Smith v Blanch

[2025] NSWCA 188

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Smith v Blanch [2025] NSWCA 188

Hearing dates:

23 June 2025

Date of orders:

15 August 2025

Decision date:

15 August 2025

Before:

Kirk JA; Stern JA; McHugh JA

Decision:

(1) The summons dated 18 March 2025 is dismissed.

(2) The applicant is to pay the first respondent’s costs.

Catchwords:

CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge denied applicant procedural fairness in contravention of rule in Browne v Dunn — where no such procedural unfairness

CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge elided two components of test in s 19 of Crimes (Domestic and Personal Violence) Act 2007 (NSW) in deciding whether to make an apprehended violence order — where no such jurisdictional error established

CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge applied incorrect standard of appellate review on an appeal against finding that conduct insufficient to warrant making of an apprehended personal violence order — where correctness standard applies to finding that the court has jurisdiction to make an apprehended violence order under s 19 of Crimes (Domestic and Personal Violence) Act 2007 (NSW) — where primary judge did not apply incorrect standard of appellate review

CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge took into account irrelevant factors or failed to take into account relevant factors in applying s 19 of Crimes (Domestic and Personal Violence) Act 2007 (NSW) — where no such jurisdictional error made out

CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge erred in finding that ss 7, 19 and 35(2)(f) of Crimes (Domestic and Personal Violence) Act 2007 (NSW) did not impermissibly burden the constitutionally protected implied freedom of political communication — where burden limited and of minor significance — where purpose accepted as legitimate in relevant sense — where impugned provisions suitable in relevant sense and burden outweighed by benefits

Legislation Cited:

Anti-Discrimination Act 1977 (NSW), ss 20C(2), 38S(2), 49ZE(2), 49ZT(2) and 49ZXB(2)

Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 18, 19, 20

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 9, 10, 16, 17, 19, 20, 35, 84

Crimes Act 1900 (NSW), Pt 15A

Criminal Appeal Act 1912 (NSW), s 6(1)

Criminal Procedure Act 1986 (NSW), Ch 4, Pt 2

Judiciary Act 1903 (Cth), s 78B

Racial Discrimination Act 1975 (Cth), s 18D

Succession Act 2006 (NSW), s 59

Supreme Court Act 1970 (NSW), ss 69, 75A

Cases Cited:

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1

Attorney-General (SA) v Corporation of City of Adelaide (2013) 249 CLR 1; [2013] HCA 3

Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450; [2022] HCA 13

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; [1992] HCA 45

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707

Babet v Commonwealth [2025] HCA 21; (2025) 99 ALJR 883

Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43

Browne v Dunn (1893) 6 R 67

Burton v Director of Public Prosecutions (NSW) (2022) 110 NSWLR 145; [2022] NSWCA 242

Cappello v Roads and Maritime Services (2019) 100 NSWLR 259; [2019] NSWCA 227

Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11

Coleman v Power (2004) 220 CLR 1; [2004] HCA 39

Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23

Commissioner of Police (NSW) v Cottle (2022) 276 CLR 62; [2022] HCA 7

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2014) 45 VR 571; [2014] VSCA 348

Cooke v Tweed Shire Council [2024] NSWCA 50

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Dyason v Butterworth [2015] NSWCA 52

Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537; [2022] HCA 23

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Frank v Angell [2024] NSWCA 264

George v Rockett (1990) 170 CLR 104; [1990] HCA 26

Ghaderi v Director of Public Prosecutions (NSW) [2018] NSWCA 119

GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857

Henderson v McKenzie [2009] ACTSC 39

Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4

House v The King (1936) 55 CLR 499; [1936] HCA 40

Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14

John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101

Klein v Domus Pty Ltd (1963) 109 CLR 467; [1963] HCA 54

Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29

Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25

Lee v R [2023] NSWCCA 70

LibertyWorks Inc v Commonwealth (2021) 274 CLR 1; [2021] HCA 18

Locke v H.C. Loneragan & Company Pty Ltd as trustee for the Loneragan Family Trust t/as Quantum Forensic Solutions [2025] NSWCA 166

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12

McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34

McNab v DPP (2021) 106 NSWLR 430; [2021] NSWCA 298

MDP v The King [2025] HCA 24; (2025) 99 ALJR 969

Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136; [2023] HCA 17

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41

Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4

Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119

MWJ v The Queen [2005] HCA 74; 80 ALJR 329

O’Flaherty v City of Sydney Council (2014) 221 FCR 382; [2014] FCAFC 56

PE v MU (2010) 11 DCLR (NSW) 107; [2010] NSWDC 2

Pirrottina v Pirrottina [2025] NSWCA 55

R v Knight (1988) 35 A Crim R 314

Ravbar v Commonwealth [2025] HCA 25; (2025) 99 ALJR 1000

Rock v Henderson; Rock v Henderson (No 2) [2025] NSWCA 47

Rookes v Barnard [1964] 1 All ER 367

Scott v Scott [2022] NSWCA 182

Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8

Unions NSW v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58

Veness v Hodge [2015] NSWCA 20

VV v District Court of New South Wales [2013] NSWCA 469

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Wotton v State of Queensland (2012) 246 CLR 1; [2012] HCA 2

Texts Cited:

T Prince, “Recurring Issues in Civil Appeals – Part 1” (2022) 96 ALJ 203

Category:

Principal judgment

Parties:

Kirralie Smith (Applicant)
Stephanie Blanch (First Respondent)
Attorney General of New South Wales (Second Respondent)
District Court of New South Wales (Third Respondent, submitting appearance)

Representation:

Counsel:
A Cheshire SC with F Maghami (Applicant)
A Canceri with T O’Rourke (First Respondent)
LG Moretti (Second Respondent)

Solicitors:
Solve Legal (Applicant)
Inner City Legal Centre (First Respondent)
Crown Solicitor for NSW (Second and Third Respondents)

File Number(s):

2025/107811

Publication restriction:

Pursuant to orders made by the Court under s 7(a) and (c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) there is to be no publication or disclosure of information that identifies or tends to identity the employment, occupation, residential address or financial position of Stephanie Blanch.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2024] NSWDC 631

Date of Decision:

20 December 2024

Before:

Wass DCJ

File Number(s):

2023/75275

HEADNOTE

[This headnote is not to be read as part of the judgment]

By a number of posts on a variety of platforms in January and February 2023 (the posts), the applicant posted messages about the respondent who is a transgender woman and has for 25 years been playing football, most recently for the Wingham Warriors, a community team in a small town on the Mid North Coast of New South Wales. The applicant is a spokesperson for an organisation called Binary Australia, which she says is “dedicated to upholding the reality of biological and binary sex”. The posts sometimes included a clearly identifying photograph of the respondent and (albeit without naming her) described her as the “bloke in the frock” playing for a women’s football team in Wingham. At the time the respondent was the only transgender woman on that football team.

In the posts, the applicant aired, in no uncertain terms, her sincerely held beliefs that Football Australia, Football New South Wales and Mid North Coast Football should not permit transgender women to participate in women’s football and, more particularly, that the respondent should not be allowed to play women’s football.

In light of this conduct, the respondent filed a police report and sought in the Local Court an apprehended personal violence order (APVO) under s 19 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act). Magistrate Hawkins, who heard the application, accepted that the respondent had fears of harassment and that the conduct of the applicant amounted to harassment of the respondent, but found that that conduct, which the respondent had reasonable grounds to fear and did in fact fear, was not sufficient to warrant the making of an APVO.

The respondent appealed to the District Court under s 84(2)(a1) of the Act, challenging the sufficiency finding. In her submissions on that appeal, the applicant contended that she had engaged in the relevant conduct in her capacity as a political advocate for Binary Australia, this formed part of her political communications and advocacy and s 19 disproportionately burdened the constitutionally protected freedom of political communication.

Wass DCJ upheld the respondent’s appeal and made an APVO against the applicant. The applicant then sought to challenge that order in the exercise of this Court’s supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) on the basis of alleged jurisdictional error.

The key issues before the Court were:

1. whether the primary judge denied the applicant procedural fairness in inferring that, in a post made on 21 November 2024, the applicant intended to harass or intimidate the respondent when this was not put to the applicant in cross-examination, in contravention of the rule in Browne v Dunn;

2. whether the primary judge misunderstood her jurisdiction by eliding the assessment of the character of the conduct, as part of determining under s 19(1)(b) of the Act whether the court has power to make an order, and the separate judgment whether, having regard to the matters in s 20, an order under s 19 should be made;

3. whether the primary judge applied the correctness standard of appellate review when the House v The King standard of appellate review should apply on an appeal against a finding that the conduct is not sufficient to warrant the making of an APVO;

4. whether the primary judge took into account irrelevant factors, or failed to take into account relevant factors; and

5. whether the primary judge erred in finding that ss 7, 19 and 35(2)(f) of the Act did not impermissibly burden the constitutionally protected implied freedom of political communication.

The Court held, dismissing the application:

As to issue (i)

1. The inference the primary judge drew as to the applicant’s intention when making the 21 November 2024 post was an imputation against her conduct such that the rule in Browne v Dunn might apply, but the Court was not satisfied that the primary judge’s inference that the applicant intended harassment by that post was sufficiently different as a matter of substance from the matters raised during the hearing, such that it had to be specifically put to the applicant or her representative before the primary judge could fairly make such finding: [88]-[96].

   MWJ v The Queen [2005] HCA 74; 80 ALJR 329; Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11; Scott v Scott [2022] NSWCA 182; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1, applied.

   Locke v H.C. Loneragan & Company Pty Ltd as trustee for the Loneragan Family Trust t/as Quantum Forensic Solutions [2025] NSWCA 166, referred to.

2. In any event, the primary judge made it clear in her reasons that her finding as to the applicant’s intention in the 21 November 2024 post had no material effect on the outcome other than that it may be relevant to the terms of any orders made: [97].

As to issue (ii)

1. On an application for judicial review, the applicant bears the onus of proof, and the Court was not persuaded that, in the impugned paragraphs, the primary judge was not simply responding, quite specifically, to an alternative reading of Magistrate Hawkins’s reasons. The Court would not lightly infer that her Honour took a position which was contrary to both the parties’ submissions and relevant authority she cited in her reasons. No jurisdictional error is established in this regard: [113]-[114].

   Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1, applied.

   LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, referred to.

2. Even if the Court had been satisfied that the primary judge elided the stages of decision-making, that error did not cross the threshold of materiality. The primary judge was clearly satisfied that Magistrate Hawkins had made a material mistake of fact in her characterisation of the effect of the post on the respondent for the purpose of the sufficiency enquiry, such that it was necessary for the primary judge to reach her own conclusion as to this enquiry and to consider whether to make an order in the exercise of the discretion under s 19. The outcome therefore would inevitably have been the same irrespective of any error: [115]-[116].

   LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, applied.

   Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136; [2023] HCA 17, distinguished.

As to issue (iii)

1. There are four questions involved in considering an application for an APVO under s 19. A correctness standard applies to a finding that the court has jurisdiction to make an order under s 19(1)(b), encompassing the first three questions. The preferable construction of s 19 is that the entirety of the jurisdictional enquiry is something to which there is only one legally permissible outcome such that the correctness standard of appellate review should apply. Parliament can be taken to have intended that District Court appeals against decisions under s 19 be undertaken in a practical and relatively straightforward manner. To find that the jurisdictional stage of decision-making, and the requisite satisfaction on a balance of probabilities under s 19(1), are to be subject to two different standards of appellate review runs counter to that aim: [50]-[51], [70]-[87], [118].

   Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119, GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857; Commissioner of Police (NSW) v Cottle (2022) 276 CLR 62; [2022] HCA 7; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14; Dyason v Butterworth [2015] NSWCA 52, applied.

   Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30; Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, referred to.

2. Even if the standard of appellate review had been the House v The King standard, the Court would not have found that her Honour erred. No jurisdictional error is established: [102], [119]-[120]

   Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; Pirrottina v Pirrottina [2025] NSWCA 55, applied.

As to issue (iv)

1. Having regard to the text, context and purpose of s 7(1)(a) of the Act, intimidation does not necessarily require an intention to harass or molest: [57]-[62], [121].

2. To the extent the applicant contended that the primary judge made erroneous findings of fact and thereby misapplied the applicable law in making findings, these are not on their face contentions of jurisdictional error. None of the purported errors alleged by the applicant in this regard established jurisdictional error: [123]-[132].

   Ghaderi v Director of Public Prosecutions (NSW) [2018] NSWCA 119, applied.

   Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, referred to.

   Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, distinguished.

As to issue (v)

1. The burden imposed on the implied freedom by the impugned provisions is incidental, content-neutral, only occurs in cases where an APVO has been found by a court to be warranted and justified, and is likely to arise only in rare cases. It is therefore limited and of minor significance: [154]-[156].

   Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25; Unions NSW v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58; Unions New South Wales v New South Wales (2013) 252 CLR 530; [2013] HCA 58; Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; [1992] HCA 45, referred to.

   Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43; Burton v Director of Public Prosecutions (NSW) (2022) 110 NSWLR 145; [2022] NSWCA 242, applied.

2. The applicant did not dispute that the purpose of the impugned provisions was legitimate in the relevant sense. That purpose can be identified as protecting people from personal violence as understood to extend to intimidation in the nature of harassment or molestation: [157].

3. The applicant accepted that the impugned provisions were suitable in the sense of having a rational connection to their purpose. As to necessity and balancing, the benefit of seeking to protect individuals from the significant deleterious effects of possible intimidatory conduct, including with respect to conduct having a political character, outweighs the minor burden imposed on the implied freedom by the impugned provisions. That burden is justified. The applicant’s constitutional challenge is rejected: [158]-[167].

   McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34; Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43; Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11; LibertyWorks Inc v Commonwealth (2021) 274 CLR 1; [2021] HCA 18; Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537; [2022] HCA 23; Babet v Commonwealth [2025] HCA 21; (2025) 99 ALJR 883; Ravbar v Commonwealth [2025] HCA 25; (2025) 99 ALJR 1000, applied.

   Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4; Coleman v Power (2004) 220 CLR 1; [2004] HCA 39, referred to.

JUDGMENT

1. THE COURT: By a number of posts on a variety of platforms in January and February 2023 (the posts), the applicant posted messages about the first respondent (who for convenience we will refer to as the respondent) who is a transgender woman and has for 25 years been playing football, most recently for the Wingham Warriors, a community team in a small town on the Mid North Coast of New South Wales. The applicant is a spokesperson for an organisation called Binary Australia, which she says is “dedicated to upholding the reality of biological and binary sex”. The posts sometimes included a clearly identifying photograph of the respondent and (albeit without naming her) described her as the “bloke in the frock” playing for a women’s football team in Wingham. At the time the respondent was the only transgender woman on that football team.

1. In the posts, the applicant aired, in no uncertain terms, her sincerely held beliefs that Football Australia, Football New South Wales and Mid North Coast Football should not permit transgender women to participate in women’s football and, more particularly, that the respondent should not be allowed to play women’s football. As is pellucidly clear from our summary of the posts set out below, in these posts the applicant also singled the respondent out for public attention in the applicant’s broader campaign against transgender women participating in women’s sport. The posts included photographs of the respondent which clearly identified her to anyone familiar with her appearance.

2. In light of this conduct, on 11 February 2023 the respondent filed a police report and on 1 March 2023 sought in the Local Court an apprehended personal violence order (APVO) under s 19 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act; unless otherwise indicated, all references to sections of legislation are to the Act). In her application the respondent relied upon a number of matters, including that she feared for her safety.

3. On 31 January 2024 Magistrate Hawkins accepted that the respondent had fears of harassment and that the conduct of the applicant amounted to harassment of the respondent, but found that that conduct, which the respondent had reasonable grounds to fear and did in fact fear, was not sufficient to warrant the making of an APVO (we describe a finding such as this last finding as a “sufficiency finding”).

4. The respondent appealed to the District Court under s 84(2)(a1), challenging the sufficiency finding. On 4 September 2024, the applicant filed a notice that she intended to raise matters arising under the Constitution in accordance with s 78B of the Judiciary Act 1903 (Cth). In essence, she contended that she had engaged in the relevant conduct in her capacity as a political advocate for Binary Australia, this formed part of her political communications and advocacy and s 19 disproportionately burdened the constitutionally protected freedom of political communication. In response, the Attorney General of New South Wales intervened, and was joined as a party, in the proceedings (and is the second respondent in the application now before the Court). The third respondent to this application, the District Court of New South Wales, has filed a submitting appearance.

5. On 20 December 2024 Wass DCJ upheld the respondent’s appeal and made an APVO against the applicant: Blanch v Smith [2024] NSWDC 631 (J).

6. By summons filed on 18 March 2025 (the summons), the applicant now seeks to challenge that order in the exercise of this Court’s supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) on the basis of alleged jurisdictional error. For convenience, we will refer to Wass DCJ as the primary judge, notwithstanding that these are proceedings in the Court’s supervisory jurisdiction and not an appeal. At the hearing of the application, Senior Counsel for the applicant abandoned a number of the matters relied upon, either as grounds or particulars to grounds, of the summons filed on 18 March 2025. The following issues were pressed (renumbered for convenience and paraphrased to reflect the focus of the submissions advanced by the applicant):

1. The primary judge denied the applicant procedural fairness in inferring that, in a post made on 21 November 2024, the applicant intended to harass or intimidate the respondent when this was not put to the applicant in cross-examination: J[46], [104(16)]. This was said to have contravened the rule in Browne v Dunn (1893) 6 R 67 (particulars 2(a) and (b) of the summons).

2. The primary judge misunderstood her jurisdiction by eliding the assessment of the character of the conduct, as part of determining under s 19(1)(b) whether the court has power to make an order, and the separate judgment whether, having regard to the matters in s 20, an order under s 19 should be made (ground 3 of the summons).

3. The primary judge applied the correctness standard of appellate review when the House v The King standard of appellate review should apply on an appeal against a finding that the conduct is not sufficient to warrant the making of an APVO (raised indirectly and somewhat obliquely in particular 4(d) of the summons).

4. The primary judge took into account irrelevant factors, or failed to take into account relevant factors, in applying s 19. It was argued that harassment only falls within the definition of intimidation in s 7 where it is intentional, and that the intent of the applicant was a mandatory relevant consideration when deciding whether the respondent had reasonable grounds to fear conduct of the applicant and whether the conduct of the applicant was sufficient to warrant the making of an order under s 19. This requirement for intentionality had not been considered by the primary judge. This issue was raised, again, indirectly and somewhat obliquely in particulars 4(g), (i)-(k) and (m) of the summons. Beyond this, the applicant also challenged some discrete findings of the primary judge under ground 4 on the basis of a failure to take into account a mandatory relevant consideration or taking into account a mandatory irrelevant consideration (particulars 4(a)-(d) in the summons).

5. The primary judge erred in finding that ss 7, 19 and 35(2)(f) did not impermissibly burden the constitutionally protected implied freedom of political communication (ground 5 of the summons).

8. Given the nature of this application, it is important at the outset to emphasise that the issues before this Court do not relate to the merits of the respondent’s application for an order under s 19 of the Act. The question for us is a purely legal one, being whether or not the applicant has shown that the primary judge’s decision is affected by jurisdictional error. Further, the applicant does not contend that the specified state of satisfaction required under s 19 of the Act was not reached or formed by the primary judge, so as to engage what is sometimes referred to as “the concept of subjective jurisdictional fact”: VV v District Court of New South Wales [2013] NSWCA 469 at [13]. Nor does she contend that any of the criteria under s 19 are jurisdictional facts such that it is for this Court, on an application for judicial review, to determine for itself whether the criteria were satisfied (see, eg, Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 at [36], [41] and [94]).

9. For the reasons set out below, none of the applicant’s arguments are made out and the summons should be dismissed with costs. This judgment is structured as follows:

1. the posts (at [10]-[29]);

2. the proceedings below (at [30]-[41]);

3. the legislative scheme (at [42]-[87]);

4. consideration of the grounds of judicial review, other than the constitutional point (at [88]-[132]); and

5. consideration of the constitutional argument (at [133]-[167]).

The posts

10. Prior to the posts, the respondent did not know or know of the applicant. There is no suggestion that the two have met other than in the context of the proceedings below. There is also no dispute that the applicant genuinely holds the beliefs for which she was advocating in the posts, or that the posts were the responsibility of the applicant.

11. On 19 January 2023, the applicant posted on the social media platform Twitter (now called “X”):

“Men from the mid coast NSW, can you get in touch with me please? I need your help. There is a bloke playing on the women’s team in Wingham and many are upset about it. The federation is refusing to listen.”

12. This post received 39,100 views, 116 re-tweets, 17 quote tweets and 439 likes.

13. On 20 January 2023, the applicant posted an article entitled “[a] bloke in a frock is playing woman’s soccer on the Mid North Coast” to Binary Australia’s website. 190 people “liked” this page. The article included clearly identifying photographs of the respondent, both alone and with other members of her football team whose faces were blocked out from the photograph, and a link to the Wingham Football Club’s Facebook page. The article stated that “[t]he bloke in a frock was receiving an award for playing in the women’s division”. In the article the applicant said that she had asked the general manager of Football Mid North Coast “whether or not the federation would advocate for the girls and families at both the Wingham Club and opposing clubs who are uncomfortable with a male in their sporting category and in their changerooms” and said that “Wingham is a small community and it should not be up to vulnerable girls or their families to fight for sex-based sports”. The article suggested that “peak bodies such as Mid [North] Coast Football and Football Australia” should “protect and promote women in their sport”. As regards the respondent, the applicant wrote that:

“The bloke in the frock can play either in the men’s competition or a mixed competition, there is absolutely no need for him to pay in a women’s division.

No-one is saying he can’t play. It is simply a matter of fairness, safety and dignity. He is male and does not belong in a female division. Women and Girls deserve to have the option of a female only competition.”

14. The applicant added that the word “woman” is:

“[R]endered meaningless when a bloke in a frock is suddenly a woman, as we all know that a ‘woman’ is not a costume, false boobs or a drug to be taken”.

15. Also on 20 January 2023 the applicant posted a link to this article on the Binary Australia Facebook page with the title of the article and a statement that “Wingham Football Club awarded the fella for playing in the female division”. This post had a clearly identifying photograph of the respondent’s head and shoulders. On the same day the applicant posted a clearly identifying photograph of the respondent on her personal Facebook page, together with some text including statements that “[t]his bloke in a frock is being awarded a prize for playing the women’s competition in Wingham NSW”, “[t]his man doesn’t have to play on the women’s team” and “[w]omen, girls and families are being shown enormous contempt”.

16. Again on 20 January 2023, the applicant posted on Twitter, tagging various Twitter profiles including those of the Prime Minister of Australia, Tanya Plibersek MP, Dominic Perrottet, Ben Fordham, Jordan Peterson, The Australian newspaper, and Football Australia, with a photograph of the respondent and her teammates (with the latter’s faces all blocked out) asking the question “is there any point in having male & female divisions in sport? Wingham FC NSW”. In a second Twitter post that day the applicant posted another photograph of the respondent with the statement:

“A bloke in a frock playing soccer in the women’s comp doesn’t make him a woman.

He’s just a bloke in a frock.

He can play in the men’s or mixed competition, not female.

Wingham NSW”.

17. This post also used the hashtags #TransWomenAreConMen and #SaveWomensSports and tagged the Twitter profiles of Football Australia, Football New South Wales, Daily Mail Australia, and Daily Wire News. It received 60,200 views.

18. On 23 January 2023, in reply to a tweet by Football Australia on 19 January 2023 about the Young Matildas heading to their first training camp for the year, the applicant posted:

“You can’t even define the term female ... Why do the girls in Wingham NSW have to put up with a bloke on their team and in their changerooms?”

19. On the same day the applicant posted a photograph of the respondent to Twitter, tagging the Football Australia Twitter profile, with the text “[m]ore information about the bloke in a frock playing soccer for Wingham FC on the Mid North Coast of NSW”. An accompanying link directed people to the Binary Australia article from 20 January 2023.

20. On 8 February 2023, the applicant posted an identifying photograph of the respondent on Twitter with the text:

“Please explain @FootballAUS why you insist on showing contempt toward women?

Why can’t the bloke who appropriates female stereotypes compete in the male team or a mixed/open team?

Why do you lie and claim he is a woman? Why do you bully & ghost women who object?

Wingham NSW”.

21. Also on 8 February 2023, the applicant posted the same photograph on Twitter in reply to a post by Football Australia, with text including: “You allow men who appropriate stereotypes of women to play as women.”

22. The next day, the applicant again posted the photograph of the respondent with her coach to her Facebook profile, and said “Kirralie Smith doesn’t recommend Northern NSW Football” and “[t]hey allow males who appropriate stereotypes of females to play in women[’]s teams”.

23. On 13 February 2023, the applicant again posted an identifying photograph of the respondent on Twitter with text stating that Twitter had made her remove the post “about the bloke playing on the women’s team in Wingham” and that Football Australia “ghost women who don’t want men on their team … How is that fair?”. This post received 153 views. The applicant then replied to her own tweet stating:

“Time for @FootballAUS to man up and face the women who object to men in their changerooms and on their teams. Why have a women’s team if men can play on it?”

24. Also on 13 February 2023, the applicant posted on Twitter that “[t]hey let blokes play as women … Men are not women!”. This tweet had 2,363 views.

25. On 14 February 2023, the applicant posted another article to the Binary Australia website entitled “[s]occer campaign for women and men who pretend to be women”. This included a statement attributed to the applicant that:

“The peak soccer body in Australia refuses to hear complaints or engage with women and families who are concerned about a male playing soccer in the women’s team at Wingham”.

26. On 16 February 2023, the Matildas posted a photograph on Twitter in advance of them competing in the “Cup of Nations”, in reply to which the applicant posted an identifying photograph of the respondent with a link to the Binary Australia article from 20 January 2023.

27. In a further article on the Binary Australia website (undated but believed to have been posted prior to 14 February 2023), entitled “[k]eep blokes out of women’s sport!”, the applicant said that Australian sporting bodies were “in for a wake-up call” and wrote:

“Football Australia think it’s OK to have adult men playing against girls and women.

If it can happen to Binary Spokeswoman Kirralie Smith’s local team – the Wingham Warriors – it can happen to anyone’s.

With your help, we’re going to make the voices of every silenced girl, woman and parent heard, so loud and so clear that they can’t possibly be ignored.

Using this form [which was attached], send your email message directly to the leaders of Football NSW, Football Australia and Football Mid North Coast and let them know, there’s no place for biological males in women’s sport.

Please remember to be as respectful and courteous as possible when drafting/editing your email.” [emphasis in original]

28. The hearing before Wass DCJ concluded on 18 October 2024 and judgment was reserved. However, before judgment was delivered, on 21 November 2024 the applicant made a post (the 21 November 2024 post) that included the following:

“In October 2023 I sat through a full hearing in court being accused of violence for identifying a male soccer play [sic] in a female competition.

All I did was repost an image that had been posted in the public domain. I used the image to ask Football Australia and Football NSW why they have the policy that allows males to play in female competitions.

In January the judge denied the application for an apprehension of violence order against me, stating the posts, ‘don’t reach the level of harassment that is appropriate for the court to intervene.’

Last month the player appealed that decision, he still wants an AVO against me. His legal team claim my actions do rise to the level of ‘violence’ the AVO law was created for.

The decision will be made Friday 29 November.”

29. The above post was accompanied by a link to a Daily Telegraph newspaper article reporting on the findings of the Local Court and received 3,290 views.

The proceedings below

The Local Court proceedings

30. The respondent gave unchallenged evidence in the Local Court proceedings, in essence, that she feared that the applicant would “continue to intimidate [her] because of [her] transgender status”, including by vilifying her, encouraging others to harass and vilify her, stirring up controversy about her participation in a women’s soccer team, misgendering her, using her image and posting it on social media accounts and continuing to mention her club and the town that she lives in. She said that she feared that the applicant would continue to specifically target her as an example for her anti-transgender campaign which would encourage others online to hate her.

31. The applicant’s evidence in the Local Court proceedings included considerable detail explaining the political nature of the posts and the reasons why she made them. In cross-examination, she agreed that she had sincerely held beliefs and that, “regardless of what happen[ed] today” she would continue her activism. She also said that she did not know whether she would continue to use the respondent’s photograph in her activism as that “depend[ed] what [the respondent did] in the future”. She said she would “not necessarily” continue to use the respondent’s photograph in her activism if the respondent continued to play football (although the question put did not specify whether this was on the premise that the respondent would be playing in a women’s team). When the applicant was asked whether she needed to use an image of the respondent to pursue her objectives she replied:

“Well, again, I think that depends because I think that the Australian public and the female soccer players, you know, they want evidence if there are males playing, male bodies playing in female sporting divisions and if we think that photos demonstrate that reality then – but I can’t say whether I’d use this particular person’s photo again or not. I don’t know.”

32. When asked if she would again use the photograph of the respondent used in the posts she said:

“Probably not that photo. It would be if something developed, I guess. But I don’t know. I don’t know.”

33. Magistrate Hawkins’ findings are set out at [4] above. Her reasons for finding that the circumstances were not sufficient to warrant the making of a court order were as follows:

“Whilst [the posts] would have been unpleasant for [the respondent] without seeking to minimise her experience, they don’t reach a level of harassment or severity of fear having regard to the objects of the act that in all the circumstances it is appropriate for the Court to intervene.”

The nature of the appeal to the District Court

34. The primary judge determined the appeal on the basis of the transcript of the hearing before the Local Court, together with the evidence before the Local Court, supplemented by the 21 November 2024 post which was tendered after the substantive hearing in the District Court but prior to judgment being delivered. The primary judge did not address the standard of appellate review to be applied (at [117] below we address the submissions before her Honour as to this). Her Honour thus did not specifically address whether the error she identified was a House v The King error.

35. Section 84(2)(a1) provides for an appeal to the District Court against the dismissal of an application for an apprehended violence order (AVO). Under s 84(3), such appeal is to be made under Pt 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) in the same way as an application may be made under that part by a defendant against a conviction arising from a court attendance notice dealt with under Pt 2 of Ch 4 of the Criminal Procedure Act 1986 (NSW). Whilst s 84(4) provides that the CAR Act applies to such an appeal subject to any modifications made by regulations under the Act, no regulations have been made under the Act. The appeal is by way of rehearing on the basis of evidence given in the Local Court: CAR Act, s 18(1). Fresh evidence (defined in s 3 of the CAR Act to mean “evidence in addition to or in substitution for the evidence” below) may be given with leave if the court is satisfied that it is in the interests of justice: CAR Act, s 18(2). The court also has a discretion (not presently relevant) to require a person to attend and give evidence: CAR Act, s 19.

34. In McNab v DPP (2021) 106 NSWLR 430; [2021] NSWCA 298 at [24] Bell P explained that “error is required to be demonstrated for an appeal pursuant to s 18 of the CAR Act to succeed” (see also Basten and McCallum JJA at [84]-[90]). Where the standard of appellate review is the correctness standard (in that case in an appeal against conviction), error will be established if the appellate court identifies an error of law in the magistrate’s reasoning, or forming its own judgment as to the facts by way of hearing, concludes that the evidence is not sufficient to demonstrate the applicant’s guilt beyond reasonable doubt: at [25]-[27] (Bell P). The latter (as his Honour noted at [27]) “will necessarily involve a conclusion that the magistrate committed some legal, factual or discretionary error”.

35. Where, however, the standard of appellate review is the House v The King standard, error will only be established if it is shown that the magistrate made a material error of principle or fact; failed to take into account a relevant consideration or took into account an irrelevant consideration; or arrived at a conclusion so unreasonable as to bespeak an error of such a kind: House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40.

The primary judge’s decision

38. The primary judge agreed with a number of Magistrate Hawkins’ findings: J[68]. In particular, her Honour agreed that the respondent feared harassment and intimidation through the applicant’s online posts, including the photographs (J[68(6)]), and that the respondent feared continuation of online harassment and exposure: J[68(8)]. Her Honour also agreed that the applicant was opposed to transgender females participating in women’s sport and was sincere in her political beliefs: J[68(10)]-[68(11)]. Her Honour rejected the applicant’s contention that conduct does not fall within s 19 unless it was intended to be intimidatory to the complainant (J[37], [45]) or unless it involved direct or personal contact: J[58], [70]. Her Honour also agreed with Magistrate Hawkins’ finding that any person in the respondent’s position would likely feel harassed, isolated and targeted and would have felt “distressed, confronted, powerless and exposed”: J[74], [75]. Her Honour also agreed that the respondent had reasonable grounds for her fear of continuing online harassment based upon the posts: J[81]. It is implicit in the decision that her Honour was relying upon that aspect of intimidation identified in s 7(1)(a) of the Act, relating to harassment or molestation (the provision is set out below at [57]).

39. Her Honour disagreed with Magistrate Hawkins as to whether the harassment or intimidation was likely to continue without the protection of court orders. In this regard, she relied upon a number of matters, including the applicant’s sincerely held beliefs (J[104(1)]-[104(4)]), her commitment to creating a barrier to what she sees as “radical gender theory” and to “shin[ing] a light on key issues in the media” (J[104(5)]-[104(6)]), her evidence set out at [31]-[32] above (J[104(7)], [104(11)]-[104(13)]), her persistence and her “level of obsession” with the respondent (J[104(8)]-[104(10)]), and the 21 November 2024 post (above at [28]: J[104(14)]-[104(16)]), although her Honour confirmed at J[105] that she had already reached this view prior to the 21 November 2024 post. Her Honour found that it was more likely than not that, without court sanction, the applicant would continue to use the respondent’s image in a harassing and intimidating way, so long as she continued to play for a women’s team: J[105]-[106].

40. As to the 21 November 2024 post, her Honour also inferred that, given that it was made at a time when the applicant was aware (from the respondent’s unchallenged evidence in the Local Court) that the posts had caused the respondent to fear, it was carried out with the intention to harass or intimidate the respondent: J[46], [104(16)]. Her Honour found that, in light of this post, Magistrate Hawkins’ findings that the posts were made only over a short period, that the attention had ceased and that there was no evidence of continuing online activity were no longer open: J[104(16)].

41. The primary judge then considered whether it was “[a]ppropriate to [m]ake an [o]rder”: J[109]. Her Honour found error on the part of Magistrate Hawkins (the nature of which we discuss at [98]-[114] below when considering ground 2). Her Honour found that the conduct was sufficient to warrant the making of an order and determined to make an order under s 19: J[121]. As to the constitutional question, her Honour found that there was no impermissible burden upon the implied freedom of political communication: J[192]-[193].

The legislative scheme

42. Given that grounds 2 to 4 raise questions of construction, it is convenient to deal with those questions when setting out the relevant legislative provisions. In this part of the judgment, consistent with the statutory terminology, we will refer to the person against whom an order is sought as the defendant. We will refer to the person for whose protection an AVO is sought as the “protected person”, in line with the usage in the Act (that term is defined in s 3(1) to mean “the person for whose protection an apprehended violence order is sought or made”). The protected person may or may not be the applicant for the order: note s 48(2). Consistently with the parties’ approach, we will proceed on the basis that it is the Act as it was at the time of the primary judge’s decision that is relevant for the purpose of this application.

Object and purpose

43. Section 9 sets out the objects of the Act with respect to domestic violence. Section 10 does so in relation to personal violence. It states:

10   Object of Act in relation to personal violence

(1)    The object of this Act in relation to personal violence is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship.

(2)    This Act aims to achieve that object by—

(a)    empowering courts to make apprehended personal violence orders in appropriate circumstances to protect people from violence, intimidation (including harassment) and stalking, and

(b)    ensuring that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice, and

(c)    ensuring that other avenues of dispute resolution are encouraged where appropriate.

44. Section 10 must be construed as a whole. Read in that way, it is clear that one aim, or purpose, of the Act is to enable an order to be made to protect people from intimidation (including harassment). We would thus reject the applicant’s contention that, under the Act, protection from intimidation is “at … the margins” of, and for that reason somehow secondary to, protection from physical violence. The terms of s 10(2)(a) point strongly against that contention. The language used there does not in any way suggest that protection from harassment must be tethered to, or be for an overarching purpose of, protection against physical violence. To the contrary, s 10 as a whole suggests that protection against intimidation is a purpose of the Act.

45. In any event, the object or purpose of an Act is to be identified by a process of statutory construction of the Act as a whole: see eg Cappello v Roads and Maritime Services (2019) 100 NSWLR 259; [2019] NSWCA 227 at [40]. Having regard to the terms of ss 7 and 19 of the Act, there can be no doubt that protection of people from intimidation (including harassment) is itself a purpose of the Act. Having regard to the Act as a whole, we would also construe “safety and protection” in s 10(1) to extend beyond protection against physical violence.

46. This is consistent with how the purpose underlying legislation providing for AVOs has been articulated by this Court. As regards the repealed Pt 15A of the Crimes Act 1900 (NSW), and equally applicable to the Act, in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101, Spigelman CJ (Mason P and Beazley JA agreeing) said at [20]:

“The legislative scheme for apprehended violence orders serves a range of purposes which are quite distinct from the traditional criminal or quasi-criminal jurisdiction of the Local Court. The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking, intimidation and harassment. Apprehended violence orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law.”

47. The passage was relied upon in respect of the Act in Rock v Henderson; Rock v Henderson (No 2) [2025] NSWCA 47 at [135]-[136].

The power at issue

48. The power of the Local Court (and the District Court on appeal) to make a final APVO comes from ss 19 and 20 of the Act:

19    Court may make apprehended personal violence order

(1)    A court may, on application, make an apprehended personal violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears—

(a)    the commission by the other person of a personal violence offence against the person, or

(a1) the commission by the other person of an offence under the Conversion Practices Ban Act 2024, section 5 or 6 against the person, or

(b)    the engagement of the other person in conduct in which the other person—

(i)    intimidates the person, or

(ii)    stalks the person,

being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

…

(3)    For the purposes of this section, conduct may amount to intimidation of a person even though—

(a)    it does not involve actual or threatened violence to the person, or

(b)    it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.

Note.

Part 8 provides for the matters that may be included in orders. Part 9 contains additional provisions relevant to the making of orders.

20    Matters to be considered by court

(1)    In deciding whether or not to make an apprehended personal violence order, the court must consider the safety and protection of the person seeking the order and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order.

(2)    Without limiting subsection (1), in deciding whether or not to make an apprehended personal violence order, the court is to consider—

(a)    in the case of an order that would prohibit or restrict access to the defendant’s residence—the effects and consequences on the safety and protection of the protected person and any children living or ordinarily living at the residence if an order prohibiting or restricting access to the residence is not made, and

(b)    any hardship that may be caused by making or not making the order, particularly to the protected person and any children, and

(c)    the accommodation needs of all relevant parties, in particular the protected person and any children, and

(d)    any other relevant matter.

(3)    When making an apprehended personal violence order, the court is to ensure that the order imposes only those prohibitions and restrictions on the defendant that, in the opinion of the court, are necessary for the safety and protection of the protected person, and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order, and the protected person’s property.

(4)    If an application is made for an apprehended personal violence order that prohibits or restricts access by the defendant to any premises or place and the court hearing proceedings in respect of the application decides to make an order without the prohibition or restriction sought, the court is to give reasons for that decision.

The four questions under s 19 of the Act

49. In Veness v Hodge [2015] NSWCA 20 at [8], Emmett JA, with whom Barrett JA and Adamson J agreed, said:

“Sections 19 and 20 of the Crimes Act are central to the power of the Local Court, and of the District Court on appeal, in matters such as the present. The power to make an APVO is enlivened if the court is, on the balance of probabilities, satisfied of the matters described in s 19. If, and only if, that state of satisfaction is reached, the next question is whether the power should be exercised. The duty to consider the matters in s 20 then arises. The first, and indispensable, task of the court under s 19 is to address two questions. The first is whether fear in fact exists. The second is whether there are reasonable grounds for that fear on the part of the applicant. The positive power to make an order under s 19 is enlivened and available to be exercised only if the Court has reached the specified state of satisfaction as to those matters (Mahmoud v Sutherland [2012] NSWCA 306 at [21], [23] and [25]).”

50. As the contentions of the parties in this application demonstrate, however, the first task under s 19 identified by Emmett JA in fact resolves into three, overlapping and interdependent, questions:

1. Is the court satisfied on the balance of probabilities that the protected person in fact fears the engagement of the other person in qualifying conduct falling within pars (a), (a1) or (b) of s 19 (eg, as in this case, conduct that intimidates the protected person)? This question involves a factual enquiry as to whether the protected person holds a current fear, as at the time of the hearing, in relation to potential future conduct by the defendant. It must be fear of conduct of a particular kind. With respect to intimidation, for example, it is necessary to consider whether the feared conduct is of a kind falling within the definition of that concept in s 7.

2. Is the court satisfied on the balance of probabilities that the applicant for an order has reasonable grounds for that fear? As explained in George v Rockett (1990) 170 CLR 104 at 111-112; [1990] HCA 26, a finding as to “reasonable grounds” requires the existence of facts which are sufficient to induce the relevant state of mind in a reasonable person. This involves both a factual enquiry and an evaluative judgment. Commonly consideration of this question – and of the first question – will involve examination of past conduct of the defendant which is said to found the protected person’s current fear.

3. In the opinion of the court, is the feared conduct sufficient to warrant the making of an order under s 19? For convenience, we describe this as the sufficiency enquiry. This requires both consideration of matters of fact and an evaluative judgment. Having regard to the structure of s 19(1), this falls within the ambit of the matters upon which the court must be satisfied on the balance of probabilities for it to have power to make an order. It is the sufficiency of the feared future conduct which is being assessed. Again, the nature of any relevant past conduct of the defendant will likely throw some light on this assessment.

51. Only if each of these questions is resolved in favour of the applicant for an order does the court need to resolve the fourth question under s 19, which is whether, having regard to the matters in s 20, the court should exercise its discretion to make an order.

52. Sections 16-17, relating to apprehended domestic violence orders (ADVOs), employ the same structure as ss 19-20, albeit that the qualifying conduct is identified in somewhat different terms. However, intimidation is also identified there as qualifying conduct.

The sufficiency enquiry

53. Given the applicant’s contentions, it is necessary to address the sufficiency enquiry in more detail. This involves characterising the feared conduct, having regard to all the factual circumstances which are relevant to the safety and protection of the protected person. It involves evaluation, taking into account (if relevant) at least the nature, quality and extent of the conduct. As the applicant contends, in some cases the intention of the defendant may be relevant to the sufficiency enquiry. Beyond this, in some cases (as here), factors personal to the protected person which impact upon the seriousness of the feared conduct from his or her perspective may also be relevant (for example because of vulnerability or otherwise by reason of their personal circumstances). To this extent, the sufficiency enquiry may in an appropriate case also include an evaluation of the impact or effect of the feared conduct on the protected person.

54. It follows that we reject the applicant’s contention that the circumstances of the protected person are of no relevance to the enquiry under s 19(1). It would be inconsistent with the object of the Act, as we have explained it, to require a court, when considering whether the discretion to make an order is enlivened, to ignore matters that may exacerbate the impact or effect of the feared conduct on a protected person’s safety or need for protection. It would also be to require the court effectively to resolve the sufficiency enquiry in a factual vacuum. We infer that Parliament did not intend such an arid and artificial exercise.

55. Contrary to the applicant’s contention, our conclusion as to this is not inconsistent with “the safety and protection of the person seeking the order” being a matter which s 20(1) requires be taken into account when considering whether to exercise the power to make an order under s 19. Consistent with the protective purpose of the Act, the safety and protection of the protected person may be relevant at multiple stages of the enquiry as to whether an order can or should be made under the Act and if so, under ss 35 and 36, in what terms. The Act protects the vulnerable as much as it protects the robust, and a person’s individual circumstances may be such that they require protection from conduct which would be benign to others. That being said, with respect to intimidation we discuss below the necessity for the feared conduct to cross the threshold of sufficiency, which requires that it be significant or serious, in order to warrant an order being made (see at [152]).

56. Considering factors personal to the protected person, that go to the significance or seriousness of the feared conduct from their perspective when making a sufficiency finding, does not exhaust the matters that may be relevant when deciding whether or not to exercise the power to make an order. At that stage of the enquiry, the court must consider the matters in s 20 and balance potentially conflicting interests to decide whether to make an order. That process overlaps with, but is distinct from, the sufficiency enquiry.

Intimidation and intent

57. Whether the feared conduct falls within the ambit of (as relevant here) intimidation of the person under the Act is a matter of characterisation having regard to the definition in s 7:

7    Meaning of “intimidation”

(1)    For the purposes of this Act, intimidation of a person means—

(a)    conduct (including cyberbullying) amounting to harassment or molestation of the person, or

Example of conduct that may amount to harassment of a person—

(1)    Intentionally disclosing or threatening to disclose any of the following about a person without the person’s consent, known as “outing”—

(a)    the person’s sexual orientation,

(b)    the person’s gender history,

(c)    that the person has a variation of sex characteristics,

(d)    that the person lives with HIV,

(e)    that the person is, or has been, a sex worker.

(2)    For subsection (1)(b) of this example, gender history means the sex recorded at birth for the person is different to the sex the person identifies with, lives in or seeks to live in, whether or not the person’s record of sex is altered under—

(a)    the Births, Deaths and Marriages Registration Act 1995, Part 5A, or

(b)    the corresponding provisions of a law of another State or Territory or a jurisdiction outside Australia.

Note.

An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email.

(b)    an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or

(c)    conduct that causes a reasonable apprehension of—

(i)    injury to the person or to another person with whom the person has a domestic relationship, or

(ii)    violence to any person, or

(iii)    damage to property, or

(iv)    harm to an animal that belongs or belonged to, or is or was in the possession of, the person or another person with whom the person has a domestic relationship, or

(d)    conduct amounting to the coercion or deception of, or a threat to, a child to enter into a forced marriage within the meaning of the Crimes Act 1900, section 93AC, or

(e)    conduct amounting to the coercion or deception of, or a threat to, a person to enter into a forced marriage within the meaning of the Commonwealth Criminal Code, section 270.7A (Definition of forced marriage).

(2)    For the purpose of determining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.

58. It is harassment or molestation under s 7(1)(a) that is relevant in this case. These words are not defined in the Act and are to be given their ordinary English meanings: Veness v Hodge at [11]. Save as regards the question whether intention is required for conduct to be harassment or molestation, it was not contended that the primary judge erred in the definitions she adopted of these terms, namely that “harassment” involves being “troubled by repeated attacks, incursions” or to “disturb persistently” (J[38]) and molestation is “to interfere with annoyingly or injuriously” (J[30]) and includes “behaviours which are found to be ongoing and unwanted and of a pestering and interfering nature” (J[29]).

59. The applicant contends that for conduct to be characterised as intimidation falling within s 7(1)(a) necessarily involves the defendant having an intention to harass or molest. She does not argue that the other four paragraphs of the definition require establishing any particular intention on the part of the defendant. Rather, she contends that harassment and molestation within s 7(1)(a) are both conduct of a very different character to conduct which amounts to intimidation under s 7(1)(b) or (c), as they do not necessarily involve concerns for safety or a reasonable apprehension of violence (etc) nor do they necessarily involve deliberately doing something to the person seeking the order. Thus, she submits, unless an intention to intimidate had to be proved for conduct to fall within the ambit of s 7(1)(a), such conduct would not fall within the object of the Act, which should be construed as being the protection of persons who experience personal violence. In support of this contention, she submits that it would be understandable that Parliament would not wish to restrict “statements made to the world at large” in the same way as conduct falling within s 7(1)(b) or (c).

60. We reject the applicant’s contention that intimidation within s 7(1)(a) necessarily requires an intention to harass or molest. It is contrary to what is suggested by consideration of the relevant text, context and purpose. To begin with, that is not what s 7(1)(a) says. Section 19(1)(b) speaks of conduct which has a particular effect upon the mental state of the protected person. It does not speak of the mental state of the defendant, being the person engaging in that conduct. Section 7 spells out the nature of the conduct being addressed. Had Parliament intended there to be a requirement of intention in s 7(1)(a) it could, and we infer would, have said so. That point is reinforced by the fact that the first example of conduct given in s 7(1)(a) is intentionally disclosing or threatening to disclose certain matters – that being an intention distinct from intending to harass or molest, and in circumstances where the other examples do not identify any required intention.

61. The applicant refers to cases addressing the tort of intimidation, where it has been suggested that intimidation involves an intention to injure: eg Rookes v Barnard [1964] 1 All ER 367 at 397; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2014) 45 VR 571; [2014] VSCA 348 at [35]. Usages in quite different contexts do little to assist construction of the notion of intimidation as employed in this detailed statute. And the argument proves too much, for the applicant’s argument here is only about one aspect of the statutory notion of intimidation, being that involving harassment or molestation.

62. The applicant seeks to distinguish par (a) of the definition from pars (b) and (c) because the former (along with pars (d) and (e)) employs the words “amounting to” whereas the latter identifies conduct which “causes” a particular effect. Yet the notions of harassment and molestation themselves involve conduct causing a particular effect, as illustrated by the primary judge’s elucidation of those notions (see above at [58]). And why should Parliament have required that there be an intention to harass or molest, but not an intention to engage in any of the other conduct in s 7?

63. Moreover, as the Attorney submitted, the suggested mental element would be unusual and difficult to establish. It would require an applicant to establish that the defendant intended to act in a way which should be characterised as harassing or molesting, that is, troubling by repeated attacks or incursions, disturbing persistently, interfering with annoyingly or injuriously, or engaging in ongoing and unwanted behaviour of a pestering and interfering nature. These are evaluative characteristics. As the Attorney submitted, requiring proof of this could give rise to perverse outcomes if a defendant had idiosyncratic notions of what amounts to harassment or molestation. It is unlikely that Parliament would have intended to require that such an awkward and elusive criterion be established in order for an APVO to issue. Further, the difficulty of the task would be magnified by the fact that insofar as intimidation has work to do under s 19, what is relevant is feared future conduct.

64. Contrary to the applicant’s contention, the fact that some of the conduct in s 7 involves an apprehension of injury or violence cannot provide a rational basis for distinguishing between harassment or molestation and the other forms of conduct. Moreover, there is no basis to characterise harassment and molestation as necessarily indirect forms of conduct, still less to characterise conduct falling within s 7(1)(b) or (c) as necessarily direct or involving an intention to cause fear, injury, violence or damage.

65. Turning to the broader context of the Act, contrary to the applicant’s submission, s 13 stands against the contention that an intention to harass or molest is an essential matter to be proved under s 7(1)(a). Section 13(1) provides that “[a] person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence”. This shows that in the Act Parliament made it clear where “intention” was an element to be proved. As the Attorney submitted, “[t]he fact that Parliament has carefully delineated the necessary mental element for this offence makes it particularly unlikely that a different mental element would have been included sub silentio as a necessary ingredient of s 7(1)(a)”.

66. The applicant relied upon a statement in the judgment of Dhanji J in Lee v R [2023] NSWCCA 70 at [34]. That reliance is misplaced, as was ultimately accepted. Lee v R was an appeal against the sentence imposed including for an offence under s 13. Given the terms of s 13, and in particular that it includes intention as an element of the offence, it is hardly surprising that Dhanji J referred in his judgment at [34] to intention having to be proved to make out the offence of intimidation.

67. We also reject the applicant’s contention that ss 14(1) and 36(b) suggest that there can be no harassment or molestation falling within s 7(1)(a) unless there is an intention to harass or molest. Section 36(b) provides that every AVO is taken to prohibit the defendant from, amongst other things, stalking, harassing or intimidating the protected person. Section 14(1) is an offence of knowingly contravening a prohibition or restriction in an AVO. The applicant made a stretched argument that if an AVO had been granted based upon the subjective fear held by a protected person of certain conduct said to be harassment, then that would somehow give content to whether or not subsequent conduct of the defendant would be intimidatory and in breach of the s 36(b) condition in the AVO. The applicant’s emphasis on subjective fears did not give due recognition to the requirement that any such fears be held on reasonable grounds. And s 14 is addressed to conduct after an AVO has been made. Whether or not the non-intimidation condition had been breached would relevantly require consideration of whether the impugned conduct fell within the s 7 definition of intimidation; it would not depend upon analysis of the nature of the conduct which was relied upon to found the making of the AVO. Contrary to the applicant’s contention, there is nothing surprising about a knowing contravention of such an order leading to a criminal penalty irrespective of whether there was an intention to harass or molest.

68. As for purpose, the applicant’s contention relies upon a limited approach to the object and purpose of the Act, which we have already rejected. There is no reason to infer that Parliament only intended to protect persons against harassment and molestation when intentionally perpetrated. On the contrary, as the respondent argued, given the protective nature of the scheme established by the Act (see above at [46]) there is reason to infer that Parliament meant s 7 to encompass conduct which has an intimidatory effect even if undertaken by a defendant for a misguided or deluded reason of protecting or watching over the protected person.

69. On the subject of intention beyond s 7, we accept the applicant’s contention that evidence of the intention of the defendant can be taken into account when considering whether a person has reasonable grounds to fear conduct falling within the ambit of s 19(1). Intention may be relevant, for example, to whether or not past conduct may be repeated. That is not to say, however, that it is a mandatory consideration.

The standard of appellate review of a sufficiency finding under s 19

70. Given ground 3 of the summons, the question arises as to whether, on appeal to the District Court, the standard of appellate review of a sufficiency finding (being the third question identified above at [50]) is the correctness standard as the respondent contends or, as the applicant contends, the House v The King standard. As explained most recently in Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 (“Moore”) at [14]-[16], irrespective of whether a decision involves an evaluative judgment, this is a question which “turns on whether the legal criterion to be applied ‘demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies’” (quoting from Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (“SZVFW”) at [49] (Gageler J) and also citing GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857 (“GLJ”) at [15]. This distinction was explained by Kiefel CJ, Gageler and Jagot JJ in GLJ at [16] as being:

“[B]etween questions lending ‘themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions’ in which event ‘it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance’, [Norbis v Norbis (1986) 161 CLR 513 at 518; 60 ALJR 335] and questions to which there is but one legally permissible answer, even if that answer involves a value judgment. [SZVFW at [46]-[49], [85]-[87]]”

71. When considering these two standards of appellate review it is important to recognise that, even on the correctness standard, an appellate court must make all due allowances for the advantages available to the trial judge: Moore at [14], citing Warren v Coombes (1979) 142 CLR 531 at 552; [1979] HCA 9 and Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23].

72. The standard of appellate review with respect to exercise of a statutory power turns on a question of statutory construction as to the nature of the legal criterion: note SZVFW at [151] (Edelman J). In this case, this requires the court to take into account both s 19, construed in the context of the Act as a whole, and the provisions governing the appellate jurisdiction, being s 84(2)(a1) and (3) of the Act and ss 18-20 in Pt 3 of the CAR Act. These overlapping provisions must be read together in a way that best achieves a harmonious result: Commissioner of Police (NSW) v Cottle (2022) 276 CLR 62; [2022] HCA 7 at [23].

73. As to the latter Act, as explained above an appeal under ss 18-20 of the CAR Act is an appeal by way of rehearing with a qualified power to receive evidence: CAR Act, ss 3 and 18(2). That does not, of itself, suggest that the correctness standard of appellate review is applicable. In appeals to this Court under s 75A of the Supreme Court Act, in cases where a range of possible outcomes is permissible, the House v The King standard of appellate review has been applied notwithstanding that this Court has the power to receive further evidence, albeit on special grounds: Supreme Court Act, s 75A(7)-(8). In other cases the correctness standard applies. The qualified power to receive fresh evidence in appeals under s 18 of the CAR Act has been described as bearing comparison with, albeit being broader than, this Court’s power under s 75A of the Supreme Court Act: McNab v DPP at [53]. In these circumstances, there is nothing in ss 18 or 19 of the CAR Act that bears upon the question whether an appeal against a sufficiency finding attracts a correctness or a House v The King standard of appellate review.

74. Turning back to the Act, and the four questions arising under s 19, there is no dispute that at the fourth stage, once the court makes findings which give it power to make an order, a range of outcomes is tolerated. The House v The King standard thus applies.

75. As to the earlier three questions to be addressed under s 19(1) when determining whether the court has power to make an order, the position is more nuanced. On one view, the question whether the power to make an order is enlivened under s 19(1)(b) is one overarching enquiry (described by Emmett AJA in Veness v Hodge at [8] as the first task for the court) notwithstanding that it resolves into the three questions we identify above. The sufficiency enquiry is an important aspect of that overarching enquiry, but it is only one element of the court’s factual and evaluative conclusion as to the applicant’s fears and the character of the feared conduct. On this view, there would be only one legally permissible answer to that overarching, composite enquiry as to whether the court has power to make an order under s 19. That might suggest that the whole of the enquiry under s 19(1) would attract the correctness standard of appellate review.

76. That conclusion is, to some extent, supported by the character of each of the three questions under s 19(1) on which the court must be satisfied for it to have power to make an order. As Senior Counsel for the applicant accepted during the hearing of the application, the presence or absence of the requisite fear and whether there are reasonable grounds for it are both questions to which there can be only one legally correct answer, notwithstanding that they involve some evaluation. Having regard to the character of these questions, or legal criteria, we would reject the applicant’s contention that a House v The King standard of appellate review applies because Parliament has said that these are matters of which the court must be “satisfied”. Further, consistent with our observations at [53]-[56] above as to the sufficiency enquiry, notwithstanding that it is conditioned by the requirement that the court must form an opinion, it is also, in essence, a factual and evaluative enquiry as to whether conduct reaches the threshold at which an order is warranted. No balancing of interests is involved and, other than that Parliament has said that the court is required to form an opinion (discussed further below), there would seem to be only one legally correct answer to that enquiry. Either the feared conduct does, or does not, reach that threshold.

77. Further supporting the position that the correctness standard should apply to the third question is the practical difficulty of having different standards of appellate review applicable to the various questions to be addressed when determining whether a court has power to make an order under s 19. To apply a House v The King standard of appellate review to the sufficiency enquiry, but a correctness standard to findings as to the other criteria under s 19(1) may be apt to complicate and confuse. This would run counter to the aim in s 10 of simple access to justice on appeals to the District Court against decisions about AVOs, which we would infer to be a not infrequent occurrence, at times at short notice in busy lists. By contrast, the question whether the power to make an order should be exercised is, logically, a separate enquiry from that as to whether such power has been established. The impracticability of a construction may point against it being what Parliament intended: Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 at [54] (French CJ, Hayne, Kiefel and Nettle JJ).

78. There is also some caselaw addressing the proper characterisation of the legal criteria under s 19. In both Mahmoud v Sutherland at [23]-[25] and Veness v Hodge at [8] (above at [49]), addressing the questions which determining whether the court has power to make an order under s 19 was described as involving one “state of satisfaction” or one “indispensable” task. These cases thus provide some measure of support for characterising the separate questions which must be answered under s 19(1) as, ultimately, one statutory task. For the reasons we have already given, that provides some support for the standard of appellate review being the correctness standard.

79. Further support for that characterisation comes from the judgment of McColl JA (Barrett and Gleeson JJA agreeing) in Dyason v Butterworth [2015] NSWCA 52, where one of the submissions on an appeal against the making of an order under s 19 was that the magistrate had erred in not making a sufficiency finding: see at [55]. Having referred to Mahmoud v Sutherland and Veness v Hodge, McColl JA at [30] described the duty of the District Court judge on an appeal against the making of an APVO as being:

“[T]o form her own judgment of the facts and, in particular to determine whether the evidence before the Magistrates (she having rejected the admission of any further evidence) satisfied s 19(1)(b) of the [Crimes (Domestic and Personal Violence] Act. Uppermost in her Honour’s approach should have been the question whether the Local Court had adequately identified and dealt with the matters with which it was required to deal and what the correct outcome was in relation to those matters: Mahmoud v Sutherland (at [33] – [34]).”

1. Does the impugned law effectively burden the freedom in its terms, operation or effect? If not, the inquiry ends; the law is valid.

2. If “yes” to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? If it is not, the law is invalid.

3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

138. There has been some division in the High Court as to how the third question, which raises an issue of characterisation, is to be addressed. Over the last decade a majority of the Court had adopted what came to be labelled the “structured proportionality” test: McCloy at [2] (French CJ, Kiefel, Bell and Keane JJ); and, eg, Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537; [2022] HCA 23 (“Farm Transparency”) at [29] (Kiefel CJ and Keane J), [250] (Edelman J), [269] (Steward J), [271] (Gleeson J). That test involved addressing three further questions, articulated in McCloy at [2] as follows:

“There are three stages to the test – these are the inquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

suitable – as having a rational connection to the purpose of the provision;

necessary – in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance – a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.” [emphasis in original, citations omitted]

139. The plurality in McCloy referred to proportionality being characterised “as an analytical tool rather than as a doctrine” (at [72]). It came to be applied by a majority of the Court as the primary tool employed in cases involving the implied freedom. In recent decisions of the High Court the position has evolved somewhat. In Farm Transparency Gordon J said that “the ‘three-part test’ of suitability, necessity and adequacy, applied by the plurality in McCloy v New South Wales, is a tool of analysis that may be of assistance”, but it “is not always … necessary or appropriate to undertake all steps of that analysis” (at [172]). In Babet v Commonwealth [2025] HCA 21; (2025) 99 ALJR 883, Gageler CJ and Jagot J similarly said the following (at [49]), with the agreement of Gordon and Beech-Jones JJ (at [72] and [242] respectively):

“[In Lange] the Court recognised that the different formulations used to ascertain if the implied freedom had been infringed were immaterial to the legitimacy of the constitutional implication so that there was ‘no need to distinguish’ between those formulations. Structured proportionality can be a way of organising reasons and explaining the basis on which a conclusion is reached in a particular case as to whether a legislative provision is reasonably appropriate and adapted to advance a legitimate purpose that is consistent with the maintenance of the constitutionally prescribed system of government. The flexible application of all or any of the steps of structured proportionality is to be understood as a ‘tool of analysis’, express or ritual invocation of which is by no means necessary in every case.” [citations omitted]

140. This view was echoed in Ravbar v Commonwealth [2025] HCA 25; (2025) 99 ALJR 1000 (“Ravbar”): at [29] (Gageler CJ), [343] (Jagot J) and [427] (Beech-Jones J); cf [218]-[225] (Edelman J) and [290]-[291] (Steward J). In that case Gleeson J noted, by reference to earlier authority, that the persuasive burden to justify any restriction of the implied freedom falls upon the party defending the law, but added that “the scope of that task is affected by the contentions” of the challenger (at [309]). Her Honour explained that in that case the parties had framed their argument by reference to the structured proportionality approach, and it had not been suggested that it was inapposite to the matter, so her Honour considered and applied that approach (at [309]-[316]; see similarly Beech-Jones J at [427]).

141. A further relevant issue here is that it repeatedly has been accepted that laws which burden the freedom in a direct as opposed to incidental way, or which regulate the content as opposed to the manner of communication, will be more difficult to justify: see eg Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [95]-[96], and authority there cited; Wotton v State of Queensland (2012) 246 CLR 1; [2012] HCA 2 at [30]; as to content-neutrality note further eg Attorney-General (SA) v Corporation of City of Adelaide (2013) 249 CLR 1; [2013] HCA 3 at [46]; Clubb at [180]-[181]; O’Flaherty v City of Sydney Council (2014) 221 FCR 382; [2014] FCAFC 56 at [17]. Jagot J explained in Ravbar that recognition of that point was consistent with application of a structured proportionality approach:

“[344] Nor, of itself, is structured proportionality inconsistent with calibrating the degree of scrutiny to the purpose of the law and the means the law uses to achieve its purpose. There is a manifest difference between (on the one hand) a law the direct and immediate purpose of which is to prohibit or restrict certain political communications which uses direct and immediate means to achieve the prohibition or restriction and (on the other hand) a law the direct and immediate purpose of which is to achieve some legitimate purpose compatible with our system of representative and responsible government which merely incidentally restricts freedom of political communication by some remote and indirect means. No doubt there will be laws between these two extremes but the calibration of the degree of scrutiny to the essential character of the law is an obvious available judicial technique to ensure that the freedom the courts protect is no more than is necessary to enable ‘the effective operation of that system of representative and responsible government provided for by the Constitution’.” [citations omitted]

142. In this context, for current purposes the appropriate approach to the third validity question can be summarised as follows. The ultimate issue is whether the burden on the implied freedom imposed by the law can be characterised as reasonably appropriate and adapted to achieving the identified legitimate end in a manner compatible with the constitutionally prescribed system of government. That involves considering whether the freedom is not unduly burdened such that the burden can be regarded as justified. The more significant the burden the greater the degree of justification required. The burden of proof and persuasion in this respect lies on the party defending the validity of the law. In assessing the issue it will often be relevant to ask whether the law can rationally be regarded as a suitable means to achieve the identified legitimate purpose; whether there is an alternative means available which in substance achieves that end in a materially less burdensome way; and whether the burden imposed is too great to be justified taking account of the extent of the burden, the nature of the purpose and the extent to which the measure achieves that purpose. These issues may have more or less significance in particular cases, including because of the nature of the law and the burden it imposes, along with the salient points focused upon by the parties.

Analysis

143. Sections 7 and 19 are set out above (at [57] and [48] respectively). Section 35 relevantly provides:

35   Prohibitions and restrictions imposed by apprehended violence orders

(1)    When making an apprehended violence order, a court may impose such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable to the court and, in particular, to ensure the safety and protection of the person in need of protection and any children from domestic or personal violence.

(2)    Without limiting the generality of subsection (1), an apprehended violence order made by a court may impose any or all of the following prohibitions or restrictions—

…

(f)    prohibiting or restricting specified behaviour by the defendant that might affect the protected person.

144. The applicant submitted that ss 7 and 19 of the Act imposed a disproportionate burden on the implied freedom “in widely defining and proscribing generally, communications of a political nature”, and that s 35(2)(f) imposed a disproportionate burden “in its conferral [on] judicial officers of an open and seemingly unfettered discretion in AVO matters in burdening the political communications”.

145. The applicant’s argument was focused on the burden placed by these provisions on her conduct. For example, the notice she issued under s 78B of the Judiciary Act said that her complaint was that “the conduct she is alleged to have engaged in is fundamentally characterised as political communication, and therefore, given its substance and form … ought not have fallen within the scope of conduct contemplated by the NSW legislature”. That emphasis was maintained in her submissions. There was thus a distinct overtone of treating the implied freedom as protective of a personal right. The applicant ultimately conceded that her conduct could only be relevant as an example of the sorts of political communications that were said to be burdened by the impugned provisions.

146. A difficulty with the applicant’s approach was a lack of clarity as to whether she was impugning all or just some of the matters which need to be established under s 19(1), and whether in combination with all or some of the definition of “intimidation” in s 7(1). The applicant’s argument focused on both the conduct she had previously undertaken – which had been found by the primary judge to fall within s 7(1)(a) (see above at [38]) – and her desire potentially to undertake similar conduct in the future. In that regard she also drew attention to the prohibition imposed in all AVOs, pursuant to s 36(2), on “harassing or intimidating the protected person”. In so doing she was again implicitly impugning only that part of the definition of intimidation in s 7(1)(a). Thus, for example, she argued that the burden on the implied freedom was greater if the provision was construed not to require any intention to harass or molest. She did not address or attack the other parts of the definition.

147. In this context we proceed on the basis that the applicant’s challenge relevantly is to the operation of ss 7 and 19 to the extent that they authorise imposition of an APVO based upon fears relating to conduct, and/or which regulates future conduct, “amounting to harassment or molestation of the person” (as identified in s 7(1)(a)). We take that approach in light of the applicant’s focus on her own conduct, given that the appropriate course is in general to decide constitutional issues only to the extent necessary (see eg Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 at [32]-[33]), and that it seems likely that s 7(1)(a) could be severed if invalid.

148. Turning then to the question of burden, the Attorney accepted that the impugned provisions placed some burden on the implied freedom, but supported the primary judge’s conclusion that it was “exceptionally limited” (J[155]). The applicant argued that there was a significant burden on the freedom, asserting that the APVO granted against her “in effect is a gag order … which completely prevents her from communicating her political view on the subject matter by reference to a real life manifestation of the issue”.

149. It can be accepted that the applicant’s posts had a political character; that her ability to undertake that type of communication has been constrained by the APVO imposed; and that these facts illustrate that the impugned provisions can have the effect of restricting political communication. The impugned provisions can be used to prohibit or restrict the ability of an identified individual to engage in future conduct of a certain character. The prohibition/restriction lasts for the period specified in the order, being that period which the Court considers “as long as is necessary … to ensure the safety and protection of the protected person”: s 79(2). If no period is specified the order remains in force for 12 months: s 79(3).

150. The impugned provisions are not directed to regulating political communication. They regulate conduct where – like many laws regulating what people can do – it is possible that such conduct may sometimes have a political dimension. Any burden on the implied freedom is thus incidental. It also only occurs in circumstances where a court has found that the protected person actually fears the defendant engaging in (relevantly) intimidatory conduct amounting to harassment or molestation; found that they have reasonable grounds for that fear; concluded that the defendant’s conduct is sufficient to warrant the making of the order; and concluded in its discretion that some such order should be made (see above at [50]-[51]). Moreover, in exercising the discretion the court is required to consider the mandatory relevant considerations identified in s 20(1)-(2), and is to ensure that (relevantly) the order imposes only those restrictions that are necessary for the safety and protection of the protected person or their property (s 20(3)). In exercising the discretion the court may consider “any other relevant matter” (s 20(2)(d)). As the Attorney argued, this could include the fact that past or proposed future conduct had a political character, which might militate against making an order.

151. The applicant also challenges s 35(1)(f), which authorises the court imposing an AVO to prohibit or restrict “specified behaviour by the defendant that might affect the protected person”. No doubt the word “affect” is broad. Yet the applicant is wrong to describe this provision as giving the court “an open and seemingly unfettered discretion”. To begin with the discretion must be exercised judicially, that is, fairly and reasonably: note Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450; [2022] HCA 13 at [40]; Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473; [1963] HCA 54. Moreover, s 35(2) identifies particular types of prohibitions or restrictions which may be imposed, but does so by way of illustration of what can be done under the general power granted by s 35(1). That provision grants a power to “impose such prohibitions or restrictions … as appear necessary or desirable to the court and, in particular, to ensure the safety and protection of the person in need of protection … from … personal violence”. The focus on ensuring protection and safety articulated in s 35(1) applies equally to the specific types of orders that may be made in light of s 35(2). That requirement in s 35(1) is itself consistent with the limitation in s 20(3), which also applies to orders of the kind identified in s 35(1) and (2).

152. As noted, the parties did not challenge the primary judge’s explanation of the meaning of harassment or molestation (see above at [58]; see also PE v MU (2010) 11 DCLR (NSW) 107; [2010] NSWDC 2 at [17]; and note analogously, from other contexts, Henderson v McKenzie [2009] ACTSC 39 at [6]; Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 (“Monis”) at [154] and [310]). It can be accepted for present purposes, consistently with her Honour’s view, that the terms encompass conduct that involves acting to trouble by repeated attacks or incursions, to disturb persistently, to interfere with annoyingly or injuriously, or to engage in ongoing and unwanted behaviour of a pestering and interfering nature. Those explanations all involve conduct of a repetitive character, indicating a degree of significance. However, repetition is not always required, as the example given in the definition in s 7(1)(a) of threatening to “out” someone could be a one-off action. Understood in the context of the Act, as referred to above, the sufficiency enquiry in s 19(1) requires that the feared conduct meet a threshold of seriousness or significance: note, by way of broad analogy, Monis at [333]-[336] (Crennan, Kiefel and Bell JJ). The Act is not concerned with minor annoyances. The requirement in s 19(1) that the protected person fear the defendant engaging in intimidatory conduct and that that fear have reasonable grounds also operate to exclude the trivial from the ambit of s 19. In light of these matters, it is apparent that such orders are not lightly to be made.

153. As explained above (at [69]-[68]), the notions of molestation and harassment in s 7(1)(a) do not import their own requirement that the defendant intend to harass or molest. The absence of that requirement does not mean APVOs can readily be obtained. Furthermore, for a defendant to be criminally liable for breaching an APVO the prosecution must prove that they knowingly contravened a prohibition or restriction: s 14.

154. Consideration of the burden on the freedom takes account of the legal operation and practical effect of the impugned law: see eg Brown v Tasmania at [90], [180], [237] and [307]. The latter notion involves identifying the effects of the law in the real world of human action: Burton v Director of Public Prosecutions (NSW) (2022) 110 NSWLR 145; [2022] NSWCA 242 at [47]. As noted, the impugned provisions can operate in such a way as to restrict political communication. However, the cases in which that would occur would be rare. The intersection between the provisions and the implied freedom relevantly only occurs where a protected person has a reasonably grounded fear of a defendant engaging in harassing or molesting conduct as a means of making a political point, being conduct directly affecting that individual and sufficient to support the making of an APVO.

155. Such burden as is imposed on the implied freedom is content-neutral as regards what types of political communication might be affected, both in terms of what conduct has led to the protected person’s reasonably grounded fear and as regards what future intimidatory conduct may be restricted by the mandatory condition required by s 36(2)(b). Any other potential prohibitions or restrictions beyond the mandatory conditions imposed by s 36 must satisfy the requirement in s 20(3) – partially echoed in s 35(1) – that (relevantly) they are necessary for the safety and protection of the protected person or their property. That criterion is also content-neutral. That characteristic is indicative of a less significant burden on the freedom.

156. Given that the burden imposed on the implied freedom by the impugned provisions is incidental, content-neutral, only occurs in cases where an APVO has been found by a court to be warranted and justified, and is likely to arise only in rare cases, we would characterise the burden as limited and of minor significance.

157. As for the second validity question, the applicant did not dispute that the purpose of the impugned provisions was legitimate in the relevant sense. Consistently with what is said above (at [43]-[47]), that purpose can be identified as protecting people from personal violence as understood to extend to intimidation in the nature of harassment or molestation.

158. With respect to the third validity question, the parties referred to the three notions involved in the proportionality test. No party suggested that these were inapposite to the present context. That is unsurprising. Whilst the applicant accepted that the impugned provisions were suitable in the sense of having a rational connection to their purpose, arguments about necessity and balancing were central to her case.

144. In relation to necessity, no party argued that the provisions could or should be read down in some way so as not to apply to acts of political communication; indeed, the applicant argued (in this Court) that no such reading down was properly available. The applicant pointed to other regulatory schemes which have provided a carve-out for communications in the public interest, which might extend to political communication: Racial Discrimination Act 1975 (Cth), s 18D; Anti-Discrimination Act 1977 (NSW), ss 20C(2), 38S(2), 49ZE(2), 49ZT(2) and 49ZXB(2). The applicant said these examples illustrated that there was a “clear and practicable alternative” to burdening the implied freedom, namely having a statutory exclusion or defence which encompasses conduct involving political communication. However, to have such a statutory exception would mean that the statutory provisions did not achieve their purpose to the same extent: note similarly Monis at [348] (Crennan, Kiefel and Bell JJ). As the applicant accepted in oral argument, there would be “a less complete protection”.

145. The gravamen of the applicant’s complaint in the end was that there was an alternative (of the kind just identified) which at least came close to achieving the identified protective end, and given the significance of the burden on the freedom, the law was thus not adequate in its balance and infringement of the implied freedom was not justified. The nature of this argument illustrates how the necessity and balancing issues can overlap.

146. The argument is unpersuasive. To begin with, as explained, the burden is limited and of minor significance. Such a burden does not require a compelling justification.

147. The applicant’s putative alternative would mean that protected persons would not be able to obtain the benefit of an APVO, even though they had a reasonably founded fear of intimidatory conduct sufficient to warrant and justify such an order, because the defendant had engaged and/or might in the future engage in that conduct for political purposes. A political motivation of the defendant, and the political nature of any communication, does nothing to alter the intimidatory nature of the conduct and the deleterious effects on the protected person.

148. The applicant accepted that the net effect of her argument was that it is unconstitutional for the State to prohibit a person engaging in acts of intimidation as defined if that action was, as she put it, “for the reasonable purpose” of political communication. Her qualification of “reasonable” does little to advance her argument. As explained, APVOs are not lightly to be granted. And if the political character of the conduct was said to tend against the granting of an APVO then that could be put to the court consistently with s 20(2)(d). Thus the reasonableness of the defendant’s conduct – including in light of any political character – can be taken into account by the court in considering whether to issue an APVO.

149. In Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 it was held that “insults are a legitimate part of the political discussion protected by the Constitution” (McHugh J at [105]) and that “civility of discourse” would not suffice as a basis for justifying restrictions on political communication (Gummow and Hayne JJ at [199]); note similarly Monis at [67] (French CJ), [185] and [214]-[220] (Hayne J). On the other hand there can be no doubt that the implied freedom would not invalidate, say, laws prohibiting an assault, even though some assaults might occur in order to make a political point of some kind. The applicant accepted as much.

150. If insults must be tolerated, but assaults need not be, what of intimidatory conduct of the relevant kind? It is worth recalling that criminal prohibitions on assault include not only a battery but extend to where the victim apprehends immediate and unlawful violence from the defendant’s conduct: eg R v Knight (1988) 35 A Crim R 314. That reflects the damaging mental effects that such conduct can have on individuals. Harassing or molesting conduct of the kind at issue here can also have a deleterious impact on individuals. There is a material difference between conduct causing hurt feelings on the one hand and, on the other, conduct which can be characterised as amounting to harassment or molestation, involving a serious or significant degree of disturbance or interference (etc) to the protected person.

151. The applicant has accepted the legitimacy of the Parliament seeking to regulate such conduct. That objective cannot be dismissed as one of limited significance. That point would be true even insofar as those who were intimidated were candidates or holders of political office. It is also true with respect to other members of the community. The respondent, for example, is not a politician. She is only the subject of political discourse insofar as the applicant has sought to make her so. For persons such as her the argument that the Constitution requires removal of the protection provided by the impugned provisions is even weaker.

152. The benefit of seeking to protect individuals from the significant deleterious effects of possible intimidatory conduct, including with respect to conduct having a political character, outweighs the minor burden imposed on the implied freedom by the impugned provisions. That burden is justified. The applicant’s constitutional challenge is rejected.

Conclusion

168. None of the applicant’s grounds of review have been made out. Her application must thus be dismissed. It was not suggested that we should make anything other than the usual order as to costs as regards the respondent. As we understood it the Attorney did not seek costs. In the circumstances our orders are:

1. The summons dated 18 March 2025 is dismissed.

2. The applicant is to pay the first respondent’s costs.

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Amendments

15 August 2025 - Typographical error at [53] amended.

Decision last updated: 15 August 2025