Blanch v Smith [2024] NSWDC 631 | Case summary

Blanch v Smith [2024] NSWDC 631 | Case summary | Zoe

[7]

The Basis of the Application

The Appellant applied to the Local Court for orders based on 15 matters, namely: 1. The Respondent is a "spokeswoman" and the founder of the organisation Binary Australia, an anti-trans organisation with over 100,000 subscribers. She is also very active on her website, and on Twitter and Facebook, where she had repeatedly shared the Appellant's image and had not removed it. 2. On 27 February 2023, the Respondent came to Wingham, where the Appellant plays soccer, with a group of men impersonating transgender women. 3. The Respondent filmed the proceedings in which the impersonators played soccer. One of them ripped a Wingham Football Club shirt off a teenage girl wearing the impersonating clothing. 4. The Respondent told the Appellant's friends present that she was going to edit the video and post it online. 5. On 19 January 2023, only eight days before the impersonators came to the game, the Respondent posted a tweet calling for men on the Mid North Coast to get in contact with her to help with "the bloke playing on the women's team in Wingham." 6. The Appellant was aware that the Respondent did not agree that she or other transgender women should be permitted into women's changerooms and bathrooms and believed that the Respondent was sharing her image to incite harm and violence. 7. The Appellant believed the Respondent was focussing on her and her involvement in football as taking away women's rights. 8. The attacks had targeted her participation in football since mid-December 2022 when Wingham Football Club posted photos on Facebook of their club awards night with her image being used from those posts. 9. This occurred online, in public and with emails sent by herself and others. 10. The Appellant believed that the Respondent had also contacted administrators at Wingham Football Club, Mid North Coast Football, Football New South Wales, Northern New South Wales Football and Football Australia. 11. On 20 January 2023, the Respondent posted a picture of the Appellant receiving an award at her soccer presentation (from the December Wingham posts), calling her a "bloke in a frock" on her Twitter account with 14,000 followers. 12. The Respondent made a similar post on her Facebook page with 48,000 members (this page has recently been deactivated by Facebook), and her organisation page that had some 78,000 followers. 13. Also on 20 January 2023, the Respondent posted an article with the same pictures on the website Binary.org.au, again calling out the "bloke in a frock." 14. In sharing the posts, the Respondent named the club and town that the Appellant lived in (Wingham). In the photographs used, the Respondent obscured all other faces other than the Appellant's. 15. The Appellant feared for her safety and the safety of her football friends and community. She feared that the Respondent was not going to stop.
I am mindful that not all of those findings were made in the Local Court and indeed, not all of those factual findings will be made by me.
On 11 February 2023, the Appellant filed a police report at the Taree Police Station.
The Appellant sought an order with conditions designed to protect her, for a period of 12 months.
The Appellant also sought that the Respondent remove the images and identifying information of the Appellant and not share her names, images or information in the future.

[10]

PE v MU [2010] NSWDC 2 ("PE v MU")

The Respondent referred me to PE v MU at [17] in which M L Williams SC DCJ relevantly observed that molestation included behaviours which are found to be ongoing and unwanted and of a pestering and interfering nature. That decision has been helpful. There is no doubt in my mind that the actions by the Respondent meet that definition.
The Respondent relied on the Macquarie Dictionary definition of "molest" and relevantly "to interfere with annoyingly or injuriously." I agree with that definition.
The lack of physical 'molestation' is irrelevant. The fact that the Act contemplates "cyberbullying" and therefore a species of 'non-physical' molestation, allowing unwanted "pestering" or "annoyance" to be made directly to a complainant via digital means is accepted by the Respondent.
I reject the submission that the substance and indirect nature of the Respondent's statements were such that there was no "molestation."
I also reject the Respondent's submission that the conduct did not amount to "harassment." The Respondent made repeated and persistent statements about the Appellant, using unnecessary belittling and offensive terms.
The conduct involved ongoing behaviours which were objectively threatening. In addition, they were "disturbing." They interrupted the Appellant's quiet and peaceful life, playing soccer on the Mid North Coast for her club, in a team that accepted her and celebrated her for her commitment to the sport. The Appellant is not a transgender activist, simply a transgender woman who feared that her quiet life would be interrupted, hindered, or interfered with. There is no question that the conduct of the Respondent interfered with her, interrupted her, hindered her, threw that part of her life into commotion and disorder, and disarranged and unsettled her; the very definitions relied on by the Respondent as being required.
The Respondent accepted that repeated verbal or cyber-attacks on a person might constitute harassment but submitted that the conduct would have to be direct and intended to cause the complainant to fear, by virtue of it being either threatening or disturbing. I find that the statements were both direct, in the way the statements and photographs were deployed and that it was intended to parody the Appellant generally, a transgender woman, in the way described.
In respect of the post made on 21 November 2024, I find that the intimidation and harassment was intended by the Respondent to be so for the reasons that I will come to.
However, an intention to harass or intimidate is not necessary. Accordingly, a finding that a post was intended by the Respondent to be harassing and intimidating has had no material effect on the outcome other than it may be relevant to the terms of any orders in the event that they are made.
I accept the Appellant's submission in respect of P E v M U. There is no "statutory definition" of "harassment" and accordingly, it will have its natural and ordinary meaning in the context of the facts at hand. In this case, I accept that it is satisfied by the Macquarie Dictionary definition of being "troubled by repeated attacks, incursions" or to "disturb persistently." It does not require threats. I am satisfied that the Respondent's behaviour was harassing. The Respondent disturbed persistently and repeatedly tormented and interfered with the Appellant.
I accept the Appellant's submission that the voluminous social media posts to a large segment of the public who shared the Respondent's views, identifying the Appellant and where she might be found, by unnecessarily engaging in transphobic belittling, unkind and offensive language constituted harassment for the purposes of s 19 of the Act.

[11]

Lee v R (2023) NSWCCA 70 ("Lee v R")

The Respondent's reliance on Lee v R at [34], a decision of Dhanji J, to submit that the communications between the parties need to be direct and intended to be harassing to satisfy the provisions of s 19 of the Act, is misplaced.
Lee v R is not a case about s 19 of the Act. It was an unsuccessful appeal against sentence for an intimidation offence pursuant to a different criminal provision. As it involved an offence, it is unremarkable that the conduct needed to be carried out with the intention of causing fear of physical or mental harm and that "a trivial example of intimidation will not sustain an inference." There is no such requirement for proof of that mental element in s 19 of the Act.
The Respondent submitted that it: "Would be an absurdity, that should not be imputed to the legislature, for the law to seek to define intimidation as being capable of establishment under the Act, without requiring the Appellant to prove that the Respondent was possessed of a requisite state of mind for the act."
I do not agree. The submission, in my view, shows a misunderstanding of the purpose of s 19 of the Act. Indeed, in many cases, conduct can be harassing, and the recipient be in need of protection, where the harasser has a genuine belief that they have been appropriately communicating with the person. For example, it is often the case when relationships between partners break down, and one party wants to reconcile and behaves in a way not intended to be harassing or intimidating, that is nonetheless harassing and intimidating, and which leads to a reasonable fear being perceived by the recipient.
Characterised as a criticism of the Appellant's case, the Respondent submitted that: "[S]uch an interpretation, as the Appellant champions, would define intimidation not by the nature and intent of the Respondent's positive actions, but instead, by reference to the Appellant's subjective perception and response to those actions." I interpolate that it also requires that the fear be reasonable. Otherwise, that is the very interpretation the Courts have taken in all cases as prescribed by s 19 of the Act and it is clear, in my view, from the words.
Accordingly, I reject the Respondent's submission that a person cannot be subject to an APVO for conduct which they were not consciously aware and did not intend to be intimidatory to the complainant.
That is not to say that intention may not be relevant. The post made by the Respondent on 21 November 2024, given that the Respondent knew that previous similar posts had caused the Appellant to fear (because she had said so in the Local Court without challenge) was, in my view, carried out not only with an intention to further the Respondent's advocacy, but also to harass or intimidate the Appellant. The Respondent submitted that the post is irrelevant. I do not agree. Intention is, in my view, relevant in consideration as to whether the conduct is more likely to be harassment, and in consideration as to whether Court orders are needed, but it is not necessary in proof of the matters required by s 19 of the Act.

[12]

Veness v Hodge [2015] NSWCA 20 ("Veness v Hodge")

The Respondent relied on Veness v Hodge as an example of a requirement that: "Intimidation requires a personal relationship within the community, and a directness of action, between the parties to the APVO."
In that case, the parties had been in a long running dispute. They were business neighbours operating in close proximity; they had previous and direct dealings; and had direct communication with each other. Ms Veness regularly photographed her neighbours whilst on their private property and without their consent. She also made negative comments that were contrary to Ms Hodge's ongoing business interests. The Court found this was intended to cause harassment to her neighbour, Ms Hodge.
Relevantly the following matters emerged from the decision: 1. Conduct may amount to intimidation of a person even though it does not involve actual or threatened violence of the person. 2. The power to make an APVO is enlivened if the Court is satisfied of the matters described in s 19 of the Act, that is (and only is) where the fear in fact exists, and whether or not there are reasonable grounds for that fear on the part of the Appellant. There is no requirement for intent or direct intimidation or harassment. 3. As to whether the power should be exercised, the Court has a duty to consider the matters set out in s 20 of the Act. 4. Just what conduct is found to be "harassing" or "intimidates" relies on the terms being given their ordinary English meanings. Section 7 of the Act provides that intimidation of a person means, an approach made to the person by any means that causes the person to fear for his or her own safety; or any conduct that causes a reasonable apprehension of injury to the person. There is no requirement for a direct relationship. 5. For the purposes of determining whether a person's conduct amounts to intimidation, a Court may have regard to any pattern of (in that case) violence in the person's behaviour. Accordingly, a persistence in the conduct is a relevant consideration. 6. The issues between the parties in that case had been ongoing. The ongoing complaints had become vexatious, focusing on Ms Hodge's actions. In that case, the evidence supported a finding of an intention to cause harassment. 7. Ms Hodge's evidence was that she was intimidated by Ms Veness. 8. His Honour said that he was satisfied to the requisite standard that the behaviour of Ms Veness fell within the definition of intimidation under s 7 of the Act. His Honour was further satisfied that the fears expressed by Ms Hodge were a reasonable response to the behaviour of Ms Veness, and that it was sufficient to warrant the making of an APVO claimed by Ms Hodge. 9. On appeal, Ellis DCJ referred to the "ongoing conduct that amounted to harassment and molestation in the sense of ongoing pestering." 10. Ellis DCJ agreed with the finding by the then Magistrate that Ms Hodge feared ongoing harassment or intimidation by means of harassment and molestation, and that there were reasonable grounds for her to hold those fears. 11. His Honour concluded that the conduct was such that it was sufficient to warrant the making of an APVO. 12. The appeal to the Court of Appeal was dismissed.
According to the Respondent, this is contrasted to the present case, where the parties are unknown to each other and where the impugned communications have been made by the Respondent online, directed to the public at large, but primarily to Football Australia and Football New South Wales, and it is submitted, in each case, the Respondent sought to make a political statement.
I did not read Veness v Hodge to require the parties to be known to each other. Furthermore, in making those statements to the public at large, the Respondent targeted the Appellant, not only in the class of persons who identify as transgender females playing women's soccer, but also targeted the Appellant individually and personally.
In my view, where the focus of the application is the effect on the Appellant and her need for protection, the way in which the harassing and intimidating statements came about is largely irrelevant.
The Respondent asserted that the Appellant's case, "Is an attempt to misappropriate and hyperextend the legislative framework of the Act, for the purpose of repression of particular political communication in the State of New South Wales that it is adverse to and critical of the plaintiff's personal identity and lifestyle choices." That submission is roundly rejected. The state of mind of the Appellant, other than as to her fears, is irrelevant. There is no basis for this submission being made and, indeed, it was not put to the Appellant in the Local Court.

[13]

Murdoch v Hadley [2011] NSWLC 11 ("Murdoch v Hadley")

The Respondent relied on what were said to be persuasive observations made by Brown LCM in Murdoch v Hadley at [19].
It is worth considering the facts of Murdoch v Hadley. Mr Murdoch sought an APVO against Mr Hadley. The primary complaint was that Mr Hadley was pursuing a radio broadcast "vendetta" against him because of Mr Murdoch's past failed business dealings and criminal activity. Mr Murdoch's desire was that the "vendetta" should cease. The learned Magistrate was satisfied that the assertion had some foundation. There was also little doubt that many of Mr Hadley's comments about Mr Murdoch were well founded in fact. In addition to the broadcasts, Mr Murdoch claimed that Mr Hadley made a number of telephone calls to Mr Murdoch, his son and his father. It is asserted that those calls were intimidating in nature, with claims that Mr Hadley threatened that he would "fix up" Mr Murdoch, or "bring him down" or "make his life hell." Mr Hadley categorically denied making any of the alleged calls. Other isolated attacks of intimidation are also claimed by Mr Murdoch, and denied by Mr Hadley. Unlike this case, the alleged phone calls were "rather vague," and the case was determined on that basis.
I agree with the statement of principal in Murdoch v Hadley that repeated verbal attacks can amount to harassment and that repeated unwanted calls can amount to harassment, even if the calls are not themselves threatening. Such is the case in many successful applications for APVOs that come before the Courts in New South Wales, arising from repeated phone calls to intimate partners, but which are nonetheless unwanted and therefore harassing.
The Respondent's reliance on Murdoch v Hadley is, in my view, misplaced. The application for an APVO was unsuccessful, not because there was no directness of action, communication or relationship between the parties, indeed to some extent there was. The case failed because the Court was not satisfied that the words had been said. In short, the evidence brought forward was insufficient. As set out at [4] of the judgment, apart from the alleged rather vague phone calls, there was no other evidence before the Court to suggest that Mr Hadley had ever committed, threatened or contemplated the commission of a personal violence offence.
Even if it is accepted that the purpose of the Act is to prevent personal violence between the parties, given the Respondent's willingness to identify and focus her rhetoric on the Appellant by using her photographs, by referring to the community in which she lives and where she is the only transgender playing soccer in a small community at Wingham, there is, in my view, a relationship between the parties in the community. It is a relationship where the Appellant is simply trying to play social soccer in her local community, in line with her identification, and consistent with Football New South Wales and Football Australia's policies of tolerance, and the Respondent is trying to stop that occurring by her political statements which include parodying, harassment and intimidatory conduct. I do not agree that any impugned communications need to be made directly to the Appellant. It is sufficient that they were published in a way that the Appellant became aware of them and held a reasonable fear as a result. In my view, the personal conduct in this case is neither "remote" nor "speculative."
Murdoch was decided prior to the introduction of the cyberbullying definition. It is now abundantly clear that unwanted and continued negative statements and pursuit of a person online are caught by the Act.
The Respondent's submission relying on Murdoch v Hadley, that it seems highly likely that, if Parliament had intended the domestic violence legislation to extend from the field of personal violence into the field of defamation, it would have done so much more plainly than by reliance on the construction of the single word "harassment", is rejected. There are defamatory statements that may, or may not, also be harassment and vice versa. The focus of each area of the law is quite separate; the latter on the protection of the person against abuse and the former on compensation for damage to one's reputation. Indeed, mere abuse is not protected by defamation law, whilst it is by the Act.

[16]

Findings by the Local Court Judge

Looking at the matter afresh, I agree with the following matters set out in her Honour's reasons for judgment: 1. Conduct may amount to intimidation of a person even though it does not involve actual or threatened violence to the person: s 19(3) of the Act. 2. Intimidation includes cyberbullying and amounting to harassment of a person. An example of cyberbullying is set out in the Act, as publication or transmission of offensive material over social media or via email. 3. An approach made to the Appellant by any technologically assisted means that causes her to fear for her safety, or conduct that causes a reasonable apprehension of injury to her, is also intimidation. 4. The Appellant is a transgender woman who plays soccer with the Wingham Warriors in their senior ladies' team and is the only transgender woman in that team. It is a local team playing in a locally based competition that runs from Autumn to Spring. 5. Prior to seeing her online, the Appellant had never met and had never had any dealing with the Respondent. 6. The Appellant's first experience of the Respondent's activities was seeing her own photograph posted online. She had fears of harassment and intimidation through the online posts that she saw the Respondent had posted, including photos on her website, Twitter and Facebook using belittling or degrading terms such as "bloke in a frock" or deliberately misgendering, stirring up controversy over her status as a transgender woman playing in a woman's soccer competition, encouraging vilification due to her transgender status and using the Appellant as an example of a political point advocated by the Respondent. 7. The social media posts created by the Respondent featuring the Appellant, created between 20 January 2023 and mid-February 2023, shared a number of features or trends. They featured the face of the Appellant with other persons' faces in the photographs blurred out. The Binary Australia article and other places referred to the Appellant as "a bloke in a frock," and attached articles and commentary discussing transgender woman participating in woman's sport, highlighting the Appellant's participation in women's soccer team. The Respondent also posted on, or tagged for reference, Football Australia, various politicians and media identities. 8. In respect of a matter where her Honour enjoyed a significant advantage over me, having seen and heard both the Appellant and the Respondent give evidence, the Appellant was described as "quietly spoken and sincere." Her Honour accepted the Appellant feared continuation of the online harassment and exposure, particularly where she was not cross-examined. 9. The Appellant felt harassed by the unsolicited online attention she received from the Respondent, acting in furtherance of her political views, by featuring the case study of the Appellant, without her permission, and absent any actual engagement between the two outside social media posts. 10. The Respondent was an ambassador and spoke for Binary Australia, advocating for the rights of women in sport, that she was opposed to transgender females participating in women's sport. 11. The Respondent posted various articles of post featuring the Appellant as part of her advocacy and political concerns surrounding the issue of women's sports. Again, her Honour had the advantage of seeing the Respondent give her evidence. The Respondent was described as straight forward and sincere in her beliefs.
Her Honour found that there was no dispute that the five posts in question were made by the Respondent. In fact, there was significantly more than five posts in question. That is a matter that is relevant to the harassing nature of the posts (which is not in question), the reasonableness of any fear of harassment (which is sought to be reagitated in event the consideration is giving to allowing the appeal), and finally, as to consideration of the question as to whether the nature of harassment is sufficient to justify the Court's order.
I agree with her Honour's finding that a plain reading of the legislation, particularly s 19, did not require direct or personal contact for the reasons that I have said. Indeed, her Honour found the illustration of cyberbullying did not involve personal conduct. Her Honour held, correctly in my view, and a matter that is not the subject of the appeal, that contact was not necessary to make out intimidation. In coming to that conclusion, her Honour also had regard to s 8 of the Act regarding stalking, also not needing direct personal contact between parties, whether it be electronically or in person. I digress to observe that stalking would also not require that the parties be known to each other.
Her Honour, relying only on eight posts, (not the original five cited), found that they were nonetheless, numerous, across the Binary website and other social media platforms.
The posts by the Respondent features the Appellant's face in an identifiable manner but did not name her. They did identify her soccer team and hometown. The Appellant, as I have said, was the only transgender female participating in women's soccer team in that town and in that respect, she was identified.
I also agree with her Honour's finding that there was "some degree of intensity" during the initial short period of harassment and that the unsolicited posts on the social media would have been confronting and distressing for the Appellant.
On the question of reasonable fear or harassment, her Honour held that any person in her position would likely feel harassed, isolated and targeted. Her Honour held, as a matter of common sense, that such activity would affect the well-being of any individual the subject of such online attention. I agree.
I agree with her Honour, that whilst the posts were being made, the Appellant would have felt "distressed, confronted, powerless and exposed."
I find that the Respondent was unbowed in her attention to continue her advocacy, including where she would post matters concerning the Appellant if she saw fit in pursuit of her cause.
As to whether the harassment or intimidation is likely to continue, I do not agree with her Honour's finding that there was no reason to think that such harassment would continue without the protection of Court orders. Indeed, that is now known to be so by the further evidence tendered.
Further, the question for consideration, in my view, is not only whether the posts might continue but rather, whether the fear of harassment by the Respondent would likely continue, which according to the Appellant's unchallenged evidence, it would and whether or not that fear is reasonable, which I find it is.
The Respondent criticised the Appellant for her focus in submissions on her perception of the impugned communications as harassing and intimidatory, without explaining how the communications are themselves intimidatory in a personal violence context between the parties. With respect to the Respondent, as I have already stated, the law does not require her to do so, only to establish the fear and that the fear is reasonable, something that was never challenged in her evidence.
Her Honour was without doubt that the Appellant was chosen by the Respondent as a case study due to the ideological issues that remain important to the Respondent. I agree.
In those circumstances, there is no error in her Honour's finding that the Appellant had fears of harassment, particularly online harassment (which was not challenged) and her Honour held, in the form of cyberbullying. There is also, in my view, no error in her Honour's finding (which is challenged) that the Appellant has reasonable grounds for that fear, a matter to which I will now turn.

[17]

Further Findings on Appeal as to the Reasonableness of the Appellant's Fears

At the hearing in the Local Court, the Appellant gave unchallenged evidence that she continued to fear the Respondent would continue to intimidate and harass her by reason of a number of matters.
First, by posting photos of her on the Binary Australia website, on the Respondent's Twitter account and on her Facebook account.
Second, the Appellant relied on the Respondent misgendering her in posting those photos.
On that issue, the Respondent submitted that the term "misgendering" is not known to the Act, nor is it clear on what basis the alleged "misgendering" gives rise to any operative terms of the Act, particularly where the context of the posts is clearly political and directed to the public at large, and at policy decision makers.
The Respondent repeatedly referred to the Appellant as a male, a man, a bloke and "he," where the Appellant does not refer to herself that way. The term "misgendering" is a reference to the Respondent re-naming the Appellant in a way that she does not wish to be referred to, and in that sense, it was belittling and offensive. It denigrates the Appellant's right to describe herself as she wishes, not as a stranger wishes to label her. It does not need to be "known to the Act." It is a fact that, together with other facts, makes the statements increasingly harassing. It gives rise to a reasonable apprehension that the Appellant is not to be treated with respect as a fellow human, and that the Respondent will refer to her as she sees fit, and admittingly to parody the Appellant, despite it not being the way the Appellant refers to herself. Her Honour in the Local Court used the term "misgendered" in a short-hand way to refer to such conduct. It was a term that has been used by the Appellant and which was not challenged in her evidence.
Indeed, the Respondent deliberately used "he/him" pronouns when referring to the Appellant, intending them to be both parody and political opinion. It is, she said, reflective of her personal political opinion. That shows, in my view, clear evidence that the Respondent intended at least that the Appellant be mocked or parodied, publicly for her transgender identity.
Third, the Appellant relied on the Respondent vilifying her by calling her, "that bloke in a frock," and other derogatory terms in those posts.
Fourth, the Appellant relied on the Respondent encouraging others to harass and vilify her as a transgender woman.
Fifth, the Appellant relied on the Respondent stirring up controversy about her participation in a women's soccer team where there is no controversy.
Sixth, the Appellant relied on the Respondent specifically identifying and targeting her as an example for her anti-transgender campaign which will encourage others online to hate her.
That fear was said to have arisen and to have been reasonable based on the following: 1. On 19 January 2023, the Respondent made a Twitter post in which she stated, "Men from the Mid North Coast New South Wales, can you get in touch with me please? I need your help. There is a bloke playing on the women's team in Wingham and many are upset about it. The Federation is refusing to listen." The tweet received 39.1 thousand views, 116 re-tweets and 17 quote tweets. Most relevantly, it received 439 likes. The post was objectively intimidatory and harassing. The fact that the form of "help" required was not identified but that "men" from the Appellant's local area were required to carry it out makes it only more so. It gives rise to the reasonable apprehension that something serious will be done either to, or about the Appellant. Indeed, given the objective of the Respondent to build a well-informed network of groups and individuals across Australia to "create an effective, social and civic barrier," and with 439 potential "helpers," the post is highly intimidatory. 1. On 20 January 2023, the Respondent posted to the Binary Australia website an article entitled, "a bloke in a frock is playing women's soccer on the Mid North Coast." A photo of the Appellant was added, both alone and with others, and the post included links to photos of the Appellant posted on the Wingham Football Club Facebook page, showing the Appellant where she played football. The photos had been redacted to blur the faces of others to protect their privacy and identity. The Appellant's face was not so blurred. It included a false statement that, "the bloke in the frock was receiving an award for playing in the women's division." The Appellant in fact received the award by the coach for "always play[ing] in whatever position that was needed without complaining." The article included the following statements: 1. The Appellant was "a bloke in a frock," a personal, derogatory, humiliating and degrading statement, that was unnecessarily so for the purposes of the Respondent pursuing her political agenda. It was clearly a harassing statement and must have been known to be so. 2. The Respondent described the Appellant as a man, as a male and as a "male appropriating womanhood," a mis-description as the Appellant regarded herself. Whilst the Respondent had no way of knowing precisely how the Appellant regarded herself, she was highly reckless to the fact that this statement was also harassing and offensive, as perceived by a person such as the Appellant, notwithstanding any political motivations. 3. The Respondent called upon the Appellant to be ejected from the football competition on the basis that she was, the "bloke in the frock," that she had no need to play in the "women's division," and that she, "did not belong in a female division." Apart from the statement about being a bloke in a frock, being as I have described, the call for her to be ejected because she "did not belong," was unnecessarily hurtful and objectively harassing, where the Appellant had competed to date without controversy (and where she had found a sense of belonging), and where she had, at the time the complaint was to be made, some four months to go of the football season. Where I say, without controversy, I say in circumstances where there was absolutely no evidence before the Local Court or before me that her team members or those against whom she played or indeed anyone in the changerooms had an issue with her playing. The only evidence was that the Respondent said that to be so. Further, the Respondent repeated the offensive phrase and said that the Appellant was "suddenly a woman," ridiculing without any knowledge, any experience the Appellant might have had in coming to identify as a transgender woman. The Respondent's statement that, "we all know that a 'woman' is not a costume, false boobs or a drug to be taken," was offensive, ridiculing and harassing. Scant regard to the photographs, defaced and deployed by the Respondent, showed no sign of the Respondent wearing a "costume." The Respondent is wearing a simple sundress, not unlike those worn by her fellow teammates. The personal comments about "fake boobs," or drug taking (presumably a reference to hormone therapy) were as unkind and provocative as they were harassing. 1. On 20 January 2023, the Respondent posted a similar photograph to Facebook; now a confined photo of the Appellant's face and upper body. Again, the Respondent described the appellant as "a bloke in a frock," but also, "a fella," and repeated the false statement that she had been awarded for playing in the female division. The Respondent stated, "women, girls and family are being shown enormous contempt," for allowing the Appellant to compete in the women's division. To say so, about a person who is already marginalised by being the only transgender woman in the club, was unnecessarily cruel, offensive, and harassing. 2. On 20 January, the Respondent posted two similar photographs to Twitter. In doing so, she again described the Appellant as "a bloke in a frock," and "just a bloke in a frock" and said that playing in the women's competition did not make "him" a woman. The first post was also harassing and intimidating in the provision of hashtags publishing to the Twitter pages of Sky News presenter James Macpherson, Federal Liberal candidate Katherine Deves, radio presenter Ben Fordham, the Prime Minister Anthony Albanese, Federal Minister Tanya Plibersek, former Premier and State Minister Dominic Perrottet, author Jordan B Peterson, and Football Australia. I accept that it was also political in nature. Most notably, Football Australia is responsible for policies regarding the Appellant's ability to remain playing in the women's division and therefore, to call upon them to reconsider her ability to do so was, in my view, harassing in the circumstances. The second post was published to a Twitter page #TransWomenAreConMen, to Football Australia and Football New South Wales, to the Daily Mail, to the Daily Wire News, and to an organisation called SaveWomensSports. It takes no reading between the lines to conclude that the reference to #TransWomenAreConMen showed the utter contempt that the Respondent had for a person in the position of the Appellant. 3. On 19 January 2023, Football Australia posted on a matter that had nothing to do with the Appellant or indeed transgender issues, but rather, the Young Matildas heading to their first training camp for 2023. There is no suggestion that there were any transgender women in the team or involved in the training camp in any way. Notwithstanding, on 23 January 2023, the Respondent posted to Football Australia in the context of that post: "You can't even define the term female... Why do the girls in Wingham New South Wales have to put up with a bloke on their team and in their changerooms?" I note in that regard, the Respondent's willingness to harass the Appellant, even on issues that do not concern the Appellant. I also note that there is no evidence that anyone on the Respondent's team had to "put up with" her. Putting that forward was, in my view, objectively harassing. 1. On 23 January 2023, the Respondent posted to Twitter a further photo of the Appellant entitled "more information about the bloke in a frock playing soccer for Wingham Football Club on the Mid North Coast of New South Wales" and published it to Football Australia. She provided a link to the article posted on 20 January 2023. That page was viewed by more than 60,000 people. The Respondent acknowledged that she had a lot of supporters. In truth, there was no "more information," but rather a repetition of the matters she had already posted. There is no suggestion that the repetition of the matters furthered any political debate. It did add to the harassment to the Appellant. 2. On 6 February 2023, Football Australia posted about the FIFA Women's World Cup. Again, the Respondent took the opportunity to harass the Appellant. On 8 February 2023, she posted, "you allow men who appropriate stereotypes of women to play as women." Again, the Respondent posted a picture of the Appellant with her coach (with his face obscured) receiving an award from her team. Although, it is not entirely clear to me what the Respondent meant by the statement, the Appellant did not appear in my view as a stereotype of a woman. She was dressed, as I have observed, in a plain summer dress with her hair out, and with little or no makeup. She appeared, in my view, simply as a person, without stereotype or otherwise. There is no doubt that the use by the Respondent of the word "stereotype" in this context was belittling and harassing. I have no doubt that no person wants to be referred to as a stereotype. 3. The following day, on 9 February 2023, the Respondent again posted the altered photograph of the Appellant with her coach, this time directly to her Twitter feed with the headline, "Kirralie Smith doesn't recommend Northern New South Wales Football." She stated about the Appellant, "they allow males who appropriate stereotypes of females to play in women's teams." 4. On 13 February 2023, the Respondent commented on Twitter that Twitter had made her remove the tweet "about the bloke playing on the women's team in Wingham." In doing so, she defied Twitter by essentially reposting the harassing slur. The post received 153 views. It is relevant not only to the reasonable perception of harassment, but also as to whether Court orders are required to curtail the Respondent's harassment. 5. Sometime prior to 14 February 2023, the Respondent posted a second article to Binary Australia website entitled, "Soccer campaign for women and men who pretend to be women." The Respondent referred to the Appellant as "a male playing soccer in the women's team in Wingham." The reference to the Appellant as a pretender is derogatory and harassing. 6. The Respondent posted on Twitter (published directly to Football Australia) a further statement to the effect that the Appellant's participation in the women's division was "showing contempt to women" by Football Australia, and that the Appellant was "a bloke who appropriates female stereotypes." It is difficult to understand what contempt is in fact being shown, or what stereotype is being offered, as the post was simply a further copy of the photo of the Appellant receiving her football award wearing a sundress. The Respondent asserted, "why do you lie and claim he is a woman?" denying the Appellant's gender identification entirely, a matter that is objectively distressing to a transgender person and harassed the Appellant. 7. In a tweet directed to Football Australia, the Respondent posted the altered photograph of the Appellant with her coach stating, "Please explain @FootballAUS why you insist on showing contempt towards women? Why can't the bloke who appropriates female stereotypes compete in the male team or in a mixed/open team? Why do you lie and claim he is a woman? Why do you bully and ghost women who object? Wingham New South Wales." The tweet received 1,399 views. Despite the photograph of the Appellant and the clear reference to Wingham soccer, the Respondent said in evidence that the Appellant was not the subject of the tweet. I did not accept that evidence. Importantly, in addition to the offensive, harassing, and intimidating statements in it, it also shows either that the Respondent has no insight into the fact that her posting clearly targeted the Appellant, or that she is deliberately trying to distance herself from the personal nature of the posts. Given that the Respondent was not cross‑examined on her intention in respect of that post, I have taken the more benign conclusion, that she did not then understand that her posts were personal attacks on the Appellant, whether or not political, and that she was, as she said in her evidence, pursuing her beliefs in that way. 1. On about 16 February 2023, only three days after Twitter asked her to remove the offending post, the Matilda's posted a warmup photo on Twitter, in advance of the "kick off" in the Cup of Nations. Again, with no real link to the issues (other than the Matilda's are an Australian women's soccer team), the Respondent posted a photo of the Appellant and stated, again, that she was a "bloke in a frock" playing women's soccer at the Wingham Football Club, and repeating the false and derogatory statement that the Appellant was a "fella," awarded for playing in the female division. 2. The Respondent also asserted on the Binary Australia website in respect of the Appellant's football team (and where she again misgendered the Appellant as a "man") that with the public's help Binary Australia was going to "make the voices of every silenced girl, women, and parent heard so loud and so clear that they cannot possibly be ignored." The Respondent then implored supporters to send messages direct to leaders of Football New South Wales, Football Australia, and Football Mid North Coast and "let them know, there's no place for biological males in women's sports," clearly a reference to the Appellant. Such a loud call to arms, and given the language that the Respondent had already deployed, is objectively intimidatory, where directed specifically to the Appellant. Its derogatory content makes it increasingly so.
The Respondent's affidavit dated 20 June 2023 established that the Respondent is a self‑proclaimed ambassador and spokeswoman for the organisation Binary. Binary is an organisation dedicated "to upholding the reality of biology and binary sex, i.e. male and female."
Accordingly, the Respondent asserted that the Appellant, as a transgender woman, does not accord with "the reality of biology," a statement that, in my view, is objectively offensive when directed towards the Appellant, a person she has never met. The Respondent can have no idea about the reality of the Appellant's biology and the extent to which it affects her transgender status.
The Respondent gave evidence that she had never contacted the Appellant "virtually or otherwise." I do not agree. The Respondent, in my view, made contact virtually, albeit indirectly, by singling out the Appellant for attention in dedication to her stated cause.
The Respondent contended initially that there was some question of identification of the Appellant. Most relevantly to the proceedings, however, the Appellant identified herself and felt harassed and intimidated by the posts.
Further, the Respondent ultimately agreed that most of the posts contained a photo of the Appellant. In that circumstance, and where the Appellant had not been cross-examined on the evidence identifying herself in the posts, both by the photographs and by reference to being the only transgender on the Wingham football team, I regarded the Respondent's contention that there was a question of identification to be entirely without substance. The fact that the Respondent did not know the Appellant personally is irrelevant. She was prepared to make use of the Appellant in furthering her agenda and was prepared to deploy widely, information about and images of, the Appellant in a way that was harassing and intimidating in doing so.
The Respondent seeks to reagitate the Local Court Judge's finding that the Appellant's fears were reasonable on the basis that "the communications are properly characterised as public, political and outside the ambit of the Act."
The Respondent also submitted that no submission is provided as to how the Respondent's conduct gives rise to a reasonable fear of personal violence or intimidation of the Appellant whom, it is said, was "never even the direct recipient of the communications."
I do not agree that the Appellant was not the direct recipient of the communications. The communications were made to the world and the Appellant was clearly identified and targeted in them. The Respondent seeks to denigrate the submission by the Appellant as to the "Vague reference to the posts and article, characterising them in colourful terms as being "identifying," "inflammatory," a "call to arms," and "weaponizes."" I reject the criticism of the Appellant's submissions. In my view, the posts were accurately described that way for the reasons that I have stated.
The Respondent submitted the reasonable fear by the Appellant is formed by the: "Imagined and hypothetical actions of third parties who might be motivated (though not incited) by the Respondent's political advocacy." That was the way the Appellant put her case, and it was not put to the Appellant that way in the Local Court. Rather, the fear arises from ongoing harassment and intimidation by the Respondent of an already vulnerable member of the community, which included the incitement to others to take action against her (in whatever form it might take). The Respondent in causing the Appellant to imagine what terrible things might happen to her or about her by such harassment is nonetheless a source of reasonable fear. A similar example is found in many applications of this kind that come before the Courts, by a person stating, for example, nothing more than "I know where you live." The Respondent's submission is rejected.
Further, the Respondent criticises the fact that the Appellant: "Makes no meaningful effort to challenge the context of the communications on Twitter, or the repeated positive assertions of the Respondent in evidence, that the statements were always intended to be political communications made to the public." Again, in my view, there is no requirement on the Appellant to do so.
Finally, as to reasonable fear, the Respondent submitted that the communications, made to a large audience and not directed at the Appellant were, "Well-mannered in tone and directed at addressing the perceived policy issues and inequities created by transgender identifying males (such as the Appellant), competing against biological females in women's divisions." I reject that characterisation. The language was at times unnecessarily offensive and did nothing to progress the perceived policy issues. Other than to strike fear in the community that the Appellant may be haunting the change rooms of the Wingham Football Club (something about which there was no evidence), there was little reference to the basis of inequity in allowing the Appellant to play in the women's competition. It was not suggested, for example, that her genetic speed and stamina gave her an unfair advantage. Often the reason why the ban against the Appellant and anyone like her was being sought was not even articulated. Terms such as "bloke in a frock," and "a 'woman' is not a costume, false boobs or a drug to be taken" were offensive, ridiculing and nothing more than harassing. They were, in my view, the complete antithesis of well-mannered.

[18]

Findings as to Fear of Ongoing Harassment and Intimidation by the Respondent

As to whether the Respondent will continue to harass and intimidate the Appellant, I have had regard to the following matters in coming to the conclusion that she will likely do so: 1. The Respondent holds sincere and strongly held beliefs in respect of her dedication to humans as binary beings. The Respondent is adamant and unequivocal in her views and has a mission to further "the biological fact that sex is binary." There seems to be no appetite for civil engagement with ideas to the contrary. 2. The Respondent holds a firm view that, as a "biological reality," there are only two complimentary sexes; men and women. It is reasonable to infer that such "biological reality" is challenged by the very existence of the Appellant. 3. The Respondent says that she wishes to protect women against "men appropriating womanhood for personal gain." It is reasonable to infer that this includes an ambition to "protect women" against the Appellant to the extent that playing social women's football is perceived as a personal gain. It is noted that the Appellant has an intention to continue to play soccer in the women's team at Wingham and so it is likely that, without orders, the Respondent will continue in her ambition. 4. The Respondent stated: "As a spokeswoman for Binary, I defend women's sex-based rights, parental rights and child safeguarding. It is not about transgenderism. It is about a biological reality and women's, female sex-based rights." 1. The Respondent says that she is committed to: "Building a well-informed network of groups and individuals across Australia" to "create an effective social and civic barrier" to what they see as "radical gender theory." It is reasonable to infer that the Appellant is seen by the Respondent to be an embodiment of such radical gender theory. In the past, this has included a call to arms to the "men of the Mid North Coast" whose help was needed by the Respondent to resist the actions of the Appellant. 1. The Respondent says that she is there to shine a light on key issues in the media. It is reasonable to infer that such a key issue includes the situation concerning the Appellant, and that the Respondent intends to be "a voice, a movement and a force that won't be ignored." 2. The Respondent gave evidence that regardless of the outcome of the proceedings, she will continue her activism. That activism is ongoing and supported by Binary Australia. 3. The repetition of the statements, including at times where the issues had already been publicly stated and where at times it was in response to a post by another on a different topic, shows a level of obsession by the Respondent with the Appellant. 4. The Respondent's Twitter post on 13 February 2023, in defiance of the Twitter stance taken on her comments about the Appellant being a "bloke playing in the women's team in Wingham" shows, a commitment by the Respondent to continue her campaign in breach of the rules set down by Twitter on whose platform she posts. 5. The Respondent agreed that she engaged in very persistent conduct directed to Football New South Wales and Football Australia who, she perceived was not giving her an answer about their policy. There is no evidence that the situation has changed such that the Respondent may desist. 6. The Respondent was asked in the Local Court, if the Court declined to make orders protecting the Appellant, whether she would continue to use the Appellant's photo. Her solicitor intervened and, in taking objection to the question made the following admission: "That's speculative as to what she may or may not do in the future. We don't know, we don't have a crystal ball." The question was repeated. The Respondent confirmed that she did not know if she would not and said, "it depends on what the Appellant does in the future." She said that it was not necessarily dependent on whether or not the Appellant continued to play football and gave no information about what may or may not inspire the Respondent to continue to use the Appellant's photograph in the future. 1. The Respondent was again asked whether for her to continue to pursue her objectives, she needed to employ any visual image of the Appellant. The Respondent answered, "Well, again, I think that depends because I think that the Australian public and the female soccer players, you know, they want evidence if there are males playing, male bodies playing in female sporting divisions and if we think that photos demonstrate that reality then - but I cannot say whether I'd use this particular person's photo again or not, I don't know." 1. The Respondent was asked if it was possible that she would use the photo she already used. She responded, "Probably not that photo. It would be if something developed, I guess. But I don't know, I don't know." 1. On 18 October 2024, I heard the appeal. I reserved to 29 November to deliver judgment. In the meantime, on 21 November 2024, the Respondent posted relevantly in the following terms, "In October 2023 I sat through a full hearing in Court being accused of violence for identifying a male soccer play [sic] in a female competition. All I did was repost an image that had been posted in the public domain. I used the image to ask Football Australia and Football New South Wales why they have the policy that allows males to play in female competitions. In January the Judge denied the application for an apprehension of violence order against me, stating the posts "don't reach the level of harassment that is appropriate for the Court to intervene." Last month the player appealed that decision, he still wants AVO against me. His legal team claim my actions do rise to the level of 'violence' the AVO law was created for. The decision will be made Friday 29 November." The Respondent provided a number of links, including to a Daily Telegraph Newspaper article dated February 2024, reporting on the findings of the Taree Local Court Judge, the subject of the appeal. That post received 3,290 views and resulted in strong statements of support for the Respondent and further derogatory comments about the Appellant. 1. The Respondent submitted that she had no intention to cause intimidation, stalk or otherwise intimidate the Appellant. This post provides evidence to the contrary, by reason of the fact that the Respondent continues to refer to the Appellant as a "male" and "he": 1. After she knows the Appellant finds this harassing and intimidating; 2. After the Local Court Judge agreed that it was harassing and intimidating; 3. After she accepted in the appeal that the Appellant feared the statements; and by 4. Reproducing the Local Court's findings knowing it to be the subject of an appeal. In my view, it provides clear evidence of the Respondent's ongoing intention to harass and intimidate the Appellant in her advocacy for her cause, even where proceedings are ongoing. 1. On this new evidence, her Honour's findings that the period in which the posts were made were short (carried out then from time to time between 19 January 2023 but now known to be until 21 November 2024), that "the attention has now ceased," that "a year has passed and there have been no further posts" and with "no evidence of continuing online activity" are no longer open. I find that the Respondent would be likely to engage in similar harassing or intimidating conduct in the future, and indeed, since her Honour's findings in the Taree Local Court, has done so, despite any control that might have been exerted by an outstanding appeal to the District Court.
Without orders protecting the Appellant, I have no confidence that the Respondent would desist in exposing and exploiting the Appellant's personal life, including posting photos of her, and making similar comments to those already made, for her own advocacy in furthering her own agenda and the agenda of Binary Australia. Indeed, that was my view of the evidence prior to the latest posting by the Respondent on 21 November 2024.
In my view without Court sanction, the Respondent is more likely than not going to continue to use the Appellant's image in a harassing and intimidating way, so long as the Appellant continues to play football for a woman's team, either in Wingham or wherever the Respondent might know her to be.
This is so, whether or not emboldened by the Local Court refusing to make such orders on the last occasion, or by reason of any outrage of this Court's decision where the Respondent believes (expressed as recently as 21 November 2024) that she was only, "Reposting an image and asking Football Australia and Football New South Wales why they have a policy that allows males to play in female competitions." That is a gross understatement of the language she employed to do so and shows absolutely no insight into and no regard for the fear that she is causing in the mind of the Appellant.
The Appellant's fear of future intimidation and harassment is, in my view, well-founded.

[19]

Is it Appropriate to Make an Order?

The learned Local Court Judge dealt with the issue as to whether or not the Respondent's conduct in the circumstances was sufficient to warrant the making of a Court order. Her Honour confirmed that the conduct was sufficient to cause concerns of further online exposure by the Respondent and that also would have caused "some distress."
Reliant on the timeline and the content of the posts, her Honour found that whilst "unpleasant," they did not reach quite the "level of harassment or severity of fear," having regard to the objects of the Act, that in all the circumstances, it was appropriate for the Court to intervene.
Characterisations that the post caused "some distress" and were "unpleasant," were inconsistent with the clear evidence from the Appellant that she feared for her personal safety and, in my view, understated the seriousness of the effect the post had on the Appellant.
Further, her Honour failed to undertake the balancing exercise mandated under s 20 of the Act, and thereby failed to have regard to the matters that the Court is required to take into account in making the decision as to whether or not to grant the application for the APVO. This failure, in my view, led to the miscarrying of her Honour's discretion.
Relevantly, her Honour failed to consider matters, including most relevantly as follows: 1. The Appellant is a transgender woman, a member of a vulnerable community, relative to the general population; and 2. The Appellant lives in a small town, where identification carries a greater risk.
In coming to that conclusion, the learned Judge considered whether the order would "remedy the wrongs." Her Honour did not articulate the wrongs put. If the wrong to be remedied is to have the Respondent cease harassing the Appellant, such that she no longer fears such harassment, an order of the Court would be appropriate. If her Honour was considering the remedy of some other wrong and whether another remedy might be available for that wrong, that it, is in my view, an irrelevant consideration. The Appellant is not obliged to look elsewhere for redress.
Furthermore, her Honour's finding of "the timeframe" of the posting is now not open to me, given the post of 21 November 2024.
If the Court is satisfied on balance of the probabilities of the matters in s 19(1)(b)(i), the Court is required to consider the matters in s 20 in order to determine whether the power in s 19 ought to be exercised to make an APVO.
The Court must consider the safety and protection of the person seeking the order; any hardship that may be caused by making or not making the order, particularly to the protected person; and any other relevant matter.
Consideration of those matters, in my view, speaks strongly in favour of making the order.
As to the interests of the Respondent in not making the order, there is, in my view, no hardship other than the restriction that would be placed on the Respondent in her statements in the future about the Appellant. There is no suggestion that she will in any way be restricted in her political statements, other than by intimidating and harassing, one transgender person. That, in my view, is a very small restriction and does not on balance materially change the position on making the order.
In favour of making the order, the statements are ongoing and are, in my view, overall both by the content and their number, highly intimidatory and harassing. The order will go some way, I hope, to protect an already identified and vulnerable person in a small country town. Once the Respondent stops revisiting the Appellant's status as a transgender woman playing social soccer as a tool for advocacy on the general issue, then her fear and vulnerability will, one hopes, decrease.
I do not agree that the conduct was insufficient for the making of an APVO and I intend making such an order, subject to the constitutional question.

[23]

Consideration of the Constitutional Question

The implied freedom is not a personal right; it is to be understood as a restriction upon legislative power. The question of whether the Act infringes the implied freedom is not to be answered by reference to the facts of this case. It will not be necessary for the Court to ask, for example, whether the making of an APVO in this case is consistent with the implied freedom.
Rather, the Court must consider the operation and effect of the relevant provisions of the Act more generally, with this case being no more than an illustration of their operation.
It is considered at the level of the statute conferring the power and not at the point when the power comes to be exercised by the official or Judge in question.
If the burden on free communication is justified across the range of potential outcomes, then the law is valid. There is no occasion to consider whether the scope of the discretion might be read down to ensure that the law is within constitutional power.
If the relevant provisions of the Act do not infringe the implied freedom across the range of potential outcomes of the exercise of the power conferred by these provisions, that will be the end of the constitutional issue.
Assessment as to whether the Act infringes the implied freedom requires consideration of the following matters: 1. Does the impugned law effectively burden the freedom in its terms, operation, or effect? 2. If so, is the purpose of the law legitimate in the sense of being compatible with the maintenance of the constitutionally prescribed system of representative government? 3. If not, the law is invalid. 4. If so, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? This will involve testing the law by way of a structured proportionality analysis, which raises the following three questions: 1. Is the law suitable to the achievement of its legitimate purpose in the sense of having a rational connection to that purpose? 2. Is the burden on the freedom necessary, in the sense that there is no obvious and compelling alternative, reasonably practical means of achieving the same purpose which has a less restrictive effect on the freedom? 3. Is the law adequate in its balance, that is, not unduly burdensome on the freedom taking account of the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom?
I have dealt with each matter, if I am found to be wrong about any of the particular steps.

[24]

Step 1 - Do the Relevant Provisions of the Act Impose a Burden on the Freedom?

The Respondent submitted that the law effectively burdens freedom of communication about government or political matters either in its terms, operation or effect: Lange v Australian Broadcasting Corporation at [567], as it restricts or burdens the content of political communications, or the time, manner or conditions of their occurrence.
The Respondent submitted that this is so when one has regard to the legal and practical operation of the law: Farm Transparency International Ltd v New South Wales [2022] HCA 23, per Kiefel CJ and Keane J. The freedom is burdened, not only how it may operate in this case, which is but an illustration of its operation, but how the statutory provision affects the freedom more generally.
The Respondent also submitted that the practical operation of the Act is to restrict and control the personal conduct of a person, for the purposes as prescribed and specified in s 10 of the Act. To the extent that the Act applies to political communications, it burdens the implied freedom, for example, once the finding is made that empowers the Court to proscribe or restrict "specified behaviour by the Respondent that might affect the protected person."
It is submitted by the Respondent to be analogous to the circumstances of Wotton v Queensland [2012] HCA 2. It is submitted that it is difficult to see what "significant legal distinction exists in the difference between a citizen subject to control while on parole and those (such as the Respondent) who have neither been charged, or found guilty of any criminal activity, and yet are to be subject to control of their political communications," when it is the effect of the freedoms generally that are for review.
The Respondent ultimately submitted that the Act may be applied to prohibit or restrict (in this case) the Respondent from making further political communications in relation to the Appellant's involvement in women's football leagues.
A statute will "be found to impose an effective burden on the implied freedom" if it "prohibits or limits political communication to any extent." The range of "communications" protected by the implied freedom is broad. It is sufficient that it concerns a "matter of political controversy."
I have proceeded on the basis that the statements made are matters of political communication. But that is not the question. The question is whether the Act imposes a burden on the political communication to be determined by reference to the law's effect on political communication as a whole, not as to its effect on an individual or group's preferred mode of communication. Importantly in this case, the implied freedom "does not confer a right to communicate a particular message in a particular way."
Where a restriction is limited to the preferred mode of communication, it will not infringe the implied freedom unless it significantly compromises the ability of the affected person to engage in political communication and, even then, only if and because it has a significant effect on political communication as a whole.
In this case, the Respondent complains about not being able to deploy the fact of the Appellant's situation in her arsenal in the debate against transgender people in women's sport.
The fact that she cannot do so if prohibited by an ADVO, does not render the Act itself one that it burdens the implied freedom, only the preferred mode of communication (that is by harassment and intimidation of a person who reasonably fears communication) that is sought to be carried out by the Respondent.
It is contended by the Attorney that if there is any burden at all, it is only slight. The restriction, if any, to political communication, "will apply only to a small subset of political communication;" communication that is intimidatory or harassing, that refers to a person who fears and has reasonable grounds to fear the intimidatory or harassing conduct and where the circumstances are such that an order would be granted. Those prohibitions and restrictions imposed on the political communication will only be those that are "in the opinion of the Court, necessary for the safety and protection of the protected person," having regard to s 20(3) of the Act.
Any conditions of such restrictions are to be imposed sparingly and relevantly.
In doing so, in my view, it leaves almost all political communication unaffected and as such the burden is extremely slight.
I am not convinced that "much," although I accept that "some" such conduct prohibited by an APVO will be conduct that would (even without an APVO) be criminal or tortious in nature. Accordingly, there is only a proportion of conduct that would not already be restrained under the existing laws.
That being so, overall the burden on the implied freedom of political communication is exceptionally limited. I accept the Attorney's submission that there is little cause to find that political communication as a whole could be affected to any significant extent by the Court's power to make an APVO as conferred by the Act.
That is sufficient to dispense with the first question in favour of the Appellant and in favour of the Attorney.

[29]

Are the Relevant Provisions of the Act "Adequate in the Balance"?

The final aspect of proportionality test requires consideration of whether the measure is "adequate in the balance." What is to be balanced "are the effects of the law - in terms of the benefits it seeks to achieve in the public interest and the extent of the burden on the implied freedom."
Once the Act is accepted to be "suitable" and "necessary" (which it is), it is to be "regarded as adequate in the balance unless the benefit sought to be achieved by the law is manifestly outweighed by the adverse effect on the implied freedom."
Once it is established that the impugned law serves a legitimate purpose compatible with the constitutional system of government, although imposing some burden on political communication, and that the law is suitable and adapted to achieving its intended purpose, and that there is no reasonably practical and compelling alternative, there are likely very few circumstances in which the Court would then declare that the burden on political communication is undue. Particularly where the burden on political communication is neither a purpose of the impugned law nor a necessary consequence in all circumstances, as it is in this case.
The Respondent submitted that where the Act may be utilised to stifle and suppress political speech, on the basis that the speech may induce a third party to become "uncomfortable," it is manifestly inadequate in the balance. It is noted that that submission depends on the Court accepting the characterisation that the law protects a person who became merely uncomfortable. I do not accept that characterisation. I do note that there is a requirement for such balance, even where it may induce fear of intimidation or harassment.
The Respondent submitted that the "use of APVOs to control political communication would not only be seriously contemptuous of the constitutional freedom, but it would create an entirely disproportionate landscape for political dialogue - whereby mere political speech shall be subject to review and control by the judiciary." It would, I accept, create a landscape where political dialogue could not extend to making statements that were threatening, intimidatory or which constitute harassment, and which were reasonably feared by a particular person at whom they were directed and where the Court otherwise thought it appropriate to make an order restricting such dialogue. Whether or not that is an entirely disproportionate landscape for such dialogue is a separate question. I do not accept the Respondent's characterisation that such speech would constitute "mere political speech." The Respondent submitted that the Act is inadequate in its balance of the purpose it seeks to achieve when one considers the logical implications of its means.
In this case, the burden on political communication imposed by the Act is, if any, an extremely slight and indirect burden. Burdening political speech is not a purpose of the Act, nor will it be a necessary result of its operation in all circumstances in which APVOs are made. It affects only that very small subset of political communication that is harassing or intimidatory, or threatening or violent, or by online bullying, feared by a particular person and where the fear is reasonable, and where the Court considers it appropriate to make an order. Almost all political communication is thereby unaffected. The law does not meaningfully impact on the content or flow of political communication, other than to render it more civil and more respectful, where it does not allow communication which targets particular people in a way that is sufficiently harassing or intimidating, reasonably feared and which justifies a Court order, taking into account the nominated matters and determined judicially.
Conversely, the powers conferred by ss 18-20 and 35 of the Act are vital to protect those who fear, on reasonable grounds, that another person will engage in such behaviour and where the Court decides an order is warranted.
The terms of the Act were carefully drafted to pursue its legitimate purpose with as minimal act on political communication as possible. The orders must be granted judicially. Such orders are directed only to the protection of the person in fear and only to the extent necessary. Any hardship is considered, and the orders can be amended. The order remains only as long and only in the terms that are needed to serve the purpose.
In consideration of the particular illustration that this case presents, even if an APVO is made, the Respondent will be free to make any political communication she wishes, and in any manner she wishes, other than by engaging in conduct that the Court has determined is necessary to restrict for the safety and protection of the Appellant.
There is, in my view, an appropriate balance between the burden on the freedom of political communication and the importance of the purposes served by the power to make APVOs.

[30]

Consideration of Sunol v Collier

In Sunol v Collier, it was argued that s 49ZT of the Anti-Discrimination Act 1977 (NSW) was invalid on the basis that it infringed the implied freedom. Section 49ZT made it unlawful "for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of … homosexuality."
The Court of Appeal (comprising Bathurst CJ, Allsop P and Basten JA) unanimously concluded that the provision did effectively burden freedom of communication about political matters, but that the law was nevertheless reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the system and the government prescribed by the Constitution.
Relevantly, Bathurst CJ observed: "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."
Basten JA observed that: "It may be accepted that insult and invective are a legitimate part of political debate: Coleman v Power (2004) 220 CLR 1 at [105] (McHugh J), [197] (Gummow and Hayne JJ) and [239] (Kirby J) ("Coleman v Power"). However, to concede that protected political speech may permit hostility, abuse and invective does not require a constitutionally demanded tolerance of speech capable of inciting hatred, serious contempt or severe ridicule. Particularly is that so with respect to speech directed to persons who face rejection, intimidation and discrimination in public life on the basis of a characteristic properly protected as a fundamental human right or freedom."
The reasoning of Allsop P is apposite: "A diverse society that seeks to maintain respectful and harmonious relations between racial and religious groups and that seeks to minimise violence and contemptuous behaviour directed towards minorities, including those based on sexual orientation and, (I interpolate, gender identification), is entitled to require civility or reason and good faith in the discussion of certain topics."
I agree with the Attorney's submission that it cannot be assumed that restriction of intimidation and harassment will burden, rather than promote, political discourse. There is a public interest in ensuring free political communication by removing threats and intimidation. Political communication is not assumed to be one party offensively and harassingly stating their views. The kind of public discussion protected and encouraged by the Constitution is one in which all citizens can exercise their democratic rights and be appropriately politically informed.
I respectfully agree with McHugh J when he stated in Coleman v Power, "[R]egulating political statements for the purpose of preventing the intimidation of participants in debates on political and governmental matters is an end that is compatible with the system of representative government laid down by the Constitution."
Rather than stifle civil and informed political discourse, the relevant provisions of the Act, in my view, enhance "the maintenance of a society in which all persons may participate as equals and express their views publicly, as well as at the ballot box, without fear of being the subject of public utterances" that amount to intimidation, harassment, threats or stalking.
I agree that these observations are apt to apply to the present case (notwithstanding the differences in language that arise from the relevant statutes) and that the provisions are no different in the care that they take in modestly restricting our citizens.

Blanch v Smith

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