Denial of Church membership reveals gap in anti-discrimination legislation
Bakopoulos v Greek Orthodox Parish of Mildura (Human Rights) [2014] VCAT 323 (26 March 2014)
Summary
VCAT dismissed a claim of discrimination for the refusal of a parish to grant financial membership to a female congregant. The Tribunal did not address the content of the alleged discrimination because there was no area in the Equal Opportunity Act 2010 (Vic) that applied to the nature of her claim. The case highlights gaps in the drafting of the Equal Opportunity Act 2010 (Vic) that limit the scope of protection against discrimination.
Facts
Mary Bakopoulos had been an active participant in the Greek Orthodox Parish of Mildura for nearly 60 years. Ms Bakopoulos' father had been a long-term member of the Parish and passed away in 2009. Ms Bakopoulos had booked a memorial service for her late father but the Parish refused to open the church for the service, as there was no member of the Committee available to open it. Ms Bakopoulos asked to become a member of the Committee, but membership of the Committee was only available to financial members of the Parish.
In 2012, Ms Bakopoulos submitted an application for financial membership of the Parish, which the Parish rejected. No reason was provided for the rejection of her application, but Ms Bakopoulos claimed that she was informed verbally in discussion with one of the Trustees that "women are not permitted on the committee". Ms Bakopoulos claimed that she fulfilled the membership criteria and noted that there had never been a woman allowed membership of the Parish.
The Parish explained its structure to the Tribunal. The Parish operates under a Deed of Trust and within the Archdiocese. Any person is free to attend Church and participate in worship. The Parish is structured on three membership levels: members, members of the Committee, and members of the Trustee Committee. Members must be adults of the Greek Orthodox faith and of Greek nationality or origin and must pay a nominal membership fee. An application for membership is submitted to the Committee who may approve the application with a 75 percent majority vote. Members may attend the Annual General Meeting and may elect the Committee, which conducts the business of the Parish. The Trustee Committee is comprised of founding members or their appointed replacements.
The Committee had unanimously rejected Ms Bakopoulos' application. The Parish declined to provide the Tribunal with a reason for the rejection, but claimed it was not because Ms Bakopoulos was a woman. However, the representative of the Parish did note that it was understood that ladies preferred service on the Ladies' Auxiliary to being involved with the administrative responsibilities membership entailed, and that the Ladies' Auxiliary was a suitable forum for women's involvement in the Parish.
Decision
The Tribunal referred to the criteria for discrimination under the Equal Opportunity Act 2010 (Vic). Ms Bakopoulos was required to prove on the balance of probabilities that she had been discriminated against on the basis of one or more of the attributes set out in the Act, in one or more of the areas set out in the Act. Ms Bakopoulos' claim was argued as direct discrimination on the basis of her sex in the area of goods and services.
The Tribunal agreed it was clear the relevant attribute was sex. The Tribunal, after discussing the scope of goods and services, did not accept that Ms Bakopoulos' claim fell within this area. The definition of “services” in the Act included a non-exhaustive list of specific services. The Tribunal cited authority dealing with similar provisions to prove that “services'” maintained its ordinary meaning (I.W. v City of Perth [1997] HCA 30), and that the provision of religious or spiritual services would also be included in its definition (Tassone v Hickey [2001] VCAT 47). Even so, the Tribunal distinguished Ms Bakopoulos' claim, in that she was denied "the opportunity to become a participant in the governance arrangements of the Parish" rather than to receive or participate in a religious or spiritual service: "It was the right to be a member, not the right to receive a service".
The Tribunal went on to identify “clubs” as the area most closely associated with Ms Bakopoulos' claim. Even so, as a liquor licence was a prerequisite to the definition of a club and the Parish did not hold a liquor licence, her claim did not fall within this area either.
Accordingly, the Tribunal dismissed her claim as it did not fall within any of the areas in which discrimination is prohibited under the legislation.
Commentary
This case demonstrates a gap in the protection against discrimination provided by the Equal Opportunity Act 2010. Notwithstanding the apparent strength of Ms Bakopoulos' claim, the VCAT was unable to address its merits because of a legislative anomaly which leaves victims of discriminatory conduct not matching one of the areas listed in the Act (employment, employment-related areas, education, provision of goods and services and disposal of land, accommodation, clubs, sport and local government) without redress.
This decision is available online: http://www.austlii.edu.au/au/cases/vic/VCAT/2014/323.html
Asher Seifman is a Solicitor at DLA Piper Australia.