The Court’s recent reasoning in Giggle for Girls v Tickle and Hanson v Faruqi is concerning—not because of the personalities involved, but because of what those judgments reveal about how Australian courts interpret legislation.
Put the outcomes to one side. Look at the method.
In both cases the courts treated the statute as a set of words to be matched to facts. They did not ask, with any seriousness, what problem Parliament was trying to solve, what conduct the law was meant to permit or restrain, or whether the circumstances before the court were within Parliament’s contemplation. That is not a technical quibble. It is a claim about who government exists to serve.
The Cases
In Hanson v Faruqi, the Full Federal Court upheld a finding that Senator Hanson’s reply to Senator Faruqi—“pack your bags and piss off back to Pakistan”—was unlawful under s 18C of the Racial Discrimination Act 1975.
The tweet was ugly. That is not the point. The point is the Court’s refusal to treat context as legally relevant in the way ordinary citizens treat it. The exchange followed a public attack on a recently deceased monarch. It was a reply, not an unprovoked opening shot. Most people distinguish attacking someone for who they are from answering what they have just done. Long-settled custom also still recognises hospitality (a guest’s duty of respect to the host country), a reluctance to speak ill of the dead, and the old warning not to poke the bear, meaning provocation invites a robust reply.
The Court set that social understanding aside. It applied the statutory formula—conduct reasonably likely to offend, insult, humiliate or intimidate, done because of race, colour, or national or ethnic origin—and then declined the fair-comment exemption. The words of the Act were treated as enough. Custom, occasion, and the difference between insult and identity-attack were not allowed to do real work.
In Giggle for Girls v Tickle, the Full Federal Court (and then the High Court, by refusing special leave on 10 September 2026) read the Sex Discrimination Act 1984 so that a women-only app could not lawfully exclude a transgender woman.
The Court found two acts of direct discrimination on the ground of gender identity: exclusion from the app, and the later refusal to readmit.
Again, put the culture-war heat to one side. The legal move was this: the 2013 amendments added “gender identity” as a protected attribute and defined it to include gender-related identity, appearance and characteristics. The Court applied that text. It did not ask whether Parliament, when it added those words, contemplated that a service built for women as a sex class would become legally unable to remain so. It did not ask whether the 2013 Parliament had put that collision before the electorate. It did not ask what problem the original Sex Discrimination Act was designed to solve—unequal treatment of women—and whether the later overlay had been allowed to swallow that purpose.
The Court itself said the questions were “the construction and application of provisions of the Sex Discrimination Act.” That describes the judicial task as the Court now conceives it. It is also the problem.
Literal application is not the same as serving the people
Australian statute law already tells courts to prefer the interpretation that best achieves the purpose or object of an Act. Purpose, however, is not the same thing as “the meaning that follows if every defined term is applied without asking whether this case was ever in view.”
Society generally understands that no drafter can foresee every situation. That is why a judiciary exists. Its job is not merely to match words on a page. If that were the whole task, a clerk and a dictionary would suffice. The judicial function is to ask:
- What mischief was the law aimed at?
- What conduct was it meant to permit or prohibit?
- Were these facts within Parliament’s contemplation?
- Does the result sit with long-settled custom and ordinary community standards, or does it quietly repeal them?
In both cases the courts declined that inquiry. They treated defined terms as self-executing. “Gender identity” meant what the definition said, so a women-only space could not stay women-only. “Offend, insult, humiliate or intimidate” plus a racial or ethnic hook meant a harsh political retort could be declared unlawful, whatever the provocation.
That is not humble textual fidelity. It is a choice to stop at the words and refuse the further questions citizens reasonably expect courts to ask.
Mandate is not optional in a representative democracy. Parliament’s authority comes from the people. Courts should therefore be slow to give legislation a reach the people were never asked to approve.
The 2013 gender-identity amendments were sold as protection against unfair treatment of a small minority. They were not put to the country as a decision that female-only associations, services and online spaces must admit males who identify as women.
A court that applies a literal interpretation is completing a political project Parliament did not complete in public. It is extending the law beyond what the public authorised or even contemplated.
The same is true of s 18C. Whatever one thinks of racial vilification laws, their application to a senator’s reply in a political argument about immigration, loyalty and public speech is not a small, technical step. It is a large restriction on political communication. If that is what the country wants, it should be argued and voted on as such. It should not arrive as an afterthought of statutory word-matching.
A judiciary that will not ask “was this within the mandate?” is not checking Parliament. It is amplifying Parliament’s sloppiest work.
In a functioning representative democracy, the arms of government check one another.
- Parliament must represent the people, not merely outvote them on matters never put to them.
- The courts must check Parliament when it exceeds its proper bounds—especially when it erodes liberty.
- The people must be able to check the courts when the courts stop doing that job.
The core purposes of government are limited and serious: protect people from violence, protect property from theft and damage, and protect liberty. Courts exist in part to stop Parliament from using elastic language to enlarge its power beyond those purposes.
That is not abstract. Last century, governments killed more than a hundred million of their own people. In many countries today, citizens are too frightened to criticise the state. Australia is not those places, but it is reckless to assume it cannot become more like them. During COVID, Commonwealth and State governments assumed extraordinary powers without a prior mandate. A frightened majority can be induced to accept measures it would have rejected in calmer times. In such a moment the country needs a composed judiciary willing to say to parliament: no, you cannot do that.
A court that treats itself as a linguistic technician will not say no. It will ask only whether the words of the emergency statute can be made to fit. That is how a judiciary becomes a quango: formally independent, practically available to whatever the government of the day has written down.
Judges should not be political actors. They also should not be free to switch methods—literal one day, contextual the next—according to the social outcome they prefer. The standard has to be stable: purpose, context, custom, mandate, and fundamental rights. Not sterile textualism when it produces the preferred result, and not “community values” when it does not.
What follows
If government is to serve rather than rule, the judiciary must be brought back to that function. That requires more than scolding individual judgments. It requires arrangements that make courts answerable for method:
- interpretation that starts with purpose, context and what Parliament actually contemplated;
- respect for long-settled custom and ordinary standards unless Parliament has clearly displaced them;
- a real check on legislation that was never put to the people in the form the court now gives it;
- an end to the idea that judicial office is a zone of consequence-free power.
Classic Liberals Australia is the only party that has made this a governing commitment: courts that interpret legislation with regard to purpose, context, democratic mandate and fundamental rights; courts that are not a quango; judges who may not bend method to preferred social or political outcomes.
The choice is simple. Do we want to be ruled by government, or served by it? History is not kind to peoples who allowed themselves to be ruled. If we want a government that serves, we have to insist that all three arms—legislature, executive and judiciary—do so. The courts must check Parliament. The people must check the courts. That will only be done if citizens make it a condition of their support for politicians and political parties.
That is the reason to support Classic Liberals Australia.