairs and I want some answers." Anyway, Steve, who's a member of the heterosexual community, thought, "You know what, I'm going to look more into this," and he conducted his own investigation and received warrants and all kinds of things to target certain suspects. He then ultimately was able to petition the coroner to conduct an inquest, and Jacqueline Milledge, who I mentioned before, determined that the deaths of both Mr Warren and Mr Russell were homicides and that the evidence supported the probability that they'd both met their deaths at the hands of gay hate assailants, and that there was a strong possibility that Gilles Mattaini had died in similar circumstances to the other two men.

This is also really important because out of the Special Commission of Inquiry it was revealed that the NSW Police Force, after seeing the recommendations of Jacqueline Milledge and bearing the brunt of her criticism about their conduct in the investigations and perhaps their prejudices when it came to investigating the deaths of those three men, unknown to anyone, set up their own strike force to effectively seek to overturn the coronial findings. This came out of the Special Commission of Inquiry, and I would suggest that without that Special Commission of Inquiry we would never know about this. It's a really sad indictment on our justice system that a coroner of such learned experience, who has presided over an inquest involving the deaths of three men, hearing all the facts and taking all the evidence and making findings according to law, can somehow be trumped by a strike force which is set up internally in the NSW Police Force looking to rebut the Operation Taradale findings. So it was a really sad day, I think, for the LGBT community to see that, and I think Commissioner Karen Webb within the police force is very aware of Justice Sackar's criticisms of this strike force, because it's embarrassing and it did nothing to assist with relations with the LGBT community, and there is simply no evidence that those men committed suicide or met with misadventure. There's evidence to the contrary, actually.

These are the words of Justice Sackar in relation to Operation Taradale and Strike Force Neiwand. He says that Strike Force Neiwand was highly critical of Operation Taradale and its commander, Detective Stephen Page, who I mentioned earlier, and proposed findings as to the manner and cause of the three deaths which were radically different from the findings of Deputy State Coroner Milledge. What was probably most concerning is that neither Mr Page nor the families of victims were notified that this strike force was being created, and His Honour found that ultimately it was a secretive and inadequate attempt to avoid or negate the consequences of the Taradale inquest and findings, including the mounting of an unjustified attack on Mr Page. Stephen Page was a really hard-working good cop and has worked with me and others in the LGBT community to bring about the Special Commission of Inquiry, and he's appeared on ABC 7.30. This man's reputation was absolutely destroyed by Strike Force Neiwand and Mr Page deserves an apology.

Crispin Dye is another victim of hate crimes, and the reason why I've highlighted his case is because new evidence was discovered as part of the Special Commission of Inquiry which identified the likely perpetrator of Crispin's murder. Crispin was the manager of ACDC and was well known in music circles in the inner city. On the night of his death, he was seen to be in a bar talking to what witnesses described as an effeminate male, and unfortunately he was beaten up—effectively coward punched—at the back of King's Nightclub in 1993. Witnesses said they saw three men standing around his body, picking him up and moving him around. Police attended and discovered his wallet was missing, and he was found alive but died at the scene from cardiac arrest, having received a concussion and bleeding in the brain. There were multiple strike forces set up to look into Crispin's death, but there were just some leads that weren't followed, and as you'll find out, mistakes were made. Back in 2005, there were recommendations from the Unsolved Homicide Team in the NSW Police Force, and I would endorse these recommendations—they were to investigating officers to basically locate exhibits and conduct forensic testing, confirm prints, you know, the kind of things that we expect of detectives. But none of these recommendations were followed, nothing was done, and Crispin's death remained unsolved.

The key issues that came out of the inquiry were that his keys were not examined for fingerprints, his clothing had never been sent for forensic analysis by police, and we accept that back in 1993 DNA technology was not what it is today. But in 2005, it was probably beginning to look okay, and those recommendations from the Unsolved Homicide Team could have been acted upon but weren't. So, for a period of 30 years, these exhibits were not examined or touched. The legal team at the Special Commission of Inquiry—I'm so proud to be part of a legal profession which is first class—really went above and beyond for the LGBT community, and this is one example. They sent Crispin Dye's jeans for DNA testing as part of their own review of this investigation, and they also sent a note that was found in Crispin's top pocket, which had blood stains on it and a phone number, and that note had never been picked up by investigating officers. The note and the blood match on the jeans matched a person of interest, and that person was identified during the inquiry just last year, but he died in 2002. So that person got to live his life without facing justice, and it's really sad that he died in 2002, but he also never faced the justice system for this crime, and we lost a member of the LGBT community to a murder.

How are we going for timing, Crystal? We're great, just under 10 minutes to go. Cool, all right. So, having talked about all of that—and I have sped through it because there is so much to cover there—but there's a lot that needs to be done in NSW. There are a lot of public discussions right now about where the LGBT community sits in our society: our vulnerability, whether police should participate in Mardi Gras, whether police have done enough in relation to the murder of the two young men last week. I think there are answers in the affirmative and in the negative when it comes to all of those issues, and I'll leave it to individuals to form their own views. But what I might say is that at the very least, we need our jurisdiction to deal with the recommendations of this Special Commission of Inquiry in a way that has a meaningful effect. That is, the NSW Police Force should be funded appropriately to reinvestigate and do a job that is expected of them in relation to these cold cases.

We don't want to take away from other cold cases, because we recognise that of course there are cold cases across NSW and families and friends of victims who want justice. The LGBT community does not want to be blamed for consuming resources, and that was an issue that came up in the Special Commission of Inquiry. So what I'm saying is that funding needs to be attributed to the NSW Police Force to specifically look at this group of murders and look to solve those murders. The only way that can be done is if a specialist task force is set up, that those officers receive training in the life and culture of the LGBT community—maybe they are even representatives of the LGBT community—and they have sufficient support to do that.

The other thing is that during the inquiry, the NSW Police Force approached the inquiry adversarially. It was really defensive and made all kinds of applications, sought more time to produce documents, and suggested that the inquiry was taking homicide officers away from investigating murders and that kind of thing. I think the police force needs to apologise for that, because that Commission of Inquiry was set up in good faith. It was not set up to punish the police force; it was there to find answers and help the LGBT community heal. It was really disappointing that various lawyers for the police force made all kinds of comments like the one I just mentioned, and I would really like the Commissioner to talk about that a bit more and address what happened during that inquiry.

The other thing is that NSW needs an LGBT Council. We need an advisory panel to government to help make laws that make society safer for us, and I would endorse Alex Greenwich's Equality Bill, which is currently before Parliament. That law is seeking to amend a raft of laws across NSW which impact the LGBT community, and the objective there is to make us safer when it comes to discrimination, how we're treated in the workplace, in schools, how we receive medical services, how we engage with police—these are all matters that have to be addressed, because we are not a safe community.

So to do that, if you want to get involved, there are a few ways you can do that. The first is connect with me on LinkedIn and send me a message because I'd love to hear from you, and maybe you've got some ideas for how we can do that. The second thing is that through the subscription to this seminar tonight, my firm can send out a template letter which we would encourage you to sign and send to the Premier, which calls on the government to do the things that I've just talked about in terms of resourcing the police and getting justice for our community.

So I might now hand over to Chloe, who's one of our Brennan Program coordinators and also a student at UTS, and she's going to open up this session to a Q&A, because I'm sure there's lots of questions.

Just before we get to the Q&A, we also