We are delighted to announce the winners of the inaugural 2025 Law and Religion Essay Competition. The judges were thoroughly impressed with the exceptional quality of submissions received, noting the creative approaches and thoughtful topic selection demonstrated by all participants.
‘The competition was remarkably close, with only a few points separating our top three winners. Students were creative in their approach and topic selection, making this an encouraging beginning to the competition.’
Competition Winners
1st
First Place
Jacob Carson
Newcastle
2nd
Second Place
Jashan Singh
Queensland University of Technology
3rd
Third Place
Ruairi Grant
Queensland University of Technology
🏆 Prize package
All winners receive:
💰 Cash prize | 📚 Publication in the Australian Journal of Law and Religion
The judges commended all participants for their creativity and analytical rigor in exploring the intersection of law and religion. The narrow margin between first and third place speaks to the impressive caliber of work submitted.
Congratulations to our winners, and thank you to everyone who participated in making this competition such a success. We look forward to reading these exceptional essays in the upcoming issue of theAustralian Journal of Law and Religion.
Stay tuned for next year’s competition announcement!
Australian forum non conveniens principles took centre stage when the Supreme Court of New South Wales decided Isaacman v King [No 2].[1] This is the kind of case that tempts one to say ‘nothing to see here’, and yet it richly rewards a closer look.
On a conventional application of Voth v Manildra Flour Mills[2] — the leading authority on forum non conveniens in Australia — Garling J stayed proceedings that attempted to litigate a New York relationship dispute in Sydney, being ‘well satisfied’ that the NSW Supreme Court was a clearly inappropriate forum.[3]
The reasons, though brief by design,[4] illuminate the transaction costs of jurisdictional overreach,[5] show how the Voth framework handles an extreme set of facts, and offer a careful case study for empirical debates about Australian ‘parochialism’ in jurisdictional decision-making.
The Factual Background: Testing Jurisdictional Limits
The facts almost read like a hypothetical designed to test the outer limits of exorbitant, or long-arm, jurisdiction.
A US biotech executive residing in New York sued his former partner, an Australian marketing consultant, in the NSW Supreme Court for alleged negligent transmission of herpes simplex virus during their relationship in New York.
The relationship began and ended in New York; the alleged transmission occurred there; the plaintiff’s diagnosis and treatment took place there; and the defendant, though Australian, lived overseas and was only ordinarily resident in Victoria when in Australia.
The plaintiff had a four‑month period in 2022 split between Sydney and Melbourne, with visits to Queensland, while exploring business opportunities for skincare ventures. He pointed to social friendships in Sydney and his one-off membership of the North Bondi Returned and Services League (RSL) Club.[6]
None of this impressed Garling J as a meaningful link to New South Wales. As Garling J readily observed in the case’s earlier procedural judgment, there was ‘no connection whatsoever between either of the parties, and the pleaded cause of action and the State of New South Wales.’[7]
The RSL club membership did not establish ‘any connection at all with the forum’.[8] The pleading itself underscored the foreignness of the dispute: by notice under New South Wales’ court rules,[9] the plaintiff relied on New York law, in particular New York Public Health Law § 2307, alongside common law claims available under New York law.[10]
Applying Forum Non Conveniens: The Court’s Analysis
The Voth Test Framework
The forum non conveniens analysis proceeded squarely under Voth. Garling J recited the familiar principles:
the onus lies on the defendant;
the question is whether the local court is a clearly inappropriate forum, not whether an alternative is more convenient;
it is relevant that another forum can provide justice; and
the need to determine foreign law is not conclusive but is a significant factor.[11]
The only explicit nod to the English test in Spiliada Maritime Corporation v Cansulex Ltd[12] came through the High Court’s own endorsement in Voth of Lord Templeman’s aspiration for brevity in such applications. [13]
Yet Garling J noted that an issue arising in oral submissions required further written submissions, precluding an ex tempore disposition, but nonetheless kept the reasons concise.[14]
Connecting Factors Analysis
On the facts, the connecting factors all pointed away from New South Wales. The conduct giving rise to the claim, the governing law, and the evidentiary base were in New York. Neither party had assets in NSW, so any judgment, whether for damages or for costs, would have to be enforced elsewhere, compounding expense.[15]
Garling J accepted, and the parties did not dispute, that New York courts could exercise in personam jurisdiction over the defendant; that acceptance underpinned the conclusion that there was another forum where the plaintiff could ‘obtain justice’.[16]
The upshot was decisive but orthodox: the Supreme Court of New South Wales was a clearly inappropriate forum, and the proceedings would be stayed.[17]
The Conditional Stay Order
The conditional order deserves to be recorded with some precision. The stay was to take effect seven days after publication of the judgment.
Within that same seven‑day period, the defendant was to file and serve a written undertaking that, if the plaintiff brought civil proceedings in the State of New York concerning the subject matter of the NSW suit, she would not plead any New York limitations defence, provided the plaintiff commenced in New York within three months of the stay taking effect and provided the claims were not statute‑barred when the NSW proceeding was commenced.[18]
This neutralised limitation prejudice, as long as the plaintiff did not delay commencing proceedings, and ensured practical access to the natural forum. Garling J also ordered the plaintiff to pay the costs of the forum non conveniens application.[19]
Ancillary Matters
Two ancillary applications were left untouched. A cross‑vesting motion seeking transfer to the Supreme Court of Victoria and a late‑filed non‑publication motion were not determined.[20]
Given the stay, it was not appropriate to go on to decide further issues between the parties. Garling J added that ordering a transfer could impinge on the plaintiff’s own choices about where to proceed next; and with the matter stayed, non‑publication orders served no useful purpose.[21]
Forum Non Conveniens Doctrine: Broader Implications
Academic and Comparative Perspectives
Situating Isaacman v King [No 2] in the post‑Voth jurisprudence helps explain both the ease and the limits of the result.
Voth’s ‘clearly inappropriate forum’ test was announced as only a slight departure from the English Spiliada test,[22] but, as Richard Garnett’s early survey of the doctrine shows,[23] its operation had been variegated.[24]
In the years immediately after Voth, Australian courts often refused stays where there were meaningful Australian connections — even if the governing law or much of the evidence was foreign — and sometimes gave generous weight to local juridical advantages.[25]
Mary Keyes’ analysis in the Australian family law context underscores why this felt unpredictable: a forum‑centric test with broad judicial discretion risks certainty, predictability and cost.[26] Understandably then, Keyes argues for an explicitly comparative, Spiliada‑style inquiry that focuses on effective, complete and efficient resolution, the parties’ ability to participate, costs and enforceability.[27]
At the same time, the High Court tempered Voth in specific contexts. In Henry v Henry,[28] the majority effectively created a presumption in favour of a stay where truly parallel foreign proceedings between the same parties on the same controversy were already on foot, explicitly invoking comity and the risks of inconsistent outcomes.[29]
In CSR Ltd v Cigna Insurance Australia Ltd,[30] the High Court went further. Even without identity of issues, the ‘controversy as a whole’ analysis could render local proceedings oppressive where their dominant purpose was to frustrate access to relief available only abroad.[31]
These qualifications that, outside the special case of parallel litigation, Voth directs attention to the suitability of the local forum in its own terms. But, where duplication looms in the form of parallel proceedings, the analysis necessarily broadens. That broader, comparative posture is also what Ardavan Arzandeh shows Australian courts actually do in practice, despite Voth’s formal language.[32]
Isaacman v King [No 2] belongs to a different, more straightforward strand in that story: the ‘little or no connection with Australia’ cases in which stays have been ordered because the action and the parties’ controversy are overwhelmingly foreign.[33]
Unlike the contested margins Garnett identifies, there was no pleaded Australian statutory right of a kind sometimes relied on as a juridical advantage; no contest about the availability of a competent foreign forum; and no tactical race between parallel proceedings. Garling J canvassed the classic connecting factors, noted the New York law pleaded, recorded the practical burdens of proof and enforcement, and concluded that New South Wales was clearly an inappropriate forum.
That emphasis on concrete, case‑specific connections and on consequences for the conduct and enforcement of the litigation fits both Keyes’ call for structured, predictable decision‑making and Arzandeh’s demonstration that Australian courts, in substance, weigh the same considerations as Spiliada.[34]
Two implications follow. First, the decision is a neat instance of Voth doing exactly what it was designed to do when the forum is only nominally engaged. It offers little purchase for testing the harder comparative question whether, at the margins, Voth’s rhetoric yields different outcomes from Spiliada’s ‘more appropriate forum’ inquiry. That is consistent with Arzandeh’s view that the supposed gap is, in practice, vanishingly small.[35]
Transaction Costs of Inappropriate Forums
Secondly, it gives texture to the practical burdens that inappropriate forum choices impose.
Expert evidence on New York law would have been required. Witnesses and records are in the United States; neither party’s assets are in New South Wales. The court itself, even in this ‘easy’ case, could not resolve the application wholly on the basis of oral submissions because an issue warranted further written argument.
Those are precisely the private and public costs Keyes highlights as reasons to favour a clearer, more comparative framework ex ante, rather than leaving calibration to ex post discretion.[36]
Lessons for Legal Practice
There is, then, a narrow lesson and a broader one. Narrowly, Isaacman v King [No 2] confirms that Australian courts will not entertain a claim whose only local anchors are social relationships and what amounts to a meal‑discount club card.
Broadly, it supplies one more controlled observation for comparative and empirical work: an extreme outlier that aligns with ‘no connection’ line of authority.[37]
It also leaves open — indeed, usefully highlights — the need for data drawn from genuinely contested cases, where juridical advantage and practical adequacy are engaged on the evidence, if we are to assess how far Voth diverges, in practice, from its common law counterparts.[38]
Conclusion: When Forum Non Conveniens Works as Intended
Isaacman v King [No 2] therefore earns its place not because it breaks doctrinal ground, but because it shows the doctrine working as intended.
The plaintiff’s Sydney friendships and RSL membership could not anchor a transatlantic dispute in Phillip Street. New York law, evidence and enforcement pointed inexorably elsewhere. And, a conditional stay ensured that the plaintiff would not be procedurally disadvantaged by being sent to the forum where the dispute belongs.
If some forum non conveniens applications can be resolved quickly,[39] this was not one of them. But it was, in the end, a straightforward exercise of judicial discipline about where litigation should be done.
[5] See Andrew Bell, Forum Shopping and Venue in Transnational Litigation (Oxford University Press, 2003; J J Spigelman, ‘Transaction Costs and International Litigation’ (2006) 80(7) Australian Law Journal 438, 441–3.
[7]Isaacman v King [2024] NSWSC 1291, [85]. The earlier judgment dealt with preliminary procedural matters including the plaintiff’s failed attempt to proceed pseudonymously.
[38] On the need for empirical research in this area, see Christopher A Whytock, ‘Sticky Beliefs about Transnational Litigation’ (2022) 28(2) Southwestern Journal of International Law 284.
Dr Sarah McKibbin is a legal academic at the UniSQ specialising in private international law and legal history. She teaches Equity and Trusts and its JD counterpart, Advanced Equity and Trusts, as well as the private international law suite of electives. Her PhD (2020) examined the public policy exception in Anglo-common law private international law, with current research focusing on jurisdictional challenges in transnational litigation.
In 2014, my then 13-year old child came to me and told me they did not identify with the gender assigned to them at birth. I had never heard the word ‘transgender’ before, and my first thought was that my child had jumped on the latest bandwagon. My child assured me they had never identified as being female and that it had become progressively distressing to feel like a boy while being known to everyone else as a girl.
When you witness your child suffer with the painful blisters from wearing a chest binder, cry when they cannot go swimming with their friends, and become increasingly depressed, it is easy to support the decision.
My child gave me several online links and I went down the wormhole. I signed up for a Gender Studies course and volunteered for several events put on by the Edmonton Pride Centre for youth. At 15, my child wanted to begin hormone replacement therapy (HRT), also known in Australia as gender-affirming hormone therapy (GAHT).
The Legal Framework: How ‘Mature Minor’ Rights Work
Treatment was accessible with a medical diagnosis of ‘transgenderism’, or gender dysphoria. We were only required to obtain authorisation signed by their endocrinologist stating my child was fit to be deemed a mature minor and capable of making their own informed medical decisions. This authorisation granted access to ‘top surgery’ when my child was 16.
I risk judgment by parents who may not agree with my decision to support what my child wanted. When you witness your child suffer with the painful blisters from wearing a chest binder, cry when they cannot go swimming with their friends, and become increasingly depressed, it is easy to support the decision to undergo a procedure that is, in a way, reversible.
It wasn’t relevant that their father did not approve; indeed, it wasn’t relevant whether I did either. The ‘mature minor principle’ which developed in Canada means there is a rebuttable presumption that a child over the age of 16 has capacity to understand the implications of their own medical decisions (Alberta College of Social Workers, 2015). Unless there is doubt of the child’s capacity, a court will not intervene. Children under 16 will ‘have the right to demonstrate mature medical decisional capacity’: AC v Manitoba (Director of Child and Family Services) [2009] 2 SCR 181, 184. Such a determination is made by a medical practitioner (College of Physicians & Surgeons of Alberta, 2015, 7). This is a strict application of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 where Lord Scarman stated that ‘parental right[s] to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’ (1986, 189[H]–190[A]).
The Policy Reversal: 2024’s Dramatic Changes
Policy Timeline
Policy Evolution Timeline: 2013–24
2013
Re Jamie (Australia) opens door for hormone blockers without court approval
2017
Re Kelvin (Australia) eliminates court approval for GAHT with consent
2024
Alberta implements complete ban on hormone therapy
2024
Queensland follows with Health Service Directive ban
Although the common law respecting minors in both Canada and Australia developed from the Gillick decision in the United Kingdom, both countries differed in its application.
In Australia, there has been a slow transition from mandatory court approval for gender-affirming care. Re Jamie [2013] FamCAFC 110 opened the door for children’s access to hormone blockers without the need for court approval and Re Kelvin [2017] FamCAFC 258 eliminated the need for court approval for GAHT — so long as there existed the mutual consent of the child, their medical practitioners, and their parents.
Alberta’s Ban: From Access to Prohibition
On 31 January 2024, the United Conservative Party of Alberta announced changes to legislation that would undermine Canada’s mature minor doctrine. In less than a year, amendments to the Health Professions Act, RSA 2000, c H-7 prohibited children’s access to ‘hormone therapy’ for the treatment of gender dysphoria (which includes hormone blockers and GAHT).
News sources repeated the government’s assurances that a Ministerial Order would be made excluding children over 16 from the ban, so long as there was consent from parents and a medical team. Thus far, there have been no Ministerial Orders made. As of today, all children under age 18 remain prohibited from any hormone therapy whatsoever for the treatment of gender dysphoria (Health Professions Act, ss 1.91–1.93).
Queensland Follows Suit
Within two months of Alberta’s legislative changes, the Liberal National Party of Queensland similarly announced a new Health Service Directive prohibiting treatment of gender dysphoria in children by putting a halt on the distribution of hormone blockers and GAHT. Equally similarly, Queensland’s ban also completely undermines what has been established at common law.
Jurisdiction Comparison: Alberta vs Queensland
🇨🇦 Alberta, Canada
COMPLETE BAN
All children under 18 prohibited from hormone therapy for gender dysphoria. Undermines mature minor doctrine established in Canadian law.
31 January 2024
🇦🇺 Queensland, Australia
SERVICE DIRECTIVE BAN
Health Service Directive halts distribution of hormone blockers and GAHT. Overrides common law established through Re Jamie and Re Kelvin.
Directly after the amendments to the Health Professions Act were implemented in December 2024, a civil suit was filed by advocacy groups on behalf of five children, seeking interim injunctions on the grounds that Alberta’s ban on gender-affirming care is unconstitutional, contrary to the province’s Bill of Rights, and ‘takes important health care decisions out of the hands of gender diverse young people, their parents and guardians, and places these decisions in the hands of the state’ regardless of the ‘due care and skill and … professional judgment’ exhibited by their health care practitioners acting in consideration for the child’s best interests (Egale Canada, 2024).
In Queensland, it seems the government has preempted the possibility of legal action because it has expressly permitted infringement of a child’s best interests and ‘right of access to health services’ (Queensland Government, 2025). While the legislative changes in Alberta do not expressly permit such infringement, it is possible a favourable court decision could be circumvented by the Notwithstanding Clause, which prevents court interference (Ashley, 2024, p 89).
What This Means for Families Today
Transgender children are already prone to overwhelming depression often accompanied by self-harming tendencies and suicidal ideation where gender-affirming care is unavailable or impossible (Coleman et al, 2022; Grant et al, 2025).
The fallout from Alberta’s and Queensland’s bans on gender-affirming care will no doubt include an increase in the number of children seeking care outside of these jurisdictions, and an uproar made by health care practitioners who feel helpless to assist a group of very vulnerable youngsters. There has already been a petition started to remove state interference with access to gender-affirming healthcare.
Looking Forward: Hope and Advocacy
We can only surmise why today’s conservative governments would have any interest in disregarding decades of case law which would permit children to be at peace with themselves. As I watch with hopeful anticipation the changes will soon be reversed, I am relieved that my child was able to receive the care they needed a decade ago.
About the Author
Nicole C McWha is a Canadian resident and has just recently become a UniSQ graduand having completed her Juris Doctor degree. She has also been a family law legal assistant for nearly 15 years. Passionate about both the justice and political systems, Nicole has always been an advocate for reform where there still exists a failure to ensure basic human rights. She is excited to begin the next chapter of her legal career. Away from the law, Nicole enjoys spending time with her two young adult children and with all their fur-babies.
The past year has seen multiple high-profile incidents of violent religious hatred in Australia. What influences hatred of religious groups, and how should the legal system respond to it?
The School of Law and Justice at the University of Southern Queensland is addressing these critical questions through an upcoming scholarly colloquium.
About the Colloquium
The School of Law and Justice is hosting an interdisciplinary scholarly colloquium exploring what motivates religious hatred in Australia and how it could be addressed through legislative reform. This important event brings together academics from various disciplines to examine both the sociological factors behind religious hatred and potential legal frameworks to address these challenges.
Event Details
📅 Date
Friday 28 November 2025
📍 Venue
UniSQ Toowoomba Campus, Q Block (Room TBD)
🔄 Format
Physical attendance encouraged; Zoom option available
🎤 Keynote Speaker
Dr Kathryn Benier (Monash)
Call for Presentations
Academics are invited to provide scholarly presentations addressing:
Antecedent factors for tension and violence motivated by religious hate in the Australian context
Suggested legal responses to religious hatred in Australia
Presentations should be 15–20 minutes in duration, with time for questions to follow. All presentations must be supported by a completed paper or work-in-progress suitable for distribution to other participants.
Following the colloquium, presenters may have the opportunity to contribute to a special journal issue or edited book collection.
Submit Your Proposal
If you’re interested in presenting at the colloquium, please register your interest by contacting Dr Jeremy Patrick with the following:
A current CV
A brief abstract of the planned paper (100-250 words)
The University of Southern Queensland is committed to the values of diversity, multiculturalism, and gender equity by fostering an inclusive environment that embraces difference and supports, values, and respects the unique perspectives and approaches of all individuals.
When Australian soccer star Sam Kerr called a London police officer ‘f***ing stupid and white’ in January 2023, her words led to an international legal debate about racial language. The February 2025 verdict finding her not guilty of racially aggravated harassment raises key questions: When does mentioning someone’s race constitute racial hatred? Does calling someone ‘white’ carry the same weight as other racial terms?
In a previous post, Associate Professor Andrew Hemming examined the implications of Sam Kerr’s acquittal on free speech legislation in Australia. In this post, Dr Nicky Jones examines the Kerr case through the lens of Australian law. Her examination reveals how courts interpret racial language when directed at historically dominant versus marginalised groups.
Introduction: Racially-charged insults
On 11 February 2025, global media reported the outcome of a five-day trial in the Kingston Crown Court in London. The court had to decide whether Australian soccer player Sam Kerr had made comments that racially harassed a Metropolitan Police officer on 30 January 2023.
Kerr made these comments at the police station when she grew impatient with the police officer who appeared to doubt her version of events. She thereupon called him ‘f***ing stupid and white’. The officer showed no concern about these insults in his first statement shortly after the incident.
However, 11 months later, the officer provided a second statement. This came after the Crown Prosecution Service (‘CPS’) had declined to charge Kerr. In this later statement, he said that Kerr’s comments made him feel ‘shocked, upset and humiliated’.
One year after the incident, the CPS charged Kerr with a racially aggravated offence of intentional harassment under s 4A(1) of the UK’s Public Order Act 1986 and s 31(1)(b) of the Crime and Disorder Act 1998.
Under these sections, a person is guilty of an offence if the person intends to cause another person harassment, alarm or distress by using threatening, abusive or insulting words or behaviour, or disorderly behaviour, that causes the other person harassment, alarm or distress. It is a further offence if the public order offence is racially aggravated.
Australian anti-discrimination provisions use similar language to prohibit offensive behaviour based on racial hatred. Section 18C(1) of the Racial Discrimination Act 1975 (Cth) prohibits an act that was done in public because of another person’s race or colour or national or ethnic origin if the act was reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate the other person. Similar State and Territory laws prohibit racial vilification, and Queensland and some other States impose civil and criminal sanctions on racial vilification.
This post focuses on the racial aspect of Kerr’s comments. It explains how Australian laws would treat similar racial insults. The post will not describe the events that led to Kerr’s trial or the trial itself as these have been well-documented elsewhere. The post draws its information from news reports and video footage filmed by police body cameras that recorded Kerr’s interactions with the police.
These events raise challenging questions about racial insults, hatred and vilification and to whom and how these wrongs apply for the purposes of pursuing legal protections.
Calling a person ‘white’
Is it racially insulting to call someone ‘white’? In important legal respects, calling someone ‘white’ is not a racial insult in an Australian or UK context.
Australian anti-discrimination law requires courts to consider ‘all the circumstances’ of an act or insult. This includes context and (in this case) the historical and cultural situation of white people and whiteness in society.
Legal tests for racial insults
Section 18C(1) of the Racial Discrimination Act 1975 (Cth) sets out two important elements:
The impact of an offensive act, assessed objectively; and
Causation or the reasons behind the offensive act.
Courts assess impact from the perspective of a hypothetical ordinary, reasonable member of the racial group targeted by the act. Would an ordinary, reasonable member of that racial group have been offended, insulted, humiliated or intimidated by the act?
The words ‘offend, insult, humiliate or intimidate’ carry their ordinary meaning. In Creek v Cairns Post Pty Ltd, Justice Kiefel noted that these are ‘profound and serious effects, not to be likened to mere slights.'[1] Justice French also considered these terms in Bropho v Human Rights and Equal Opportunity Commission,[2] as did Justice Bromberg in Eatock v Bolt.[3]
Establishing that the act produced one of these responses from an ordinary, reasonable member of the targeted racial group is sufficient. When determining impact, the context (‘all the circumstances’) in which the act took place is significant.[4]
Case spotlight: McLeod v Power
The facts in McLeod v Power closely resemble the Kerr incident.[5] This case involved a verbal altercation between an Aboriginal woman and a white correctional officer. The woman swore repeatedly at the officer, calling him names such as a ‘white piece of ****’.
Federal Magistrate Brown noted that in the Australian context, calling someone ‘white’ is not of itself a term of abuse. Undoubtedly the woman swore at the officer because she wished to cause offence and to protest at what she saw as the arbitrary and unreasonable nature of his decision to refuse her entry to the prison so that she could visit her partner.
However, in the context of the matter, a reasonable correctional services officer with a pale skin would not have been offended, humiliated or intimidated by the addition of the words ‘white’ or ‘whites’ to the respondent’s verbal abuse. The words were not of themselves offensive words or terms of racial vilification. White people are the dominant people historically and culturally in Australia. They are not in any sense an oppressed group whose political and civil rights are under threat.
… in the Australian context, calling someone ‘white’ is not of itself a term of abuse… white people are the dominant people historically and culturally in Australia and are not in any sense an oppressed group whose political and civil rights are under threat.
Brown FM dismissed the officer’s complaint. Although a reasonable prison officer might find the words offensive generally, they would not have been offended by the racial implication specifically. It did not constitute racial hatred or vilification.[6]
Conclusions
Kerr clearly intended to insult the London police officer when she called him ‘stupid and white’. She admitted this under cross-examination.
News reports repeated the police constable’s second statement that the words made him feel ‘upset’, ‘belittled’ and ‘shocked’. He said ‘they went too far and I took great offence to them’. Even Judge Peter Lodder KC noted after the trial that ‘[Kerr’s] own behaviour contributed significantly to the bringing of this allegation.’
Nevertheless, the UK jury quickly found Kerr not guilty of racially aggravated harassment.
Australian courts would likely reach the same conclusion under racial hatred provisions. Adapting Brown FM’s detailed reasoning in McLeod v Power, Kerr used insulting comments ‘to express her frustration at what she perceived as being a power imbalance between herself and [the officer]’ in a ‘stark and confrontational manner’.[7]
The words offended, but they did not exemplify the racial hatred that the Racial Discrimination Act aims to prohibit. As Brown FM stated:[8]
it is drawing a long bow to use the Racial Discrimination Act in this way and was certainly not the primary purpose of the legislature in enacting legislation of this kind.
References
[1] (2001) 112 FCR 352, [16].
[2] (2004) 135 FCR 105, [67]–[69].
[3] (2011) 197 FCR 261, 323–5.
[4] See Drummond J’s comments on this point in Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615, [15], [18]–[31]. See also Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, [12]-[16].
Dr Nicky Jones teaches public international law and human rights and anti-discrimination law at the University of Southern Queensland. In 2023, Nicky’s book An Annotated Guide to the Human Rights Act 2019 (Qld) (written with Peter Billings) was published by LexisNexis. Recently, she has been appointed to the Queensland government’s Human Rights Advisory Panel. While studying law, Nicky interned at the UN Office of the High Commissioner for Human Rights in Geneva, where she worked with Brian Burdekin AO, former Australian human rights commissioner, in the National Institutions team. After graduating, Nicky worked as a judge’s associate for the Hon Justice Margaret McMurdo AC FAAL (then President of the Court of Appeal in Queensland). Nicky worked briefly in private practice and Crown Law before returning to academia. She is admitted to practice in the Supreme Court of Queensland and the Federal and High Courts of Australia.
We’re pleased to announce the second installment in our School of Law and Justice Research Seminar Series for 2025. Associate Professor Andrew Hemming will be presenting on one of Australia’s most pressing energy policy debates: the role of nuclear power in achieving our carbon zero emissions targets by 2050.
This timely seminar will examine the conflicting cost assessments between CSIRO’s GenCost report and Frontier Economics’ analysis, addressing whether Australia can maintain reliable baseload power without nuclear energy as coal-fired power stations are retired.
For full details including date, time, location, Zoom access, and registration information, please refer to the seminar flyer below. Both in-person and online attendance options are available, but registration by the deadline is required.
We encourage all students, university staff, and community members interested in energy policy, climate change solutions, and the intersection of science and law to attend this thought-provoking presentation.
The recent acquittal of Matildas captain Sam Kerr on charges of racially aggravated harassment raises important questions about free speech limitations, the criminalisation of offensive language, and apparent double standards in how male and female athletes are disciplined. This analysis examines the legal tests applied in Kerr’s case and explores broader implications for free speech legislation in Australia and the UK.
The Case: Sam Kerr’s Acquittal
On 12 February 2025, Sam Kerr, the captain of the Matildas soccer team who also plays for the London club of Chelsea, was found not guilty of racially aggravated harassment of a police officer, Constable Stephen Lovell, by a jury in the Kingston Crown Court in London.
Kerr was charged under s 31(1)(b) of the Crime and Disorder Act 1998 (UK). This section comprises three elements:
Kerr intended to cause ‘harassment, alarm or distress’;
Her words caused Constable Lovell ‘harassment, alarm or distress’; and
Her words ‘stupid and white’ were racially aggravated.
Legal Analysis: Three Subjective Tests
An examination of the above three elements reveals that the jury would have been required to consider three subjective tests. First, the subjective test of whether Kerr intended to cause Lovell ‘harassment, alarm or distress’. In her cross-examination by the Crown Prosecutor Emlyn Jones, Kerr admitted her words ‘you’re ‘f…king stupid and white’ were meant to upset Lovell but denied that she meant to hurt him.
Whether Kerr’s words caused Lovell ‘harassment, alarm or distress’ (the second subjective test) was put to Lovell by Kerr’s defence counsel Grace Forbes, who suggested Lovell had ‘experienced this impact purely to get a criminal charge across the line’. Lovell denied the suggestion.
The third subjective test of whether Kerr’s words ‘stupid and white’ were racially aggravated was, according to opposing counsel, to be determined on two different criteria. Jones focused on events in the police station, while Forbes focused on the taxi ride and Kerr’s frustration with events leading up to Kerr calling Lovell ‘stupid and white’. Here, Forbes was using res gestae (things done or things transacted) as an exception to the hearsay rule to admit evidence of contemporaneous events relevant to the matter in issue. In this context, it was an error on the part of the Crown not to call the taxi driver to give evidence.
For the Crown, Emlyn Jones attacked Kerr’s claim she felt Lovell could not understand what it was like to be a woman being driven in a taxi by a stranger while being scared because it was an issue of a man not putting himself in a woman’s shoes and had nothing to do with race. Jones put to Kerr that she was saying to Lovell that ‘you’re stupid because you’re white’. Kerr accepted it was what she did but not what she meant.
For the defence, Grace Forbes argued that in the police station Kerr was scared and stressed and while expressing herself poorly did not intend to racially harass Lovell. Forbes put to the court Kerr’s state of mind and the actions of the police had to be taken into account when considering Kerr’s words ‘stupid and white’.
In this maelstrom of subjective tests, it is scarcely surprising that the jury were unable to find all three elements of the offence proved beyond reasonable doubt.
The Free Speech Question
In a free country, we shouldn’t be criminalising speech that is simply offensive. If the right to free speech doesn’t protect words some might think offensive, it’s a useless right – little more than a right to be nice, banal. Indeed, a state that criminalises words that simply offend is far more dangerous to our health than hearing a few nasty words.
But the question must be asked, should such an offence be on the statute book? As Janet Albrechtsen has astutely pointed out, so what if Lovell had felt humiliated and distressed for being sledged by Kerr for being white (or for that matter if someone had called Kerr stupid and made some slur about her Anglo-Indian heritage)?
In Australia, we need look no further for our own straitjacket on free speech in the form of s 18C of the Racial Discrimination Act 1975 (Cth) which makes it unlawful for someone to do an act that is reasonably likely to ‘offend, insult, humiliate or intimidate’ someone because of their race or ethnicity.
Requires intent to cause ‘harassment, alarm or distress’
No intent required – only that act is ‘reasonably likely’ to offend
Must prove words actually caused harm
Must only prove words were likely to cause harm
Requires racial aggravation
Applies to acts based on ‘race, colour, nationality or ethnic origin’
Double Standards in Sports Discipline?
As for Kerr, her acquittal was something of an own goal or a pyrrhic victory as the judgment of the court of public opinion has been decidedly unfavourable having witnessed Kerr’s foul-mouthed outburst on video. If Kerr had agreed to pay for the damage to the taxi when she first entered the Twickenham police station, then Kerr’s halo as the golden girl of Australian sport would not have slipped to the floor.
Nevertheless, such a fall from grace has not prevented Football Australia from putting out what Andrew Webster has aptly described as a ‘one sentence pedestrian statement loaded with corporate gobbledygook’: ‘Football Australia will reflect with Sam on learnings from the matter and we will continue to provide appropriate support for her moving forward.’ Webster likens this to burning some incense and reflecting, asking the pertinent question of what would have happened to a male sporting superstar in Australia under similar circumstances:
Imagine it was an AFL or NRL player or cricketer who’d drunkenly spewed in the back of the cab, refused to pay for the damage, been driven to a police station as the driver sought restitution, abused police, swore at police, flashed their bank balance on their phone at police.
Webster answers his own question by saying the relevant sporting body, after the relevant court proceedings had ended, would have immediately issued a breach notice on the player desperate to minimise any further reputational damage to the game. The player would be facing a heavy fine and possible suspension.
What Does This Mean for Law and Sport?
The final act in this tawdry little drama may be more of a whimper than a bang. Football Australia may finally take some disciplinary action against Kerr, such as relieving her of the captaincy of the Matildas, but Kerr’s future career hinges on her ability at the age of 31 to continue playing soccer for any period after taking a year to recover from her second torn anterior cruciate ligament.
Where do we draw the line between offensive speech and illegal harassment? And do our sporting bodies apply consistent standards across genders when it comes to off-field behaviour? These questions may prove more enduring than the details of Kerr’s case itself.
Author
Andrew Hemming is an Associate Professor in Law at the University of Southern Queensland, based at the Toowoomba campus. A seasoned teacher and prolific author, he specialises in evidence and criminal law.
Andrew is known for his rigorous scholarship and passion for engaging in robust debate.
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