Christian Youth Camps Limited v Cobaw Community Health Services Limited and Ors [2014] HCATrans 289 (12 December 2014)

Last Updated: 15 December 2014

[2014] HCATrans 289

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M40 of 2014

B e t w e e n -

CHRISTIAN YOUTH CAMPS LIMITED (ACN 095 681 342)

Applicant

and

COBAW COMMUNITY HEALTH SERVICES LIMITED (ACN 136 366 722)

First Respondent

VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION

Second Respondent

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA

Third Respondent

MARK ROWE

Fourth Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 2014, AT 10.19 AM

Copyright in the High Court of Australia

____________________

MR M.R. PEARCE, SC: If the Court pleases, I appear with my learned friends, MR P.J. HARRIS and MR M.G.R. GRONOW, for the applicant. (instructed by McCracken & McCracken)

MR P.J. HANKS, QC: Your Honours, I appear with MR J.C. McKENNA and MS E.A. BENNETT for the first respondent. (instructed by King & Wood Mallesons)

MS K.L. EASTMAN, SC: If the Court pleases, I appear for the second respondent, the Victorian Commission. (instructed by Victorian Equal Opportunity and Human Rights Commission)

MR S.G.E. McLEISH, SC, Solicitor-General for the State of Victoria: If the Court pleases, I appear with MS J.M. DAVIDSON for the third respondent, the Attorney-General. (instructed by Victorian Government Solicitor)

CRENNAN J: We take it from the submissions the respondents have divided up such time as they have between them? Yes, Mr Hanks.

MR HANKS: That question, your Honour – implicit in that question is the notion that we have a collective time.

CRENNAN J: Yes. We have a long list.

MR HANKS: I will be quite short. That is all I can say.

CRENNAN J: Thank you, Mr Hanks. Yes, Mr Pearce.

MR PEARCE: Your Honours, the applicant, Christian Youth Camps Limited, is a company limited by guarantee. It is a company that is very closely associated with the Christian Brethren denomination. Members of the company must be adherents to the beliefs of the Christian Brethren denomination.

Those beliefs were the subject of evidence at the trial in the Victorian Civil and Administrative Tribunal. May I take your Honours, please, to page 54 of the application book, paragraph 234 of the reasons for decision of Judge Hampel, who constituted the Tribunal. There is a reference there to a trust deed of 1921, and the following doctrines which are set out at about line 15 and below, and the concluding part of that passage is a reference to the doctrine of the:

plenary inspiration of the Holy Scriptures.

The Tribunal made further findings about that at paragraph 307, application book 71, in reference to Mr Rowe, who is the fourth respondent here and against whom a claim was made at the Tribunal, and is an adherent to the Christian Brethren religion:

I am satisfied that Mr Rowe believes that homosexuality, or homosexual activity is prohibited by the scriptures, and so is against God’s will. I am satisfied that his belief is based on the manner in which he interprets or applies the doctrine of plenary inspiration.

CRENNAN J: Now, just stopping you for a moment, if I may, Mr Pearce, it is put against you in terms of a grant of special leave that the legislation the subject of the judgment below has been replaced by legislation that is significantly different in relevant respects. We appreciate that in your reply you contend that nevertheless some authoritative appreciation of the earlier provision will have some bearing on the current provision. We would be assisted not so much by going back into the evidence, but by having some assistance on that issue, I think.

MR PEARCE: Let me go directly to that point, then, your Honours. I will come back to the issue of section 77 and whether it applies to companies, but as regards the 2010 Act, your Honour, the provisions imposing the prohibitions on discrimination which were the subject of this case, which are found in 42 and 49 of the 1995 Act, are repeated verbatim in 44 and 52 of the 2010 Act. The religious exemptions which are found in 75(2) and 77 are substantially re-enacted with, we say, minor amendments in sections 81, 82 and 84.

More importantly, your Honours, the concepts behind these provisions and, in many cases, the phrases and expressions that are used in these provisions have analogues in legislation throughout Australia. In our outline in footnote 44 at paragraph 31, we collect those. I will not go to the particular sections, but can I just say this. The expression which is used in 75(2) of the 1995 Act and repeated in 81 and 82 of the 2010 Act, “body established for religious purposes”, is used in legislation in Queensland, South Australia, Western Australia, the two Territories and in two Commonwealth Acts. In New South Wales the expression there used is “body established to propagate religion”.

The expression “necessary to avoid injury to the religious sensitivities” which is in 75(2)(b) of the 1995 Act, and I think in 85(2) of the 2010 Act, has minor variance - for example, instead of “to avoid injury”, sometimes the legislation says “to avoid offending”, and instead of “sensitivities” to the religion, sometimes the word “susceptibilities” is used. With those minor variations, legislation in New South Wales, Queensland, South Australia, Tasmania, Western Australia and the ACT and three Commonwealth Acts use that kind of expression.

BELL J: Mr Pearce, at the nub of the difference in the Court of Appeal was the application of the exception provided by section 77 of the Act, was it not?

MR PEARCE: Yes.

BELL J: When one turns to that section, there is the significant change in the 2010 Act of the introduction of the test of reasonable necessity by contrast to a test posing necessity respecting a person’s genuine religious beliefs. That does seem a somewhat material difference. I appreciate that on Justice Redlich’s analysis, his Honour might have taken the same approach even under section 84, but when one comes to consider the utility of an analysis of section 77 of the Act in light of his Honour’s reasoning, one is looking now at an Act with a different test and consideration of the significance of the Charter, which was not in play in the reasons that informed the dissenting judgment below.

MR PEARCE: But, your Honour, with respect, there is an a priori question about the application of section 77 as to whether it applies to companies.

BELL J: Yes, I understand that.

MR PEARCE: That question is live under section 84 of the new Act. It has a parallel in section 52 of the Tasmanian Act. We say leave should be granted because this is a novel and important question that this Court should consider, and the reasons for leave are these. First of all, the judges below were evenly split on this question. Judge Hampel, who constituted the Tribunal, held that the section did apply to companies, as did Justice Redlich in dissent in the Court of Appeal. The President and Justice Neave held that it did not.

In Canada, there is learning and jurisprudence about whether companies can take advantage of the religious freedom under the Canadian Charter. The Supreme Court has said no, they cannot, but there is an important qualification on that, we would say, that has been imposed by the Ontario Superior Court in the case of Ontario Human Rights Commission v Brockie, which is at tab 6 of our folder - your Honours need not go to it.

At paragraph [39] there, the court applied what we would say a kind of derivative entitlement to the freedom of religion in the case of a company closely associated with natural persons having clear religious beliefs. I might come back to the Brockie Case a bit later.

More significantly, however, a very recent decision of the United States Supreme Court is almost directly on point. That is at tab 7 of our folder. It is the case of Burwell v Hobby Lobby Stores, Inc. There does not appear to be a United States Reports citation yet; we have the citation 134 S Ct 2751 (2014).

The facts of that case are also instructive, we say. It involved two family-owned companies who were employers, and commonly with many employers in the United States they offered health insurance for their employees. The Affordable Care Act imposed a requirement that the insurance they offered covered the costs of contraceptives. The companies refused to do that. They said this was contrary to the religious belief of the families that owned and controlled the companies. They relied in particular on the Religious Freedom Restoration Act 1993, a provision of which said the:

Government shall not substantially burden a person’s exercise of religion -

The question for the Supreme Court was whether these two companies were persons within that section. We say a directly analogous question arises under section 77 and section 84 of the 2010 Act, and also section 52 of the Tasmanian Act. The five majority justices held that the companies could take advantage of this exemption. They said “closely held for profit” corporations could take advantage of it. Two minority justices said such companies were not within the exemption, and two others did not decide the question. There are, we would say, these important provisions.

The other reason why we submit that special leave should be granted is this. There was in the Tribunal a fundamental inconsistency of approach to interpretation of the Act which was not corrected and, indeed, we say, is perpetuated by the Court of Appeal. There was an inconsistency between the approach to interpretation of the prohibition sections as against the exemption sections.

The Tribunal was explicit about this. The Tribunal was explicit about saying that it would interpret the prohibition sections expansively and liberally, but the exemption sections narrowly and restrictively. That is an error that we would say was not corrected in the Court of Appeal.

This had two consequences; important consequences which we say led to error. The first is that it resulted in the application of glosses to the words “in the exemptions” and a process of elaborate exposition which resulted at a stage far removed from the plain words of the section. That can be seen in a number of respects, for example, in respect of the expression “doctrines of the religion” within 75(2)(a), which is now found also, I think, in 82(2)(a) of the new Act.

BELL J: Mr Pearce, I am sorry to interrupt, but Justice Redlich, in taking the view that it was an error to give an expansive interpretation to the prohibition on discrimination and a narrow interpretation to the exemption, rejected a deal of international jurisprudence as not relevant to the statutory task with which he was concerned. Does the interpretative rule in the Charter introduce any changed approach in relation to the present Act?

MR PEARCE: Our submission is no, it would not result in any difference. That, we would say, is the result of Momcilovic - - -

BELL J: Yes.

MR PEARCE: - - - in this Court, but it would not effect any change. If I can just return to the point I was making about one of the consequences of this inconsistency of interpretation. Her Honour Judge Hampel said that the doctrines of the religion must be fundamental. She read in the word - inserted the word “fundamental” before “doctrines” in 75(2)(a). The President in the Court of Appeal inserted the word “guiding”. He said the doctrines had to be “guiding” doctrines.

In respect of the expression “conforms with” in 75(2)(a), the Tribunal said the “conformity with” required that there be requiring obligation or dictation. It must require, oblige or dictate the conduct. The President in the Court of Appeal agreed with that approach and added this, that there must be no alternative but to act or refrain from acting. This is under the rubric of what “conforms with”.

Then, on the question of what is the meaning of “injury to religious sensitivities”, the Tribunal said there must be real, significant and unavoidable harm, and it must be to matters intimately or closely connected with, or of real significance to the beliefs or practices of adherents of the religion. The President again agreed with that, and he went further and said there must be an affront to the reasonable expectation of adherence.

Now, if I can come to what we say is the second major consequence of the error in interpretation by the Tribunal uncorrected by the Court of Appeal, except in the dissenting decision of Justice Redlich, is that there was an inconsistency between the characterisation of the attribute applied at the stage of the prohibition and the beliefs, or doctrines, applied at the stage of the exemption.

A defence which had been run at the Tribunal was that it was not conceded that there had been a refusal of accommodation, but assuming that there had been a refusal of accommodation to this group. It was said that it was not because of the attribute of homosexuality of the members of that group, but because of what it was proposed to be said at the forum which would be held.

Ms Hackney in a telephone conversation on 7 June said at the forum that it would be said that homosexuality is part of the range of normal or natural human sexualities, and she conceded that this was another way of saying that it is okay to be homosexual. Christian Youth Camps said “We do not mind that they are homosexual”, and indeed, there was a deal of evidence that other homosexual groups and homosexual people had stayed there. There was evidence, too, that homosexuals were not excluded from the congregations of the Christian Brethren. What they said is “We do not want them saying this at the forum”.

That was rejected at the prohibition stage. The Tribunal said there is no material distinction between the attribute and its outward expression. They are the same thing for the purpose of the prohibition. That defence therefore failed. When we come, however, to the application of the exemptions, a like assimilation between the belief and the outward expression of the belief was denied by everyone except Justice Redlich. Only Justice Redlich confronted that issue. Only Justice Redlich confronted this contradiction at the heart of the respondent’s case.

KIEFEL J: Which ground of appeal does this feed into?

MR PEARCE: I will just need to get my appeal ground out.

BELL J: Is it the ground numbered 2(b)?

MR PEARCE: If I can find it.

BELL J: It is at page 311, Mr Pearce.

MR PEARCE: It is really 4(a).

BELL J: I see.

MR PEARCE: The exemption point is really 4(a). We seek to raise it at the prohibition point. We seek to say that that distinction ought to have been drawn at the point of prohibition. We primarily say, however, that it is a more potent factor at the stage of the exemptions, because if you are going to assimilate those notions at the prohibition point, it ought also to be done at the exemption point. What Christian Youth Camps says is “It is contrary to our beliefs for this message to be conveyed on our premises” and if you assimilate the belief in the outward expression of belief, as we say you should do, then that ought to be the result that the religious exemptions applied. It was really, as I say, only Justice Redlich - - -

KIEFEL J: It sounds awfully like findings of fact that would be involved in this.

MR PEARCE: With respect, no. It comes back to what we say is an erroneous approach to interpretation. That is the error of law. This is a consequence of that error of law. It is also a question of whether facts as fully found – there is no dispute about primary facts – whether the facts as fully found come within the statutory provision. That is also a question of law. Those are the two reasons why we say that questions of law are involved here.

BELL J: Your ground 4(b) raises a factual issue, does it not?

MR PEARCE: That is a separate point, yes, which I will come to. It is a factual issue in this respect, that we say the factual finding was made without evidence and that is an error of law.

BELL J: This is the one you need? You did not get leave in the Court of Appeal to argue this one, did you?

MR PEARCE: We had the ability to argue it. We were denied leave to amend our draft notice of appeal to raise it, after the court had itself raised it. I was going to come separately to that. We say that is a case where there was simply no evidence to support the factual finding that on 7 June 2007, when the relevant phone call happened, there were no members of this group on whose behalf Ms Hackney is said to have made the telephone call.

BELL J: It may not be your strongest point, Mr Pearce.

MR PEARCE: In some respects, yes, but a lack of evidence for a critical factual finding which is the basis of the decision below is something that we think ought to be ventilated. Might I just go to what Justice Redlich - - -

KIEFEL J: Just before you do, to what extent does ground 2(b) involve findings of fact?

MR PEARCE: Again, I come back – it is the same answer, your Honour, namely that we say the findings that were made on that point about the non-applicability of the exemption resulted from an erroneous approach to interpretation which was an error of law. We also say that the question of whether facts as fully found come within the statutory provision is also a question of law.

KIEFEL J: Why did the Court of Appeal find that discrimination was not necessary for the applicant to comply with the religious beliefs of the Brethren, in a nutshell?

MR PEARCE: In a nutshell, because it misconstrued what the religious beliefs were - - -

KIEFEL J: No, what did it find?

MR PEARCE: What did the Court of Appeal find?

KIEFEL J: Yes, not what you say is wrong with it, but what did it actually find?

MR PEARCE: It upheld the findings made by the Tribunal below, which were that there was a doctrine of plenary inspiration which meant that you read the scriptures literally. The Tribunal accepted that adherents to the Christian Brethren religion took from that that homosexuality was against God’s law. But a line was drawn between the doctrine of plenary inspiration and what followed from its application, namely the law that homosexuality is against God’s law, and therefore it was held that it was not necessary to comply with the doctrine of plenary inspiration to refuse accommodation.

KIEFEL J: To succeed on the appeal, you would have to establish both grounds 2(a) and 2(b), because 2(b) could trump the - - -

MR PEARCE: Yes, I accept that. I was wanting to go to what Justice Redlich said in respect of, really, that very point, your Honour

Justice Kiefel, what his Honour said at 565, page 303 of the application book, which really, in my submission, is the nub of the case, and dealing with the exemption section, 77, and really, his Honour was the only one who confronted this issue, beginning at about line 12 on 303:

What enlivened the applicants’ obligation to refuse Cobaw the use of the facility was the disclosure of a particular proposed use of the facility for the purpose of discussing and encouraging views repugnant to the religious beliefs of the Christian Brethren . . . It was the facilitation of purposes antithetical to their beliefs which compelled them to refuse the facility for that purpose. To the applicants, acceptance of the booking would have made them morally complicit in the message that was to be conveyed at the forum and within the community. How they would have perceived their complicity, had they not refused the booking, was central to the issue. This consideration was not addressed by the Tribunal because of its conclusion that their religious belief did not necessitate discriminatory conduct in pursuing their commercial activity -

and earlier at paragraph 543, page 294 of the application book, the third line of that paragraph. In this respect, his Honour really hones in on the issue here:

There is an unfortunate irony in the argument of Cobaw and the Commission seeking to distinguish between freedom to believe something and the manifestation of those beliefs. It is redolent of the same problematic and unfair differentiations between identity and conduct, and between public and private that have been used in the past to oppress those with same sex orientation.

His Honour is saying here, if you are going to assimilate the attribute with its outward expression, a like assimilation between the belief and its outward expression should apply at the exemption stage. If it does, you should hold, as his Honour did, that the exemption in 77 applied in this case. If I can just say briefly something about the final point - - -

CRENNAN J: I think the time limit has been signified to you, Mr Pearce.

MR PEARCE: I will not say anything more about that, your Honour. If the Court pleases.

CRENNAN J: Yes, thank you, Mr Pearce. Yes, Mr Hanks.

MR HANKS: Thank you, your Honour. If there is any point in this application for special leave it must relate to the construction of the 1995 Act. It cannot relate to contested findings of fact and, with respect, Justice Kiefel nailed it, if I might put it in that colloquial sense. It is not enough for the applicant to demonstrate that there is a question about the construction of section 75 or section 77 when the Tribunal has made findings of fact which, even on the construction urged by the applicant, render this matter sterile as a matter for consideration by the Court.

Can I go back to the 1995 Act briefly? Your Honours, we provided a full copy of the 1995 Act, and I wanted to draw the Court’s attention to section 7 first. Section 7 gives a meaning to “discrimination” in subsection (1). Subsection (2) declares that:

Discrimination on the basis of an attribute –

That is what we are dealing with here, the attribute of sexual orientation –

includes discrimination on the basis . . .

(b) of a characteristic that a person with that attribute generally has;

(c) of a characteristic that is generally imputed to a person with that attribute –

There is the expansive approach which the statute requires when one comes to look at discrimination on the basis of an attribute. There is no similar expansion required by the provisions that deal with exemptions. Can I take your Honours now to those provisions? They are found, in the reprint that I have, commencing on page 47 – that is section 75 - and the critical provision in section 75 is subsection (2). The point that we would want to emphasise here, your Honours, is that subsection (2) plainly is limited to protecting “a body established for religious purposes”. That is the object of section 75(2).

If we go to section 76, there is a further protection in the form of an exemption. Here, it is extended to “a person or body”, the body being a body not established for religious purposes. But the category of protection is wider in section 76. Then we come to section 77, and here, what is protected, what is the object of section 77, in contrast to section 76, is “a person”. This was a critical consideration going directly to the terms in which the exemptions are expressed, a critical consideration for the President and for Justice Neave, that is - - -

BELL J: Justice Redlich adopted a conventional approach by reference to the Interpretation Act.

MR HANKS: That is right.

BELL J: One can see arguments either way on that, surely?

MR HANKS: One can, your Honour, but of course that conventional approach is subject to any contrary contention - - -

BELL J: Indeed.

MR HANKS: - - - and there is a sufficient intention in this troika of provisions, one going directly to bodies established for particular purposes, the second directed to a person or a body not established for that purpose, and the third addressed to a person.

BELL J: What, of course, is a distinct concept well understood in the area of bodies established for religious purposes, which may well not be incorporated bodies - - -

MR HANKS: Of course.

BELL J: The matter I raise with you, Mr Hanks, is one can see arguments on each side in relation to that question of construction.

MR HANKS: One can. As I had foreshadowed, there is a reason why the Court would be wasting its time to engage with those arguments. I have not offered the second reason, and that is that there are indeed significant changes in the 2010 legislation. I will come to that shortly, if I might. There was one other aspect of the 1995 Act that I wished to mention. In section 77, we find that the standard of protection that is extended is where:

the discrimination is necessary for the first person to comply with the person’s genuine religious beliefs or principles.

This concept of necessity is important. We just draw your Honours’ attention to the fact that it is also used, for example, in section 69:

A person may discriminate if the discrimination is necessary to comply with . . .

(a) an Act –

and it is used in section 70 –

may discriminate if the discrimination is necessary to comply with—

(a) an order of the Tribunal –

or of a court or another tribunal. So necessity is a concept that is used in a number of provisions and so is the concept of reasonable necessity used in section 80(1) and (2). Even in the 1995 Act, there is concept of necessity. It was used in different provisions of the Act, and used in the way, we say, that makes it abundantly clear that it meant what it said, that is, that the Act in question which would be discrimination had to be necessary, not “had to be something that I thought would be useful for me to do, or I thought might be necessary for me to do” - - -

CRENNAN J: Necessary to comply with the beliefs.

MR HANKS: Yes, it had to be necessary.

CRENNAN J: Mr Hanks, are you going to take us now to the 2010 legislation?

MR HANKS: I will do that right away, your Honour.

CRENNAN J: Under tab 2.

MR HANKS: Yes. The first point to make is that there is a new definition of “religious body” in section 81. It is a two-part definition. It includes the old definition from section 75, mainly:

(a) a body established for a religious purpose –

but there was an alternative –

(b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles –

So there is a wider category of religious body. The second point is that the exemption that is provided for a religious body in section 82(2)(a) is an exemption where the action in question conforms with not only the doctrines, but also the –

beliefs of principles of the religion –

So the range of protection provided is significantly wider. The third point is that when we come to section 84, which is the parallel to section 77 – as I think Justice Bell pointed out, here the protection is available:

if the discrimination is reasonably necessary –

so the concept of necessity is being qualified.

KIEFEL J: Getting closer to proportionality.

MR HANKS: Yes, your Honour. Perhaps they are, to use a continental term, allowing a margin for appreciation. It is a different concept. Importantly, the Act in other provisions retains the concept of necessity, the 2010 Act, so it must be thought that there is a deliberate modifier being introduced here. The next aspect of section 84 to which we wish to draw attention is that the standard, reasonably necessary for what –

reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.

Under the previous provision, section 77:

necessary for the first person to comply with the person’s genuine religious beliefs or principles.

KIEFEL J: So there is a shift from a purely subjective assessment to one which looks at, more objectively, those of the religion - - -

MR HANKS: With respect, your Honour, I would avoid the use of “purely subjective” in this context. I would say that under the old Act, the question of whether the person’s actions were necessary was an objective assessment, but it was based on what that person’s genuine - - -

KIEFEL J: Believe themselves.

MR HANKS: - - - beliefs had been proved to be. There will be evidence given by a person, and perhaps others, about that person’s, the discriminator’s genuine religious beliefs and principles.

CRENNAN J: Well, a person may have genuine religious beliefs without subscribing to every doctrine of a religion.

MR HANKS: That is so, your Honour. The standard here under the old section 77 was different from the standard under the old section 75; that is true. Just comparing the old 77 with the new 84, this is an important distinction because here under the current Act, the new Act, evidence will have to be led, findings will have to be made by, let us say the Tribunal, by VCAT, as to what are the doctrines, beliefs or principles of the person’s religion.

CRENNAN J: So this legislation, 2010, will call for a different factual substratum - - -

MR HANKS: It will, your Honour.

CRENNAN J: - - - from what was called for under the prior legislation of 1995.

MR HANKS: That is so, your Honour.

BELL J: But what about Mr Pearce’s contention that the issue that divided the court below respecting whether a corporation might have religious beliefs and be a person for the purposes of the section 77/84 exemption is correct?

CRENNAN J: It is still a live point, he said.

MR HANKS: That is still a live point, but a sterile point, for two reasons. The legislative context in which that debate is to be conducted has changed. The terms of section 84 are significantly different from the terms of section 77. The second reason why it has become sterile is that there were a series of fact findings made about the beliefs and principles of Mr Rowe, who was the manager of the camp, and CYC, and about the doctrine of their religion. Those findings of fact were essentially that that religion was opposed to homosexual activity, but the opposition was personal, that is, it applied to adherents of the religion, and that there was no part of their beliefs or principles, no part of their doctrine which condemned that activity amongst non-adherents.

Can I just remind your Honours of what it was that was found? On page 73 of the application book, in paragraph 321, the Tribunal said – here, the Tribunal was considering the section 75(2)(a) exemption, for a body established for religious purposes. Judge Hampel said:

For the Christian Brethren, conformity with their beliefs about sex and marriage required them to restrict their own sexual activity to sex within marriage . . . There was no evidence to suggest that conformity with their beliefs about marriage and sexuality required them 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.

So there is one finding of fact, your Honours. In the Court of Appeal, at page 196, paragraph 279, the President said:

Even if it were accepted that the wrongfulness of homosexual sexual activity was a doctrine of the Christian Brethren, it would not follow that a refusal to provide accommodation . . . ‘conformed’ with that doctrine –

because the evidence made “unambiguously clear” that any such rule was “a rule of private morality”. That applies directly, of course, to the section 75(2)(a) point. The 75(2)(b) point was dealt with by the Tribunal on page 80 of the application book, paragraph 345. The passage that we have in mind there, your Honours, begins “Their final submissions” – perhaps not; make sure I get it absolutely right – it is the second line:

Their final submissions, both oral and written, asserted the respondents’ conduct in refusing the booking was necessary to avoid what was “tantamount to heresy”. There was no theological opinion to support that assertion.

BELL J: How does that marry up with the point that Justice Redlich makes at application book 303, 565, where his Honour speaks of what enlivened the obligation of people who held the views of the directors of this organisation?

MR HANKS: Contrary to the facts as found by the Tribunal, your Honour.

BELL J: That is your answer?

MR HANKS: Yes. There is another fact that I have not taken your Honour to, another fact finding. It is on page 47 of the application book; it is in paragraph 203:

the basis for the refusal of the booking –

That is the act of discrimination that we are concerned with –

by Mr Rowe was the (same sex) sexual orientation of the proposed attendees, or the personal association of the proposed attendees with persons identified by their (same sex) sexual orientation. I am satisfied this was the only, or dominant, reason for the refusal.

Justice Redlich, with respect, has ignored that finding of fact - - -

CRENNAN J: I see the light, Mr Hanks.

MR HANKS: Thank you, your Honour. That is not a metaphor, I take it. It is only an orange light, your Honour, and I appreciate that there is one other person who needs an opportunity to speak on behalf of the second respondent - - -

CRENNAN J: Well, that is the point, really, so that we do hear from Ms Eastman.

MR HANKS: Yes, your Honour. Can I make one additional point about fact findings? I will just refer your Honours to page 82 of the application book, paragraph 356. There you will find the finding of fact as to why the act of discrimination was not necessary to - - -

CRENNAN J: Comply.

MR HANKS: - - - comply with the person’s religious beliefs and principles. That is a finding of fact, and it is essentially in the same terms because the beliefs or principles were related to personal activity. Thank you, your Honours.

CRENNAN J: Thank you, Mr Hanks. Yes, Ms Eastman.

MS EASTMAN: Thank you, your Honours. Two very short points, and for the most part, they have been addressed in your Honour Justice Bell’s exchange with my learned friend, Mr Pearce. The first point was the change in the legislation, particularly to the change from section 77 of the Act to now 84. In that respect, in the application book at page 287 in the reasons of his Honour Justice Redlich, there is, with respect, a very helpful discussion of the nature of those changes in terms of the consequences for the type of evidence that the Tribunal would now need to consider in assessing whether or not this exception applies.

CRENNAN J: Yes, we see that, thank you.

MS EASTMAN: The second point is also a point raised by your Honour Justice Bell, and that is with respect to the application of the 2010 Act that the Victorian Charter applies. In what way may be an open question that I do not want to explore this morning, but nevertheless, it does apply, and that puts the Victorian legislation in a very different position to the legislation that exists in the States and at the Commonwealth level with respect to exemptions concerning the operation of religious bodies. Other than that, I rely on our written outline of argument.

CRENNAN J: Thank you, Ms Eastman. Mr McLeish, is there anything you wish to add to your written submissions?

MR McLEISH: No, I see that the light is on, your Honour. Of course, the Attorney’s position in the litigation was as the result of the Charter, and therefore the Attorney does not want to get into the question of - - -

CRENNAN J: Special leave.

MR McLEISH: - - - fact or law or special leave. As the summary says, if special leave were to be granted, the Attorney would wish to make submissions on the law.

CRENNAN J: Yes, thank you for that.

MR McLEISH: If the Court pleases.

CRENNAN J: Yes, Mr Pearce, anything in reply?

MR PEARCE: Can I make three short points in reply, your Honour? My learned friend, Mr Hanks, I think, explicitly accepted the correctness of the interpretive approach taken by the Tribunal in the Court of Appeal in distinguishing between prohibitions to be liberally interpreted and exemptions to be restrictively interpreted. He relied on section 7 for that, but may I take your Honours to section 12?

CRENNAN J: Yes.

MR PEARCE: Section 12 says this:

This Act does not prohibit discrimination if an exception in Part 3 . . . or an exemption under Part 4 applies.

The exemptions in Part 4, for example, are the exemptions that we rely on at 75(2), begin:

Nothing in Part 3 applies to anything done –

et cetera. Section 77 –

Nothing in Part 3 applies to discrimination –

et cetera. There is no indication that these provisions should be interpreted any differently. The legislation itself makes it clear that the exemptions are of co-equal significance and importance, as the prohibitions are. The same provisions are repeated in the 2010 Act. As regards what has been said about the differences between the 1995 and the 2010 Act, 75(2)(a) is identical with 81(a), what is:

a body established for a religious purpose –

My learned friend went on and said that has expanded. We can ignore the expansion. It will not apply. Section 75(2)(a) also has a direct counterpart in 82(2)(a), whether it:

conforms with the doctrines –

There is, rather, an addition there; “beliefs of principles” are added in, but those are conjunctive. The question about whether something conforms with the doctrines of the religion under the 1995 Act can have significance to whether it conforms with the doctrines under section 82(2)(a) of the 2010 Act. There are just some further considerations that would come into play. The same can be said about 75(2)(b) and 82(2)(b) where there is just a minor difference, really, “sensitivities” of people of the religion as opposed to “adherents” of the religion. It is difficult to see that that makes any difference at all.

Coming to the differences in 77, there are admittedly changes in the substantive application of the provision, but we would still say that if something is necessary to comply with the person’s genuine religious beliefs or principles, evidence relevant to that will also be evidence relevant to the question whether something is reasonably necessary to comply with the doctrines, beliefs or principles of their religion. It simply cannot be said that it is a wholly different set of circumstances considered under the 2010 legislation as to the 1995 legislation. There is plainly a considerable area of overlap, and plainly similar sorts of factual circumstances will be relevant to both sets of legislation.

The next point that my learned friend, Mr Hanks, made really took off from paragraph 321 of the Tribunal’s decision at page 73. My learned friend focused on the factual finding made by her Honour there, beginning at about line 35:

There was no evidence to suggest that conformity with their beliefs about marriage and sexuality required them 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.

Similar sorts of findings are in fact made at 343 and at 344 at page 79. What her Honour does not address, and what only Justice Redlich addressed, is whether conformity with their doctrines or beliefs required them not to provide their premises to provide a forum at which it would be said homosexuality is okay. Her Honour did not address that question. She came close to it at paragraph 333 at page 76, where she said:

Mr Rowe, Ms Mustafa, Mr Buchanan and Mr Keep –

all members of the Church –

and other Christian Brethren would be offended horrified or greatly or very upset, if WayOut conducted its proposed forum at the adventure resort. Each of them expressed that view based on the premise, which I have rejected, that the purpose of the forum was to “promote homosexuality” –

With respect, that is just hair-splitting. The purpose of the forum which had been accepted by her Honour was to say that it was okay to be homosexual. The people at Christian Youth Camps said that was promotion of homosexuality. Her Honour rejected that characterisation, but there is no doubt about what was actually said. But what her Honour does not address is this critical question that only Justice Redlich addressed. If that question is addressed and confronted, it can only be answered, we submit, in the way that Justice Redlich did, assuming that it is accepted that a company comes within section 77. Unless the Court has any questions for me.

CRENNAN J: Thank you, Mr Pearce.

This application is concerned with a question of statutory construction in respect of the repealed Equal Opportunity Act 1995 (Vic). We are not persuaded that the matter is appropriate for a grant of special leave. We are also not persuaded that the interests of the administration of justice, either generally or in this particular case, require a grant of special leave to appeal. Special leave to appeal is refused with costs.

The Court will adjourn briefly to reconstitute.

AT 11.12 AM THE MATTER WAS CONCLUDED