At the Perth stop of the Australian Human Rights Commission’s national ‘The Answer Is Human Rights’ seminar series, held on 11 June, an audience member put a direct and carefully prepared question to AHRC President Hugh de Kretser. The question came from Ms Amber Rossi, a director of the Affiliation of Australian Women’s Advocacy Alliances.
Ms Rossi referred to the Full Federal Court’s 15 May 2026 judgement in Giggle for Girls Pty Ltd v Tickle, in which the Court traced the evolution of the Sex Discrimination Act and drew a clear contrast between earlier and current versions. The Court found that earlier provisions of the Act gave “pre-eminence to the rights of women”, but that “no such pre-eminence can now be seen in the provisions of the Act.” The judges said plainly that whether this is “a good thing is, of course, not a matter for this Court”, making clear that addressing it is a matter for Parliament.
Ms Rossi also noted that in February this year, women’s organisations including AAWAA had met directly with the President, the Sex Discrimination Commissioner, and the Human Rights Commissioner to raise precisely these concerns, and to invite the Commission to consider using its section 11 powers. Under section 11 of the Australian Human Rights Commission Act 1986, the Commission may inquire into any act or practice that may be inconsistent with human rights, examine legislation for inconsistency with human rights, and report to the Minister on laws Parliament should make.
AMBER ROSSI: The Federal Court has exposed the limits of the Sex Discrimination Act. In February, women’s groups asked the AHRC to use its section 11 powers to address how Australia’s sex and gender framework is operating. Will the Commission now use those powers to recommend legislative reform to restore clear sex-based rights for women and girls?
“No plans” for women and girls
In his reply (full transcript below), Mr de Kretser began by observing that “everyone has human rights” — a point he underscored by saying that trans people have human rights and women have human rights — and that the issue before the seminar was what he described as a “narrow area of intersection” between rights. He listed the relevant settings as prisons, domestic-violence refuges and gymnasiums.
He then described what he characterised as the current state of federal law. Services can apply for an exemption under the Sex Discrimination Act, and if justification exists, he said, an exemption can be granted. He also noted that ‘special measures’ provisions and genuine-occupational-requirement exemptions allow women-only refuges to operate and to employ on the basis of sex where that is warranted.
Turning to the Giggle judgment, Mr de Kretser told the audience that the Federal Court had “clarified” the law, and referred the audience to the Commission’s own explainer, published that same day, to understand what the Court had said.
What he did not do was commit to using the Commission’s section 11 powers; more precisely, when asked directly, Mr de Kretser said that neither he nor the Commission had any plans to use those powers to examine Australia’s sex and gender framework or to recommend legislative reform to Parliament. The answer was not a deferral or a ‘not yet’: it was a no.
HUGH DE KRETSER: So we’ve got no plans for an inquiry into those things that you talked about with those organisations. I think in February I was at that meeting. But obviously there’s this huge public debate about these issues at the moment. Jeff talked about the issues, I think. I said a bit about it at the Press Club speech earlier, and you’ve got to understand, I think the starting point is: everyone has a human right. Everyone has human rights. Trans people have human rights. Women have human rights. What we’re talking about is this narrow area of intersection of those rights where we’re talking about women-only spaces, particularly around prisons, things like domestic violence refuges, gymnasiums, things like that. And so the current law says you can apply for an exemption, and it’s the federal law, and you can apply for an exemption, and if there’s justification for that, you can be granted an exemption. There’s also exemptions for special measures that allow things like women-only refuges to operate and employ if it’s a genuine occupational requirement, and there’ll be women in those refuges as well. So that’s the current state of the law. The Federal Court has clarified that law. We’ve published an explainer today on the Giggle and Tickle case to help explain what the federal court said in that particular decision.
Exemptions instead of reform: shifting the burden and risk to women
Three things are worth examining closely in that response.
First, framing the issue as a ‘narrow intersection’ minimises what the Full Federal Court actually said. The Court did not confine its observations about the loss of women’s pre-eminence in the Act to a few specific services. Its analysis went to the structure of the Act as a whole, and to the cumulative effect of changes made since 2013 — changes that removed the definitions of ‘man’ and ‘woman’ and added ‘gender identity’ as a protected attribute without explicit guardrails for conflicts with sex-based rights. Women’s organisations have been documenting for years how this uncertainty plays out across services, sport, prisons, and political organisation — not only in refuges and gymnasiums.
Second, pointing women to exemptions as the solution tells us how the Commission currently positions itself in relation to the problem Giggle has exposed. The exemption and special-measures framework under the Sex Discrimination Act requires services and organisations to apply for protections on a case-by-case basis, to justify those applications, and to be prepared to defend them if challenged. That is a very different proposition from restoring clear, general legal pre-eminence to women’s sex-based rights in the Act itself — which is what the Full Federal Court has indicated Parliament needs to address. Requiring services to seek individual exemptions places both the burden and the risk on women’s organisations, many of which do not have the legal resources to engage in that process.
Third, describing Giggle as a ‘clarification’ of the existing law, rather than as a warning to Parliament, signals that the Commission sees the current framework as fundamentally sound. That is a significant interpretive choice. The Court’s own language — that the Act “may limit the extent to which some understandings of women’s rights can be pursued” and that this is “a matter for Parliament” — is not the language of clarification. As we see it, it is a judicial acknowledgment that the law has a problem that judicial interpretation cannot fix.
From briefing notes to ‘no plans’: the road to Perth
This exchange did not come out of nowhere. Women’s organisations have been building this case through institutional channels for some time. At the National Press Club in September 2025, The Women’s Advocate questioned the Sex Discrimination Commissioner directly about why the Commission had not used its section 11 powers to protect women’s rights. In February 2026, AAWAA, the Coalition of Activist Lesbians, and the Feminist Legal Clinic met with the President and Commissioners face-to-face to present detailed briefing materials on exactly this question. In response, Mr de Kretser outlined the Commission’s decision-making framework for using its inquiry powers: factors such as the significance of the issue for different populations, whether other bodies are conducting parallel law reform work, resourcing, and whether government would be receptive to the recommendations. He did not commit the Commission to using section 11 for this purpose, nor did he rule it out.
Perth has now provided a more direct answer. When asked, in public, whether the Commission would use section 11 to recommend legislative reform restoring women’s sex-based rights following Giggle, the President’s answer was, in substance, ‘No’: the law provides exemptions, and the Commission has published an explainer.
What the AHRC’s ‘narrow intersection’, ‘no plans’ stance means for women
The Perth exchange gives women’s organisations a clear public record of the Commission’s current position. The AHRC President has stated that the Commission has no plans to exercise its section 11 powers to recommend that Parliament restore women’s pre-eminence in the Sex Discrimination Act. It regards the exemption and special-measures framework as the appropriate tool for women seeking to maintain sex-based services or spaces. And it treats Giggle v Tickle as consistent with its existing approach rather than as a prompt for legislative review.
That position is reinforced by what Mr de Kretser said at the February meeting, when he outlined the Commission’s decision-making framework for using its inquiry powers. Among the factors he listed was whether government would be receptive to any recommendations that resulted, noting that an inquiry conducted against government hostility is less likely to see its recommendations implemented. Taken together with his Perth answer, this suggests that the Commission’s section 11 powers are unlikely to be directed at women’s sex-based rights unless government itself signals a willingness to act on the findings.
Women attending the Commission’s remaining seminars are entitled to ask what, in that case, the AHRC understands its obligations to women to be — and what would need to change before the Commission considered Parliament needed to be told to act.
Read the full transcript below.