Senate Legal and Constitutional Affairs Legislation Committee, , 4:15:46 to 4:46:12
The committee examines the legal implications of the Tickle v Giggle ruling and the protection of biological women's spaces under the Sex Discrimination Act.
Topics: Human rights, Law reform, Government legal services
Speakers: Senator Michaelia Cash, Lee Swan, Senator Don Farrell, Senator Fatima Payman, Rebecca Mills, Katherine Jones, Sarah Chidgey, Senator Jana Stewart
Cash.
>> Uh thank you. And this is where I was directed to ask questions in relation to the case of Gigglev. Tickle. Um, Secretary, following the High Court not accepting um the application for leave to appeal, the federal court's decision now stands. Can you explain in plain English what the ruling means for biological women's spaces? So, what is the status of Commonwealth law?
>> Thank you, Senator. Um, I will um I will ask for um Miss Mills, >> Miss Mills to assist uh with that response.
>> Thank you, Miss Mills.
>> Thank you, Senator. Uh, Rebecca Mills, acting assistant secretary, human rights >> Uh, so the Sex Discrimination Act makes it unlawful to discriminate on the basis of a protected attribute in certain areas of public life. those protected attributes include sex, sexual orientation, gender identity, uh and others. Um the act does also provide specific exemptions and exceptions that might apply where discrimination is not unlawful. Um and then courts,
>> so for example, the lesbian action group have now been in court say for 3 years trying to get an exemption so that they can have biological only lesbian events. Is that one of the exemptions that you are referring to?
There's a range where there are certain exemptions for things like competitive sporting activities where the strength, stamina or physique of competitors is
relevant. >> I don't think that applies to the lesbian action group.
>> No, not in that one. Um but yes, there are others where services um which by their nature can only be provided to members of one sex.
>> The biological lesbians I would put to you is possibly that or probably in fact I'd say is that. So I'm just a bit confused. The biological lesbians have now been in court for 3 years trying to seek an exemption to have biological only lesbian events. Is that one of the exceptions? So biological lesbians at law cannot meet lawfully as biological lesbians without getting an exemption. Is that the current status of the federal law? It
would be up to the court to determine
that on the um sort of reminders to allow officials to finish asking their answering the question before they are then uh ask another question. Please respond.
>> So it would be up to the court to interpret the legislation in the context of the individual facts and circumstances of the matter. In the one that you've mentioned, I understand that's been referred to the art. Um so it wouldn't be
>> yes it's gone through the system and the court has referred it back to the art but at law as it stands given the result in tickle and giggle the current law so we are talking about federal law that this department administers a lesbian dating app cannot exclude biological males who identify as women for participating in biological only lesbian events. Is that the correct status of the law?
>> It wouldn't be appropriate for me to give legal advice.
>> Well, you would be able to say what the status of the law is. You are the department that administers the law. >> So, Secretary, are you able to answer my
Um, Senator, I think as Miss Mills has has indicated, uh, obviously it's subject to, um, uh, interpretation by the courts, um, that that has been going through, um, uh, and is now with the ART. Uh,
>> so I'm asking a more general question in terms of the current status of the law. I know that they're going through the art. We establish that the current status of the law, are biological lesbians able to meet as biological lesbians under federal government law as it stands today without the exemption and exclude biological males who identify as females.
>> Uh Sarah Chiji, Deputy Secretary, Integrity and Security Group. Um so the law is um uh in the Sex Discrimination Act um uh as it has been for some time. What the full federal court found in that particular case was that uh Giggle and Miss Groves had engaged in unlawful direct discrimination against Miss Tickle by treating her as a transgender woman less favorably than a person assigned female at birth. And that case was very much on its facts.
>> So basically >> Tickle or sorry um S Grover her app only wanted biological females said no to a biological man who identifies as a woman and that is currently unlawful in Australia. It is actually a very easy answer. Can you confirm that is the current status of the law? And if it's not, can you tell me please on behalf of all the biological women in Australia, what is the current status of the law as it stands federally?
>> So Senator, I have described the court's finding. These are individual cases that turn on their facts. So the court found unlawful direct discrimination in that
particular matter. So minus an exemption, does the current law guarantee that biological women can establish biological women only spaces without fear of legal action?
>> I can only say that the court's finding was about the particular facts of that
case. Yeah. Well, the answer is clearly no because biological rights in the Sex Discrimination Act are actually second to those who identify. So, are there any protections for, for example, the lesbian um group, the lesbian um association that wish to hold a public event and advertise it only for biological lesbians to ensure that they do not face legal action in terms of turning away a biological man who identifies as a
>> Um, as Ms. Mill said, there are some exemptions under the act and the commission itself also has a power to grant temporary exemptions. Okay. >> Um, uh, in certain circumstances as well.
>> Okay. Can you just confirm though the lesbian action group have now been trying for three years to go through the court process to actually get an exemption so that they can have a public event that actually excludes men who identify as women? Is that the current status of the case as you understand it?
>> Yes.
>> Yeah. Uh, Minister, do you think it is acceptable that the lesbian action group in Australia has now been in the court system for three years trying to get an exemption for what I thought most Australians would think is nothing more and nothing less than common sense. In other words, they actually just want to meet as biological lesbians and not allow men who identify as women to be part of certain functions. Do you think it is acceptable that they have been in the court system now for 3 years and still have no legal certainty?
I think I've indicated earlier today that this is not my personal um uh
>> you are a minister in the government.
>> I am a minister in the government but we do have an attorney general. Um, I shall forward your question to the attorney general because she's the appropriate person to answer that question on behalf of the uh the government and we'll try and come back to you as soon as possible with a response.
>> Uh, Minister, has the government had any discussions about changing the law to recognize biological sex?
>> Um, not that I'm aware of. um uh Senator Cash, but I wouldn't expect to um you know, if there were discussions going on, I because this is not my portfolio area, I wouldn't expect to be involved in those discussions. But again, I shall seek a response to that question for you from the attorney general. Um,
Secretary, following the decision of the High Court, which said that the full federal court's decision was final, um, did the department brief the attorney general or her office about the implications of the decision for biological women in Australia?
>> Um, I'd need to check on that with
>> We we provided an a summary of the judgment.
>> A summary of the judgment. Um, were any questions asked of you in terms of can you explain the judgment and what it means for biological women? >> Okay. Um, can I ask you in terms of the briefing, what was the nature of the actual briefing? What was the summary of
It was as I've previously stated in terms of asserting that the a summary of the facts of the case and the outcome and then the uh description of the exemptions that apply in terms of protected attributes.
>> Yep, that's fine. I'll I'll come back to
place to pause.
>> Yep. Not a problem at all.
>> I'll hand the call to Senator P. line of question is around the modern slavery risk assessment. I'll wait for the officials to come.
>> Thank you. We'll just get the right people to the table. Senator,
Thank you. Um so KPMG conducted a review of modern slavery risk assessment services for the department um which was completed earlier this year. KPMG offers this type of service and was being asked to audit its competitors. What conflict of interest assessment was undertaken?
>> Uh Senator Lee Swan, acting uh first assistant secretary of the international corporation and human rights and division. Um so in terms of the particular conflict of interest the perceived uh conflict of interest you mentioned um in July 2025 as a part of the panel procurement process uh the department approached the five suppliers uh and in that process and we identified their perceived uh potential uh conflict of interest uh where uh a a supplier could have a a tool themselves and the wire be while undertaking uh the uh modern slavery supply chain mapping tools. uh and we asked all the candidates suppliers uh who wish to request and for quote um address that particular uh perceived uh conflict of interest and the KPMG was engaged in September 2025 under contract to provide the services and we put in uh extra controls and the treatment in addition to the standards and the confidentiality clause. in a contract. Uh so we asked the material collected collected and created will be confidential indefinitely and the information from market scan and assessment could not be shared beyond the relevant project teams and we also ensure all the KPMG officers working on that audit signed conflict the interest declarations and the confidentiality undertakings and we also ensured separation of KPMG teams teams who work on two aspect of the audit. Um so they don't have they don't share information and have a a full separation of personnels and we also asked them to use publicly information where possible and during the contract in November uh you're probably aware another supplier fair supply raised this particular concern with the department. So the department and and uh took two extra steps. One is we updated the statement of the work statement of work and the contract with KPMG to further clarify and ensure their report do not identify any particular supply or tool. And we also offered KPMG to sign a non-disclosure agreement uh with fair supplies and uh KPM fair supplies um in the end uh provided public available information about about their product to the department who passed on that information to KPMG and they did not require KPMG to sign a non-disclosure agreement and the department also facilitate other 15 providers participating in this particular market scan and they can take steps they consider necessary to manage the risks for their business. So some providers request certain information including specific data inputs and algorithms um not be shared beyond the KPMG and other providers chose not to share certain informations including specific data inputs and algorithms and in June and we received a verbal and then followed by written assurance from KPMG and they have complied all the contracts and the conditions including those additional ones I've just mentioned.
>> Thank you. It's like you were anticipating this question. Um just so that I've got um extra clarity uh when it comes to the department being aware of KPMG's conflict of interest. was there can you can you reiterate what was the specific undertakings that the department took to ensure that commercially sensitive information from its competitors want you know how they would be using that uh when it comes to KPMG obviously looking into um their own competitors how was that handled
>> yeah so I've
>> was it through the ND DA is that what you mentioned?
>> No, I mentioned through so the so first for the department to proactively manage that conflict of interest the potential uh risk um because we're aware um not just KPMG other suppliers we approached could uh also uh that that risk could also arise. So uh we as I said we signed a procurement contract with any successful suppliers in that contract. We didn't just use the standard contractor clause. We included additionals.
>> Okay, great. Um, and just around the the other suppliers, did any of them declined to participate or provide any particular demonstrations or limit information they supplied?
>> As I said, um, in total there are 16 participating providers. uh some uh required KPMG to took additional steps and to ensure the information provided to the particular personnel's uh kept confidential and not shared more broadly. Uh that's a part of the their conditions to take um to provide that information. Some providers such as Fair Supply did uh a demonstration I believe of their product but all the demonstration uh the the information contained in their demonstration already publicly available.
>> Yep. And just on that in the Mandarin a representative of Fair Supply asked who would handle pre-sale engagement with agencies after the report. So who who is responsible for that now and what role if any does KPMG have in referring agencies to vendors?
>> The the KPMG has no role in that and that in fact that's is not the intention or the purpose of the project the audit. is not to advance anyone's interest or uh it's more uh to look at the tool as aggregate in the market market and how can that play a role in uh modern slavery risk assessment.
>> Has KPMG or any of its related entities received any commercial benefit um such as work from Commonwealth agencies? uh obviously arising from the knowledge that they've gained through this audit.
>> Not I'm aware of
>> um and did the department conduct any review of how the conflict of interest was managed after the contract concluded on 26th of June?
>> Uh you mean a specific review into how the contract is managed?
>> How that their conflict of interest was managed? Yes.
>> Yeah. So, um we as I mentioned that we bought uh assurance uh from KPMG verbally and in written form and that they provided those verbal undertaking and the written undertakings in July and they complied with all the contract terms.
>> Okay. Wonderful. Um are you able to provide the committee a copy of that? The written obviously you can't provide anything of the verbal commitment but the written.
>> Yeah. Yeah. Um uh can I take on that notice? I think we can. But can I take
it on that notice on notice? >> Thank you, Chair. Thank you, Senator
>> Uh thank you. If I could continue with my line of questioning uh in again in terms of the outcome of the tickle and gig case, can I just confirm that at the conclusion of one of the most contentious cases considering social issues in recent memory, which has, as we've discussed, confirmed the ability in law to basically sideline biological women from meeting safely and privately. The department provided what was a noting brief with a mere summary of the judgment uh to the attorney general.
>> Thank you, Senator. Uh that's we provided a summary of the judgment um and some questions in response to that.
>> Uh questions in response to that.
>> Oh, sorry. uh in terms of just summarizing uh like I said how the uh court determined the case uh so summary of the facts of the case uh as well as uh the issues I raised uh previously in terms of the how the legislation uh is set up.
>> Thank you. And Senator Farrell, can I confirm your evidence that the government hasn't considered uh putting through legislation to recognize the biological rights of women?
Um, no. Well, what I said was I wasn't aware of it, but that I would inquire of the attorney general um who would be able to answer that question and come back to you with a
response. Um, Senator Farrell, the government voted against the bill that I introduced, which was a change to the Sex Discrimination Act, uh, to bring back common sense and recognize the biological rights of women. Um, why did
>> Uh, well, because, uh, we took a decision as a government that we weren't, um, going to support that particular legislation. confirming
you would not support recognizing at law the rights of biological women in the Sex Discrimination Act.
>> Confirming that we didn't support that particular piece of legislation that you brought forward
>> which was to protect the rights of biological women. >> the government didn't support the legislation.
>> I mean, it's a it's a fact, Senator
>> again, did the department following the outcome in the giggle and tickle case put out any advisory notes in relation to or guidance should I say in particular for small businesses as to what the legal status of the Sex Discrimination Act is now when it comes to biological rights.
No, Senator.
>> No. Can I ask why?
>> Uh, that's not the department's role to provide advice um on the acts. The Australian Human Rights Commission has a role in engaging with business on the application of discrimination acts.
>> Okay. Given, as I've stated, it was one of the most contentious cases um considering social issues in recent memory. Did you have discussions with the Australian Human Rights Commission and in particular the Sex Discrimination Commissioner Anna Cody about providing small businesses with guidance so that they understand uh their legal obligations?
We regularly engaged with the human rights commission and had discussed the the case as it arose and the guidance that they were providing on their website. I believe they had a summary on their website.
>> A summary
>> but we did not engage with them in terms of providing advice to businesses noting that the the legal position has not changed.
>> Thank you very much. Um, I have now following the decision uh been contacted by small businesses across Australia who do not understand what their legal obligations now are. They understand that you can advertise for a biological only women's event. The issue now is, and this is what I'd like to seek clarification on, and I do have um a number of questions from a constituent, but they go to clarifying the law. They have sold out an event, 250 people. It has been advertised as a women's only event. They have been unable to get any form of guidance as to what their staff will now do at the door. If a biological man who identifies as a woman turns up, they do not have an exemption under the act. They didn't know that they could not do this. So, what is the legal status for them? An advertised women's only event. What do they do if a biological man turns up who identifies
>> Senator, that um uh appreciate that you've received that query. We can't provide legal advice.
>> I'm not asking you, Secretary, to reply. I'm asking you to interpret the law for me on behalf of small businesses across Australia who genuinely have now no idea what the law states and they just want to know. You administer this act. It is your department. >> What does the law state that is legal >> Stating what the law is is not legal
advice. It is stating what the law is >> specific to the circumstances that you've described. It is
>> okay. I'll put it then as a general question in relation to the law. What does the law say an organization must do if a man turns up who identifies as a woman to a women's only public event? What does the law state
>> Senator? Um each case will deter will turn on its facts and a court will apply the criteria in the act to determine whether a particular instance constitutes
>> for every small business across Australia. I would like you to know that the advice from the department on behalf of the government that administers this legislation is that you have no legal certainty and the bad news is you better find a good lawyer budget I don't know thousands of dollars and try and seek advice as to what your current status is at law is that the advice from the department get a lawyer you can't tell me it is a very reasonable question. What is the status of the law? A biological only event? Is it allowed at law currently following the outcome of tickle and giggle or is it not in terms of to go back to Miss Mills evidence transgender rights trump biological under the sex discrimination act? And on that basis, small businesses do need to say yes to men who identify as women.
>> There are a range of factors in the act that need would need to be considered in a given case.
>> How does a small business do that? Miss Chuchi, please tell me.
>> Uh well uh it can any business can seek advice should they?
>> They have sought advice. I will not go through the list from a commission, from a commissioner, from a professor of human rights, from a lawyer, and from several other small businesses. They have not been told what their legal status actually is. And I quote, I still have not been able to get a clear answer about what we should actually do at the door. Minister, is it acceptable that a small business who wants to run a biologicalonly female event is unable to get clarification as to whether or not and the event is being held shortly on the 7th of November? It's sold out. There are more events locked in for 2027. Is it acceptable that they cannot get a from this department that administers the act or b it would appear from anybody else clarification on the law? Do they say no to biological men who identify as women do they have to accept them because otherwise they'll be in breach of the law end up like S Grover up for a million bucks in costs?
Uh well, nobody would like to see anybody, particularly a small business, up for a million dollars in
>> Well, that's Grover's case.
>> Um Senator Cash, well, I'm I'm simply saying nobody um wants to uh uh see a small business in uh in those circumstances. I think um you've been asking the questions of the um uh the officials here. They've indicated to you that they're not in a position to give legal advice. And I think that is the
>> I'm not asking for legal advice with all due respect, Minister.
>> Well, I think you were um some of your questions were directly
>> I'm merely asking for an interpretation
of the law. Um well I think well it's a long time since I did a law degree Senator Cash but I think asking that question uh would be deemed to be uh legal advice
>> an interpretation of the law as it stands.
>> Yeah an interpretation of the law I if you're asking a lawyer what is the interpretation of the law I think that is legal advice. Um but look uh that aside um I
>> one more question.
>> I um uh again I make the point this is not my um area of um um responsibility. I shall refer your question to the attorney general. Again
>> I'm going to ask you then minister one final question before I hand over the >> What's the status of murder in Australia? Can you interpret the law for me or is that legal advice?
What is the status of me?
>> Is it a criminal offense or not? Or is that providing me legal advice on the criminal code? >> Yeah, exactly. That's the answer I need.
Thank you. >> You know, you know the answer to that question. >> Seriously? >> Well, you should be serious, Senator, because I don't
>> I am. I'm asking about the rights of biological women in this country and you are making a mockery of the questions by failing to answer what small businesses across Australia are now asking for clarity on.
>> Well, I I I reject that Senator Cash outright. Um I have taken your uh question and I'm referring it to the attorney general which is I think entirely appropriate in the circumstances.
>> Thank you, Minister. I'll now rotate the call and go to Senator Dinham.