This inquiry marks the first parliamentary examination of a distressing time in our history for the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community. It has sought to understand the LGBTIQ experience of hate crime and, in doing so, has given the opportunity for the stories of victims and their families to be told – often stories of brutality, tragedy and injustice. The committee was deeply moved by these stories but also encouraged by the strength and resilience of those telling them. For many decades, pervasive prejudices against LGBTIQ people ran deeply in society. Even with legislative change following the decriminalisation of homosexuality in 1984, bias attitudes were still being perpetuated within the broader community with a legacy that is still keenly experienced today. The ensuing violence and crime against gay and transgender people, particularly in the 1970s, 1980s and 1990s, was shocking, abhorrent and all too common. Amidst this stood a NSW Police Force and a broader criminal justice system with a culture influenced by the social values of the time.
Over the course of this inquiry, the committee came to hear the experiences of those who lived through that time, and received evidence exploring the barriers to justice for victims. Drawing from this evidence, the committee makes the first of two key findings – that the prevailing acceptance of and indifference towards violence and hostility directed at gay men, principally during the period prior to the mid-1990s, impacted on the protection of and delivery of justice to victims of hate crime.
The committee's second finding relates to the responsibility of the NSW Police Force to ensure that all its interactions with the public, including the LGBTIQ community, are conducted with both respect and professionalism. During the inquiry, the committee learnt that, while historic attitudes to gay and transgender people influenced the way in which victims of hate crime were treated and their cases investigated, time has brought about significant change in the way the LGBTIQ community is now engaged and regarded, especially within the criminal justice system. In particular, the committee is aware that great efforts have been made by the police to bridge the gap that once existed with the LGBTIQ community, in recognition of its responsibility to treat all people with professionalism and respect. We also acknowledge that there is still more work to do improving the relationship between the police and the LGBTIQ community.
There are many more stories to be told about the LGBTIQ experience of hate crime, such that as we began to hear from victims, their families, advocates and others during this inquiry, it became very clear that we would not have sufficient time to thoroughly examine all aspects of the terms of reference. Granted that historic cases of gay hate crime should be revisited, what is the most appropriate mechanism for this review? Are LGBTIQ hate crimes being reported today and if not, why not? What of the underreported experiences of trans people and young LGBTIQ people, among the most vulnerable of our community? Are there contemporary bias crimes that we need to consider? What of the experiences of the LGBTIQ community in rural and regional New South Wales? These are just some of many questions that require further exploration. To this end, the committee makes the principal recommendation that the NSW Legislative Council re-establish this inquiry in the 57th Parliament.
The committee also makes other recommendations in support of this principal recommendation as well as its key findings, including that the NSW Police Force ensure that all officers have the skills and knowledge to engage with LGBTIQ people respectfully and equally.
Many individuals and organisations have worked with passion and perseverance over the years in the pursuit of justice for victims of LGBTIQ hate crime and their families. It is always fraught to single out individuals or organisations for praise. However I particularly draw attention to ACON and their community advocacy and leadership producing the historic report In Pursuit of Truth and Justice, which strongly informed this inquiry. I also acknowledge Mr Steve Page as a serving police officer in the early 2000s who connected the pattern of gay hate murders in the eastern suburbs, triggering a coroner's report that overturned former findings of suicide or misadventure. In doing this he precipitated a culture change in the NSW Police Force and provided much needed emotional closure for many of the family and friends of the gay hate crime victims.The committee's Findings are
1 That a prevailing acceptance of and indifference towards violence and hostility directed at gay men principally during the period prior to the mid-1990s impacted on the protection of and delivery of justice to victims of hate crime, including but not limited to Mr Alan Rosendale, Mr Scott Johnson, Mr John Russell and Mr Ross Warren.
2 That the NSW Police Force is responsible for ensuring that all interactions by police with the general public and the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community is done with both respect and professionalism. These are, and continue to be, key priorities for the NSW Police Force.The Recommendations are
R 1 - That the NSW Legislative Council re-establish the inquiry into Gay and Transgender hate crimes between 1970 and 2010 in the 57th Parliament and the terms of reference for further inquiry and report be subject to a decision of the House.
R 2 - That all evidence received and records produced by the Standing Committee on Social Issues during its inquiry into Gay and Transgender hate crimes between 1970 and 2010 in the 56th Parliament, be made available to the Standing Committee on Social Issues for further inquiry and report in the 57th Parliament.
R 3 - That the NSW Police Force ensure that all officers have the skills and knowledge to engage with lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people respectfully and equally.
R 4 - That, should the inquiry be re-established consistent with Recommendation 1, the committee invite witnesses to address the issue of the appropriate mechanism for independent review of past gay and transgender hate crimes.‘Harming women with words: The failure of Australian law to prohibit gendered hate speech’ by Tanya D'Souza, Laura Griffin, Nicole Shackleton, and Danielle Walt in (2018) 41 University of New South Wales Law Journal 939 comments
In Australia, gendered hate speech against women is so pervasive and insidious that it is a normalised feature of everyday public discourse. It is often aimed at silencing women, and hindering their ability to participate effectively in civil society. As governmental bodies have recognised, sexist and misogynist language perpetuates gender-based violence by contributing to strict gender norms and constructing women as legitimate objects of hostility. Thus, gendered hate speech, like other forms of hate speech, produces a range of harms which ripple out beyond the targeted individual. The harmful nature of vilification is recognised by the various Australian laws which prohibit or address other forms of hate speech. But as we map out in this article, gendered hate speech is glaringly absent from most of this legislation. We argue that by failing to address gendered hate speech, Australian law permits the marginalisation of women and girls, and actively exacerbates their vulnerability to exclusion and gender-based harm.The authors argue
Since the shock victory of Donald Trump in the 2016 United States presidential election, western nations like Australia have witnessed a renewal of grassroots feminist activism, as movements such as #MeToo and #TimesUp continue to unfold across social media platforms and other public spaces. Accompanying such movements has been vehement backlash by conservative voices, sometimes from unlikely quarters. Gender roles and relations are not only the topic under debate – they also form the terrain upon which these discussions and struggles are playing out. The same can be said of language: the current shifts in cultural dynamics involve a contest over whose voices will be heard, and whose shut down. Hateful speech has become a key weapon in this struggle.
It is in this context that we focus on the issue of gendered hate speech (‘GHS’), canvassing possible definitions, as well as analysing its effects, its legal status, and its implications. Current approaches to defining and regulating hate speech in Australian laws indicate possible definitions of GHS. In particular, we examine how GHS could be defined broadly (progressively) or narrowly (conservatively), reflecting a focus on either the victim and their experience, or on broader public interests and security. Prohibiting GHS according to current laws on vilification would likely reflect a more conservative approach, and even prohibiting ‘offensive behaviour’ rather than vilification may still be interpreted according to concerns for the public interest. This would be problematic in various ways, given that it does not address the harm to and perspective of the targeted individual, but would nonetheless represent a marked improvement over current absent or inconsistent laws.
We argue that GHS is best understood in its broader socio-political context, as a means by which patriarchal structures and norms are enforced through the policing of women’s presence and their behaviour. GHS also produces a range of troubling effects, not only on the individuals who are targeted, but on broader social groups and dynamics. As government bodies and scholars alike have confirmed, GHS can be seen as fuelling gender-based violence in Australia, through the perpetuation of gender prejudice and hostility.
Despite these harms, GHS is alarmingly under-regulated in Australia. An overview of Australian laws relating to vilification, offensive behaviour and the urging of violence on the basis of identity, exposes the glaring absence of any laws relating to hateful speech or speech inciting violence on the basis of gender in almost all Australian jurisdictions. In contrast, sex and gender (or gender identity) are recognised as important aspects of identity or categories of group membership deserving of protective measures in Australian laws relating to discrimination. But such anti-discrimination laws do not apply to individual verbal attacks.
By failing to legislate against GHS in any meaningful or systematic way, Australian law can be seen as complicit in the persistence of GHS, and by extension, gender-based violence. This is one of the key ways in which our legal system produces women’s vulnerability. We explain how a vulnerability analysis takes us beyond the standard arguments about the harms of hate crime. Crucially, it also helps to show why legislating against GHS would not simply be a protective, paternalistic form of state intervention, but one which can support women’s agency, especially their discursive and political agency in public spaces.
Before proceeding, two things are worth noting. The first is to acknowledge that there are other reasons to find statements that comprise GHS troubling. For instance, the speech may constitute family/intimate partner violence, verbal abuse and/or controlling and coercive behaviour. Likewise, conduct involving GHS may overlap with other areas of law, such as harassment or assault. Although we do not discuss these other areas of law or reasons for concern, we are conscious of them. But our focus in this article is specifically on the nature of GHS as hate speech and its place in Australian laws as such.
Second, we acknowledge the ways in which ‘proposals to regulate hate speech invariably end up citing such speech at length’, and that the recirculation of such speech ‘inevitably reproduces trauma as well’. However, avoiding such repetition at all costs can also be counter-productive, as ‘[k]eeping such terms unsaid and unsayable can also work to lock them in place, preserving their power to injure’. Troubled by the ways in which scholarly and other literature sometimes include instances of hate speech seemingly for shock value as much as for pedagogical or analytical purposes, we have chosen to repeat GHS sparingly rather than gratuitously in this article. We also warn readers that in some places where examples are provided, the content may cause offence.