Mr G had been regularly attending a church in Queensland. Problems arose when he distributed pamphlets in pigeon holes at the church. These pamphlets made unfavourable comments about the religious views of the church and criticised the suitability of the pastor. This was not the first time that he had distributed similar material to church members and he was repeatedly asked to leave before the police were called.
The church then informed him that, because of this incident, he was not allowed to enter the property or take part in church activities without permission. Mr G then took action against the church arguing that he had a right to be on the land and a right to exercise freedom of speech.
The court found that he was granted a licence to enter the land which was subject to limitations; in particular, the requirement to behave in accordance with the standards of the church. Mr G’s behaviour had breached these standards and the church was entitled to revoke his licence.
However, if Mr G had been a member of the church, it may have given rise to a contractual right, rather than a licence, to be on the land. He had previously been rejected by the church in his application for membership on the basis that he did not adhere to the doctrines and beliefs of the church.
The court also rejected his argument regarding freedom of speech. The court reasoned that Mr G could not exercise a right to freedom of speech in the circumstances when he did not have a right to be on the land. As such, he was only prevented from expressing his views and distributing pamphlets on the church property.
Mr G’s arguments were dismissed and the decision reflects the right for not-for-profit bodies, like churches, to control what takes place on their property in terms of who can enter and how they express themselves, such as in the distribution of materials. Where this situation involves a member the person may be able to assert a greater entitlement to be on the land. As such, it is important to take this into account when deciding on the terms and conditions of membership.
A recent decision by the Victorian Court of Appeal has found that a Christian youth camping organisation, Christian Youth Camps Ltd ("CYC"), was guilty of sexual discrimination by refusing the booking of Cobaw Community Health Service Ltd ("Cobaw") in 2007. Cobaw runs a project called “WayOut”, which provides support and suicide prevention services to same-sex attracted young people. Mr Mark Rowe, on behalf of CYC, refused their application to book a holiday camp on a CYC campsite on the basis that CYC would not be happy to accept a booking for a group that “encouraged a homosexual lifestyle”.
Cobaw commenced proceedings against CYC in the Victorian Civil and Administrative Tribunal under the precursor to the Victorian Equal Opportunity Act. The Tribunal found that CYC had directly discriminated against Cobaw and awarded Cobaw $5,000 in damages and issued a declaration that they had been discriminated against. CYC subsequently appealed this decision to the Victorian Court of Appeal.
Did CYC unlawfully discriminate?
CYC argued that their denial of the booking was on the basis of the group’s advocacy of homosexual activity, as opposed to their homosexual orientation. CYC concluded that this was not unlawful because the Act prohibited discrimination on the basis of homosexual orientation, not activity. However, this distinction was rejected on the basis that homosexual activity is the expression of an individual’s identity and sexual orientation. Thus to discriminate against homosexual activity is to discriminate against those who identify themselves as being of homosexual orientation.
Who was liable?
There was an assessment of liability for both CYC and Mr Rowe, the individual employee who declined the booking. The liability of CYC was not in dispute. Opinion was however divided regarding Mr Rowe. President Maxwell (the chief judge of the Court of Appeal) stated that because corporations can be held liable for the actions of officers and employees under the Act, the legislation did not intend to make those individuals personally liable as well, thus exempting Mr Rowe. In contrast, Appeal Judge Neave and Appeal Judge Redlich found that both CYC and Mr Rowe could be held liable on the basis that an employee should not be excused from liability simply because their employer is also made liable by their actions.
Was there a valid defence?
A Body established for religious purposes
There were two relevant defences under the Act. The first would apply to CYC if it established that it was a “body established for religious purposes” that committed the discriminatory act in “conformity with its religious doctrines” or to “avoid injury to the religious sensitivities” of believers.
The court found that CYC was not a body established for religious purposes despite possessing a number of religious features including its establishment by a Christian denomination and the fact it was required to operate in accordance with the beliefs of that denomination. President Maxwell found that CYC was not on balance a body established for religious purposes for a number of reasons including the fact that advertising on CYC's website and brochures did not contain any explicit reference to Christianity, the site was regularly booked by secular groups and camps were not required to have any Christian content.
This approach appears to be inconsistent with the 2008 Word Investments case, where the High Court held that a body which was set up for religious purposes was still able to be regarded as being established for the charitable purpose of advancement of religion despite the fact it engaged in secular commercial enterprises to provide funding for those religious purposes. President Maxwell stated that CYC's factual scenario was distinct from that of Word Investments, where the commercial activity of the religious body was ancillary to, and supportive of, the religious body's intrinsically religious purposes. He noted that, in contrast, "the very purpose for which CYC existed" was its commercial activity of making campsite accommodation available to the public for hire. He stated that this was an activity which was "in itself secular" and that therefore the legal principles of Word Investments would not apply to CYC.
With respect to President Maxwell, our view is that his interpretation of what is required to be a "body established for religious purposes" is too narrow. At one point President Maxwell suggests that he might have found CYC to be a body established for religious purposes if it "existed for the sole purpose of providing facilities for camps and conferences which were avowedly religious in character". This is despite the fact that many religions, including Christianity, encourage their followers to interact with and serve other people regardless of their personal religious beliefs. President Maxwell's judgment suggests that a body such as the Salvation Army, with clear religious foundations and motivations, might not be a body established for religious purposes because it engages in a wide range of community services which do not explicitly require a faith commitment from the people it benefits. This is not in our opinion a desirable outcome.
In any case, the court found that even if CYC was a body established for religious purposes, its refusal to book accommodation for Cobaw was based on moral guidelines rather than doctrines and did not serve to protect believers. The court accepted a narrow definition of "doctrines", limiting them to matters dealt with in the historic Christian Creeds. Such a finding appears to be inconsistent with the 2010 NSW case of OV & OW v Members of the Board of the Wesley Mission Council where the NSW Court of Appeal found that “doctrines” were not confined to what is formally recognised, but rather include those religious and moral principles which are commonly taught or advocated. The judges' views on the Wesley case are unknown as they did not refer to it in their judgments. In our view, the court's findings on this point are problematic for these reasons and could lead to the troublesome conclusion that the set of religious beliefs on which a religious body is entitled to discriminate against another person or organisation is limited to those explicitly spelt out in a narrow collection of historical documents.
Actions necessary to comply with “genuine beliefs or principles”
The second defence under the Act would apply to Mr Rowe if he could show that his discriminatory actions were necessary to comply with his “genuine beliefs or principles”. President Maxwell did not accept that Mr Rowe was entitled to this defence on the basis that his decision to refuse the booking was motivated only by his private morality and was not necessitated by his religious beliefs.
Appeal Judge Neave also found that Mr Rowe was not entitled to this defence. She accepted that his act in refusing Cobaw's booking was clearly motivated by his religious beliefs, but did not find that his refusal was necessary to comply with those beliefs. She stated that while it was 'necessary' for Mr Rowe himself to abstain from homosexual relationships to comply with his beliefs, 'peripheral behaviour' in relation to those beliefs such as refusing Cobaw's booking was not necessary to comply with his beliefs.
Appeal Judge Redlich found that not only was Mr Rowe entitled to this defence, CYC was also not liable for the alleged unlawful discrimination by virtue of this defence protecting Mr Rowe's actions. This decision was in part based on his finding that one of the purposes of the Act was to balance the right to freedom from discrimination with the right of religious freedom. Appeal Judge Redlich relied on the Canadian case of Brockie, which found that to require the defendant to print homosexual material placed a disproportionate burden on his freedom of religion by requesting behaviour that conflicted with his religious beliefs. Appeal Judge Redlich rejected the view that that activity in the commercial sector was not entitled to be protected by this defence. In essence, Appeal Judge Redlich found that Mr Rowe was entitled to refuse Cobaw's booking following Cobaw's disclosure that it would use the campsite for the purpose of discussing and encouraging views repugnant to his religious beliefs and those of the Christian denomination which had established CYC.
The majority concluded that this defence did not apply to CYC as it only applies to natural persons, thus excluding a corporate body.
In our view, Appeal Judge Redlich's approach was the correct one as it did not take a narrow view of what is 'necessary' to comply with an individual's religious beliefs. Further to this, it did not draw an artificial distinction between actions in the commercial sphere and the private sphere and recognised that there was a need to balance the existing competing rights of freedom from discrimination and freedom of religion.
CYC was found to be liable for Mr Rowe's actions as it was not entitled to any of the defences under the Act. Mr Rowe was found not to be liable because while a majority of the court found that he could be made liable under the Act, one of those two judges found that his discriminatory actions were necessary to comply with his genuine beliefs or principles.
It is difficult to assess whether the judgment can be used as a guide to how similar legal problems will be decided in the future given the conflicting judgments on the different issues. The decision may be interpreted as being strictly limited to the particular facts which arose in the case. Its potential impact in NSW is particularly unclear given its inconsistency with the Wesley case and the fact that Victoria and NSW are subject to differing discrimination laws. Despite this, several preliminary conclusions can be drawn from the case:
if you need advice regarding your charity or not for profit organisation.
A recent case in the United Kingdom considered the extent to which a religious organisation was affected by discrimination legislation.
Catholic Care was a charitable organisation offering a variety of services and support to the wider community. It had operated an adoption service for over 100 years. The practice of the adoption service was only to place children with heterosexual adoptive parents – same sex couples were not eligible to apply to Catholic Care for adoption of a child.
This practice was made unlawful under sex discrimination legislation passed in 2008 and 2010. Catholic Care applied to the UK Charity Commission to change its Memorandum of Association in order to take advantage of some limited exemptions in the discrimination legislation. It wished to continue its practice of only placing children with heterosexual couples. Its application was ultimately rejected by the relevant Tribunal, which found that Catholic Care “had not provided sufficiently weighty reasons to justify the discrimination against same sex adoptive parents".
This decision is relevant to Australian religious organisations as their exemption from pieces of discrimination legislation has been considered by the government recently. It is essential for those organisations to consistently review their practices to ensure that they do not run afoul of discrimination legislation.
if you have a question about discrimination.