religion, political or other opinion, or property. The prohibition on gender identity discrimination contained in s 22 of the SDA, read with s 5B, constitutes an implementation of that obligation. By operation s 9(4) and (10) of the SDA, this component of s 22 is to be read with that effect. The respondents' argument that s 22, read with s 5B, is not supported by a head of Commonwealth legislative power must therefore fail, because it is supported by the external affairs power in s 51(xxix) of the Constitution, implementing Art 26 of the ICCPR.
(ii) The trading corporations power
189 Additionally, I find for the reasons that follow that s 22 of the SDA, to the extent it prohibits discrimination on the ground of gender identity by trading corporations and their agents and employees, is an exercise of the Commonwealth's legislative power in relation to trading corporations contained in s 51(xx) of the Constitution. Section 22, read with s 5B is therefore valid upon that head of power as well. Pursuant to s 9(11) and (13), I read s 22 to have that effect. Section 22, read with s 5B, is capable of applying to the actions of Giggle and also to the actions of Ms Grover in her capacity as its director and CEO, if the Court is satisfied that Giggle was, at the relevant time, a trading corporation within the meaning of s 51(xx).
190 Whether Giggle was a trading corporation is a question of characterisation on the evidence before the Court. The question is whether Giggle's activities formed a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation: United Firefighters Union of Australia v Country Fire Authority [2015] FCAFC 1; 228 FCR 497 at [135] citing R v Federal Court of Australia; Ex parte Western Australian National Football League (Inc) [1979] HCA 6; 143 CLR 190 at 233 (Mason J). That it could be characterised in another way, carries on more extensive non-trading activities, or was incorporated for a primary purpose other than trading are not barriers to finding it was a trading corporation: United Firefighters at [136]–[137].
191 Several features of Giggle and its business during the relevant period are established on the evidence, especially of Ms Grover:
- (a) the primary purpose of the Giggle App was to create a female-only online space;
- (b) the Giggle App had offered users in-App purchases for premium upgrades for a fee of $2–$3 per month;
- (c) on Ms Grover's evidence, these fees covered just the cost of providing such services, however payments for these features were turned off from 2020 onwards;
