Apprehended Violence Order Held not to Impermissibly Burden Constitutionally Protected Implied Freedom of Political Communication
In Smith v Blanch [2025] NSWCA 188 (15 August 2025), it was held that the making of a statutory apprehended violence order – in the circumstances – did not impinge upon constitutional the implied freedom of communication. Rather, it was found, 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 – outweighed the minor burden imposed on the implied freedom imposed by the impugned provisions. The burden was justified and thus the applicant’s constitutional challenge was rejected. The court (Kirk, Stern and McHugh JJA) wrote:
[1] 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.
[2] 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.
[3] 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.
[4] 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”).
[5] 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.
[6] 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).
[7] 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):
…
(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]).
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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.
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Consideration of the constitutional argument
[133] Ground 5 of the applicant’s summons asserts that the primary judge erred in finding that ss 7, 19 and 35(2)(f) did not impermissibly burden the constitutionally protected implied freedom of communication on political and governmental matters. If her Honour had reached the wrong conclusion on this legal issue then that would have been jurisdictional error. That being so, it is not necessary to address her Honour’s reasons in any detail. We note that the respondent adopted the Attorney’s submissions with respect to the constitutional issue.
The constitutional principle
[134] There is implied in the Constitution a limitation on (at least) legislative power protecting the freedom to discuss government and political matters: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 (“Lange”). The principle limits State legislative powers, including with respect to communication on matters that might be seen predominantly to be the concern of the States: Unions NSW v New South Wales (2013) 252 CLR 530; [2013] HCA 58 (“Unions NSW”) at [17]–[26].
[135] The implied freedom does not establish a personal right. A legislative burden on the freedom “is not to be understood as affecting a person’s right or freedom to engage in political communication, but as affecting communication on those subjects more generally”: Unions NSW at [36]. As four members of the Court explained in Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23 at [20]:
“although the effect of a law on an individual’s or a group’s ability to participate in political communication is relevant to the assessment of the law’s effect on the implied freedom, the question of whether the law imposes an unjustified burden on the implied freedom of political communication is a question of the law’s effect on political communication as a whole.”[emphasis in original, citations omitted]
[136] Like many constitutional requirements in Australia and elsewhere, the freedom is not absolute. It may be curtailed by laws which are directed to achieving competing objectives. The High Court has, from the beginning, recognised the need to allow for some such infringement of the freedom: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 142 –144 , 150 –151 , 169 , 217 –218 and 234 –235; [1992] HCA 45. That has resulted in the need to articulate some test or guide for what types of infringement are permissible; the freedom must not be unjustifiably burdened.
[137] Assessing justification with respect to the implied freedom involves asking three questions: see McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 (“McCloy”) at [2] (French CJ, Kiefel, Bell and Keane JJ); Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 (“Brown v Tasmania”) at [102]–[104] (Kiefel CJ, Bell and Keane JJ), [162]–[163] (Gageler J), [237] (Nettle J), [316]–[325] and [481] (Gordon J); Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 (“Clubb”) at [5] (Kiefel CJ, Bell and Keane JJ); LibertyWorks Inc v Commonwealth (2021) 274 CLR 1; [2021] HCA 18 at [134] (Gordon J). Those questions are as follows:
(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]). InBabet 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 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—
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(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 Cmr 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 R (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.
[159] 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”.
[160] 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.
[161] 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.
[162] 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.
[163] 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.
[164] 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.
[165] 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.
[166] 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.
[167] 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.
(emphasis added)
A link to the full decision is here.
