SEXUAL ORIENTATION, RELIGION AND THE EQUAL OPPORTUNITY ACT 1995 (VIC) Cobaw Community Health Services Ltd v Christian Youth Camps Ltd and Mark Rowe [2010] VCAT 1613

Key issues to be highlighted (1) Standing to bring a claim – the representative provisions of the Equal Opportunity Act The act of discrimination – provision of accommodation The meaning of sexual orientation The role of expert evidence

Key issues to be highlighted (2) The religious exemptions (ss 75 and 77) Generally The role of the Charter Body established for religious purposes Conforms with the doctrine of the religion Necessary to avoid injury to religious sensitivities Necessary to comply with religious beliefs

Standing (1) Representative bodies may bring a complaint: Section 104(1B) of the EO Act A representative body may complain to the Commissioner on behalf of a named person or persons if the Commissioner is satisfied that (a)each person named in the complaint (i)is entitled to complain under subsection (1)(a); and (ii)has consented to the complaint being made by the body on the person's behalf; and (b)the representative body has a sufficient interest in the complaint; and (c)the alleged contravention arises out of the same conduct.

Standing (2) Sufficient interest: s 104(1C) A representative body has sufficient interest in a complaint if the conduct that constitutes the alleged contravention is a matter of genuine concern to the body because of the way conduct of that nature adversely affects or has the potential adversely to affect the interests of the body or the interests or welfare of the persons it represents.

Standing arguments and VCATs answers Cobaw submitted the Tribunal had no jurisdiction to examine this issue. That was rejected: [49] The Tribunal found s 104(1B) met: [60]-[70] The Tribunal found Cobaw had sufficient interest: [70]-[97] – The respondents argument that Cobaw was acting outside its constitutional objects was rejected on grounds it was misconceived but also wrong when the objects were construed :[89], [90], [91] – See also the rejection of what the Tribunal called a veiled suggestion of a conspiracy theory about the bringing of the complaint: [94].

The act of discrimination Essentially a conversation in a telephone call. Reliability of competing accounts of the conversation became important: [98] – [117] Standards of satisfaction in resolving the contest : [118] – [138] Was there a refusal to accept an application for accommodation: s 49(a), or a refusal to provide goods and services: S 42(1)(a). Respondents argument focussed on the inquiries being too preliminary to constitute an application or a request. Tribunal rejected these arguments finding that to require some kind of formal application or request was too narrow and could enable avoidance of the prohibitions: [148] – [152] An argument about the person who was refused not being the person who had the attribute (see IW v Perth) was also rejected: [164] – [175]

Meaning of sexual orientation (1) Respondents challenged the complainants contention that the basis for any refusal was sexual orientation. Rather the respondents submitted the basis for any refusal was the purpose of the forum – which they identified as the promotion of homosexuality: [178] Tribunal resolved this by examining on the evidence what Mr Rowe knew at the time of the telephone call: [179] Tribunal found that the respondents objection to the promotion of homosexuality was in truth, an objection to same sex attraction or as the respondents characterised it, homosexuality: [190]

Meaning of sexual orientation (2) The Tribunal made some findings about the meaning and nature of the attribute of sexual orientation: [191] – [199] including: Sexual orientation is a most intimate aspect of private life and personal identity [192] Sexual orientation is part of a persons being or identity The essence of the prohibition is to recognise the right of people to be who or what they are. The freedom to live openly as a person with a particular sexual orientation is a characteristic of the attribute of sexual orientation, which is doing no more than affording people of same sex sexual orientation the same right as heterosexuals in respect of their sexual orientation: [192] – [198]

Role of expert evidence (1) Both sides called religious experts. The respondents called both Brethren and non Brethren experts. Their evidence went to: What was the religion for the purposes of the exemptions The nature of Christian Brethren beliefs What doctrine meant in a religious context What could be characterised as doctrines of Christianity Christian Brethren Particularly the meaning of the concept of Plenary Inspiration and what was or was not necessary to be done to conform to that doctrine, if it was a doctrine.

Role of expert evidence (2) The Tribunal did not accept the evidence of the Respondents non Brethren expert, Dr Peter Adam, an Anglican priest, on its merits: [267] – [275] The Tribunal also rejected his evidence because it found his independence and impartiality to be compromised: [279] – [286] The Tribunal accepted the evidence of the complainants expert, Dr Rufus Black: [288] – [298] The Tribunal accepted that Mr Rowe and the Brethren witnesses believed what they said they believed and that those beliefs were representative of the range of beliefs held by members of the Christian Brethren: [307]

Sections 75 and 77, and the Charter (1) S 75 Religious bodies 1) Nothing in Part 3 applies to – a) The ordination or appointment of priests, ministers of religion or members of a religious order; b) The training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; c) The selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice. 2) Nothing in Part 3 applies to 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. 3) Without limiting the generality of its application, subsection (2) includes anything done in relation to the employment of people in any educational institution under the direction, control or administration of a body established for religious purposes.

Sections 75 and 77, and the Charter (2) S 77 Religious beliefs or principles Nothing in Part 3 applies to discrimination by a person against another person if the discrimination is necessary for the first person to comply with the persons genuine religious beliefs or principles. The Tribunal adopted a narrow interpretation of the exemptions for a number of reasons: The primary provisions are the prohibitions: [219] – [220] A narrow construction better advances the purposes and objects of the EO Act: [221] S 32 of the Charter supported this approach [224] The protection of religious freedom was what ss 75(2) and 77 were directed towards: [225]

Body established for religious purposes Would determine whether s 75 applied at all to the respondents. Determination of this issue involved: Construction of s 75 Evidence above CYC, the Christian Brethren Trust and the activities at PIAR. OV and OW v Members of the Board of the Wesley Central Mission (2010) NSWCA 155 was an important case: see [239] ff. Note the language in the NSW provision is different. Tribunal examined CYCs activities as well as its Constitution and the terms of the Trust and concluded there is no tangible or explicit religious content required as a condition of the provision of the camping facilities provided by CYC to secular users of the facilities: [248] Tribunal adopted the characterisations relied on by the complainant from Lawlor and the Church of the New Faith cases, and took a confined approach to what religious purposes meant in this context: [250] – [252]

Conforms to the doctrines of the religion (1) Tribunal rejected the Complainants submission that the religion was, relevantly, Christianity and accepted the respondents argument that it was the Christian Brethren as a denomination of Christianity: [256] – [262] Tribunal accepted Dr Blacks opinion that from a theological perspective what was contained in the 1921 Trust Deed of the Christian Brethren Trust are doctrines of the religion of the Christian Brethren and rejected any wider notion of doctrine: [289] Critically, the plenary inspiration of the Holy Scriptures There was a great deal of evidence about how and why it was that the refusal of services and/or accommodation conformed to the doctrine of plenary inspiration (s 75) or was necessary to comply with Christian Brethren religious beliefs (s 77).

Conforms to the doctrines of the religion (2) Tribunal found it was not plenary inspiration but the manner in which it was interpreted and applied to particular passages from the scriptures by the Christian Brethren which gives rise to their beliefs about marriage, sexual relationships or homosexuality: [306] Tribunal was not satisfied the refusal of the booking conformed with the doctrines of the Christian Brethren: [308] Looked for a causal connection: [315] Whether plenary inspiration required or obliged refusal of the booking: [318] On the evidence, especially evidence about the way PIAR was run, who else attended, how the Christian Brethren interacted with the community, there was no basis to say the refusal was required: [319] – [323]

Necessary to avoid religious sensitivities Tribunal rejected this limb of the defence: [324] No entitlement to impose religious beliefs on others to be derived from the Charter: [325] Again, Tribunal found on basis of evidence about how camp bookings and facilities were run, that there would be no restriction of religion, worship, practice or teaching: [326] Tribunal interpreted injury quite strictly: [328] Sensitivities must be common to the adherents of the particular religion: [329] respect for, or not treating with disrespect, those matters intimately or closely connected with, or of real significance to, the beliefs or practices of the adherence of the religion: [330], see also [332] Tribunal noted the differences in the evidence of the Brethren witnesses: [334] ff. Tribunal noted and relied on the limits these witnesses acknowledged: [343] Tribunal also relied, again, on what went on at PIAR in respect of other groups: [344] No positive/proactive prohibitions Unmarried couples Sexual activity at the resort

Necessary to comply with religious beliefs Tribunal rejected complainants submission that s 77 could not apply to a corporation: [348] – [351] Focus re s 77 was on necessary to comply: [353] Tribunal found for same reasons as under s 75 that beliefs were genuine but because of the conduct of CYC and Mr Rowe in respect of the manner in which the resort is operated, it was not necessary to refuse the booking to comply with Christian Brethren religious beliefs: [356] Note the objective assessment the Tribunal found s 77 required.