Christian Youth Camp’s refusal of booking request to same-sex attracted youths was unlawful discrimination

Christian Youth Camps Limited v Cobaw Community Health Service Limited [2014] VSCA 75 (16 April 2014)

Summary

The Victorian Court of Appeal has found in favour of a group of young same-sex attracted people in their dispute with a Christian camp provider, in an important test of the religious exemptions under the Equal Opportunity Act 1995 (Vic).

The Court of Appeal (Maxwell P and Neave JA, Redlich JA dissenting) decided that there was no error of law in the Victorian Civil and Administrative Tribunal’s finding, on the evidence before it, that Christian Youth Camps Ltd (Christian Youth Camps):

• had discriminated against a group of young persons and youth workers, by refusing a booking request on the basis that they were same sex attracted (or had a personal association with same sex attracted people);
• did not fall within religious exemptions in the Equal Opportunity Act 1995 (Vic) (the Equal Opportunity Act), in respect of that discrimination; and
• had therefore engaged in unlawful discrimination.

Each of Maxwell P and Redlich JA held that there was an error of law in the Tribunal’s finding that Mark Rowe, the Christian Youth Camps employee who refused the booking request, had personally unlawfully discriminated under the Equal Opportunity Act.

It is important to understand that:

• the Tribunal’s decision was primarily based on factual findings on the evidence before it, not on an abstract consideration of the scope of the rights to equality, the right to religious freedom, or how the two intersect.
• the main reason the appeal by Christian Youth Camps was dismissed is that the Court of Appeal found no legal error affecting the analysis and factual findings of the Tribunal.

It should also be noted that the relevant provisions of the Equal Opportunity Act are significantly altered in the new Equal Opportunity Act 2010 (Vic).

Facts

Christian Youth Camps, a company associated with the Christian Brethren religion, operated the Phillip Island Adventure Resort. Mr Rowe, was the Resort’s site Manager. 

In June 2007, Mr Rowe received a call from Sue Hackney, who was employed by Cobaw Community Health Services Limited (Cobaw) as the co-ordinator of the WayOut project. The WayOut project was a statewide, State-funded youth suicide prevention programme, whose purpose was supporting young same sex attracted people living in rural Victoria. 

Ms Hackney wanted to book the Resort for a weekend forum for 60 young people and 12 youth workers from across rural Victoria, all of whom were involved in WayOut. She told Mr Rowe that the WayOut project “believed that same sex attraction or homosexuality was a normal and natural part of the range of human sexualities and that what we’d be doing over the weekend was having workshops and discussions to plan ways to raise awareness”. Mr Rowe responded that the Board “would have some difficulties” taking such a group and that she would be better off looking at other camps in the area who would be able to take them.

Procedural history

On behalf of a number of young people and youth workers who had intended to attend the weekend forum, Cobaw sued both Mr Rowe personally and Christian Youth Camps as his employer for unlawful discrimination under the Equal Opportunity Act. Mr Rowe and Christian Youth Camps both denied any discrimination, but said that if they did discriminate they fell within exemptions in the Act designed to protect religious rights and freedoms.

The Tribunal found that Mr Rowe discriminated, that Christian Youth Camps was vicariously liable under section 102 of the Equal Opportunity Act for that discrimination, and that neither fell within the statutory exemptions. It declared that each had unlawfully discriminated against the young persons and youth workers represented by Cobaw and ordered $5,000 by way of compensation.

The appeal by Christian Youth Camps was dismissed by Maxwell P and Neave JA (Redlich JA dissenting). 

The appeal by Mr Rowe was allowed by Maxwell P and Redlich JA, each on the basis of a different legal error. Maxwell P (Neave and Redlich JJA disagreeing) held that when the Equal Opportunity Act was properly construed, Christian Youth Camps was liable directly, and Mr Rowe was not liable for things done on its behalf. Redlich JA (Maxwell P and Neave JA disagreeing) held that the Tribunal made an error in the construction of an exemption relied on by Mr Rowe.

Discrimination

Section 8 of the Act stated “[d]irect discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances”.  The prescribed attributes included sexual orientation and personal association with a person with an attribute.

The Tribunal found on the evidence that Mr Rowe refused to accept the booking request on the basis of the sexual orientation of the intended participants (or personal association with same sex attracted people). 

Maxwell P held that the Tribunal’s finding was open on the evidence, and held that the Tribunal was right to reject the distinction Christian Youth Camps sought to draw between refusal on the basis that the participants were same sex attracted and refusal on the basis that the participants expressed the view that it was normal and healthy to same sex attracted. According to his Honour, what occurred in the telephone call between Mr Rowe and Ms Hackney “was that, because of his strong belief that homosexual sexual activity was morally wrong, Mr Rowe on behalf of CYC refused to allow the Resort to be used by [same sex attracted young people] for an activity in which their identity as such would be expressed and affirmed”.

First exemption: section 75(2) – religious bodies

The Tribunal also found, on the evidence before it, that the conduct of Mr Rowe and Christian Youth Camps did not fall within the religious exemptions relied on.

Section 75(2) of the Equal Opportunity Act contained an exemption for:

… anything done by a body established for religious purposes that –

(a)               conforms with the doctrines of the religion; or

 (b)              is necessary to avoid injury to the religious sensitivities of people of the religion.

(i) Not a body established for religious purposes

The Tribunal found on the evidence that the purposes of Christian Youth Camps – which offered facilities and services in a secular market, without any indication of association with, or requirements based on, the Christian religion – were not “directly and immediately religious”, and that it was therefore not a body established for religious purposes within the meaning of section 75(2). 

Maxwell P held (and Neave and Redlich JJA agreed) that it was open to the Tribunal to find that Christian Youth Camps was not a body established for religious purposes. Maxwell P stated that the Tribunal’s conclusion on this point “was plainly right”. This was sufficient to deal with the section 75 exemption on appeal. 

(ii) Booking refusal did not conform with doctrine and was not necessary to avoid injury to religious sensitivities

Even if Christian Youth Camps had been a “body established for religious purposes”, it could only take the benefit of the exemption if the discriminatory act either conformed with the doctrines of the Christian Brethren religion or was “necessary to avoid injury to the religious sensitivities of people of the religion”. The Tribunal found, on the evidence, that the booking refusal did not fall within either limb.

On appeal, Maxwell P (Neave JA agreeing, Redlich JA agreeing at least in part) held that these findings were open to the Tribunal, and that it did not misconstrue the exemptions.

Second exemption: section 77 – genuine religious beliefs or principles

Section 77 of the Equal Opportunity Act, relied on by both Christian Youth Camps and Mr Rowe, applied where discrimination by “a person” against another was necessary for the first person to comply with “the person’s genuine religious beliefs or principles”. 

The Tribunal held that this exemption could apply not only to natural persons (like Mr Rowe) but also to corporations (like Christian Youth Camps).  On appeal, Maxwell P (Neave JA agreeing, Redlich JA dissenting) disagreed, holding that section 77 could not apply to corporations, being intended only to apply to natural persons. That was sufficient to determine the appeal by Christian Youth Camps on this ground.

The Tribunal found that the evidence did not establish that the religious belief or principles of Mr Rowe or Christian Youth Camps had made it necessary to refuse the booking. The Tribunal concluded on the evidence that it was not part of the doctrines, beliefs or practices of the Christian Brethren that they avoided contact with people who did not share their religious beliefs, nor that they had to avoid contact with same sex attracted people who did not share their religious beliefs, nor that they were required to openly express their disapproval of same sex attraction when in contact with same sex attracted people. It observed that the evidence about Christian Youth Camps’ general booking policies showed that “Christian Brethren beliefs about God’s will in respect of sex and marriage played no part in deciding who would be permitted to make bookings at, or stay at, the adventure resort”.

Maxwell P (Neave JA agreeing, Redlich JA dissenting) upheld the Tribunal’s approach to and findings about this exemption.

Section 32 of the Charter

Maxwell P (Redlich and Neave JJA agreeing) held that section 32 of the Charter had no application in the construction of the Equal Opportunity Act when considering how the Equal Opportunity Act applied to an event that happened before section 32 came into force. 

The Tribunal had applied section 32 of the Charter to the construction of the Equal Opportunity Act in respect of the telephone call, which occurred in 2007, before section 32 came into force. However, Maxwell P (Neave JA agreeing, Redlich JA dissenting) held that this error did not vitiate the Tribunal’s order, as it was immaterial to the Tribunal’s analysis or reasoning. Neave JA noted that international human rights obligations would in any event need to be considered in construing domestic legislation.

Commentary

As identified by Maxwell P, this case is of a “scale and complexity without precedent in Victorian anti-discrimination law” and concerns novel and inherently complex questions about the collision of two rights – freedom from discrimination and freedom of religion. The decisions of the Court of Appeal and the Tribunal provide a very interesting case study of how competing rights within a statutory scheme should be balanced by close reference to the statutory text and the facts of the case.

Whether section 32 of the Charter can apply to conduct that occurred before the Charter came into force is a complex and interesting question of law that has been helpfully clarified in this judgment. The analysis applied to the finding of discrimination on the basis of “sexual orientation” rightly affirms that discriminators cannot avoid liability by drawing technical distinctions between homosexual identity (the attribute) and the promotion of homosexuality (the syllabus).

The decisions provide useful clarity as to how religious doctrines, beliefs and principles can be used as a defence to claims of discrimination. The role that the “invisibility” of the religious origins of CYC and its similarity to other secular camp providers played in Court’s reasoning highlights the underlying unfairness to consumers if religious motives are not transparent. Religious businesses cannot selectively invoke religious beliefs in defence of discrimination claims when the business is not conducted in accordance with those beliefs in practice (a significant factor was that CYC had not, for example, sought to take steps to prevent people other than married couples who engaged in sexual activity at the resort, or engaging in sex at the resort).  

It is unfortunate, although unavoidable, that this detailed consideration is of provisions now superseded by the 2010 EOA. In the current formulation the definition of religious body is expanded (see s 82) and the former section 75(2)(a) (now s 83(2)(a)) now reads “conformity with doctrines, beliefs or principles”. This case may well be an impetus to reconsider whether these amendments appropriately balance freedom from discrimination with freedom of religion.   

This decision is available online at: http://www.austlii.edu.au/au/cases/vic/VSCA/2014/75.html

Emrys Nekvapil, Victorian Bar, with commentary by Anna Brown, Director of Advocacy and Strategic Litigation at the Human Rights Law Centre.

Note: Christian Youth Camps have since filed an application for special leave to the High Court to challenge the decision.