Sex Discrimination Exemption for Lesbians Appeal Allowed

Original Word Document (132.7 KB) Federal Court of Australia

Lesbian Action Group Inc v Australian Human Rights Commission [2026] FCA 432

| Appeal from: | | Lesbian Action Group and Australian Human Rights Commission [2025] ARTA 34 | |
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| File number: | VID 170 of 2025 | | |
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| Judgment of: | MOSHINSKY J | | |
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| Date of judgment: | 15 April 2026 | | |
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| Catchwords: | DISCRIMINATION LAW – sex discrimination – exemption power – where the applicant applied to the Australian Human Rights Commission for an exemption from the prohibitions on discrimination on the grounds of sex, sexual orientation and gender identity in the Sex Discrimination Act 1984 (Cth) so that it could hold public events for “lesbians born female” only – where the Commission refused the application for the exemption – where the Tribunal affirmed the decision to refuse to grant the exemption – whether the Tribunal erred in its construction of the exemption power – whether the Tribunal erred by failing to comply with the duty in s 10A of the Australian Human Rights Commission Act 1986 (Cth) – appeal allowed | | |
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| Legislation: | Administrative Review Tribunal Act 2024 (Cth), s 172

Australian Human Rights Commission Act 1986 (Cth), ss 10A, 11, 20, 32, 46PF

Australian Telecommunications Corporation Act 1989 (Cth), s 27

Disability Discrimination Act 1992 (Cth), s 6

Sex Discrimination Act 1984 (Cth), ss 1-13A, 14, 15, 21, 22, 23, 25, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 41A, 41B, 42, 44, 45, 46, 47

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Equal Opportunity Act 1995 (Vic)

Equal Opportunity Act 1984 (WA), s 135

Convention on the Elimination of All Forms of Discrimination Against Women | | |
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| Cases cited: | Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593

Carr v Western Australia [2007] HCA 47; 232 CLR 138

Certain Lloyd ’ s Underwriters v Cross [2012] HCA 56; 248 CLR 378

Commissioner for Equal Opportunity v ADI Ltd [2007] WASCA 261

Environment East Gippsland Inc v VicForests [2010] VSC 335; 30 VR 1

Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301

Nojin v Commonwealth [2012] FCAFC 192; 208 FCR 1

R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; 14 VR 321

Re Citizen Limbo (1989) 92 ALR 81

Re Lifestyle Communities Ltd (No 3) [2009] VCAT 1869; 31 VAR 286

Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960

Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492

Wheeler v Leicester City Council [1985] AC 1054

Yarmirr v A ustralian T elecommunications C orporation (1990) 96 ALR 739

Harding, AJ, Public Duties and Public Law (Oxford University Press, 1989)

Wade, HWR, Administrative Law (Oxford University Press, 6th ed, 1988) | | |
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| Division: | | General Division | |
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| Registry: | | Victoria | |
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| National Practice Area: | | Administrative and Constitutional Law and Human Rights | |
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| Number of paragraphs: | 127 | | |
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| Date of hearing: | 23-24 February 2026 | | |
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| Counsel for the Applicant: | Mr L Howard with Dr M Blake | | |
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| Solicitor for the Applicant: | Sladen Legal | | |
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| Counsel for the Respondent: | Ms C Winnett with Mr A Bell | | |
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| Solicitor for the Respondent: | Australian Human Rights Commission | | |
ORDERS

| | | VID 170 of 2025 |
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| BETWEEN: | LESBIAN ACTION GROUP INC

Applicant | |
| AND: | AUSTRALIAN HUMAN RIGHTS COMMISSION

Respondent | |

| order made by: | MOSHINSKY J |
| DATE OF ORDER: | 15 APRIL 2026 |
THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The decision of the Administrative Review Tribunal dated 20 January 2025 be set aside.

3. The matter be remitted to the Administrative Review Tribunal (differently constituted) for determination according to law.

4. Within seven days, the parties provide any agreed minute of order as to costs.

5. If the parties cannot agree, then within 14 days each party file and serve a short submission on costs, and within a further 7 days each party file any short responding submission on costs, and the issue of costs then be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1 The Lesbian Action Group Inc (LAG) is an incorporated association of lesbians who subscribe to a lesbian feminist critique. Prior to the incorporation of the LAG, there was an unincorporated association named the Lesbian Action Group (the Lesbian Action Group). While it is necessary for the sake of accuracy to delineate between the LAG and Lesbian Action Group, nothing of substance turns on the distinction between the two entities for present purposes.

2 In August 2023, the Lesbian Action Group applied pursuant to s 44 of the Sex Discrimination Act 1984 (Cth) (the SDA) to the Australian Human Rights Commission (the Commission) for a five-year exemption from the operation of certain provisions of the SDA. The Lesbian Action Group described itself in the application as a not-for-profit, community-based, “lesbians born female” group, established to address discrimination experienced by lesbians born female. The Lesbian Action Group sought the exemption so that it could hold regular public events for lesbians born female only, starting with a “Lesbians Born Female Only” event to celebrate International Lesbian Day.

3 Without an exemption, if the Lesbian Action Group (or the LAG) were to hold such events, it would be at risk of contravening s 22 of the SDA, which proscribes discrimination on the grounds of (relevantly) sex, sexual orientation or gender identity in the provision of goods, services and facilities. The section provides:

22 Goods, services and facilities

It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:

(a)    by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b)    in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)    in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

4 Central to the present case is an issue of construction of the exemption power in s 44 of the SDA. That section provides:

44 Commission may grant exemptions

(1)    The Commission may, on application by:

(a)    a person, on that person’s own behalf or on behalf of that person and another person or other persons;

(b)    2 or more persons, on their own behalf or on behalf of themselves and another person or other persons; or

(c)    a person or persons included in a class of persons on behalf of the persons included in that class of persons;

by instrument in writing, grant to the person, persons or class of persons, as the case may be, an exemption from the operation of a provision of Division 1 or 2 [which includes s 22], or paragraph 41(1)(e), or paragraph 41B(1)(b), as specified in the instrument.

(2)    The Commission may, on application by a person to, or in respect of, whom an exemption from a provision of Division 1 or 2, or paragraph 41(1)(e), has been granted under subsection (1), being an application made before the expiration of the period for which that exemption was granted, grant a further exemption from the operation of that provision.

(3)    An exemption, or further exemption, from the operation of a provision of Division 1 or 2, or paragraph 41(1)(e) or paragraph 41B(1)(b):

(a)    may be granted subject to such terms and conditions as are specified in the instrument;

(b)    may be expressed to apply only in such circumstances, or in relation to such activities, as are specified in the instrument; and

(c)    shall be granted for a specified period not exceeding 5 years.

5 On 12 October 2023, the Commission decided not to grant the exemption sought by the Lesbian Action Group (the Commission Decision). In a document headed “Notice of decision on application for temporary exemption: Lesbian Action Group” dated 12 October 2023 (Appeal Book (AB) Pt C pp 534-559) (the Commission Reasons), signed by the President of the Commission on behalf of the Commission, the Commission provided reasons for its decision. In reaching its decision, the Commission had regard to (among other things) guidelines that had been published by the Commission in 2009 titled “Temporary Exemptions under the Sex Discrimination Act” (AB Pt C pp 560-568) (the 2009 Guidelines).

6 The Lesbian Action Group applied (pursuant to s 45 of the SDA) to the then Administrative Appeals Tribunal for review of the Commission Decision. Subsequently, the Administrative Appeals Tribunal was replaced by the Administrative Review Tribunal (the Tribunal), which dealt with the application for review pursuant to transitional provisions.

7 In the absence of a contradictor, the Commission took an active part in the proceeding before the Tribunal.

8 Following the incorporation of the LAG, it was joined as a party to the application for review (but it did not replace the Lesbian Action Group as the applicant).

9 In September 2024, a two-day hearing took place before the Tribunal.

10 On 20 January 2025, the Tribunal decided to affirm the Commission Decision (the Tribunal Decision) and published reasons for its decision: Lesbian Action Group and Australian Human Rights Commission [2025] ARTA 34 (the Tribunal Reasons).

11 The LAG appeals (pursuant to s 172 of the Administrative Review Tribunal Act 2024 (Cth)) to this Court, on a question of law, from the Tribunal Decision. Although styled an “appeal”, the proceeding is in the Court’s original jurisdiction. No issue is raised about the fact that the original application for an exemption was made by the Lesbian Action Group, but the appeal to this Court is brought by the LAG.

12 The LAG relies on four questions of law and four associated grounds, which are set out in its notice of appeal dated 17 February 2025. The questions of law are:

1.    On its proper construction, is section 44 of the [SDA] intended to permit forms of discrimination that may be contemplated, or may arise, under the [SDA]?

2.    In exercising all of the powers and discretions of the [Commission], is the [Tribunal] required to apply the mandatory duty imposed on the [Commission] in s 10A(1) of the Australian Human Rights Commission Act 1986 (Cth)?

3.    Does the [SDA] prioritise the protection and advancement of the human rights of members of the female sex and of lesbians, and, if so, should the exemption power in s 44 be administered [accordingly]?

4.    Is the [Tribunal] Decision legally unreasonable?

13 Section 10A of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act), which is relevant to the second question of law, provides:

10A Duties of Commission

(1)    It is the duty of the Commission to ensure that the functions of the Commission under this or any other Act are performed:

(a)    with regard for:

(i)    the indivisibility and universality of human rights; and

(ii)    the principle that every person is free and equal in dignity and rights; and

(b)    efficiently and with the greatest possible benefit to the people of Australia.

(2)    Nothing in this section imposes a duty on the Commission that is enforceable by proceedings in a court.

14 The LAG’s four grounds, as set out in the notice of appeal, are lengthy. The following is a summary of these grounds:

(a) The Tribunal erred in its construction of the exemption power in s 44 of the SDA by stating that s 44 was not intended to “[endorse] overt acts of discrimination” (at [172]) and that the section did not permit “an exemption that fundamentally detracts from the operation of the SDA” (at [164]). On its proper construction, the intended effect of s 44 is to permit forms of discrimination that may be contemplated, or may arise, under the SDA (Ground 1).

(b) The Tribunal erred in concluding (at [127]) that, when reviewing an exercise of the discretion in s 44 of the SDA, the Tribunal is not subject to the duty in s 10A(1) of the AHRC Act (see also the Tribunal Reasons at [153]) (Ground 2).

(c) Properly construed, the word “sex” in the SDA means biological sex. Accordingly, and in any event, the SDA gives priority to members of the female sex (including lesbians). The Tribunal erred in not approaching the exercise of the discretion in s 44 in this way (eg, at [153], [156] and [163]) (Ground 3).

(d) The Tribunal Decision lacks an evident and intelligible justification and is therefore legally unreasonable (Ground 4).

15 In connection with Ground 2, the LAG seeks declaratory relief relating to the 2009 Guidelines. The LAG seeks a declaration that the guidelines are ultra vires insofar as they fail to direct the Commission to apply s 10A(1) of the AHRC Act.

16 As with the hearing before the Tribunal, the Commission has taken an active part in the proceeding before this Court. The Commission contends that no error is shown in the Tribunal Decision and the appeal should be dismissed.

17 At the hearing of this matter, the LAG contended that Grounds 3 and 4 raise issues that overlap with issues that are before the Full Court of this Court in Giggle for Girls Pty Ltd v Tickle (proceeding NSD1386/2024), which is an appeal from Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 (Tickle (No 2)). That appeal has been heard and is currently reserved. In light of my conclusions on Grounds 1 and 2 (see below), it is unnecessary for me to deal with Grounds 3 and 4. This avoids the need for me to deal with issues that may overlap with issues that are before the Full Court in that appeal.

18 For the reasons that follow, I have reached the following conclusions:

(a) In relation to Ground 1, in my view the Tribunal erred in its construction and application of s 44 of the SDA. In summary, the Tribunal approached the exemption power on the basis that an exemption which was contrary to the objects in s 3 and the prohibitions on discrimination in the SDA should not be granted. This was too narrow a view of the scope of the exemption power. Ground 1 is therefore made out.

(b) In relation to Ground 2, in my view, the Tribunal erred in concluding that, when reviewing an exercise of the discretion in s 44 of the SDA, the Tribunal is not subject to the duty in s 10A(1)(a) of the AHRC Act. Ground 2 is therefore made out.

(c) I do not consider it necessary or appropriate to grant a declaration in relation to the 2009 Guidelines as sought by the LAG.

(d) In light of my conclusions on Grounds 1 and 2, it is unnecessary for me to determine Grounds 3 and 4.

19 In preparing these reasons for judgment, I have endeavoured to use terminology that is respectful of all persons who may have an interest in the subject-matter of this proceeding. I have sought to adopt the forms of expression used by the parties in their submissions and, where there is a difference between the parties, the forms of expression adopted by the Commission.

The Sex Discrimination Act

20 Before addressing the Tribunal’s decision and the appeal grounds, I will provide an overview of the SDA. I will refer to the version of the SDA in force on 20 January 2025, being the date of the Tribunal decision.

21 Part I of the SDA (ss 1-13A) deals with preliminary matters.

22 The objects of the SDA are set out in s 3, which provides:

3 Objects

The objects of this Act are:

(a)    to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women and to provisions of other relevant international instruments; and

(b) to eliminate, so far as is possible, discrimination against persons on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and

(ba)    to eliminate, so far as possible, discrimination on the ground of family responsibilities in the area of work; and

(c)    to eliminate, so far as is possible, discrimination involving sexual harassment, and discrimination involving harassment on the ground of sex, in the workplace, in educational institutions and in other areas of public activity; and

(ca)    to eliminate, so far as is possible, discrimination involving subjecting persons to workplace environments that are hostile on the ground of sex; and

(d)    to promote recognition and acceptance within the community of the principle of the equality of men and women; and

(e)    to achieve, so far as practicable, substantive equality between men and women.

(Emphasis added.)

23 Section 4(1) of the SDA contains a number of defined expressions, including:

club means an association (whether incorporated or unincorporated) of not less than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that:

(a)    provides and maintains its facilities, in whole or in part, from the funds of the association; and

(b)    sells or supplies liquor for consumption on its premises.

…

gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.

…

services includes:

(a)    services relating to banking, insurance and the provision of grants, loans, credit or finance;

(b)    services relating to entertainment, recreation or refreshment;

(c)    services relating to transport or travel;

(d)    services of the kind provided by the members of any profession or trade; and

(e)    services of the kind provided by a government, a government authority or a local government body.

…

sexual orientation means a person’s sexual orientation towards:

(a)    persons of the same sex; or

(b)    persons of a different sex; or

(c)    persons of the same sex and persons of a different sex.

…

voluntary body means an association or other body (whether incorporated or unincorporated) the activities of which are not engaged in for the purpose of making a profit, but does not include:

(a)    a club;

(b)    a registered organisation;

(c)    a body established by a law of the Commonwealth, of a State or of a Territory; or

(d)    an association that provides grants, loans, credit or finance to its members.

24 It appears that the LAG is likely to fall within the definition of a “voluntary body”. If so, it would have the benefit of the exemption in s 39 of the SDA, set out below.

25 Sex discrimination is defined in s 5; discrimination on the ground of sexual orientation is defined in s 5A; and discrimination on the ground of gender identity is defined in s 5B. The present case was conducted by both parties on the basis that the exclusion of trans women from public events organised by the LAG could constitute discrimination on one of these grounds, without it being necessary to determine which ground or grounds were applicable. I will proceed on the same basis.

26 Section 7D deals with special measures and provides in part:

7D Special measures intended to achieve equality

(1)    A person may take special measures for the purpose of achieving substantive equality between:

(a)    men and women; or

(aa)    people who have different sexual orientations; or

(ab)    people who have different gender identities; or

…

(2)    A person does not discriminate against another person under section 5, 5A, 5B, 5C, 6, 7, 7AA or 7A by taking special measures authorised by subsection (1).

(3)    A measure is to be treated as being taken for a purpose referred to in subsection (1) if it is taken:

(a)     solely for that purpose; or

(b)     for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.

(4)    This section does not authorise the taking, or further taking, of special measures for a purpose referred to in subsection (1) that is achieved.

27 Part II of the SDA deals with the prohibition of discrimination. This Part is divided into five Divisions:

(a) Division 1 – discrimination in work (ss 14-20);

(b) Division 2 – discrimination in other areas (ss 21-27);

(c) Division 3 – harassment etc (ss 28A-28M);

(d) Division 4 – exemptions (ss 30-47); and

(e) Division 5 – victimisation (s 47A).

28 Divisions 1 and 2 of Pt II contain a number of prohibitions on discrimination. These include s 22, relating to the provision of goods, services and facilities, which has been set out in the Introduction to these reasons.

29 A number of the provisions of Divs 1 and 2 have exceptions built into the section that imposes the prohibition. This forms part of the context relevant to the construction of s 44. For example:

(a) Section 14 deals with discrimination on the ground of the person’s sex etc in employment or in superannuation. Section 14(3) provides that “[n]othing in paragraph (1)(a) or (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides”.

(b) Section 21 deals with discrimination on the ground of the person’s sex etc in education. Section 21(3) contains an exception relating to the admission of students, including where “the educational institution is conducted solely for students of a different sex from the sex of the applicant”.

(c) Section 23 deals with discrimination on the ground of the person’s sex etc in relation to accommodation. Section 23(3) contains an exception, including for accommodation provided by charitable bodies and certain not-for-profit bodies “solely for persons of one sex or solely for persons of one or more particular marital or relationship statuses”.

(d) Section 25 deals with discrimination by clubs on the ground of the person’s sex etc. Subsection (3) provides that “[n]othing in subsection (1) or (2) renders it unlawful to discriminate against a person on the ground of the person’s sex if membership of the club is available to persons of a different sex only”. Subsections (4) and (5) contain a more elaborate exception relating to the use or enjoyment of benefits provided by the club in circumstances where it is not practicable for the benefit to be used or enjoyed simultaneously or to the same extent by both men and women.

30 It is apparent from some of these exceptions that the SDA does not pursue at all costs the object of eliminating discrimination against persons on the ground of sex etc in the relevant areas: see Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [5] per Gleeson CJ. Rather, in some contexts and some circumstances, the Parliament has considered it appropriate to limit the extent of the prohibition on discrimination on the ground of sex etc in recognition of other competing interests.

31 Division 4 (ss 30-47) is headed “Exemptions”. The Division contains exemptions from particular prohibitions as well as general exemptions from the prohibitions in Divs 1 and 2. The exemptions include:

(a) Section 30 provides that certain discrimination on the ground of sex is not unlawful. Section 30(1) provides that nothing in certain paragraphs of ss 14 and 15 renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex, “in connection with a position as an employee, commission agent or contract worker, being a position in relation to which it is a genuine occupational qualification to be a person of a different sex from the sex of the other person”. Subsection (2) gives content to the notion of it being a “genuine occupational qualification” to be a person of a particular sex.

(b) Section 31 provides that “[n]othing in Division 1 or 2 renders it unlawful for a person to discriminate against a man on the ground of his sex by reason only of the fact that the first-mentioned person grants to a woman rights or privileges in connection with pregnancy, childbirth or breastfeeding”.

(c) Section 32 provides that “[n]othing in Division 1 or 2 applies to or in relation to the provision of services the nature of which is such that they can only be provided to members of one sex”.

(d) Section 34 provides exemptions relating to accommodation provided for employees or students.

(e) Section 35 provides exemptions relating to residential care of children.

(f) Section 36 provides an exemption relating to charities.

(g) Section 37 provides an exemption relating to religious bodies.

(h) Section 38 provides exemptions relating to educational institutions established for religious purposes.

(i) Section 39 relates to voluntary bodies and provides:

39 Voluntary bodies

Nothing in Division 1 or 2 renders it unlawful for a voluntary body to discriminate against a person, on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, breastfeeding or family responsibilities, in connection with:

(a)    the admission of persons as members of the body; or

(b)    the provision of benefits, facilities or services to members of the body.

(j) Section 40 contains exemptions relating to acts done under statutory authority.

(k) Section 41 contains an exemption relating to insurance.

(l) Sections 41A and 41B contain exemptions relating to superannuation fund conditions.

(m) Section 42 contains an exemption relating to sport. It provides that, subject to certain exceptions, “[n]othing in Division 1 or 2 renders it unlawful to discriminate on the ground of sex, gender identity or intersex status by excluding persons from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant”.

32 These exemptions further illustrate the point that the SDA does not pursue at all costs the objects in s 3 of the Act, and that in some contexts and circumstances Parliament has considered it appropriate to limit the extent of the prohibitions in recognition of other competing interests.

33 Section 44(1), which has been set out in the Introduction to these reasons, confers a power or discretion on the Commission, on application by a person or persons, to grant to the person or persons an exemption from the operation of a provision of (relevantly) Div 1 or 2. The Commission also has the power to grant a further exemption: s 44(2). An exemption may be granted subject to terms and conditions, may be expressed to apply only in certain circumstances or in relation to certain activities, and shall be granted for a specified period not exceeding five years: s 44(3).

34 Section 45 provides for review by the Tribunal of decisions made by the Commission under s 44. Section 46 provides for the publication of notices of decisions under s 44. Section 47 provides that “[n]othing in Division 1 or 2 renders it unlawful for a person who has been granted an exemption from a provision of that Division, or a person in the employment or under the direction or control of a person who has been granted such an exemption, to do an act in accordance with the provisions of the instrument by which the exemption was granted”.

35 Part IIA of the SDA deals with a duty to eliminate unlawful sex discrimination etc.

36 Part III of the SDA sets out the functions of the Commission.

37 Part IV deals with offences.

38 Part V relates to the Sex Discrimination Commissioner.

39 Part VI deals with miscellaneous matters.

40 The Schedule to the SDA sets out the text of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

The Tribunal’s reasons

41 The Tribunal outlined the background to the exemption application at [1]-[20].

42 At [2], the Tribunal noted that, at the time of the original application for the exemption, the applicants were a group of eight individuals, and that the majority of those individuals had now formed an incorporated association (the LAG). The Tribunal stated that “[t]he articles of incorporation include among the purposes of the LAG to be a political advocacy group for, by and about lesbians in Australia and internationally, to assert the biological fact that sex is binary and immutable, and to fight the oppression of and discrimination against lesbians wherever they see it”.

43 In the next section of the reasons, at [21]-[39], the Tribunal outlined the relevant legislation and the 2009 Guidelines.

44 The Tribunal outlined the exemption application at [40]-[46] of its reasons. In the application, the Lesbian Action Group provided the following reasons for seeking the exemption (set out in the Tribunal Reasons at [43]):

To meet on a regular basis as Lesbians Born Female for our own well-being in order to exchange information, hold workshops around a range of issues pertinent to Lesbians and celebrate our many achievements.

To consolidate and expand our social and political Lesbian networks.

To confirm that Lesbians are a distinct and well established community group with our own culture and lifestyle.

To build on the fact that we have been meeting as lesbian[s] in various ways, at conferences[,] dances, meetings and social events over the previous fifty years and counting and can attest how beneficial and necessary it is that these get-togethers continue.

To recognise the Lesbians have been building a strong and a specifically Lesbian culture and we have particular needs as Lesbians that need to be discussed and celebrated in a Lesbian born female only environment.

To be able to advertise widely and publicly in order to make it known to Lesbians who are socially isolated, particularly in rural areas, Lesbians with disabilities and Lesbians from linguistically diverse cultures that exclusive Lesbian events are being organised for their benefit.

To continue to recognise the Sovereignty [of] Aboriginal and Torres Strait Islander people by continuing to Pay the Rent by adding a surcharge of 10% to any registration fees charged at Lesbian Born Female events and provide free entry for Aboriginal and Torres Strait Islander Lesbians Born Female.

45 In the application for the exemption, the Lesbian Action Group described a proposed October 2023 event as an “all-day fun-filled culturally appropriate lesbians born female event” including various forms of entertainment and with the intention of providing “an example to young lesbians just how dynamic and courageous the older lesbian communities have been for the past fifty plus years” (see the Tribunal Reasons at [45]).

46 At [47]-[50] of its reasons, the Tribunal outlined the Commission Decision. As noted above, the Commission decided not to grant the exemption.

47 The Tribunal outlined the evidence in support of the grant of the exemption at [51]-[76]. The evidence at the Tribunal hearing included written statements of Carol Ann (a committee member of the LAG). Ms Ann was cross-examined by the Commission during the Tribunal hearing. The evidence in support of the application also included an expert report of Professor Sheila Jeffreys, a Professorial Fellow in the School of Social and Political Sciences at the University of Melbourne. Professor Jeffreys was also cross-examined by the Commission.

48 At [76], the Tribunal stated that, in closing submissions, the Lesbian Action Group provided the text of the proposed terms of the exemption it sought. The relevant text was as follows:

The exemption allows the Lesbian Action Group Inc to lawfully discriminate on the grounds of:

1.    Sex - by excluding all males, and for the avoidance of doubt, males recorded male at birth;

2.    Sexual orientation - by excluding all orientations other than lesbian;

3.    Gender identity - by excluding those who identify as a [trans woman], and males that otherwise assume an alternative gender identity to their male sex as recorded at birth.

Persons are politely asked not to attend if they fall within one of the excluded categories.

The Lesbian Action Group is a political advocacy group by, for, and about, lesbians in Australia and internationally. Amongst other things, it seeks to assert and fight for freedom of association, freedom of speech, freedom from discrimination, freedom [from] violence, and freedom in law, for all lesbians.

Lesbian Action Group Inc events are for the purposes of organising and pursuing their political objectives. It kindly asks that its [members’] and [supporters’] rights to expression and association be respected.

If you would like more information about the Lesbian Action Group, visit [link to LAG website].

If you would like more information about other organisations that might better suit your needs and interests, visit [link to appropriate LGBTIQA+ resource or directory applicable to the geographical location].

If you would like more information about the exemption granted by the AAT, visit [link to reasons for decision].

49 The Tribunal outlined the evidence against the grant of the exemption at [77]-[91] of its reasons. This included an expert report of Dr Elena Jeffreys, an Advocacy and Policy Manager at Scarlet Alliance, Australian Sex Workers Association. Dr Jeffreys was cross-examined, as summarised in the Tribunal Reasons at [82]-[85]. The material against the grant of the exemption also included a number of statements lodged by the Commission. These dealt with the negative impact of granting the exemption, particularly on trans women: see the Tribunal Reasons at [87]. The evidence against the grant of the exemption also included an expert report of Professor Paula Gerber, a Professor in the Law Faculty at Monash University. Professor Gerber’s report dealt with (among other things): issues of terminology; interpretation of CEDAW; the CEDAW Committee’s jurisprudence relating to trans women; other United Nations jurisprudence on trans women; the CEDAW Committee’s statements relating to trans women in Australia; international human rights law and the SDA; and the impacts on trans women of inclusion and exclusion from public spaces.

50 Having summarised the evidence, the Tribunal’s consideration of the application for the exemption appears at [92]-[169]. The Tribunal initially discussed the judgment in Tickle (No 2) at [92]-[100]. The Tribunal noted at [100] that the present matter engages a different provision of the SDA to that in question in Tickle (No 2).

51 The Tribunal considered the nature of the discretion to grant an exemption at [101]-[128] of its reasons. After setting out the parties’ submissions, the Tribunal noted at [109] the absence of any precedent federally in respect of the power to grant an exemption under s 44 of the SDA. The Tribunal therefore considered a number of State decisions (including State tribunal decisions) on comparable provisions in State anti-discrimination legislation: see the Tribunal Reasons at [110]-[118]. The Tribunal placed particular emphasis on Re Lifestyle Communities Ltd (No 3) [2009] VCAT 1869; 31 VAR 286 (Re Lifestyle Communities) (a judgment of Bell J sitting as President of the Victorian Civil and Administrative Tribunal) and noted that his Honour distinguished the approach taken by Martin CJ in Commissioner f o r Equal Opportunity v ADI Ltd [2007] WASCA 261 (ADI) as a “very wide formulation” that appeared to be inconsistent with the purposes of the legislation under consideration in Re Lifestyle Communities: see the Tribunal Reasons at [117]-[118]. The Tribunal emphasised (at [122]) the objects provision in the SDA and the language used in the SDA, which the Tribunal considered (at [123]) “operates … to establish a high threshold of intolerance for less favourable treatment of persons who bear specified distinguishing characteristics from other persons”.

52 In this section of the Tribunal’s reasons (dealing with the nature of the discretion), the Tribunal discussed s 10A of the AHRC Act, which is relevant to Ground 2 in the present appeal. The Tribunal stated at [127]-[128]:

127.    The Applicants also seek to import into consideration of the exercise the exemption power and overarching obligation under s [10A] of the AHRC Act. I do not consider this provision to speak directly to the scope of the power in s 44 of the SDA. On its face, s [10A] of the AHRC Act appears aspirational or exhortational. This is because of the reference to the Commission performing its functions ‘with regard’ to certain principles of human rights, and the fact that the provision itself explicitly states that it does not create an enforceable duty.

128.    It is possible, although this was not argued by the Applicants, that s [10A(1)(b)] of the AHRC Act might be relied on in support of the public interest test raised in their submissions. This might follow from the reference to the Commission’s powers being performed for the greatest possible benefit of the Australian people. Again, I do not consider this reading can be maintained given the nature of s 10A.

53 The Tribunal then considered the application of the principles that had been discussed to the application for the exemption: at [129]-[169].

54 At [132], the Tribunal referred to a three-step process of analysis proposed by the Commission in its submissions. The first of these involved consideration of whether the proposed conduct would amount to discrimination. The second and third related to the exercise of the discretion and comprised: consideration of whether the exemption sought is consistent with the purpose of the SDA; and consideration of “whether the burden imposed on those who would be subject to the discrimination is appropriate and reasonable in the circumstances”. It appears that the Tribunal adopted this structure for its reasoning.

55 In relation to the first step, the Tribunal stated at [133] that, on its face, it was uncontentious that conducting an activity that explicitly excludes a category of person based upon grounds of sex, sexual orientation or gender identity meets the relevant definitions of discrimination under the SDA. The Tribunal noted, however, that an act would not be discriminatory if it amounted to a special measure to achieve substantive equality (see s 7D of the SDA). The Tribunal referred to authorities cited by the Commission about special measures: at [135]. The Tribunal recorded (at [136]) that the Commission contended that the Lesbian Action Group was “permitted to exclude men and non-lesbians from an event, so long as this is compliant with the SDA”. This was said to require: (a) a subjective intention to achieve substantive equality between men and women and between people of different sexual orientations; and (b) an objective assessment of the need for the special measure and whether it has the capacity to achieve substantive equality. The Tribunal stated (at [140]) that it understood that the Commission agreed that the lesbian community has faced, or still faces, substantive inequality, as against men on the basis of sex and more widely on the basis of sexual orientation. The Tribunal noted that in the Commission Reasons, the Commission had determined that an event for the lesbian community on International Lesbian Day may well be considered a special measure for the purpose of achieving substantive equality between men and women and between lesbian women and heterosexual women. The Tribunal expressed a tentative conclusion on this issue at [143]:

… I consider it reasonable to assume that the proposed actions can amount to a special measure for the purposes of achieving substantive equality between men and women, and between lesbian and heterosexual women.

56 However, the Tribunal did not consider this reasoning to apply in relation to the exclusion of lesbian trans women. The Tribunal stated at [144]:

144.    Finally, I do not consider the evidence and arguments raised to have made a substantive case that lesbians born female in particular experience substantive inequality compared to lesbian trans women. I must therefore proceed with the further application of the SDA.

57 The Tribunal then discussed (at [146]) whether the conduct proposed by the Lesbian Action Group would prima facie contravene the provisions of the SDA. The Tribunal noted the Commission’s submission that the conduct would prima facie contravene s 22. The Tribunal stated that the wide definition of “services” in the SDA probably supported that contention.

58 Thus, in relation to the first step in the analysis proposed by the Commission, the Tribunal concluded that the proposed conduct would prima facie contravene the SDA. In reaching this conclusion, the Tribunal focussed on the aspect of the proposed conduct that would discriminate against lesbian trans women.

59 The Tribunal then turned (at [149] and following) to discretionary considerations (the second and third steps proposed by the Commission).

60 Having referred, earlier in its reasons, to the Lesbian Action Group’s submissions based on human rights (in particular, freedom of expression and association), the Tribunal stated at 153:

153.    It is necessary to directly address the factors raised in support of the exemption and the evidence supporting them. The principal challenge here is that the factors are couched in the language of human rights. I determined above that, in effect, no particular priority can be attached to these rights under the SDA. This does not rob the Applicants’ claims of merit or weight. However, they need to be considered in light of the fact that the SDA prohibits discriminatory conduct.

(Emphasis added.)

61 The Tribunal then reasoned at [154]-[155]:

154.    In a simplified form, the factors raised by the Applicants are that they wish to engage in policy debate and reform, meet and communicate as a community, and undertake advocacy around matters of health and welfare. They have raised in support of these objectives a range of personal and opinion-based evidence said to demonstrate marginalisation of the lesbian community, and – in particular – have emphasised hostility said to have been directed at those who espouse their specific views against the recognition of gender diversity in law and policy.

155.    Each of the areas of activity, and each of the sources of evidence relied upon, have been countered with arguments and evidence to the contrary. This means that, purely in respect of any fact finding required to support the grant of an exemption, I am faced with largely evenly balanced contentions. This alone raises the threshold of what might be considered acceptable or convincing evidence required to substantiate exercise of the discretion in favour of an exemption. An additional consideration raised in response is the impact of the grant of an exemption upon members of the excluded community group, being trans women.

(Emphasis added.)

62 The Tribunal reasoned at [156] that it would be a “perverse outcome” to grant the exemption on the basis that the Lesbian Action Group considered the terms of the SDA or the policy it reflected to be inappropriate. The Tribunal stated at [157] that the Lesbian Action Group had not substantiated its “fundamental opposition” to gender protections under the law. I note that it is open to question whether the Lesbian Action Group did in fact have a fundamental opposition to gender protections.

63 The Tribunal then discussed some of the evidence relating to whether (and the extent to which) the lesbian community experienced social isolation or marginalisation (at [159]). The Tribunal stated: “On balance, I do not consider there to be sufficiently persuasive evidence that any continuing social marginalisation of the lesbian community in public can contribute to justification of the exercise of the discretion in this case.”

64 The Tribunal stated at [162]:

1. It is important to understand that grant of an exemption in the circumstances of this matter would generate one or more instances of discrimination against a clearly identifiable group whose rights are protected by the gender discrimination provisions of the SDA. The Applicants argue that this is simply the result of the Respondent’s interpretation of the SDA and that they wish to discriminate more widely, and do not seek to single out any element of the community. This response is somewhat disingenuous since the Applicants’ case overall overwhelmingly demonstrates their lack of acceptance of the anti-discrimination framework presently in place under the SDA in respect of gender identity. More specifically, they have demonstrated their disagreement with the extension of protection to trans women, and with the policy and social science behind this.

(Emphasis added.)

65 The above paragraph indicates that a key consideration of the Tribunal was that the proposed activities would constitute discrimination against trans women (or lesbian trans women), whose rights are protected by the gender discrimination provisions of the SDA.

66 The Tribunal stated at 164:

164.    The jurisprudence and commentary I have referred to highlight that there is some debate about the proper scope of exemption provisions. However, given the clear intent of the legislation, it seems to me that it follows that an exemption that fundamentally detracts from the operation of the SDA should not be permitted. Specifically, I mean by this – in the context of the present facts – that an exemption that actively creates or promotes discrimination that did not previously exist should not be permitted.

(Emphasis added.)

67 The Tribunal also reasoned at [165]:

165.    Refusal of an exemption does not, in my view, unduly fetter the current or future activities of the Applicants in pursuit of their stated political or policy aims. Refusal also does not prevent them from discriminating in the limited way permitted under the SDA as a small association.

68 The Tribunal referred at [166]-[168] to some additional matters that were relevant to the “overall reasonableness” of granting the exemption: see [169]. The Tribunal considered that those factors supported a finding that the discretion should not be exercised in favour of the Lesbian Action Group.

69 The Tribunal’s conclusions were set out at [170]-[172]. This included (relevantly for the purposes of Ground 1):

172.    In summary, the Applicants identify as a discrete minority within a group in the community that is already identified by their sex and sexual orientation, characteristics that afford them the protection of the SDA. They seek to actively discriminate against another group in the community identifiable by their gender identity, a characteristic also protected under the SDA. I have determined that endorsing overt acts of discrimination cannot be the intended effect of the s 44 exemption power in the SDA.

(Emphasis added.)

Ground 1

70 By Ground 1, the LAG contends, in summary, that the Tribunal erred in its construction of the exemption power in s 44 of the SDA by stating that s 44 was not intended to “[endorse] overt acts of discrimination” (at [172]) and that the section did not permit “an exemption that fundamentally detracts from the operation of the SDA” (at [164]). The LAG contends that, on its proper construction, the intended effect of s 44 is to permit “forms of discrimination that may be contemplated, or may arise, under the [SDA]”.

The parties’ submissions

71 The LAG submits that, contrary to [164] and [172] of the Tribunal Reasons, it is the case that s 44 is intended to permit acts of discrimination that may be contemplated, or may arise, under the SDA, and how the Tribunal reached the opposite conclusion is not explained at [164] or [172] or elsewhere in the Tribunal Reasons.

72 The LAG submits that the Tribunal’s conclusion is not justified by the “clear intent of the legislation”: cf Tribunal Reasons, [164]. It is submitted that legislative intention is to be discerned from the text and structure of the SDA (Certain Lloyd ’ s Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [25] per French CJ and Hayne J) and, for present purposes, is obvious.

73 The LAG submits that the scope of the exemption power in s 44 was correctly articulated at [16]-[27] of the Lesbian Action Group’s statement of facts, issues and contentions before the Tribunal (AB Pt C, tab 15). Those submissions include:

(a) Part I of the SDA sets forth preliminaries, including definitions of discrimination and like machinery. Divisions 1 to 3 of Pt II contain the core prohibitions against sex-based discrimination and harassment in specified areas of public life, including employment, education, goods and services, facilities, accommodation, land, and clubs. It is discrimination on the grounds of sex, sexual orientation and gender identity which are relevant for present purposes: see ss 5, 5A and 5B. It is discrimination in connection with services that is relevant: see s 22.

(b) The SDA goes on to address where sex-based discrimination is permitted to occur in Div 4 of Pt II.

(i) Division 4 of Pt II establishes a number of exceptions where sex discrimination in particular areas of public life is allowed to occur, including religion, charities, sport, residential care, accommodation, insurance, and superannuation. A cursory examination of these exceptions reveals that they are each adapted to suit the particular features of the exempted public activity that serves to justify the sex discrimination.

(ii) It could not have been possible for the legislature to enumerate every single public activity in respect of which sex discrimination should be permitted in the public interest. For that reason, Div 4 also contains the exemption power in s 44.

(c) This explains the unfettered nature of s 44. It is intended to be a valve to permit justified forms of sex discrimination in additional activities and areas of public life that the legislature could not anticipate arising for itself. There is nothing peculiar within the scope, subject matter and purpose of the SDA that directly serves as a warrant to delimit this valve in the sense outlined in Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492. Indeed, there are provisions (such as the special measures regime in s 7D) which further indicate that there is a residual public interest in some forms of sex discrimination, and this public interest is to be facilitated by s 44.

(d) In other words, the considerations that are to apply in the exercise of the discretion in s 44 remain unconfined by the subject matter, scope and purpose of the SDA. So construed, it is wrong to attribute a purpose to the SDA to the effect that no sex discrimination is to ever occur. Sex discrimination is to be eliminated “so far as is possible”: SDA, s 3(b). Rights and interests that might conflict with the intention to eliminate sex discrimination remain able to be accommodated, and given effect, by an exemption under s 44 if all of the circumstances justify it.

74 In response, the Commission submits, in summary, that the Tribunal appreciated that s 44 permitted the grant of an exemption to authorise certain types of discrimination; it held that an exemption should not be granted in the circumstances of this case, to permit discrimination that was sought for a purpose inconsistent with the advancement of the SDA’s objects and to actively discriminate against a vulnerable class of people for which the SDA provides protection.

75 The Commission makes the following submissions:

(a) First, it is wrong to contend that the Tribunal reasoned (at [164], [172]) that s 44 cannot operate to authorise conduct that would otherwise be discriminatory under the SDA. Rather, the Tribunal held that a factor militating against the grant of an exemption here was that it would “fundamentally detract” from the operation of the SDA ([164]). That approach was entirely legitimate. As Katzmann J explained in response to a similar argument concerning s 6(b) of the Disability Discrimination Act 1992 (Cth), “[t]he nature and extent of [the proposed conduct’s] discriminatory effect must be weighed against the reasons advanced in favour of it”: Nojin v Commonwealth [2012] FCAFC 192; 208 FCR 1 at [247]. For the same reason, the LAG’s first question of law does not arise.

(b) The Tribunal appreciated that s 44 facilitates an exemption from conduct that is, or could be, prohibited discrimination: see Tribunal Reasons at [38(a)]. That was the foundation of the proceeding before it. The Tribunal’s pronouncements at [164] and [172] instead concerned an evaluation of the conduct sought to be exempted in this case and whether, as a matter of discretion, it should be permitted. The Tribunal held that it was not appropriate to exercise the exempting power in s 44 because the proposed conduct was not directed to the longer-term advancement of equality consistent with the scheme of the SDA; and because it actively created and promoted discrimination against a vulnerable class of people for which the SDA provides protection. The Tribunal evaluated the factors for and against the exemption in the context of the prohibitions on discriminatory conduct ([153]) and, critically, against the backdrop of the SDA’s purposes: see the Tribunal Reasons at [120]-[125]. On the facts, the Tribunal concluded that the nature and extent of the discrimination that the Lesbian Action Group sought to authorise went beyond the bounds of what should be permitted under s 44.

(c) Secondly, in any event, none of the Tribunal’s factual findings at [144], [159], [161], [166]-[168] are affected by the purported error the subject of Ground 1. Even if the LAG’s analysis on this ground is correct (which is denied), it would make no difference, because the Tribunal’s reasoning is independently supportable by reference to those findings and the planks of the Tribunal’s reasoning at [122], [123], [125], [155], [156], [159], [162], [164], [165]. This is so notwithstanding the three paragraphs at the end of the Tribunal’s decision under the heading “Conclusion” ([170]-[172]), which, properly construed in their context, do not change the effect of the Tribunal’s substantive reasoning earlier in its decision: see [129]-[169].

Construction of s 44 of the SDA

76 Before directly considering whether the Tribunal erred in the way contended by the LAG, it is necessary to discuss the construction of s 44.

77 There does not appear to be any authority on the construction of s 44. (The section was referred to, but not considered in detail, in Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 at 306.) However, there are decisions of State courts and tribunals about comparable provisions of State anti-discrimination legislation. The judgment which I have found to be of most assistance is that of Martin CJ (with whom Wheeler JA and Pullin JA agreed) in ADI in relation to the exemption power or discretion in s 135 of the Equal Opportunity Act 1984 (WA) (the Equal Opportunity Act). At the hearing before me, the Commission accepted that, at the level of broad principle, the discussion in ADI was applicable to s 44 (T86).

78 Martin CJ commenced his judgment in ADI by outlining in some detail the provisions of the Equal Opportunity Act: at [2]-[13]. The Equal Opportunity Act covered discrimination on the grounds of sex, marital status or pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age and, in certain cases, gender history. Thus, the Act covered a wider range of grounds than the SDA, and did not include all of the grounds covered by the SDA. That said, the general structure of the legislation was similar. As with the SDA, the Equal Opportunity Act contained exceptions to particular prohibitions and general exceptions: see [10]-[12]. The power or discretion to grant exemptions was contained in s 135, which Martin CJ described as follows (at [13]):

Section 135 of the Act provides that the Tribunal may, on application, grant to the applicant an exemption from the operation of a specified provision of a number of Parts of the Act, including Pt III. The section also provides that an exemption ‘may be granted subject to such terms and conditions as are specified in the order’; ‘may be expressed to apply in such circumstances or in relation to such activities, as are specified in the order’; and is not to be granted for a period exceeding five years. The section makes provision for the grant of a further exemption following the expiry of the exemption period. Section 137 provides that an act done in accordance with the provisions of an order of exemption is not rendered unlawful by reason of the provision from which exemption has been granted.

79 Martin CJ discussed the scope of the discretion to grant exemptions at [43]-[54]. One of the issues discussed by Martin CJ, which is not an issue in the present case, was that the tribunal had framed its consideration of the exemption application by reference to three questions which had been set out in an earlier tribunal decision (see ADI at [30]). Martin CJ stated that those three questions did “not necessarily extend to and embrace all considerations which could fall within the objects, scope and purpose of the Act in each and every case” (at [49]) and that the approach adopted by the tribunal in that case was “fraught with risk of error” (at [54]).

80 Martin CJ then went on to consider, at [55]-[75], whether the tribunal in that case had erred by taking into account (or alternatively giving determinative weight to) public interest considerations which did not further the objects, scope or purpose of the Equal Opportunity Act. Martin CJ stated at [55] that the authorities to which he had referred earlier established that the discretion conferred upon the tribunal by s 135 was to be constrained only by the objects, scope and purpose of the Act and that those matters were to be ascertained from a construction of the Act as a whole. Martin CJ described the structure of the Equal Opportunity Act at [56]-[58]. That structure is broadly comparable to that of the SDA, as indicated by Martin CJ’s summary at [58]:

So, in summary, there are a range of prohibitions specified by reference to the ground of discrimination, qualified by exceptions which are specifically referrable only to discrimination on that particular ground. There are also general exceptions which apply irrespective of the ground of discrimination. If none of the specific or general exceptions apply, the Tribunal is given a general power of exemption, unconstrained by anything other than the objects, scope and purpose of the Act and the temporal limitation upon the operation of the exemption.

(Emphasis added.)

81 His Honour then stated at [59]:

In this context, the legislative object to be served by the conferral of a general power of exemption upon the Tribunal is, I think, clear. The Act does not prohibit all discriminatory conduct. Rather, the ambit of the conduct prohibited depends upon the ground of discrimination. Nor does the Act prohibit all conduct of a particular kind because it is discriminatory on a particular ground. Rather, the Act provides both specific and general exceptions to its prohibitions. The legislature has thereby recognised that in a number of circumstances, which it has identified both specifically by reference to the particular ground upon which the discrimination is practiced, and generally, discriminatory conduct can be justified and should not be prohibited. And against the likely contingency that the Parliament has not been able to anticipate all the circumstances in which discriminatory conduct might nevertheless be justifiable, it has empowered the Tribunal to grant exemptions in particular cases.

(Emphasis added.)

82 His Honour stated at [60] that “[t]his approach to the construction of the scope of the discretion conferred by s 135 of the Act is, I think, apparent from the structure of the Act viewed as a whole”. His Honour stated that it was reinforced by reference to legislative materials. While the legislative materials were specific to the Equal Opportunity Act, the construction adopted by Martin CJ was essentially based on the structure of the Act viewed as a whole, and the SDA shares a relevantly similar structure.

83 Martin CJ then went on to consider whether the considerations taken into account by the tribunal in that case were properly considered as being within the objects, scope and purpose of the Equal Opportunity Act (see [61]). In the course of considering that issue, his Honour stated at [67]-[70]:

67    So, when regard is had to Div 4 of Pt III of the [Equal Opportunity Act ], it can be seen that the legislature has excepted from the operation of that Part not only conduct which serves the interests of what is often described as ‘positive discrimination’ but also conduct which, although discriminatory, can be justified by reference to a variety of other purposes or interests other than the specific objects identified in s 3 of the Act or the object of reducing discriminatory conduct and which are unrelated to those objects.

…

70    It follows that when the Tribunal comes to consider an application for exemption from the operation of the Act, it can and should take into account the fact that the legislature has recognised that there are some circumstances in which discriminatory conduct can be justified by reference to considerations which are extraneous to the anti-discriminatory objects of the Act, and that it has conferred upon the Tribunal the power to identify circumstances beyond those specified in the Act, in which conduct which is otherwise discriminatory should nevertheless be lawful.

(Emphasis added.)

84 At [71], Martin CJ stated that, for an exemption to be granted, it was not necessary for it to be within the “spirit” of an exception in the Act. His Honour summarised his construction at [72]:

In summary, in my opinion when exercising the discretion conferred upon it by s 135 of the Act, it is consistent with the objects, scope and purpose of the Act, for the Tribunal to take into account any considerations which it considers would justify the commission of conduct which would otherwise be unlawful under the Act. So, provided there is a rational basis for the discriminatory conduct, it will fall to the Tribunal to determine whether the interests to be served by permitting that conduct outweigh the detriment which flows from discriminatory conduct. Often the interests properly considered by the Tribunal in that context will be public interests, but they need not be so. …

85 In my view, the construction adopted by Martin CJ is equally applicable to the exemption power in s 44 of the SDA. The construction is essentially based on the structure of the Equal Opportunity Act and the SDA adopts a relevantly comparable structure.

86 I note that in Re Lifestyle Communities, Bell J observed at [65] that he found it “difficult to reconcile the expansive view of the exemption power which was adopted in [ADI ] … with the primary purpose of the equal opportunity legislation which was in issue”. However, as explained by Martin CJ, it was necessary to have regard to the objects, scope and purpose of the Equal Opportunity Act as a whole. Further, Re Lifestyle Communities was decided in a context that included consideration of the Charter of Human Rights and Responsibilities Act 2006 (Vic). It was held that the exemption power was to be exercised compatibly with that legislation. Accordingly, the observations relating to ADI were not necessary for the decision. To the extent that there is a difference between the construction adopted in ADI and that adopted in Re Lifestyle Communities, for the reasons already indicated I prefer the construction adopted in ADI.

87 Accordingly, drawing on the propositions in ADI, I consider the following propositions to apply to s 44:

(a) The discretion conferred upon the Commission by s 44 is constrained by the objects, scope and purpose of the SDA and those matters are to be ascertained from a construction of the Act as a whole.

(b) The legislature has excepted from the operation of Divs 1 and 2 of Pt II of the SDA not only conduct which serves the interests of what is often described as ‘positive discrimination’ but also conduct which, although discriminatory, can be justified by reference to a variety of other purposes or interests other than the specific objects identified in s 3 of the SDA.

(c) Against the likely contingency that the Parliament has not been able to anticipate all the circumstances in which discriminatory conduct might nevertheless be justifiable, it has empowered the Commission to grant exemptions in particular cases.

(d) When the Commission comes to consider an application for exemption from the operation of the SDA, it can and should take into account the fact that the legislature has recognised that there are some circumstances in which discriminatory conduct can be justified by reference to considerations which are extraneous to the anti-discriminatory objects of the Act, and that it has conferred upon the Commission the power to identify circumstances beyond those specified in the SDA, in which conduct which is otherwise discriminatory should nevertheless be lawful.

88 Although these propositions are expressed in relation to the “Commission”, they apply also to the Tribunal when it is conducting a review of a decision of the Commission.

Consideration

89 I now turn to consider whether the Tribunal erred as contended in Ground 1.

90 In considering this question, it is relevant to note that the Tribunal is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 (Applicant WAEE) at [46] per French CJ, Sackville and Hely JJ. Nor is the Tribunal necessarily required to provide reasons of the kind that might be expected of a court of law: Applicant WAEE at [46]. Moreover, the Tribunal’s reasons need to be read as a whole. Thus, infelicity of expression in one part of the Tribunal’s reasons may not reflect the true substance of its reasoning.

91 In my opinion, the Tribunal did err in its construction and application of s 44 of the SDA. In substance, the Tribunal approached the exemption power on the basis that an exemption which was contrary to the objects in s 3 and the prohibitions on discrimination in the SDA should not be granted. However, for the reasons set out below, this was too narrow a view of the scope of the exemption power.

92 That the Tribunal adopted the approach I have identified is apparent in a number of places. First, in its discussion of the nature of the discretion (commencing at [101]), the Tribunal placed emphasis on Re Lifestyle Communities (at [116]-[118]) and noted that, in that decision, Bell J “distinguished” the approach in ADI as a “very wide formulation” that appeared inconsistent with the purposes of the Equal Opportunity Act 1995 (Vic).

93 Second, at [122]-[123], the Tribunal referred to the objects provisions and the provisions of the SDA prohibiting discriminatory conduct, stating that the legislation operates “to establish a high threshold of intolerance for less favourable treatment of persons who bear specified distinguishing characteristics from other persons”.

94 Subsequently, the focus of the Tribunal’s consideration of whether an exemption should be granted was on the discrimination that it would create against trans women. The Tribunal did not merely weigh this as a factor against the grant of the exemption; it gave decisive weight to this factor because it considered that the proposed exemption would be contrary to the objects in s 3 and the prohibitions on discrimination in the SDA, and that this fact foreclosed the possibility of granting the exemption pursuant to s 44. At [162], the Tribunal stated:

It is important to understand that grant of an exemption in the circumstances of this matter would generate one or more instances of discrimination against a clearly identifiable group whose rights are protected by the gender discrimination provisions of the SDA.

95 Then, at [164], the Tribunal said:

164.    The jurisprudence and commentary I have referred to highlight that there is some debate about the proper scope of exemption provisions. However, given the clear intent of the legislation, it seems to me that it follows that an exemption that fundamentally detracts from the operation of the SDA should not be permitted. Specifically, I mean by this – in the context of the present facts – that an exemption that actively creates or promotes discrimination that did not previously exist should not be permitted.

(Emphasis added.)

96 Further, in the summary of its reasoning at [172], the Tribunal stated:

172.    In summary, the Applicants identify as a discrete minority within a group in the community that is already identified by their sex and sexual orientation, characteristics that afford them the protection of the SDA. They seek to actively discriminate against another group in the community identifiable by their gender identity, a characteristic also protected under the SDA. I have determined that endorsing overt acts of discrimination cannot be the intended effect of the s 44 exemption power in the SDA.

(Emphasis added.)

97 The Commission submits that the Tribunal’s statements at [164] and [172] concerned an evaluation of the conduct sought to be exempted in this case and whether, as a matter of discretion, it should be permitted. However, in my opinion, they go further and indicate that the Tribunal adopted a particular construction of the exemption power. The Tribunal’s statements were linked to the “clear intent of the legislation” (at [164]) and the “intended effect of the s 44 exemption power” (at [172]). Reading the Tribunal’s reasons as a whole, I consider that the Tribunal adopted a particular construction of the exemption power, namely that an exemption that was contrary to the objects in s 3 and the prohibitions on discrimination in the SDA should not be granted.

98 In my opinion, this was too narrow an approach to the construction of the exemption provision. The exemption power is constrained by the objects, scope and purpose of the SDA, with these matters to be ascertained by reference to the Act as a whole. The Act contains a number of exceptions that limit the extent to which the Act pursues the objects in s 3 in recognition of competing interests. Where an exception applies, a person is permitted to discriminate on the ground of sex etc in the relevant circumstances. Likewise, where an exemption is granted pursuant to s 44, a person is permitted to discriminate on the ground of sex etc in the circumstances specified in the exemption. While an exemption may be granted in circumstances that could be described as ‘positive discrimination’, the power to grant an exemption is not limited to such cases, and an exemption may be granted which serves other interests notwithstanding that it permits a person to engage in acts of discrimination on the ground of sex etc that would otherwise be prohibited. By giving determinative weight to the fact that the proposed exemption would be contrary to the objects in s 3 and the prohibitions in the SDA, the Tribunal fell into error.

99 This is not to say that the Commission or Tribunal cannot have regard to the extent to which a proposed exemption would detract from the objects in s 3 or permit discriminatory conduct that is otherwise prohibited by the SDA. However, in the present case, the Tribunal did not merely have regard to these as factors relevant to the exercise of the discretion conferred by s 44. Rather, the Tribunal construed s 44 such that the existence of those factors necessarily foreclosed the exercise of the discretion in favour of the grant of the exemption.

100 The Commission submits that even if the LAG’s analysis on Ground 1 is correct (which is denied), it would make no difference, because the Tribunal’s reasoning is independently supportable by reference to certain findings and planks of the Tribunal’s reasoning. I do not accept this submission. In my view, the error discussed above was central to the way in which the Tribunal resolved whether to grant the exemption and therefore affected its core reasoning. Accordingly, the error is material.

101 For these reasons, Ground 1 is made out.

Ground 2

102 By Ground 2, the LAG contends, in summary, that the Tribunal erred in concluding (at [127]) that, when reviewing an exercise of the discretion in s 44 of the SDA, the Tribunal is not subject to the duty in s 10A(1) of the AHRC Act (see also the Tribunal Reasons at [153]).

103 In connection with this ground, the LAG also seeks declaratory relief in relation to the 2009 Guidelines. I will first deal with Ground 2 generally and then with the application for declaratory relief.

104 Section 10A of the AHRC Act has been set out in the Introduction to these reasons.

105 The critical paragraphs of the Tribunal Reasons (namely, [127]-[128] and [153]) have been set out at [52] and [60] above.

The parties’ submissions

106 The LAG submits that (contrary to the Tribunal Reasons at [127]) s 10A is neither aspirational nor exhortational; it imposes an explicit duty on the Commission, and on the Tribunal (standing in the shoes of the Commission) on review.

107 After referring to a statement made by Sir Ronald Wilson upon s 10A being enacted, the LAG submits that:

(a) Section 10A declares the existence of a “duty”, which is language conferring obligation.

(b) The duty is to “ensure”, which ordinarily means “to make certain”: R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; 14 VR 321 at [25].

(c) What is to be ensured is the “performance of functions” – such as the function in s 44 of the SDA.

(d) The functions referred to are those under “this … Act” (the AHRC Act) or “any other Act” – including the SDA.

108 The LAG submits that it follows that the Tribunal was bound to apply the matters specified in s 10A(1)(a) and (b); the Tribunal instead positively set itself against each of them, and this infected the entire analysis: see, eg, the Tribunal Reasons at [121], [153], [163], [171].

109 The LAG submits that s 10A(2) does not convert the duty in s 10A(1) to an exhortational one: cf the Tribunal Reasons at [127]-[128]. The LAG submits that the text of s 10A(2) is directed to preventing “enforce[ment] by proceedings in a court”; this has nothing to do with the application of the duty by the Commission, or by the Tribunal on review.

110 The Commission has two answers to the LAG’s contentions. The first answer is that s 10A(2) provides that the duty under s 10A is not enforceable by proceedings in a court. The Commission submits:

(a) Section 10A is a “duty of imperfect obligation” unenforceable by mandamus. It is an unconditional directive going to the root of the Commission’s objectives and is applicable across all the varied functions exercisable by the Commission under s 11 of the AHRC Act. Its application involves large questions of discretion and policy.

(b) If provisions like s 10A were capable of enforcement on judicial review, courts would be called to assess the manner in which bodies pursue very generally expressed ideals, and make broad policy judgments on questions such as whether the Commission performs “efficiently”: see Re Citizen Limbo (1989) 92 ALR 81 at 82; Yarmirr v A ustralia n T elecommunications C orporation (1990) 96 ALR 739 (Yarmirr) at 748-749.

(c) How the Commission operates to comply with s 10A is therefore for the Commission and not for a Court, exercising federal judicial power, to adjudicate and supervise.

111 The Commission’s second answer is that the error alleged by Ground 2 could have had no effect on the result. The Commission submits:

(a) Section 10A(1), on its face, would seem to hinder rather than help the LAG’s case. A duty to perform functions “with the greatest possible benefit to the people of Australia” (s 10A(1)(b)) would extend to ensuring that trans and bisexual women are not lightly deprived of statutory protections against discrimination. Similarly, a duty to perform functions “with regard for … the indivisibility and universality of human rights” (s 10A(1)(a)(i)) and “the principle that every person is free and equal in dignity and rights” (s 10A(1)(a)(ii)) would require the Commission to have regard for the rights of trans and bisexual women.

(b) The Tribunal’s reasons demonstrate that it actively engaged with the rights asserted by the Lesbian Action Group’s members, including to associate and discriminate as a small association, and the freedom of political communication (see the Tribunal Reasons at [129], [150], [153], [154], [155], [165]).

112 In oral submissions, counsel for the LAG contended that s 10A did not constitute a “duty of imperfect obligation”, citing Harding, AJ, Public Duties and Public Law (Oxford University Press, 1989) (Public Duties and Public Law), pp 25-28; Environment East Gippsland Inc v VicForests [2010] VSC 335; 30 VR 1 at [306], [311]-[312]; and Wheeler v Leicester City Council [1985] AC 1054 at 1077-1078. The LAG also submitted that, in any event, here there was a complete failure to perform the duty, and such a failure is reviewable: Public Duties and Public Law, pp 28, 52.

Consideration

113 I will start by considering whether the alleged failure by the Tribunal to comply with the duty in s 10A(1) can be raised as a ground of review in this proceeding. Although the LAG’s submissions referred to paragraph (b) as well as paragraph (a) of s 10A(1), the focus of its submissions (and its notice of appeal) was on the alleged failure of the Tribunal to have regard to “the indivisibility and universality of human rights” (s 10A(1)(a)(i)) and “the principle that every person is free and equal in dignity and rights” (s 10A(1)(a)(ii)). Accordingly, I will focus on paragraph (a) of s 10A(1).

114 In Public Dut ies and Public Law, Harding writes at pp 25-26 (in a section headed “Duties of Imperfect Obligation”):

Any statutory duty may in the result be unenforceable by an individual, for example because there is an equally convenient remedy available. It is said, however, that some duties are not enforceable legally, except by the appropriate minister, but only politically, because they are too vague. Since such duties are becoming rather common in modern statutes, especially those which set up various kinds of statutory board with duties to provide public goods or services, their status and effect is worth examining.

(Footnote omitted.)

115 After setting out certain provisions from the legislation establishing the Australian Postal Commission, which provided that in performing its functions under a particular provision the Commission was required to have regard to (among other things) “the need to operate its services as efficiently and economically as practicable”, Harding writes (at pp 26-27):

These duties are typically ‘imperfect’ because (1) they are general directives, (2) they are unconditional and go to the root of the authority’s activities, (3) they relate to the provision of services, (4) they contain large elements of discretion and qualification, (5) they are expressed to be unenforceable, and (6) they are subject to ministerial control.

116 Harding states that, even where the duty is not directly enforceable it may be indirectly enforceable (at p 27). Harding writes (at pp 27-28):

Where the duty is merely to have regard to certain matters, as in section 7(2)(b) above, it may still be enforceable indirectly in some instances, for example when a decision is invalidated for abuse of discretion because the authority has failed to take into account a statutorily relevant consideration, as in Bromley London Borough Council v. Greater London Council [fn: [1982] 2 WLR 62 (HL) …] where a supplementary rate to subsidize passenger transport was quashed because of failure to have regard to the relevant authority’s duty to operate the system economically.

117 Yarmirr was concerned with provisions of the Australian Telecommunications Corporation Act 1989 (Cth), including a section (s 27) which provided that Telecom was required to supply the standard telephone service “as efficiently and economically as practicable”. The section also provided that Telecom was required to ensure that the service was “reasonably accessible to all people in Australia on an equitable basis …”. Burchett J held that the section did not create “such private right of action as the applicants [sought to] pursue” (p 750). His Honour stated (at 749):

When Parliament imposes on a functionary a broad duty involving the development and application of policy, to be performed nationally, the fulfilment of which must be subject to many constraints and may be achieved in many different ways, according to the measure allowed to those constraints, but cannot be achieved absolutely, if only because it involves an ideal, detailed supervision by the courts of the manner of performance of the duty is not likely to have been intended.

118 His Honour then quoted with apparent approval the following passages from Wade, HWR, Administrative Law (Oxford University Press, 6th ed, 1988):

In Wade on Administrative Law, 6th ed, 1988, p 614 it is stated:

“A power enables an authority to do what would otherwise be illegal or ineffective. It is always subject to legal limits, and it is safe to assume that Parliament did not intend it to be exercised beyond those limits. A duty, on the other hand, may or may not be legally enforceable. Parliament has recently become fond of imposing duties of a kind which, since they are of a general and indefinite character, are perhaps to be considered as political duties rather than as legal duties which a court could enforce. Many such duties may be found in statutes concerned with social services and nationalisation. Thus the opening words of the National Health Service Act 1977 are: ‘It is the Secretary of State’s duty to continue the promotion in England and Wales of a comprehensive health service ... .”

Wade goes on to refer to the statutory duty of the Coal Board of “making supplies of coal available”. This is remarkably similar to the language of s 27, with its obligation laid upon Telecom to “ensure . . . the service is reasonably accessible”. Wade gives other examples, and comments (p 615):

“Only in the unlikely event of its making total default would any of the above-mentioned authorities be at risk of legal compulsion in respect of its general duties.”

119 Putting s 10A(2) to one side, I do not consider the duty in s 10A(1)(a) to be of such a broad and general nature that it is not capable of consideration and application by the courts. Section 10A(1)(a) imposes a duty on the Commission to ensure that the functions of the Commission under the AHRC Act and any other Act are performed with regard for “the indivisibility and universality of human rights” and “the principle that every person is free and equal in dignity and rights”. There are several statutes that require courts to consider and apply provisions relating to human rights. An example is the Charter of Human Rights and Responsibilities Act 2006 (Vic). The matters referred to in s 10A(1)(a) are sufficiently confined to enable them to be considered and applied by courts. The position may be different in the case of s 10A(1)(b), which requires the Commission to ensure that its functions are performed “efficiently and with the greatest possible benefit to the people of Australia”. That provision is closer to the provision considered in Yarmirr. However, as indicated above, the focus of the LAG’s submissions was paragraph (a) rather than (b), and it is sufficient for present purposes to consider paragraph (a).

120 This brings me to s 10A(2), which provides that “[n]othing in this section imposes a duty on the Commission that is enforceable by proceedings in a court”. I note that several other sections in the AHRC Act contain comparable wording: see ss 20(11), 32(6) and 46PF(11). I was not taken to any case that is on all fours with, or even similar to, the present case. Approaching the matter on the basis of first principles, I am not satisfied that s 10A(2) precludes Ground 2 being raised in this proceeding. The proceeding does not seek “enforcement” of the duty in s 10A(1)(a) in the sense of an order that the Tribunal perform the duty. Rather, the proceeding, which is an appeal on a question of law, relevantly raises for consideration a question of law (whether the Tribunal is required to apply the duty in s 10A(1) of the AHRC Act) and includes a ground that the Tribunal erred by failing to exercise the discretion in s 44 of the SDA in accordance with the duty in s 10A(1)(a). The relief sought is (relevantly) that the Tribunal Decision be set aside and that the review be heard and determined by a differently constituted Tribunal, according to law. While the proceeding involves consideration of whether the Tribunal exercised the discretion in s 44 in accordance with the duty in s 10A(1)(a), it does not involve “enforcement” of the duty in s 10A(1)(a). Accordingly, I consider that it is open to the LAG to rely on Ground 2.

121 The next question is whether the Tribunal erred in the way contended in Ground 2. There does not appear to be any issue between the parties that the Tribunal (standing in the shoes of the Commission) is required to comply with the duty in s 10A(1)(a): in oral submissions, the Commission accepted that, on its face, s 10A applies to the Tribunal (standing in the shoes of the Commission) (T101). The only issue is whether, as a matter of substance, the Tribunal did comply with that duty. In my view, as a matter of substance, the Tribunal did not comply with the duty to have regard to the matters in s 10A(1)(a). The Tribunal stated that s 10A did not “speak directly to the scope of the power in s 44” because the matters the section referred to were “aspirational or exhortational” (at [127]). Later in its reasons, the Tribunal referred to its earlier determination that “no particular priority” could be attached to human rights under the SDA (at [153]). These passages indicate that the Tribunal did not consider that it was required to comply with the duty in s 10A(1)(a). Further, having regard to the reasons of the Tribunal as a whole, I do not consider that the Tribunal fully considered the Lesbian Action Group’s contentions based on human rights (summarised at [129] of the Tribunal Reasons). While some aspects of the Tribunal’s reasons overlap with the Lesbian Action Group’s human rights contentions, the Tribunal did not fully consider those contentions and, indeed, did not consider itself bound to do so.

122 For these reasons, Ground 2 is made out.

The application for declaratory relief

123 In connection with Ground 2, the LAG seeks a declaration in the following terms (as set out in its notice of appeal):

Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), a declaration that the AHRC’s guidance Temporary Exemptions Under the Sex Discrimination Act (Exemption Guidelines) is ultra vires insofar as the Exemption Guidelines fail to direct the AHRC to apply its mandatory obligation in s 10A(1) of the AHRC Act.

124 This aspect of the case was given little attention in the parties’ written and oral submissions. In summary, the LAG contends that the 2009 Guidelines are beyond power because the Commission fails to direct itself to comply with the duty in s 10A. The Commission submits that the 2009 Guidelines can be read harmoniously with s 10A of the AHRC Act. The Commission also submits that the proposed declaration lacks utility.

125 In my opinion, the 2009 Guidelines are deficient in that they describe in detail the process and considerations relevant to an application for an exemption under s 44 of the SDA but fail to refer to the duty in s 10A of the AHRC Act. However, I do not consider it necessary or appropriate to make a declaration. In my view, a declaration would lack utility because it can be expected that the Commission will revise the guidelines to accord with the Court’s reasons. I therefore reject the application for a declaration.

Grounds 3 and 4

126 In light of my conclusions on Grounds 1 and 2, it is unnecessary to consider Grounds 3 and 4.

Conclusion

127 For the reasons set out above, the appeal is to be allowed, the decision of the Tribunal set aside, and the matter remitted to the Tribunal (differently constituted) for determination according to law. I will give the parties the opportunity to provide written submissions on costs, if costs cannot be agreed.

| I certify that the preceding one hundred and twenty-seven (127) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. |
Associate:

Dated: 15 April 2026

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