only that effect that is properly supported by a head of Commonwealth legislative power: AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140; 162 FCR 528 (AB v Registrar of BDM) at [76] (Kenny J, Gyles J agreeing). Section 9(4) provides that certain "prescribed provisions" in Div 3 of Part II and Part II of the Act are to "have effect as provided by sub-section (3) of this section and the following provisions of this section and not otherwise." Many of those following provisions refer to powers that have no application in the present case, such as the Territories power in s 122 of the Constitution and many others besides.
39 The heads of power pertinent to this proceeding are the trading corporations aspect of the corporations power in s 51(xx), and the external affairs power in s 51(xxix) of the Constitution, insofar as it is relied upon to implement international instruments, such as conventions, to which Australia is a party: see s 9(10) for the external affairs power, and s 9(11)–(14) for the corporations power. The respondents assert that neither of those heads of power can be relied upon to support the gender identity discrimination provisions of the SDA, which necessarily focusses on s 22 as the operative provision relied upon. The arguments both ways and their resolution are addressed at Part 5(a) below.
40 The legislative history of the provisions reproduced or summarised above, the construction of the legislated concept of gender identity in the context of that history, and the special measures exception to discrimination are considered in Part 3 of these reasons below.
(d) Pleadings
41 Ms Tickle's case, as pleaded in her amended statement of claim in aspects that did not change with the amendments, did not clearly or coherently distinguish between direct and indirect discrimination, instead confusing the two. In particular, Ms Tickle pleaded reliance on s 5B(1) (direct discrimination) by reference to being discriminated against "on the basis of her gender identity", rather than the words in s 5B(1) "by reason of" that identity, and then particularised the conduct by reference to an imposed condition, which is a feature of s 5B(2) (indirect discrimination). That is, the terms of the two different forms of discrimination were conflated. The asserted imposed condition is that a person must be a cisgender woman or be determined as having cisgendered female physical characteristics by Ms Grover on review of their photograph.
42 The pleading of indirect discrimination refers to the outcome of not being able to gain ordinary access to the Giggle App by reason of the imposed condition, and to disparaging conclusions
