Gay WWII concentration camp prisoners wearing the nazi-designated "pink triangle"
Dear Julian and Brian,
It was a pleasure to meet you both today. Thank you for sharing your time with the Attorney-General and I.
As we noted during our meeting, on 11 January 2023 the Attorney requested that the Sentencing Advisory Council examine the expansion of s 11B of the Sentencing Act 1997 (Tas) to include other forms of hate based discrimination, including sexual orientation. For background, section 11B of the Sentencing Act was inserted in 2017 to expressly identify racial motivation as an aggravating factor in the sentencing of crimes. The terms of reference of the request are to:
Examine the scope of s 11B of the Sentencing Act 1997 and use of this provision by the courts in Tasmania to date.
Undertake a comparative analysis of relevant provisions of sentencing legislation in other Australian jurisdictions.
Examine whether s 11B could be expanded to consider whether the offence was motivated to any degree by religion, language, sexual orientation, gender, gender identity, innate variations of sex characteristics, age, a particular physical disability or cognitive impairment or a mental illness. Alternatively, whether comparative amendments could be made elsewhere in the Sentencing Act 1997 with a consideration of the benefits and challenges of such inclusions.
Provide advice as to whether amendment should be made to s 11B, or any other part of the Sentencing Act 1997, to extend the provisions of s 11B to other motives.
The Sentencing Advisory Council is due to release its report later this year. This report will be informative of whether legislative change is required to the Sentencing Act to account for hate based crimes.
I also note that there are two other offences in criminal law that can apply to hate based crimes, those are:
Offensive language and behaviour – s 12 of the Police Offences Act - https://www.legislation.tas.gov.au/view/html/inforce/current/act-1935-044#GS12@EN; and
Assault - s 184 of the Criminal Code - https://www.legislation.tas.gov.au/view/html/inforce/current/act-1924-069#JS1@GS184@EN or s 35 of the Police Offences Act - https://www.legislation.tas.gov.au/view/html/inforce/current/act-1935-044#GS35@EN
I understand that some of your concerns were in relation to s 90 of the Anti-Discrimination Act. I note that s 126 of the TASCAT Act is relevant to enforcing decisions of the Tribunal, including the Anti-Discrimination Tribunal. You can see section 126 of the TASCAT Act here: https://www.legislation.tas.gov.au/view/html/inforce/current/act-2020-024#GS126@EN
Laura Michaelson Senior Adviser
Office of the Hon Elise Archer MP
Minister for Justice
Minister for Corrections and Rehabilitation
Minister for Workplace Safety and Consumer Affairs
Minister for the Arts
Liberal Member for Clark
Level 10, 15 Murray Street, HOBART TAS 7000
Phone: number supplied
e-mail: email address supplied
PART 2: Email: Julian Punch to Laura Michaelson - 08 May 2023
Thank you for your email and the notice for our communities that the Attorney General has requested that the Sentencing Advisory Council to examine the expansion of s 11B of the Sentencing Act 1997 (Tas) to include other forms of hate based discrimination, including sexual orientation.
We also asked the Attorney General in the meeting to remind the Tasmanian Anti-Discrimination Commissioner of section 90 (1) & (2) regarding the importance of registering the TAD Tribunal Decisions in the Supreme Court and the possibility of the Commissioner with the Department of Public Prosecutions (DPP) pursuing a ‘contempt of Court’ charge when defendants refuse/fail to provide meet their compensation payments or apologies as contained in Tribunal Decisions. This may have saved us the necessity of waiting seven years and the need of a caveat on the defendant, King’s land in the case by Magistrate Hay - Punch & Doran v. Benedict King, as well as several other recent cases.
Please thank the Attorney General for her exceeding kindness and respect for the LGBTIQA+ victims of hate crime in Tasmania. It brought back memories of her predecessor Vanessa Goodwin and her personal support to both Brian and I following our decision in the TAD Tribunal conducted by now retired magistrate the Hon. Glen Hay, who we notice is now a member of the Sentencing Advisory Council.
We also asked the Attorney General to raise the concerns of victims in the Criminal Code where in the unfinished case of Steve Clowry and Davide Figgliuolo they were subjected to persistent and extreme homophobic harassment from a neighbour (in Geeveston) for over 12 months (end of 2020 through to start of 2022) but were frustrated to learn from the police they would not bring charges for stalking and bullying until, they insisted, the DPP was satisfied more than 50 breaches of restraint orders had occurred, despite the conduct being in clear breach of S.192.
In their case, the prohibited conduct well exceeded 50 instances, yet the police would not report/collect evidence of it all without consent to charges under S.192 from the DPP, hence, the law is useless to the victims of the conduct it specifically prohibits. Both Brian & I and others have experienced the same reluctance in instances of hate crime to act. This also related to other organisations like Councils to act.
In their case the police did not make an arrest until they had endured a full year of harassment, and even then, the respondent was only charged with breaches of restraint orders.
Police will not gather/compile/accept reports of evidence of conduct toward charges under S.192 until the DPP has consented, which gives rise to a loophole open to exploitation, where police and victims must rely on the far less effective mechanism of restraint orders to protect them from the conduct S.192 purports to prohibit.
Our victims group recommends a change to remove the DPP consent requirement except in the case of conduct by minors, to ensure adult conduct prohibited by S.192 can be appropriately prosecuted, only possible if police are empowered to collect evidence of it.
Laura would you also raise with the Attorney General the possibility of a Victims Hate Crime Forum to listen to the voices of our members in the Rainbow Communities Tasmania Inc. who unlike us never received their compensation or an apology. This would provide a facilitated listening situation alongside the Tasmanian Anti-discrimination Tribunal, The Tasmanian Police, and Sentencing Advisory Council to hear the serious effects of hate crime against our members. For Brian & It took away over 14 years of our life. For Stephen and Davide they had to resort to selling their house and moving. For many other Tasmanian LGBTIQA+ victims it has had serious mental health consequences. There is now way that most of our people can endure the hate crime situation or even relate to the authorities what is happening to them.
While the Attorney General suggested that there was antagonism directed by me to Rodney Peter Croome AM, as a well respected Australian LGBT rights activist and academic this is certainly not the case. We worked together with the Australian Youth Foundation and Human Rights Commissioners, Chris Sidoti and Brian Burdekin to establish Working it Out.
With Rodney and the previous Police Commissioner, victims are seeking better enforcement of protections under anti-discrimination legislation. As well, we are concerned that under a previous Liberal government, an exemption under the Act to exclude Gay teachers from Religious schools requested by Archbishop Porteous has seriously created an environment of fear and guilt in students.
Whilst we repeatedly hear others tout Tasmania as having the most progressive anti-discrimination laws in the country, victims in Tasmania always feel utterly disempowered. It seems all the authorities relying on the Anti-Discrimination Act and S.192 of the Criminal Code have forgotten to address hate crimes in Tasmania, and the law is failing to protect the victims.
You also asked me about ‘conversion therapy’ and I replied that our communities are totally opposed to it as a religious construct based on a false premise that we are “immoral, decadent and unnatural”; it is causing the suicide rates in our communities to be six times the national average. We would encourage you to act on this effect of the Exemption to the Act.
We look forward to an ongoing discussion and sincerely thank the Attorney General for kindly and respectfully meeting with us.
Palpable fear and dread on the faces of these gay WWII prisoners
From:Michaelson, Laura [email supplied] Sent: Monday, May 8, 2023 5:10 PM To: Julian Punch Cc: Elise dennison Archer Subject: RE: Law Reform re - LGBTIQA+ hate crimes
Thank you kindly for your response.
I look forward to being able to respond fulsomely, however, I am very unlikely to be able to consider the matters you raise this week. I aim to respond to you by the end of next week, and can advise that I will bring the matters you have raised to the Attorney-General’s attention prior to my response.
Please do contact me in the meantime if you have any additional information or concerns.
Email to Laura Michaelson from Julian Punch – 10 May 2023
Thank you Laura,
We would like to keep in contact with you regarding the Attorney General’s role in reviewing legislation coverage of LGBTIQ hate crime; as I was of the understanding that you were the contact point for our Communities in this endeavour. We would like to receive feedback on this vital issue for our people. I am concerned that you state you are very unlikely, to be able to consider the matters I have raised this week. The matters I raised with you in my last email are not new or extra, they are all matters that we raised in conversation with Elise on the day. We are representing the disturbing situation of physical hate crime as distinct to hate speech as noted by Magistrate Hay in our decision for an increasing number of our Communities in Tasmania.
I will send you correspondence from our people in Tasmania experiencing hate crime that validates our experience as related to the Attorney General and which needs to be given voice to in any Tasmanian discussion with Elise.
While the Attorney General stated her initial priority in this area as the use of Nazi symbols as against LGBTIQA+ hate crime, I am at pains to explain that this is also an issue for our communities as attached Attachment A to this email also validates our concerns. Submission to Attorney General Elise Archer Nazi Persecution of the Gay Community (see below*)
In Queensland this is, as we noted, the Nazi issue - it is not a separate issue! Queensland has brought it all together in one draft bill; criminals in Queensland who commit these offences while motivated, wholly or partly, by hatred or serious contempt based on race, religion, sexuality, sex characteristics or gender identity will face increased penalties including longer custodial sentences.
Again I would urge Elise to set up a forum consultation with the relevant agencies involved and the vocal LGBTIQA+ people experiencing serious physical criminal hate crime. I would stress that we have no funding and are committed volunteers.
Attachment A Submission Attorney General Elise Archer - Nazi Persecution of the Gay Community During WWII
Nazi conceptions of race, gender and eugenics dictated the Nazi regime’s hostile policy on homosexuality. Repression against gay men, lesbians and trans people commenced within days of Hitler becoming Chancellor. On 6 May 1933, the Nazis violently looted and closed The Institute for Sexual Science, burning its extensive collection on the streets. Unknown numbers of German gay men, lesbians and trans people fled abroad, and others entered into marriages in order to appear to conform to Nazi ideological norms, experiencing severe psychological trauma. The thriving gay culture in Berlin was lost.
The police established lists of homosexually active persons. Significant numbers of gay men were arrested, of whom an estimated 50,000 received severe jail sentences in brutal conditions. Most homosexuals were sent to police prisons, rather than concentration camps, where they were exposed to inhumane treatment. There they could be subjected to hard labour and torture, or they were experimented upon or executed.
An estimated 10,000-15,000 men who were accused of homosexuality were deported to concentration camps. Most died in the camps, often from exhaustion. Many were castrated and some subjected to gruesome medical experiments. Collective murder actions were undertaken against gay detainees, exterminating hundreds at a time.
During the 1935 redrafting of Paragraph 175 in Germany, there was much debate about whether to include lesbianism, which had not been recognised in the earlier version. Ultimately lesbians and trans people were not included in the legislation and they were subsequently not targeted in the same way as gay men. In Austria, after Anschluss (the annexation of Austria into greater Germany under the Nazi regime), a similar debate led to the inclusion of lesbianism in the penal code. Lesbians suffered the same destruction of community networks as gay men. They were not allowed to play any role in public life and therefore they often experienced a double economic disadvantage.
After World War II
After the war, the Allies chose not to remove the Nazi-amended Paragraph 175. Neither they, nor the new German states, nor Austria would recognise homosexual prisoners as victims of the Nazis – a status essential to qualify for reparations. Indeed, many gay men continued to serve their prison sentences.
People who had been persecuted by the Nazis for homosexuality had a hard choice: either to bury their experience and pretend it never happened, with all the personal consequences of such an action, or to try to campaign for recognition in an environment where the same neighbours, the same law, same police and same judges prevailed.
Unsurprisingly very few victims came forward. Those who did, even those who had survived death camps, were thwarted at every turn. Few known victims are still alive but research is beginning to reveal the hidden history of Nazi homophobia and post-war discrimination.
PART 4: From:Michaelson, Laura [email supplied] Sent: Wednesday, May 10, 2023 11:41 AM To: Julian Punch Cc: Elise dennison Archer Subject: RE: Law Reform re - LGBTIQA+ hate crimes
Thank you for your follow up email.
As the Attorney-General mentioned in our meeting, we are awaiting a report by the Sentencing Advisory Council in respect of the use of hate crimes as an aggravating factor in sentencing for criminal offences. We expect that the report will be released towards the end of this year.
Once that report is received, the Attorney-General will consider the report and any recommendations, which is expected to include a number of the matters you have raised. We will engage with stakeholders, including you and Rainbow Communities Tasmania, on any proposed reforms.
The Attorney-General acknowledges the impact that hate crimes have had on you and Brian, and others that you have referred to.
Thank you for engaging with us on these important matters.
Email from Julian Punch to Laura Michaelson – 10 May 2023
Thank you for this reassurance Laura.
It is exactly what people are looking for, and as supported by Rainbow Communities Tasmania Inc.
People are disturbed by what they are going through but are grateful to Elise for her care and support. We do hope that there will be bi-partisan support for defining good anti-discriminatory hate crime legislation to define and enact prosecution and punishment for hate crime at both federal and state levels.
We also hope there will be feedback to the many in our communities that are currently seriously affected by the unrestricted hate crime in the communities.
As well, we seek holistic welfare, health and wellbeing measures within appropriate government departments to counteract the depression and poor mental health it is causing, especially within regional areas less appreciative of diversity.