saying (see HR Hansard, 11 March 1999, p 3755):
"The government disagrees that there should be a power to add further allegations of discrimination after a matter has been determined in the commission and prior to applying to the Federal Court. This is consistent with the policy of requiring discrimination complaints to go through the HREOC conciliation process."
[43] I add further that a construction of s 46PO(3) of the HREOCA which does not permit Mr Charles to allege in the present proceeding the doing by Fuji Xerox, particularly after 11 May 2000 (the date on which the present proceeding was begun), of any act constituting unlawful disability discrimination in employment would also be consistent with a longstanding judicial approach to litigation. That approach is that a moving party is prevented from relying in a proceeding on a cause of action accruing after the commencement of the proceeding.
212 The jurisdictional limitation imposed by s 46PO(3) therefore works to limit any unlawful discrimination found by this Court to that arising from conduct preceding her complaint to the AHRC on 5 December 2021. Neither Ms Tickle nor the respondents provided submissions that addressed the s 46PO(3) limitation.
213 I turn now to each of the remedies sought by Ms Tickle.
(a) Declaration
214 This Court can make a binding declaration of unlawful discrimination under s 46PO(4) of the AHRC Act or s 21(1) of the Federal Court of Australia Act 1976 (Cth). The respondents made no submission that a declaration should not be made if unlawful discrimination was found to have taken place.
215 In light of the above finding that indirect gender identity discrimination has taken place, I am satisfied that a declaration to that effect should be made. The respondents did not seem to suggest otherwise, although it is not altogether easy to be sure given the disjointed and somewhat incoherent way their case was run. However, the form of the declaration should be confined to the discriminatory conduct as alleged, not to the definition and other provisions also referred to in the originating application. The contravention was indirect gender identity discrimination by halting Ms Tickle's access to the Giggle App and thereby engaging in conduct proscribed by s 22 as described in s 5B(2) of the SDA. Subject to the parties providing joint or separate draft proposed terms for the declaration, I will make a declaration of contravention.
