The Australian Human Rights Commission wants Parliament to expand its enforcement powers in matters of sex and gender. We asked the Commission’s President about it at the National Press Club.
On 29 April 2026, Mr Hugh de Kretser, President of the Australian Human Rights Commission, addressed the National Press Club in Canberra. The Women’s Advocate attended and asked questions that go to a matter that Parliament may need to consider: whether the AHRC should be given significantly expanded enforcement powers over organisations operating in the space where women’s sex-based rights and gender identity intersect, and what the Commission’s existing record of exercising such powers tells us about how those expanded powers might be used.
Proportionality
In his January 2026 evidence to the Parliamentary Joint Committee on Intelligence and Security, Mr de Kretser emphasised, as a general human rights principle, that limits on rights must be proportionate and necessary. He also stated that protections must extend to all communities, including on the basis of sex.
Proportionality is a foundational principle of human rights law: it requires that when rights conflict, the measures taken to protect one right do not impose burdens on another that are excessive relative to the objective pursued. It is the lens through which the Commission’s use of its powers — existing and proposed — should be assessed.
Expansion of positive duty powers
The AHRC’s Equal Identities report, released in March 2026, recommends that Parliament extend the positive duty in the Sex Discrimination Act 1984 (Cth) to cover gender identity, sexual orientation, and intersex status — the protected attributes in sections 5A, 5B and 5C of the Act.
The positive duty, inserted by the Respect@Work reforms of 2022, currently requires employers and persons conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual and sex‑based harassment, hostile work environments and victimisation in connection with work. Unlike the complaints-based model, the positive duty places an ongoing preventive obligation on organisations; compliance does not depend on an individual making a complaint.
The AHRC holds the enforcement powers: it may investigate on its own initiative where it reasonably suspects non-compliance, issue compliance notices specifying what an organisation must do, and apply to the Federal Court for orders against organisations that fail to comply.
Recommendation 19 of Equal Identities would extend that enforcement architecture to gender identity. Women’s shelters, health and legal centres, women’s sporting organisations, and other women’s sex-based organisations that employ staff or operate as a business or undertaking would fall within the Commission’s proactive enforcement reach in matters involving gender identity. Critically, the Commission would not require a complaint to trigger an inquiry, it could act on its own motion on a reasonable suspicion of non-compliance.
Concerns about whether Parliament should confer that power on the Commission do not arise in a vacuum. They arise against the background of the Commission’s recent exercise of its existing powers in a matter directly involving the intersection of women’s sex-based rights and gender identity.
The Federal Court and the Lesbian Action Group
In April 2026, Justice Moshinsky of the Federal Court allowed an appeal by the Lesbian Action Group — a small, volunteer-run association of lesbian women — against the Commission’s refusal to grant a temporary exemption under section 44 of the SDA. The LAG had sought the exemption to hold ‘female-born-only’ public events without exposure to discrimination complaints. The Commission refused the exemption in October 2023, the Administrative Review Tribunal affirmed that refusal in January 2025 and the LAG then appealed to the Federal Court on questions of law.
The Federal Court found legal error. The Tribunal — exercising the Commission’s functions on review and applying the same reasoning the Commission had applied — had misapplied its statutory obligations in key respects. Among those obligations was the duty in section 10A of the Australian Human Rights Commission Act 1986 (Cth) to perform all functions with regard for the indivisibility and universality of human rights and the equal dignity of every person. The Court set aside the Tribunal’s decision and remitted the matter for reconsideration on the correct legal basis.
The significance of that finding for the present debate is direct. Parliament is being asked, through Equal Identities, to extend the Commission’s enforcement powers in matters of sex and gender, precisely the area in which the Federal Court has just found that the Commission’s existing exercise of its powers was legally flawed.
Mr de Kretser’s response
Mr de Kretser’s response to our questioning described the positive duty as a preventive mechanism — a shift from responding to harm after the fact to requiring organisations to prevent it, analogous to workplace health and safety regulation. He said the Commission wants the positive duty expanded across all federal discrimination laws, and that he does not see great conflict between the rights of women and the rights of trans women, characterising both as equality objectives the Commission should aspire to. He then addressed the question of gender-affirming care for children, describing human rights law as the Commission’s guiding framework.
The response did not engage with the Federal Court’s finding and neither did it address the specific question of how proportionality operates in practice when women’s sex-based rights and gender identity are in tension. Furthermore, it offered no account of the basis on which Parliament should have confidence in the Commission’s use of the proposed expanded powers, given the judgment handed down two weeks prior. The description of the positive duty as a preventive mechanism is accurate, but it does not address the question that was asked, which was about the Commission’s record in exercising its existing powers, not the design principles of the positive duty framework.
Costs and accountability
Our follow-up question noted that the Commission had sought a costs order against the Lesbian Action Group in the Federal Court proceedings and asked what guarantees the Commission could give to women’s organisations that, if Parliament extends these positive duty powers, the Commission will use them proportionately.
Mr de Kretser indicated he was not familiar with the costs order.
The costs order we were referring to is set out at paragraph 4 of the Commission’s own Respondent’s Outline of Submissions to the Federal Court, filed in January 2026. The Commission submitted that the LAG’s appeal should be dismissed with costs: a formal application for an order that a small, volunteer-run women’s advocacy organisation pay the Commission’s legal costs of an appeal brought to correct errors in the Commission’s own decision-making. The Federal Court allowed the appeal. The Commission’s request that the appeal be dismissed with costs did not succeed, and the Court directed that the issue of costs be determined on the papers.
This warrants consideration in the context of the Commission’s own policy position on costs in discrimination-adjacent proceedings. The AHRC was a principal advocate for the Australian Human Rights Commission Amendment (Costs Protection) Act 2024, arguing publicly that costs orders in discrimination proceedings deter vulnerable parties from pursuing legitimate claims and constitute a barrier to access to justice. Parliament enacted that legislation in October 2024, establishing a new default position: applicants in unlawful discrimination proceedings must not be ordered to pay costs, except in limited statutory exceptions (including vexatious or unreasonable conduct).
The Lesbian Action Group proceedings were an administrative law appeal rather than an unlawful discrimination claim, and so the new costs protection provisions do not automatically extend to them: the Commission was not legally prevented from seeking costs. But the question raised by The Women’s Advocate is one of institutional consistency: whether seeking costs against a small, volunteer women’s organisation, in proceedings where that small organisation ultimately prevailed, and in the context of legislation the Commission itself championed to protect parties in analogous proceedings from precisely that risk, is consistent with the Commission’s stated values, and with the proportionality standard Mr de Kretser articulated to the PJCIS.
What remains open
The remittal hearing in the Lesbian Action Group matter has not yet been scheduled. The correct legal approach to the exemption application — applying section 10A and the full scope of the discretion under section 44 — remains to be determined by a differently constituted Tribunal.
Equal Identities and its nineteen recommendations, including Recommendation 19 on the extension of the positive duty, are now before the Australian Government, which may bring the proposed reforms to Parliament. The Women’s Advocate will continue to raise concerns about how the Commission exercises its powers in matters of sex and gender.
You can read the full transcript of the National Press Club exchange, below.
