Can a Commercial Entity Discriminate against People because of their Sexual Orientation on the Grounds of Its Religious Beliefs?

Cobaw Community Health Services Limited v Christian Youth Camps Limited & Anor [2010] VCAT 1613 (8 October 2010)

VCAT has recently ruled that a Christian adventure resort has discriminated against a gay youth suicide prevention group by denying them access to its camping facilities because of their sexual orientation.

Facts

The WayOut project (‘WayOut’) is a youth suicide prevention initiative operated by Cobaw Community Health Service (‘Cobaw’) that targets homosexual young people in rural Victoria.  WayOut wished to have a two-day forum at the Phillip Island Adventure Resort (‘PIAR’).  PIAR is operated by Christian Youth Camps Limited (‘CYC’).  CYC was established by the trustees of the Christian Brethren Trust for purposes connected with the Christian Brethren religion.

In June 2007, WayOut project co-ordinator, Ms Hackney, made a telephone call to PIAR resort manager, Mr Rowe, to arrange a booking.  Ms Hackney considered that he had refused her booking on the basis of the sexual orientation of the proposed attendees.

Cobaw claimed that CYC and Mr Rowe contravened the Equal Opportunity Act 1995 (Vic) by discriminating against them in the provision of services and accommodation on the basis of their sexual orientation.  CYC and Mr Rowe denied that discrimination did occur and if it did, they relied on certain religious exemptions in the Act.

There were two key issues:

• The first key issue was whether discrimination had actually occurred.
• The second key issue was whether CYC could rely on the religious exemptions in the Act.

Decision

Was there discrimination on the basis of the sexual orientation?

There was a conflict in the evidence regarding what was said in the telephone conversation between Ms Hackney and Mr Rowe.  Mr Rowe argued that he did not refuse to accept the booking.  Even if he did, Mr Rowe claimed it was not on the basis of sexual orientation, but was because WayOut would ‘promote the homosexual lifestyle’.

Justice Hampel preferred the evidence of Ms Hackney, finding that she would never use the phrase ‘homosexual lifestyle’.  Ms Hackney was adamant that homosexuality was part of a person’s identity and not a lifestyle choice.

Her Honour also concluded that CYC had refused to accept WayOut’s booking for accommodation on the basis of sexual orientation.  Her Honour rejected the distinction drawn by Mr Rowe between sexual orientation and promoting homosexuality.

The religious exemptions and the Victorian Charter

Justice Hampel noted that when interpreting the religious exemptions under the EO Act, she must have regard to their purpose, namely to protect religious freedoms, in a manner consistent with the Charter of Human Rights and Responsibilities Act 2006.  In particular, she considered the rights to freedom of thought, conscience, religion and belief in s 14 of the Charter, and freedom of expression in s 15 of the Charter, in a manner which is compatible with the rights to equality and freedom from discrimination in section 8 of the Charter.  She noted that this interpretation should not privilege one right over another, but recognise their co-existence.

Section 75(2) exception: bodies established for religious purposes

Section 75(2) of the EO Act provides that the prohibition on discrimination does not apply ‘to anything done by a body established for religious purposes that conforms with the doctrines of the religion or is necessary to avoid injury to the religious sensitivities of people of the religion’.

Is CYC a religious body?

Justice Hampel was not satisfied that the purposes of CYC in the conduct of the adventure resort were religious.

Her Honour found that, although CYC’s constitution declared its establishment was inspired by a religious motive, the purposes of CYC were not directly and immediately religious and related to the conduct of camping for both secular and religious groups.

Although this finding made it unnecessary to consider the rest of s 75(2), her Honour did so due to the extent to which the matters were argued before her.

What are the doctrines of the religion?

Justice Hampel followed the recent case of OV and OW v Members of the Board of the Wesley Mission Council (2010) NSWCA 155 to determine the relevant ‘religion’, and found that it was the Christian Brethren denomination of Christianity.

Her Honour considered evidence from two theologians to determine the ‘doctrines’ of this religion.  After hearing the evidence, her Honour accepted that plenary inspiration (the words of the Bible must be believed and acted upon) is a doctrine of the religion.  However, her Honour found that not everything in scripture amounts to ‘doctrine’.  Her Honour agreed with the evidence of Dr Black that the scripture’s statements about same-sex relationships needed to be read as statements reflecting the prevailing cultural beliefs at the time, not as statements for all time.  Her Honour also placed heavy weight on the evidence that reference to marriage, sexual relationships or homosexuality is absent in the creeds or declarations of faith which adherents of the Christian Brethren are asked to affirm.  Accordingly, the Tribunal held their beliefs about marriage, sexual relationships or homosexuality are not doctrines of the religion.

What does ‘conforms with the doctrines of the religion’ mean?

Her Honour referred to s 14 of the Charter and art 18 of the ICCPR and noted that they both distinguish between the right to freedom of religion or belief, and the right to demonstrate or manifest religion or belief in worship, observance, practice and teaching.  She noted that the right to hold a belief is broader than the right to act upon it.  Her Honour referred to McFarlane v Relate Avon Limited [2010] EWCA Civ B1 where Laws LJ held the right to freedom of religious belief does not confer a right on members of a religion to impose their beliefs on a secular society.

Justice Hampel concluded that there was no evidence to suggest that conformity with their beliefs about marriage and sexuality required CYC to avoid contact with people who were not of their faith and who did not subscribe to their beliefs about God’s will in respect of sex and marriage. 

Was the refusal to take the booking necessary to avoid injury to the religious sensitivities of people of the religion?

Justice Hampel was not satisfied that the denial of the booking was necessary to avoid injury to the religious sensitivities of adherents of the religion.  In this respect, her Honour noted evidence that CYC had not restricted attendance at the adventure resort to those who conformed with their beliefs about sex and marriage.

Section 77 exception: the genuine religious beliefs or principles

Section 77 provides that the prohibition on discrimination does not apply if the discrimination is necessary for a person to comply with their genuine religious beliefs or principles.  For similar reasons to those identified above, her Honour held that it was not necessary to refuse the booking in order to comply with their genuine religious beliefs.

Conclusion

Justice Hampel ultimately concluded that:

The conduct of the respondents in refusing the booking was clearly based on their objection to homosexuality.  They are entitled to their personal and religious beliefs.  They are not entitled to impose their beliefs on others in a manner that denies them the enjoyment of their right to equality and freedom from discrimination in respect of a fundamental aspect of their being.”

Her Honour made a declaration that CYC had committed discrimination in breach of the Act, and ordered that CYC pay compensation of $5,000 for the hurt and distress caused.

The decision is at www.austlii.edu.au/au/cases/vic/VCAT/2010/1613.html.

Ashleigh Ellis is a lawyer with Mallesons Stephen Jaques