The Victorian Court of Appeal recently upheld a finding of discrimination against "a Christian youth camp" that refused to provide accommodation for a "rural Victorian youth and sexual diversity project".
Cobaw Community Health Services ran the WayOut Project, a youth suicide prevention initiative that aimed "to raise awareness about their needs and the effects of homophobia and discrimination on young people and rural communities generally"'. In 2007 the Project's co ordinator approached the site-manager at the Phillip Island Adventure Resort, conducted by Christian Youth Camps, seeking to secure accommodation for the group at the Resort for a weekend camp "for 60 rural same-sex-attracted youth and 12 support workers".
Christian Youth Camps was established by "The trustees of the Christian Brethren Trust", which was "itself established by the Christian Brethren Church".
After enquiring about the "nature of the group and its activities" the Camp's site-manager informed the Project Manager that considering that Christian Youth Camps 'was "a Christian organisation that supports young people"', the WayOut Project "would be better off investigating the availability of other camps in the area."
In 2010 the Victorian Civil and Administrative Tribunal ruled that Christian Youth Camps' "refusal amounted to unlawful discrimination on the basis of the sexual orientation of those who would be attending the camp".
Christian Youth Camps appealed the decision to the Supreme Court of Victoria, which delivered its judgment on 16 April 2014. One of the issues before the court was whether Christian Youth Camp's refusal to provide the WayOut Project with accommodation amounted to unlawful discrimination, in contravention of the Equal Opportunity Act 1995 (Vic).
Discrimination
Christian Youth Camps argued that "an objection to the views and opinions which would be conveyed to those attending the camp was quite different from an objection to the sexual orientation of those who would be attending".
The Court did not accept this distinction and found that the Tribunal had not been in error in finding "there was discrimination on the basis of sexual orientation", in contravention of the Equal Opportunity Act 1995 (Vic).
In his commentary on the decision Neil Foster from the University of Newcastle states:
'all members of the Court of Appeal in Cobaw seem to take the view that a refusal to support an activity providing support for homosexual activity, is the same as discrimination against homosexual persons. The view that sexual "orientation" is a fundamental part of human "identity", and the view that this must then be allowed expression in sexual activity, seems to be accepted.'
Exemption available under Victorian Equal Opportunity Legislation
The Equal Opportunity Act 1995 (Vic) contains "religious freedom exemptions", permitting "a body established for religious purposes" to engage in prohibited conduct, where the conduct:
- conforms with the doctrines of the religion; or
- is necessary to avoid injury to the religious sensitivities of people of the religion.
The Court found this exemption did not apply in this case as Christian Youth Camps was not considered to be "a body established for religious purposes."
On this point Neil Foster has commented that 'The result of this unanimity on this point, if followed elsewhere, seems to be that even a body with explicitly faith-driven objects may be found to not be a body "established for religious purposes" if it engages in a wide range of community services which do not explicitly require a faith commitment from the recipients.'
The Court then considered whether the site-manager (an individual, not a religious body as defined under the Act) was able to rely on the "defence" of "the necessity to comply with his genuine religious beliefs or principles".
While Redlich JA found that the site-manager's conduct fell within this defence, which should also be available to Christian Youth Camps, Maxwell P and Neave JA did not consider the defence "applicable" as "the refusal of accommodation was not necessary for him [the site-manager] to comply with his religious beliefs."
The CEO of Cobaw Community Health Services has commented that '"We're very excited for Cobaw and for the young people that were the people that put in the original complaint...We feel [the decision] supported them and their sense of being discriminated against..."' However, Neil Foster has noted that "The fact that the Court was split in different ways on different issues makes the precedential value of some of its comments problematic".
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