I was tempted this week to write on an event that’s about as frequent as a transit of Venus. I refer to the scion of one of a country’s pre-eminent political families or dynasties coming out publicly to endorse the candidate for the other side. Because late last week there was Robert F. Kennedy Jr. officially endorsing Donald Trump in the sense of removing his own name from the ballot in the 10 key swing states and encouraging all his voters to vote for Trump. Why? RFK listed such factors as the unholy alliance between the Democrats and a house-trained legacy media that has abandoned any pretence of balance in favour of becoming the PR wing of the current administration; the Democrats’ weaponisation of Government agencies and the courts against their opponents; the huge inroads on free speech by the Democrats and their attacks on democracy – including the fact that Kamala has never received a single Democrat’s vote at any stage of the 2020 or 2024 nomination processes and the Dems’ collusion with Big Tech to suppress speech during lockdowns – in the Humpty-Dumpty name of supposedly ‘protecting democracy’; the huge concerns he has about public health in the U.S.; and the warmongering that he sees as lying behind U.S. policy in the Ukraine war. (Sidenote: I don’t agree with the whole RFK package but, surprisingly, I agree with an awful lot of it.) As I said, this is historic stuff to witness this sort of political apostasy. And you can bet your last dollar that the vitriol and unhinged personal attacks that are regularly thrown Trump’s way will now also be thrown at the nephew of JFK, and with an unrestrained abandon.
And yet as historic as this was, I have (the above paragraph excepted) resisted the temptation to write about U.S. politics in this week’s column. Instead, I opted to read the just released Tickle v Giggle Federal Court decision by Bromwich J., all excruciating 283 paragraphs. I’ve done this so that none of you have to do so. For those who don’t know, this was the case about a women’s only app and whether a transgender person – born male and transitioned to now want to be labelled a woman – could force access to that app through the courts. A lot was going on in this case but here is a précis that covers the key aspects of that decision. First off, it’s a predictably woke judgment. I don’t say that just because Justice Bromwich, who decided the case in the Federal Court, was appointed by the Liberals and by former Attorney-General George Brandis, though Lord knows Mr. Brandis’s record on High Court appointments was truly woeful for anyone who values interpretive legal conservatism. You see, the bulk of the fault for the outcome of this decision is political. In 2013 the then Gillard Government amended the Sex Discrimination Act (‘SDA’), most notably s.22, to include ‘gender identity’. We then had nine years of Coalition Governments that were well aware of the fact that courts around the Anglosphere were becoming ever more activist and prepared to adopt woke, Left-wing interpretations of the law. Did the Abbott Government attempt to remove this Gillard amendment to the SDA? Did Turnbull’s? Morrison’s? To ask is to answer with the current state of conservative MPs in Australia.
But that in no way is meant to suggest that Justice Bromwich had no choice in this case but to decide for the transgender applicant (named ‘Tickle’, as it happens). I would say that the outcome, given the state of today’s judiciary (again, thank you Liberal Party), was predictable, even likely; nor was it beyond the pale as a matter of straight-up legal analysis. At the same time, however, the result was in no way compelled by the legal materials. Indeed, I think a strong case could be made for the respondent winning (named ‘Giggle’ as it happens, giving us a British farce type case name here). But the judge in the case disagreed with me. As I said, that was highly predictable.
So why did Bromwich J. side with Tickle and not Giggle? Well, he gave leave to the current Sex Discrimination Commissioner to appear as a friend of the court and then basically accepted all of her submissions on the interpretive questions. The judge held there was indirect discrimination because sex is not confined to being a biological concept. Today it has a wider meaning. It encompasses the idea that a person’s sex can be changed. Most relevantly, the judge was swayed by the notion that the determination of sex nowadays takes into account not just biology but legal recognition. And the judge accepted the Sex Discrimination Commissioner’s view that it is legally sufficient that Tickle got an updated Queensland birth certificate – it now records Tickle as female. Long story short, that is that as far as the judge’s take on interpreting the Sex Discrimination Act was concerned – and notice this view implies the meaning of a legal text can change over time, sane originalism be damned! Personally, I was not convinced that this question was legally resolved by the updated birth certificate, but not remotely surprised by the outcome either.
What about Giggle’s constitutional law attacks on those 2013 amendments? In essence the Giggle line was that the Commonwealth Government could not point to a head of power that gave it the legal authority to do what it did. And in any sane federalism set-up, including the one our Founders created in this country, that argument would be patently correct. Alas, we can’t in any way blame Bromwich J. here. He followed High Court jurisprudence that has basically destroyed any competitive and sane version of federalism in this country – there is no doubt that over the last century we have had the most centralising top court in the federalist world. For one, Bromwich said this Commonwealth legislation was supported by the External Affairs power (s.51(xxix)). That flowed (sort of, because the judge’s take on Article 26 of the ICCPR was unconvincing to me) from the truly awful Tasmanian Dam Case that came close to giving the centre a power to legislate on anything at all, as long as the Executive first enters into a treaty on the matter. In my view that Tasmanian case had nothing to do with honest interpretation of the legal text. But Bromwich was bound by it. Bromwich also pointed to the Corporations power (s.51 (xx)). That flowed from the Work Choices case, one of the major errors of the at-heart centralising former PM John Howard, and again a woeful take by our High Court that left us, ultimately, with worse labour relations laws in this country and a worse version of federalism. But it wasn’t Bromwich’s fault because it is binding legal authority on him. So the Gillard 2013 amendments get a constitutional law tick. The judge then adopts the ‘living text’ interpretive view of the recently appointed new Sex Discrimination Commissioner as regards the interpretive force of getting an updated birth certificate on the core issue here. Giggle loses, after pre-emptively shutting down the women’s only app. The judge awards Tickle $10,000 in damages and $50,000 in costs.
Those, dear readers, are the wages of discrimination complaints to the Human Rights Commission in this country. Then Federal Court legal actions. Together with a cumulative total failure of backbone by successive Coalition Governments meshed with the general trend of heightened judicial activism around the common law world. Pretty depressing. Maybe I should have stuck to U.S. politics.
James Allan is the Garrick Professor of Law at Queensland University. This article first appeared in Spectator Australia.
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