Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Blanch v Smith [2024] NSWCATAD 20 Hearing dates: 23 November 2023 Date of orders: 22 January 2024 Decision date: 22 January 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: L Andelman, Senior Member Decision: The Tribunal declines to deal with the application as it involves an exercise of federal jurisdiction. Catchwords: PRACTICE AND PROCEDURE – Appropriate orders where claim involves federal jurisdiction - summary dismissal of proceedings under s 55(1)(b) of the Civil and Administrative Act 2013 HUMAN RIGHTS – Transgender vilification –aiding and abetting CONSTITUTIONAL LAW (Cth) – Whether Tribunal has jurisdiction to hear and determine complaint – federal jurisdiction - where respondents raised constitutional claim of implied freedom of communication on political matters – whether s38S of the Anti-Discrimination Act 1977 imposes an unjustified burden on the implied freedom of political communication – whether the respondents' claim was genuinely raised – whether the respondents' claim was not capable on its face of legal argument. Legislation Cited: Anti-Discrimination Act 1977 Civil and Administrative Act 2013 Cases Cited: Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304 Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 96 ALJR 476 Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171 Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 David Cawthorn and Paraquad Association of Tasmania Incorporated v Citta Hobart Pty Ltd and Parliament Square Hobart Landowner Pty Ltd [2019] TASADT 10 Farm Transparency International Ltd v New South Wales [2022] HCA 23; 96 ALJR 655 Gleeson v Cavers:Cavers v Gleeson [2021] NSWCATCD 158 Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 Sunol v Collier [2012] NSWCA 44 Texts Cited: Nil Category: Procedural rulings Parties: Stephanie Blanch (Applicant) Kirralie Smith & Binary Australia Ltd (Respondents) Attorney General of NSW (Intervenor) Representation: Counsel: C Gregory (Applicant) F Maghami (Respondents) Solicitors: Solve Legal (Respondent) Crown Solicitor (Intervenor) File Number(s): 2023/00257857 Publication restriction: Nil REASONS FOR DECISION Background 1. On 22 March 2023, Ms Blanch made a complaint to Anti-Discrimination NSW (ADNSW) against Ms Smith and Binary Australia Ltd in regard to conduct that occurred between 20 December 2022 and 22 March 2023. Ms Blanch alleged that Ms Smith posted information on multiple internet platforms using her image and her details of her sporting club. The information contained material which it was alleged constituted misgendering of Ms Blanch, hate speech, harassment and comments which amounted to vilification against transgender people thereby contravening ss 38S(1)(a) and 52 of the Act. 2. ADNSW received the last material on 23 July 2023 and on 11 August 2023, ADNSW referred the complaint to this Tribunal under s93C(a) of the Anti-Discrimination Act (NSW) (the Act) because the President's Delegate was of the opinion that the complaint could not be resolved by conciliation. 3. Pleadings, evidence and submissions were filed by the parties in this Tribunal in September to November 2023. On 13 November 2023, the respondents filed in the Tribunal a notice of a constitutional matter under s73B of the Judiciary Act 1903 (Cth) (the Notice). The Notice was also served on the Attorney General of New South Wales. 4. The Notice stated that the respondents' online activities are made as 'political advocacy' and 'political communications' around issues of 'gender equality', in this case about the effect on 'biological women' in sport. 5. The Notice also stated that if this submission was not accepted, the respondents would contend that s 38S(1)(a) of the Act was ultra vires as it applies to political speech and violates the constitutional limits contemplated by the High Court. 6. On 16 November 2023 the Attorney General intervened in these proceedings pursuant to s44(4)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). 7. At the interlocutory hearing the respondents and the Attorney General submitted that the application ought to be dismissed pursuant to s55(1)(b) of the CAT Act because the respondents' defence in reliance on s76(i) of the Constitution is genuinely in controversy and it gives rise to an issue capable of judicial determination, that is that the defence was properly raised and not incapable on its face of legal argument. Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 96 ALJR 476 (Citta) at [35] per Kiefel CJ, Gagler, Keane, Gordon, Steward and Gleeson JJ. 8. For the reasons that follow, the Tribunal finds that the determination of the application would involve an exercise of federal jurisdiction because the constitutional argument is genuinely raised and is capable on its face of legal argument. On this basis the respondents' application ought to be declined. The Legislative Provisions 1. The long title of the Act is: An Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons. 1. Part 3A of the Act deals with discrimination on transgender grounds. Section 38S defines transgender vilification: (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of-- (a) a person on the ground that the person is a transgender person, or (b) a group of persons on the ground that the members of the group are transgender persons. (2) Nothing in this section renders unlawful-- (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 1. Apart from the reference to the attribute, s 38S is in identical terms to racial vilification in s 20C, HIV/AIDS vilification in s 49ZBX, religious vilification in s 49ZE and homosexual vilification in s 49ZT. The Respondents' Submissions 1. The respondents rely on the High Court decision of Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 96 ALJR 476 (Citta) and refers to the following relevant principles. First, that the Tribunal is not a 'court of a State' and cannot determine constitutional questions as recognised in Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304 (Burns v Corbett); Citta per Kiefel CJ, Keane and Bell JJ [1] and [39]. 2. Second, that the defence relies on a matter 'arising under' a law made by the Commonwealth Parliament, the Commonwealth of Australia Constitution Act (the Constitution) Citta [31]. 3. Third, that the 'matter' arises under s76(i) of the Constitution as it is a matter 'arising under the Constitution or involving its interpretation' because the 'invalidity or inoperability of a State law is asserted in reliance on the Constitution' Citta [31]. 4. The respondents submit that once the assertion of a matter 'arising under' the Constitution is raised, it forms part of a 'single justiciable controversy' (Citta [33]) and does not depend on the merit of the constitutional argument raised (Citta [45]). 5. The respondents having raised the assertion in its points of defence, its submissions and in the Notice that s 38S of the Act 'impermissibly burdens the implied freedom of political communications guaranteed by the Constitution' and that the implied freedom is a limitation on legislative power submit that the assertion was genuinely raised. 6. The respondents refer in their submissions to Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 (Lange) and Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171 (Clubb) without referring to any particular paragraph or principle arising. In oral submissions, the respondents submitted that the Tribunal must assess the assertion based on the 'three step test' set out in McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 (McCloy). 7. On this basis the respondents submitted that the Tribunal must determine whether there is a genuine controversy and whether the assertion is generally arguable but cannot not determine the merits of the assertions raised. 8. The respondents submitted that as the constitutional assertion was genuinely made and capable on its face of legal argument, the Tribunal has no jurisdiction and the applicant must make her application to a State court pursuant to Part 3A of the CAT Act. The Attorney General's Submissions 1. The Attorney General's submissions were in agreement with the respondent's submissions apart from the respondent's submission that s 38S(1)(a) of the Act was ultra vires which was raised by the respondents in the Notice and written submissions but not pursued during oral submissions. 2. The Attorney General did not submit that the respondents' constitutional arguments were meritorious but only that it was 'sufficiently well-expressed to meet the low threshold' in Citta [35]-[37]. 3. The Attorney General submitted that the Tribunal must decide whether the constitutional matter was 'genuinely raised' and 'not incapable on its face of legal argument' and that the Tribunal would fall into error it if sought to determine the merits of the claim. 4. The Attorney General in his written submission submitted that 'it does not matter that the constitutional issue is governed by authority' but in the next sentence stated that 'binding authority directly on point, might lead the Tribunal to the conclusion that the constitutional issue was not genuinely raised.' 5. The Attorney General submitted that Sunol v Collier [2012] NSWCA 44 (Sunol) is not directly on point despite the court deciding that s49ZT of the Act, which prohibits homosexual vilification did not impermissibly burden the implied freedom. 6. Secondly the Attorney General submitted that there is an open question that Sunol 'remains determinative of the issue' and that the 'threshold of being binding was not reached' as it was determined prior to the current 'structured proportionality' approach first adopted by a majority of the High Court in McCloy and did not deal with the question of federal jurisdiction. The Applicant's Submissions 1. The applicant submitted that the respondents' constitutional argument had not been genuinely raised and that it was not capable of legal argument. 2. On the first point, the applicant submitted that the constitutional argument was raised for the first time 10 days before the final hearing and could be inferred to be 'colourable' as it was raised to vacate the final hearing and prolong the proceedings. The applicant was also critical of the respondents for failing to engage with the relevant principles arising in Sunol. 3. On the second point, the applicant relied on Sunol and submited that the provisions considered in Sunol were in identical terms of s38S but concerned homosexuality vilification set out in s49ZT of the Act. 4. In Sunol the NSW Court of Appeal rejected the argument of Constitutional invalidity. All three judges found that promoting tolerance and prohibiting homosexual vilification provisions were compatible with the implied freedom of political communications Bathurst CJ[53], Allsop P [55]-[74], Basten JA [94]. 5. The applicant submitted that as the respondents did not submit that Sunol was wrong or distinguishable or make any reference to the exception in s 38S(2)(c) of the Act, which is in the same terms as s 49ZT(2)(c) of the Act the Tribunal is bound to follow Sunol. 6. The applicant submitted that Sunol remained 'determinative' and is binding authority on the Tribunal as to the constitutional argument. 7. The applicant joined issue with the respondents and the Attorney General that the Tribunal must not consider the merits of the claim. 8. The applicant submitted that if the Tribunal was to find that it lacked jurisdiction, it should make an order declining to deal with the application as the course taken in Gleeson v Cavers:Cavers v Gleeson [2021] NSWCATCD 158. Consideration 1. Part 3A of the CAT Act deals with 'Federal Proceedings'. Section 34A defines 'federal jurisdiction' as jurisdiction of a kind referred to in ss 75 or 76 of the Constitution. The Tribunal has no jurisdiction to determine such matters, it not being one of the 'courts of the States' as referred to in s 77 of the Constitution. Burns v Corbett per Kiefel CJ, Bell and Keane JJ [1]. 2. The issue in these proceedings is said to be a matter 'arising under this Constitution or involving its interpretation' within the meaning of s 76(1) of the Constitution. The constitutional matter is that s 38S impermissibly burdens the implied freedom of political communication. 3. The Tribunal must exercise its authority but may not exceed its authority Citta [25]-[26]. The Tribunal does not have jurisdiction to hear and determine any complaint 'with respect to any matter meeting a description in ss75 or s76 of the Constitution.' Citta [29]. For the purpose of resolving the constitutional question raised by the respondents and forming an opinion about the Tribunal's limits of its jurisdiction, the Tribunal must objectively assess whether the constitutional question was genuinely raised and whether the constitutional question, on its face is capable of legal argument. 4. In Citta, the majority at [35] explained the task for the Tribunal in assessing the constitutional question in the claim or defence : … be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument. Genuinely raised 1. The respondents in their points of defence raised material facts they claim buttressed the constitutional question to be that the first respondent is employed by the second respondent, which is a political advocacy organisation. The respondents are engaged in political advocacy around gender equality and it was argued that the conduct alleged to be transgender vilification was political communication in the public forum. It was submitted that public communications about transgender are in the nature of political communications and that the communications were made for 'purely political purposes'. 2. The respondents squarely raised the constitutional issue in the Notice about 10 days before the final hearing. There was no application for an adjournment by the applicant or submissions that the applicant did not have an opportunity to meet the respondents' submissions. 3. I am satisfied that the respondents genuinely raised the constitutional issue. I reject the applicant's submission that an inference ought to be made that the respondents acted in an improper manner in raising the constitutional matters because it was late or because they failed to refer to Sunol in their submissions. Whether the constitutional issue is incapable on its face of legal argument 1. The Tribunal must determine the constitutional issue without delving into the prospects of success, unlike in a summary dismissal case which has a higher threshold as it requires an assessment of whether the claim is 'so clearly untenable that it cannot possibly succeed' Citta [37], [47]. 2. Edelman J in minority held that determining whether there is a 'real question' giving rise to a constitutional issue involves the same assessment as whether there would be an abuse of process which requires a finding that the claim is 'manifestly hopeless' which 'can never be entirely independent of an assessment of the 'merits' of that issue' Citta [75], [78]. 3. The question for decision is whether on the face of legal argument, the submission that s38S of the Act imposes an unjustifiable burden on the implied freedom of political communication is so clearly untenable that it cannot possibly succeed. 4. To answer the question, the Tribunal must consider the elements of the implied freedom of communication on political matters. 5. In Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 (Banerji) per Kiefel CJ, Bell, Keane and Nettle JJ (the majority) set out the method for considering the effective burden imposed by the impugned provisions. At [29] the majority stated: The question is whether that burden is justified according to the two part test of whether the impugned law is for a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution and, if so, whether that law is reasonably appropriate and adapted to the achievement of that objective (citation omitted). 1. Whether the legislative provisions were appropriate and adapted involves the consideration of the suitability, necessity and adequate balance [32]-[38]. 2. In McLoy at [2], French CJ, Kiefel, Bell and Keane JJ described the implied freedom of communication on political matters to be: The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may "exercise a free and informed choice as electors." Lange at 560. It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions. 1. As stated consistently on many occasions by the High Court, the implied freedom of communication on political matters is not a personal right of free speech like the 'freedom of expression' guarantee in the Constitution of United States. The implied freedom in the Constitution 'extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution' (Lange at 576; Banerji at [20]). 2. The implied freedom of communication on political matters is a freedom of expression right but it is qualified and conditional. The respondents' submissions do not grapple with how s 38S effectively burdens the people of the Commonwealth from exercising a free and informed choice as electors; Lange at 560 or whether the purpose of the Act as a whole or s 38S specifically is compatible with the maintenance of the constitutionally prescribed system of representative government (Lange at 561-562, 567). There are no submissions as to whether the Act is reasonably appropriate and adapted to advance legitimate objects (Lange at 562). Effective Burden 1. The first step is to construe the statutory language creating the offence. Section 38S(1) of the Act makes it unlawful to incite hatred towards, serious contempt for or severe ridicule of a transgender person or transgender persons. The applicant conceded that s 38S(1) limited political communication to some extent and imposed an effective burden on the implied freedom of political communication consistent with the judgement of Bathurst CJ at [42], Allsop P at [55], [68] (the majority) in Sunol. Basten JA at [85]-[91] provided a powerful finding that s 49ZT of the Act which is in identical terms to s38S but is about homosexual vilification is not a burden on the implied freedom of communication on political matters. Justification 1. As stated by Kiefel CJ and Keane J in Farm Transparency International Ltd v New South Wales [2022] HCA 23; 96 ALJR 655 at [29]: The process of justification commences with the identification of the statutory purpose. That purpose must be compatible with the system of representative government for the provision to be valid. A justification for a burden will only be sufficient if it is shown that the statutory provision is proportionate to the achievement of its purpose[18]. Since McCloy v New South Wales, including more recently in LibertyWorks Inc v The Commonwealth, proportionality has been assessed by reference to whether the impugned provision is suitable, necessary and adequate in its balance. (citations excluded) 1. The question that arises is whether s38S 'exhibits a rational connection to its purpose' Banerji [33] and is 'suitable, necessary and adequate in its balance'. In Sunol the judges were unanimous in their finding that s 49ZT is a law that was reasonably appropriate and adapted to serve a legitimate end which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government (Bathurst CJ at [46], Allsop P at [59], [73]-[74], Basten JA at [94]). 2. In paragraphs [47] to [52] Bathurst CJ explained why s 49ZT of the Act is appropriate and adapted in a manner compatible with the implied freedom: [47] In considering this question there are a number of matters which need to be borne in mind. First, the freedom is not absolute. In Australian Capital Television Pty Limited v Commonwealth supra at 169, Deane and Toohey JJA emphasised that it was not an absolute and uncontrolled licence but an implication of freedom under the law of an ordered and democratic society: see also Cunliffe v The Commonwealth of Australia [1994] HCA 44; (1994) 182 CLR 272 at 336-337. In Lange at 565-566 (citations omitted), the Court summarised the position as follows: "Similarly, the content of the freedom to discuss government and political matters must be ascertained according to what is for the common convenience and welfare of society. That requires an examination of changing circumstances and the need to strike a balance in those circumstances between absolute freedom of discussion of government and politics and the reasonable protection of the persons who may be involved, directly or incidentally, in the activities of government or politics." [48] Second, in determining whether a law is reasonably appropriate and adapted to a legitimate end, the question for the Court is not whether some choice other than that made by Parliament was preferable or desirable, but whether the parliamentary choice was reasonable in light of the burden placed on the constitutional freedom of communication. The role of the Court is to ask whether Parliament's enactment is a reasonable means of achieving its purpose, keeping in mind the importance of constitutional freedoms: Levy v State of Victoria [1997] HCA 32; (1997) 189 CLR 579 at 598, 608, 614-615, 618-620, 627-628 and 647-648; Mulholland v Australian Electoral Commission supra at [32]-[33], [234]-[239], [256], [360]; Coleman v Power supra at [31], [100], [292] and [328]. [49] Third, the distinction has been drawn between legislation the direct purpose of which is to restrict political communications and that which only incidentally restrict such communication. The distinction was drawn by Gaudron J in Levy v The State of Victoria supra at 619 (citation omitted), in the following terms: "If the direct purpose of the law is to restrict political communication, it is valid only if necessary for the attainment of some overriding public purpose. If, on the other hand, it has some other purpose, connected with a subject matter within power and only incidentally restricts political communication, it is valid if it is reasonably appropriate and adapted to that other purpose." [50] Section 49ZT falls into the latter category. [51] Although having regard to the construction of the Act to which I have referred above, it is true that the potential operation of the section is wide and can extend to public acts neither intended to incite hatred, serious contempt or severe ridicule or in fact having that effect, it must be remembered that public acts which express such emotions but which would not incite such emotions in an ordinary member of the class in question are not caught by the section. Further, such persons would generally be aware of the robust nature of political debate which takes place in this country. In addition, s 49ZT(2)(c) exempts from the operation of the section public acts done reasonably and in good faith concerning matters in the public interest, including discussion or debate about any act or matter. [52] It seems to me plain that seeking to prevent homosexual vilification is a legitimate end of government. A law seeking to prevent the incitement of such conduct seems to me compatible with the maintenance of the constitutionally provided system of government. It does not seem to me that debate, however robust, needs to descend to public acts which incite hatred, serious contempt or severe ridicule of a particular group of persons. Further, to the extent that what is recognised as legitimate political debate would fall within s 49ZT the exemption in s 49ZT(2)(c) in my opinion provides adequate protection. In those circumstances the legislation provides the appropriate balance between the legitimate end of preventing homosexual vilification and the requirement of freedom to discuss and debate government or political matters, required by the Constitution: Cf Jones v Scully supra at [240]. 1. Sunol is authority for the proposition that homosexual vilification provisions in the Act are justified and do not impose an unjustifiable burden on the implied freedom of political communication and on that basis if such an argument was made it is likely to be untenable. 2. For the Tribunal to find that such an argument is untenable regarding the prevention of transgender vilification as a legitimate end of government on the same basis found in Sunol requires a value judgement which would in my opinion involve delving into the merits of the claim which the Tribunal has no jurisdiction to do. 3. As the Tribunal has no jurisdiction to determine these proceedings because they involve an exercise of federal jurisdiction, the application is declined. 4. I do not consider that the Tribunal's discretion would be properly exercised by dismissing the proceedings pursuant to s55(1) of the CAT Act as none of the subsections refer to dismissal based on a lack of jurisdiction. 5. The Tribunal makes the following order: 1. The Tribunal declines to deal with the application as it involves an exercise of federal jurisdiction. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 31 January 2024 - Amended name of Counsel for Respondent 05 March 2024 - Paragraph 8; Amended. Paragraph 18; The word 'arguably' should ready 'arguable'. Paragraph 33; The second 'applicant' should read 'application'. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 March 2024