Lesbian Action Group Inc v Australian Human Rights Commission

This case began with a practical problem faced by an advocacy group that wanted to run public events with restricted attendance criteria. The Lesbian Action Group, and later Lesbian Action Group Inc, wanted to hold regular public events for “lesbians born female” only. The first proposed event was tied to International Lesbian Day. The group described itself as a not-for-profit, community-based group established to address discrimination experienced by lesbians born female.

That plan raised an obvious legal risk under the Sex Discrimination Act 1984 (Cth). If a person provides goods or services, or makes facilities available, s 22 can make it unlawful to discriminate on grounds including sex, sexual orientation and gender identity. So rather than simply running the events and waiting to see whether a complaint followed, the group applied in advance to the Australian Human Rights Commission for a temporary exemption under s 44.

The Commission refused the application in October 2023. The group then sought merits review. By the time the review was heard, the Administrative Appeals Tribunal had been replaced by the Administrative Review Tribunal. The Commission actively participated in that review. After the group incorporated, Lesbian Action Group Inc was joined as a party. The Tribunal held a two-day hearing in September 2024 and, in January 2025, affirmed the Commission's refusal.

The matter then moved to the Federal Court. Importantly, this was not a direct discrimination claim by an excluded attendee. It was an appeal on a question of law about how the exemption power should be understood and applied. That procedural setting matters because the Court was not deciding the final merits of the proposed events themselves. It was deciding whether the Tribunal had used the right legal framework when refusing the exemption.

The Federal Court identified four questions of law raised by LAG, but only two needed to be decided. The first was about the construction of s 44 of the Sex Discrimination Act, which gives the Commission power to grant exemptions from the operation of certain anti-discrimination provisions. The second was about s 10A(1) of the Australian Human Rights Commission Act 1986 (Cth), which states that the Commission must perform its functions with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights.

LAG argued that the Tribunal had treated the exemption power too narrowly. In substance, the complaint was that the Tribunal approached s 44 as if an exemption should not be granted where it would permit conduct contrary to the Act's objects and anti-discrimination prohibitions. LAG said that was the wrong way to read an exemption power. Parliament had created a power to exempt conduct from the operation of the Act, and the Act itself contains multiple exceptions and exemptions. On that view, the existence of anti-discrimination objects does not by itself answer whether an exemption can lawfully be granted.

LAG also argued that the Tribunal was wrong to conclude that, when reviewing the Commission's exercise of the s 44 discretion, it was not subject to the duty in s 10A(1)(a) of the Australian Human Rights Commission Act. That issue mattered because it went to the legal framework governing the review process itself.

Two further grounds were raised but not decided. One concerned the meaning of the word “sex” in the Act. Another alleged legal unreasonableness. The Court did not need to determine those issues once it found in LAG's favour on the first two grounds.

Moshinsky J allowed the appeal. The Court held that the Tribunal had erred in its construction and application of s 44 of the Sex Discrimination Act. The judgment states that the Tribunal approached the exemption power on the basis that an exemption contrary to the objects in s 3 and the prohibitions on discrimination in the Act should not be granted. The Court held that this was too narrow a view of the scope of the exemption power.

The Court also held that the Tribunal erred in concluding that, when reviewing an exercise of the discretion in s 44, it was not subject to the duty in s 10A(1)(a) of the Australian Human Rights Commission Act. That was enough for Ground 2 to succeed.

Because Grounds 1 and 2 succeeded, the Court did not decide Grounds 3 and 4. That means the judgment does not provide a final answer on LAG's argument about the meaning of “sex” in the Act, and it does not resolve the legal unreasonableness ground. The Court also declined to grant the declaration sought in relation to the 2009 guidelines.

The orders were procedural but important. The Tribunal's decision dated 20 January 2025 was set aside. The matter was remitted to the Administrative Review Tribunal, differently constituted, for determination according to law. The Court also made directions for the parties to try to agree on costs, with written submissions to follow if they could not.

The key limit on the judgment is this: the Court did not itself grant the exemption. It corrected legal errors in the Tribunal's approach and sent the matter back. So the case is authority about the legal framework for exemption decisions, not a final merits ruling that the proposed events were lawful or should necessarily be approved.

One of the most useful parts of the judgment for business readers is the Court's overview of the structure of the Sex Discrimination Act. The Act contains broad prohibitions, but it also contains built-in exceptions, separate exemptions, special measures, and a temporary exemption power. The Court expressly noted that the Act does not pursue the elimination of discrimination “at all costs”. Instead, Parliament has recognised that in some contexts there are competing interests and specific carve-outs.

The judgment gives several examples. Some prohibitions contain their own exceptions. For example, there are exceptions in employment, education, accommodation and clubs. Division 4 of Part II then contains exemptions, including exemptions relating to genuine occupational qualifications, certain pregnancy-related rights, services that can only be provided to members of one sex, charities, religious bodies, educational institutions established for religious purposes, voluntary bodies, statutory authority, insurance, superannuation and sport.

The Court also referred to s 7D, which deals with special measures intended to achieve substantive equality. That matters because some organisations may assume that if conduct is aimed at supporting a particular group, the only available pathway is a temporary exemption. The Act is more complex than that. Depending on the facts, the real issue may be whether a built-in exception applies, whether a separate exemption already covers the conduct, or whether the conduct can be characterised as a special measure.

The judgment specifically notes that LAG appeared likely to fall within the definition of a “voluntary body”. If so, s 39 would exempt discrimination by a voluntary body in connection with admission of persons as members and the provision of benefits, facilities or services to members. But the proposed events in this case were described as public events. That distinction is commercially significant. A member-only benefit can sit in a different legal category from a public event advertised widely to the public.

For businesses and associations, the practical lesson is to map the activity carefully. A public seminar, ticketed event, networking night, support group, online community, member benefit and invitation-only gathering may all look similar operationally, but they can engage different legal questions. The legal analysis should start with the exact conduct and audience, not with the organisation's mission statement.

For a business owner or not-for-profit operator, the most practical reading of this case is not ideological. It is structural. The Court is saying that anti-discrimination compliance cannot be reduced to a single yes-or-no question. If your organisation wants to limit attendance, participation or access by reference to a protected attribute, you need to work through the Act in layers.

First, identify the legal character of what you are doing. Are you providing goods or services? Making facilities available? Admitting members? Providing benefits to members? Running a club? Operating as a voluntary body? The answer can change which provisions matter most.

Second, separate public conduct from internal or member conduct. The judgment highlights this issue by noting the possible relevance of the voluntary body exemption while also recording that the proposed events were public events. Many organisations blur these categories in practice. They may have a membership structure but still advertise events publicly, sell tickets broadly, or allow non-members to attend. That can change the legal analysis.

Third, do not assume that the Act's objects alone decide the issue. The Court's criticism of the Tribunal shows that the existence of broad anti-discrimination objects does not eliminate the role of exemptions and exceptions that Parliament has also enacted. At the same time, do not assume that because an exemption power exists, your organisation will receive one. The power must still be exercised lawfully and on the facts.

Fourth, be careful with public communications. If an event is to be restricted, the wording of advertisements, ticket terms, website copy and entry policies can become central evidence about what the organisation is doing and why. In this case, the application itself described the proposed events and the reasons for seeking the exemption in detail.

Finally, remember the limit of the judgment. This case does not tell businesses that they can safely proceed with exclusionary public events. It tells them that if an exemption application is refused, the refusal must rest on the correct legal approach. The final merits question here remains for the Tribunal on remittal.

The Federal Court judgment was delivered on 15 April 2026. The Court allowed the appeal, set aside the Tribunal's decision of 20 January 2025, and remitted the matter to the Administrative Review Tribunal differently constituted. The orders also left costs to be dealt with after the parties attempted to agree them.

That means the case is procedurally important but not the end of the underlying dispute. The exemption question still had to be redetermined by the Tribunal according to law. Readers should therefore treat this judgment as authority on the legal errors identified by the Court, not as the final word on whether the proposed events could lawfully proceed under an exemption.

The judgment available publicly is detailed enough to support that explanation, including the Court's orders, the main questions of law, the statutory context and the Court's conclusions on Grounds 1 and 2. However, because the extract is truncated, a complete account of every aspect of the reasoning and any final costs outcome is not available here.

This page is based on the published Federal Court judgment and orders in Lesbian Action Group Inc v Australian Human Rights Commission [2026] FCA 432, delivered by Moshinsky J on 15 April 2026. The judgment confirms the appeal was allowed, identifies the two legal errors found, and records that the matter was remitted to the Administrative Review Tribunal differently constituted.

The explanation above stays within what is confirmed by the judgment material available, including the statutory provisions discussed by the Court and the procedural history recorded in the reasons.