Religious Freedom Under a Charter: The Phillip Island (Cobaw) Case
Cobaw Community Health Services Limited v Christian Youth Camps Limited & Anor [2010] VCAT 1613
A support group for same sex attracted youth at risk†, WayOut (a project run by Cobaw Community Health Services), made a discrimination complaint for being turned away when trying to book the Phillip Island Adventure Resort. The resort is operated by Brethren-run Christian Youth Camps, or CYC. The Victorian Civil and Administrative Tribunal (the Tribunal) found that CYC discriminated against Cobaw in denying the booking:
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. [361]*
The Tribunal’s distinction between “personal” beliefs and the effect of beliefs on others is an important one to grasp. The right to freedom of religion as belief is not the same as freedom of religion as ‘manifestation’, or practice. The Tribunal’s finding does not concern what CYC staff (or Brethren, or Christians) believe, but how actions arising from beliefs may be allowed to affect others in wider society, the so-called ‘public sphere’.
Public debate over the effect of Charters of Rights on religious freedom raises the question of what role Victoria’s Charter of Rights and Responsibilities (2006) (the Charter) had in the decision. From a Christian perspective it is important to consider what theological principles might be relevant in cases such as Cobaw where the vexed issue of human rights and religion in the public domain come to the fore.
Did the Charter enable this complaint to be brought?
No, the Charter cannot be a ‘cause’ of legal action. The complaint was brought under the Equal Opportunity Act (1995). In other words ‘ordinary’ Parliamentary legislation was the basis of the complaint.µ It should be noted as well that the legislation involved was the 1995 version of the EO Act; sections of the Act relevant to the case were amended in 2010.
How influential was the Charter in shaping the decision?
The short answer is – not very. This is the first lengthy decision under an Australian Charter in which religious ‘freedom’ (as manifestation) was examined. The Charter is referred to or discussed in approximately 46 paragraphs out of the 362 in the decision. The main substance of discussion of Charter rights occurs in §§30-41. The International Covenant on Civil and Political Rights is discussed in §§52-55.
Use of the Charter followed principles established by Her Honour from legislation and common law. For example, a limited application of the exceptions to discrimination was regarded by Her Honour as “Parliament’s intention” in the EO Act. The decision stated,
In construing the exceptions, the right to freedom from discrimination must not be curtailed unless “clearly manifested by unmistakeable and unambiguous language” [221, italics original, quoting a High Court opinion]
In another section involving the meaning of evidence in relation to the EO Act, Her Honour wrote,
Again, I must apply a fair, large and liberal interpretation to the words ‘other person’ or ‘another person’, and the broadest interpretation consistent with the rights contained in the Charter. It would be a narrow and legalistic interpretation to restrict ‘other person’ or ‘another person’ to those identified by name,and attribute to the person alleged to have engaged in the discriminatory conduct. Even without s 32 of the Charter to guide interpretation, such a narrow interpretation was rejected by Stephen J in Koowarta v Bjelke-Petersen…[174]
The Charter did not create new interpretive precedents but reinforced what Her Honour took as consistent with the intent of the legislation and common law. This is further discussed below.
The Charter and interpreting the legislation
The Tribunal had a dual interpretative task in regards to the EO Act and the exceptions therein: it considered both the scope of the Act in regard to discrimination as well as what breadth to give to exceptions (relating to religious groups, conscience). With regards to the first, what constituted discrimination under the Act, CYC argued for a ‘narrow’ meaning. Cobaw sought a broader interpretation. With regards to the second, the exceptions, CYC sought a broader meaning, while Cobaw saw them in more restricted terms.
As noted, Her Honour argued that the objects of the EO Act determined the interpretive parameters. While recognising that the exceptions were inserted for good reason, Her Honour believed it inappropriate to allow them to override the Act’s primary purpose, namely that of preventing discrimination. Her Honour found that a number of arguments by counsel for CYC would have done just that, for instance;
The effect of the respondents’ [CYC] submission is… a narrow, legalistic and technical interpretation of the words ‘refusing to provide… services’ in s 42(1)(a), and ‘refusing or failing to accept the other person’s application for accommodation’ in s 49(1)(a). Such an interpretation would permit a service or accommodation provider to act in a way which, in practical terms, deters or prevents a person from making application in the form required by the respondents, and so avoid the operation of the EO Act. [148]
The Charter was seen to be consistent with this approach, but Her Honour’s view could be – and was – made out separate from the Charter. In other words, the Charter was not formative for the Tribunal’s conclusions on interpretation.
The Charter right to freedom of religion
The Charter sets out rights to freedom of religious conscience and to “demonstrate” religion in “observance, practice and teaching”. (s 14) Part of the Tribunal’s decision considered freedom of religion. In the decision, CYC was found to be arguing that the Charter’s protection of religious freedoms was pre-eminent over other rights. Her Honour rejected the notion that any particular right took precedence over others, for instance;
The effect of the respondents’ [CYC] submissions was that the freedom of religion and expression rights trumped the equality and freedom from discrimination rights relied on by the complainant. [223]
The Tribunal took the view that both freedom of religion and freedom from discrimination needed as much recognition as possible. Her Honour stated that she must endeavour not to “privilege one right over another, but recognise[s] their co-existence.” [225] This approach is based on the principle of the indivisibility of rights. Conflicts between rights are not to be a zero sum game whereby the extent to which one party loses the other wins. Rather, rights should be limited to the least extent possible. As Her Honour stated,
…when considering the application of the Charter rights to the exceptions, both sets of rights invoked by the parties may be limited for the purpose of protecting the rights of another person. [224]
Having established this approach based on the indivisibility of rights, the Charter played a relatively minor role as Her Honour considered questions arising from ss 75(2) and 77 of the EO Act:
1. Was CYC a body established for religious purposes?
2. Did CYC’s conduct conform with the doctrines of the religion?
3. Was the conduct necessary to avoid injury to religious sensitivities?
4. Whether the conduct was necessary in order to comply with genuine religious beliefs.
The Charter and exceptions in the EO Act
The Charter defines a “religious body” in s 38(5) and exempts such bodies from Charter obligations. Religious bodies which are also “public authorities” (as defined in the Act and including religious schools) are not required to act compatibly with the Charter,
…in a way, or make a decision, that has the effect of impeding or preventing a religious body (including itself in the case of a public authority that is a religious body) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which the religious body operates. s 38(4)
Based on the evidence before it the Tribunal found that CYC was not a ‘religious body’ within the meaning of the EO Act. It should be noted that the Charter is not referred to where the Tribunal discusses the definition of CYC as a “religious body”.
The Tribunal did refer to the Charter in accepting CYC’s argument that its religious beliefs on sexuality were those of “Christian Brethren” rather than only those common to all churches (a much smaller range of doctrines). The Charter thus supported the protection of a wider scope of religious beliefs, which would thereby fall within exceptions in the EO Act. Her Honour stated:
There is no warrant in my view for inferring that Parliament intended that s 75 should be limited in its operation to those doctrines common to all denominations of a particular religion…Such an interpretation is, in my view, consistent with the placing of the word religion with the words thought, conscience and belief in s 14 of the Charter… [259,260]
The Tribunal noted that the Charter (like similar human rights instruments) makes a distinction between religious belief and practice for the intuitive reason that the latter is more ‘public’ in its ramifications:
The right to hold a belief is broader than the right to act upon it. [309]
The Charter’s scope is dependent upon the content of the EO Act, rather than the other way round [327]. Nevertheless, it may be argued that the Charter could have played a more significant role in guiding the reasoning of the Tribunal, particularly in the interpretation of the Act’s exceptions. This is explored in a further comment.
Endnotes
† “same sex attracted” is a description for those with feelings of attraction to people of the same sex rather than as a designation of one’s sexual orientation. The term ‘at risk’ is used to describe difficulties young people face as they work out their sexuality, such as family conflict, bullying, violence, substance abuse, depression and suicide.
* The references in [square brackets] are to the paragraphs in the decision, available at www.austlii.edu and search: Cobaw Community Health Services Limited.
µ A statutory Charter is “ordinary” legislation too, although there is a debate about whether it has a larger role which cannot be entered into here for space reasons.