High Court ends Giggle appeal — now the question returns to Parliament

Australia's High Court has refused special leave to appeal in the long-running Giggle v Tickle discrimination case, bringing the judicial challenge by Giggle for Girls founder Sall Grover to an end.

But the decision does something else.

It moves one of the most contentious questions raised by the case away from the courts and towards Australia's elected Parliament.

The High Court did not conduct a full appeal and deliver a comprehensive judgment reconsidering the competing arguments in the case.

Instead, it refused permission for the appeal to proceed.

In doing so, however, the Court said there was "no reason to doubt" the Full Federal Court's construction of sections 7D(1) and 7D(2) of the Sex Discrimination Act 1984, and concluded that an appeal dependent upon demonstrating an error in that construction had insufficient prospects of success to warrant special leave.

Grover and Giggle were ordered to pay Roxanne Tickle's costs.

The practical consequence is clear.

The Full Federal Court judgment stands.

What the High Court actually decided

The distinction between refusing special leave and deciding an appeal is important.

The High Court does not automatically hear appeals simply because a party disagrees with the decision of another Australian court.

Generally, a party must first obtain special leave.

That process allows the High Court to determine which cases warrant consideration by Australia's highest court.

Grover sought that permission.

She did not receive it.

The High Court therefore has not conducted a full appeal in which all of the competing arguments were reconsidered and resolved through a substantive appellate judgment.

But neither should the refusal be dismissed as meaningless.

The Court expressly said there was no reason to doubt the Full Court's construction of the relevant provisions of the Sex Discrimination Act and that an appeal based upon establishing error in that construction had insufficient prospects of success.

For the parties, the domestic appellate process has effectively reached its conclusion.

What the case was about

The litigation arose after Roxanne Tickle, a transgender woman, was excluded from Giggle for Girls, a social networking application promoted as a women-only space.

The Federal Court found that Tickle had been unlawfully discriminated against.

The Full Federal Court subsequently upheld the discrimination finding and increased the damages awarded to Tickle to $20,000.

A central part of Grover's argument concerned section 7D of the Sex Discrimination Act.

The legislation permits "special measures" intended to achieve substantive equality in certain circumstances.

Grover argued that a female-only service could constitute such a measure.

The Full Court rejected the relevant construction advanced by Giggle and Grover.

That interpretation now remains standing following the High Court's refusal of special leave.

Can the High Court change an Act of Parliament?

The case raises a broader question that is easily misunderstood.

Can the High Court change Australian legislation?

The straightforward answer is no — not in the way Parliament can.

Parliament makes legislation.

Parliament can insert words into an Act, remove them, redefine terms or repeal legislation altogether.

The High Court does not possess a general legislative power to rewrite an Act simply because judges consider that different legislation would produce better public policy.

But courts necessarily interpret legislation.

Words enacted by Parliament must be applied to real disputes involving circumstances that Parliament may not have specifically contemplated when legislation was drafted.

When the meaning or interaction of statutory provisions is disputed, courts determine how those provisions operate.

And when the High Court interprets Commonwealth legislation, its interpretation becomes authoritative for Australian courts.

That can have enormous practical consequences without a single word of the legislation being amended.

Interpretation is not legislation

This distinction lies at the heart of Australia's constitutional system.

A court determining what legislation means is exercising judicial power.

A parliament changing what legislation says is exercising legislative power.

The two functions should not be confused.

Critics of particular judgments sometimes say that judges have "changed the law".

In ordinary conversation that description can reflect the practical effect of a decision.

Legally, however, the position is more precise.

The court has interpreted and applied the law Parliament enacted.

If Parliament subsequently decides that interpretation does not produce the result Parliament wants, Parliament has another option.

It can change the legislation.

Parliament can respond

That possibility is particularly relevant following Giggle v Tickle.

The Sex Discrimination Act is Commonwealth legislation.

It was enacted by Parliament and can be amended by Parliament, subject to constitutional constraints.

The Act currently does not contain statutory definitions of "man" and "woman".

Opposition Leader Angus Taylor has already promised that a Coalition government would amend the Act to introduce definitions based upon biological sex and provide statutory protection for single-sex spaces.

Others strongly oppose such a change and argue that existing protections against gender-identity discrimination should remain.

That is now fundamentally a political question.

Members of Parliament can propose amendments.

Parliament can debate them.

Political parties can take positions to elections.

And Australians can ultimately judge those positions through the democratic process.

Courts cannot solve every political disagreement

There is a broader lesson here.

Modern governments increasingly legislate in areas involving complicated and sometimes competing rights.

Parliament establishes the statutory framework.

Courts then have to apply it.

When legislation produces consequences that substantial sections of the community consider unsatisfactory, criticism inevitably falls upon judges.

But sometimes the more important question is whether Parliament has expressed its intentions clearly enough.

If legislators believe "woman", "man" or "sex" should have particular statutory meanings, Parliament has the capacity to define them.

If legislators believe the present legal position is correct, Parliament can leave the legislation unchanged.

Either course carries political consequences.

But those consequences properly belong to elected representatives.

The High Court has spoken — but only on the case before it

The High Court's refusal of special leave should therefore be described carefully.

It is not legislation.

It is not a referendum on the broader social debate.

And it is not a comprehensive High Court judgment determining every question concerning sex, gender identity or single-sex spaces in Australia.

It is a judicial decision concerning whether this particular proposed appeal should proceed.

The answer was no.

That leaves the Full Federal Court's judgment standing and provides the operative legal position arising from this litigation.

Anyone seeking a different statutory outcome must now look primarily somewhere else.

To Parliament.

The Times View

The separation of powers becomes most important when the subject matter is controversial.

Courts should decide the cases brought before them according to law. Parliament should determine what Australia's legislation should say.

The High Court has refused Sall Grover and Giggle for Girls permission to pursue their appeal. That decision should neither be exaggerated nor diminished.

The Full Federal Court judgment stands.

But the High Court has not amended the Sex Discrimination Act. It does not possess Parliament's general legislative power to do so.

If Australia's elected representatives believe the Act produces the correct balance between sex-based protections and protection against gender-identity discrimination, they can leave it alone.

If they believe the balance is wrong, they can propose amendments and accept political responsibility for them.

That is where this dispute now becomes larger than Giggle v Tickle.

After years of litigation, Australians have an answer from the courts about how the existing legislation operates in this case.

The next question belongs to their elected representatives:

Is this the law Parliament wants Australia to have?