Victorian Civil and Administrative Tribunal|2010-10-08|Before: Mr J

Cobaw Community Health Services v Christian Youth Camps Ltd & Anor (Anti-Discrimination) [2010] VCAT 1613 (8 October 2010)

Anti-discrimination - refusal of services- refusal or failure to accept application for accommodation - sexual orientation - personal association with persons identified by sexual orientation - representative claim - exceptions- body established for religious purposes - conforms - doctrines of the religion - - necessary - injury to religious sensitivities - comply - genuine religious beliefs or principles - right to equality and freedom from discrimination - right to freedom of thought conscience religion and belief - right to freedom of expression - interpretation of remedial legislation - interpretation of exception to remedial legislation - application of the - intervention by Equal Opportunity and Human Rights Commission - Evidence - whether test applies - Opinion evidence - independence of expert witnesses - relief - declaration - compensation - - ss 1, 6, 7, 8, 12, 42, 49, 75, 77, 102, 104(1B) - - , , , , , , , - -

VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION

Cobaw Community Health Services v Christian Youth Camps Ltd & Anor (Anti-Discrimination) [2010] VCAT 1613

The complainant has made out its complaint of discrimination under ss 42(1)(a), 42(1)(c) and (49(1) of the Equal Opportunity Act 1995.
The respondents have not made out their claims for excuse under ss 75(2)(a), 75(2)(b) or s 77 of the Equal Opportunity Act 1995.
Declare that the respondents have discriminated against the ten named persons in contravention of ss 42(1)(a), 42(1)(c) and (49(1).
Direct the Respondents pay the complainant compensation of $5,000.

Ms D Mortimer SC, Mr J McKenna, Mr E Nekvapil and Ms K Foley, instructed by Mallesons Stephen Jacques

Mr G Garde QC and Mr P Harris, instructed by McCracken and McCracken

Ms K Eastman, instructed by Victorian Equal Opportunity and Human Rights Commission

The WayOut project is a state-wide youth suicide prevention project targeting same sex attracted young people in rural areas. The Phillip Island Adventure Resort provides accommodation, conference facilities and associated activities on an 85 acre site at Phillip Island.
In June 2007, Ms Sue Hackney called the adventure resort and spoke to Mr Mark Rowe. Ms Hackney wanted to book the adventure resort for a weekend forum for 60 young people and 12 workers from across rural Victoria involved in the WayOut project. What was actually said in the conversation is in dispute, but what is clear is that, when she reflected on the call, Ms Hackney considered Mr Rowe had refused to take her booking, and had done so because of the sexual orientation of the proposed attendees.
That resulted in a complaint of discrimination being made to the Victorian Equal Opportunity and Human Rights Commissioner pursuant to s 104 of the Equal Opportunity Act 1995 (the EO Act). The Commissioner referred the complaint to the tribunal in accordance with s 117 of the EO Act.
The complainant is now known as Cobaw Community Health Services Limited.[1] Cobaw manages the WayOut project. Ms Hackney is employed by Cobaw, and is the WayOut project co-ordinator. Cobaw brings the complaint as a representative body, pursuant to s 104(1B) of the EO Act, on behalf of a number of the proposed attendees at the WayOut forum. Cobaw alleges the respondents discriminated against the proposed attendees by refusing to provide services in contravention of s 42(1)(a) of the EO Act, subjecting them to other detriment in connection with the provision of services in contravention of s 42(1)(c) of the EO Act, and refusing or failing to accept its application for accommodation in contravention of s 49(1) of the EO Act. It claims the proposed attendees were discriminated against on the basis of their (same sex) sexual orientation, or their personal association with persons identified by their (same sex) sexual orientation.
The respondents are Christian Youth Camps Limited (CYC), which operates the adventure resort and Mr Rowe, the site manager of the adventure resort and an employee of CYC. CYC was established by the trustees of the Christian Brethren Trust, which in turn was established for purposes connected with the Christian Brethren religion. The Christian Brethren religion is recognised as a denomination or branch of Christianity. The respondents deny they contravened ss 42(1)(a), 42(1)(c) or 49(1). They deny an application for a booking was made, or refused. If it is found they did contravene these provisions, they invoke ss 75(2) and 77 of the EO Act, which exempts from the operation of the provisions of ss 42 and 49 certain conduct based on religious doctrines or beliefs.
The Charter of Human Rights and Responsibilities Act 2006, (the Charter) was enacted after the events giving rise to the complaint, but before proceedings were issued. The parties raised various issues relating to the operation of the Charter, and its application to the issues raised by the complaint and response. The Victorian Equal Opportunity and Human Rights Commission intervened in the proceeding, in the exercise of its right under s 40(1) of the Charter.

The following issues arise for determination in this matter:

(i) How do the provisions of the Charter in particular s 32, s 7, and ss 8, 14 and 15 affect the interpretation of the relevant provisions of the EO Act?

(ii) Does Cobaw having standing to bring the complaint pursuant to s 104(1B) of the EO Act?

(iii) What was said in the telephone call between Ms Hackney and Mr Rowe?

(iv) Did what was said in the telephone call amount to a refusal by CYC and Mr Rowe to provide services to anyone, or a refusal or failure to accept an application for accommodation, or subject anyone to any other detriment in connection with the provision of services on the basis of their sexual orientation, or personal association with persons of (same sex) sexual orientation, or lawful sexual activity contrary to ss 42(1) or 49(1) of the EO Act?

(v) If so, do the prohibitions on discrimination on the basis of those attributes in the provision of services or offering to provide accommodation not apply to CYC and Mr Rowe because, under s 75(2) of the EO Act CYC is a body established for religious purposes, whose conduct conformed with the doctrines of the religion, or was necessary to avoid injury to the religious sensitivities of the people of the religion? or

(vi) do the prohibitions on discrimination on the basis of those attributes in the provision of services or offering to provide accommodation not apply to Mr Rowe because pursuant to s 77 of the EO Act it was necessary for Mr Rowe to act as he did to comply with his genuine religious beliefs or principles?

(vii) If so, is CYC also entitled to the protection of s 77?

(viii) If Cobaw has standing to bring the complaint as a representative body, and what was said in the telephone call did amount to discrimination by CYC and Mr Rowe in the provision of services or offering to provide accommodation on the basis of the attributes of sexual orientation, lawful sexual activity or personal association with people with one or other of those attributes, and the conduct is not exempt under ss 75(2) or 77 of the EO Act, what remedies or relief should be ordered?

GENERAL APPROACH TO INTERPRETATION INCLUDING APPROACH TO CHARTER (INCL RETROSPECTIVITY )

It provided considerable assistance on the question of whether, and how the Charter affects the issues raised for determination by this complaint and the response.
Although each of the provisions of the EO Act and the Charter which must be interpreted and applied here requires separate consideration, there are some general principles of interpretation relevant to my approach to all provisions.
Both the EO Act and the Charter must be interpreted in conformity with s 35(a) of the Interpretation of Legislation Act 1984. That requires a construction that will promote the purpose or object underlying the Act to be preferred to one which does not promote that purpose or object.
The relevant objectives of the EO Act are:

(a) to promote recognition and acceptance of everyone's right to equality of apportunity;

(b) to eliminate, as far as possible, discrimination against people;

(d) to provide redress for people who have been discriminated against ... [2]

Section 1(2) of the Charter relevantly provides:

(2) The main purpose of this Charter is to protect and promote human rights by -

(a) setting out the human rights that Parliament specifically seeks to protect and promote; and

(b) ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; ...

Anti-discrimination legislation is a quintessential example of remedial or beneficial legislation. In IW v City of Perth[3] Brennan CJ and McHugh J said, referring to s 18 of the Interpretation Act 1984 (WA), which is in similar terms to s 35(a) of the Interpretation of Legislation Act (Vic):

The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation like the [Equal Opportunity Act 1984 (WA)] is to be given a liberal construction. It is to be given a 'fair large and liberal' interpretation rather than one which is 'literal or technical'.

The objectives of the EO Act relevant to the complaint are the promotion recognition and acceptance of everyone's right to equality of opportunity, the elimination of discrimination against people as far as possible and the provision of redress for people who have been discriminated against. Provisions giving effect to those objectives must be given a fair large and liberal interpretation. Provisions of the EO Act which give effect to these objectives raised in this proceeding include the meaning of the attribute of (same sex) sexual orientation,[4] what constitutes direct discrimination on the basis of that attribute, or the attributes of personal association with persons identified by their sexual orientation[5], and the provisions which define the areas of activity in which discrimination is prohibited, specifically here in the provision of services, and dealing with applications for accommodation[6].
Section 32 of the Charter is in the following terms:

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

'Compatible' is not defined in the Charter. The explanatory memorandum accompanying the Charter said,

The object of [clause 32(1)] is to ensure that courts and tribunals interpret legislation to give effect to human rights.

The Report of the Human Rights Consultation Committee also referred to what became s 32(1) as a means of providing courts and tribunals with 'clear guidance to interpret legislation to give effect to' a human right[7].
In In re an application under the Major Crime (Investigative Powers) Act 2004[8] Warren CJ held that the human rights contained in the Charter must be interpreted in the broadest possible way. In R v Momcilovic[9] the Court of Appeal held the interpretative task imposed by s 32(1) required a decision-maker to explore all possible interpretations of the relevant provisions of the statutory provision under consideration, and to adopt the interpretation which least infringes Charter rights[10].
It follows that the provisions of the EO Act under consideration here in respect of the complaint must be interpreted in a way that gives effect, as far as possible consistently with the purposes of the EO Act, to the realisation of human rights.
The Court also held in Momcilovic that s 32 is to be regarded as part of the body of rules governing the interpretative task, not a separate, special rule.[11]
Although by s 6, only human beings have the human rights set out in the Charter, the requirement in s 32 to interpret the provisions of the EO Act in a way that is compatible with the human rights in the Charter applies to any task of statutory interpretation. So, although s 6 of the Charter does not confer human rights on Cobaw in its own right, or on CYC, s 32 requires me to interpret the provisions of the EO Act which are concerned with the conduct of Cobaw and CYC, in a way which gives effect to the realisation of the human rights contained in the Charter. I consider separately below the application of the Charter to the exceptions contained in ss 75(2) and 77 of the EO Act.
The Charter makes express provision for its application to the interpretation of statutory provisions enacted before the Charter came into effect. I have already set out the terms of s 1(2)(b). In addition, s 49(1) of the Charter provides:

This Charter extends and applies to all Acts, whether passed before or after the commencement of Part II ...

Part II, which includes s 32 came into operation on 1 January 2008.

In the time since s 32 came into operation, the Court of Appeal and Trial Division of the Supreme Court have consistently applied s 32 when required to interpret Acts passed before 1 January 2008. Acts they have considered include the Serious Sex Offenders Monitoring Act 2005 (Vic),[12] the Drugs Poisons and Controlled Substances Act 1981 (Vic),[13] the Road Safety Act 1966,[14] Sex Offenders Registration Act 2004 (Vic)[15] and the Corrections Act 1986 (Vic).[16]
Mr Garde QC, who with Mr Harris appeared on behalf of the respondents submitted that the Charter had no application to the EO Act because it was enacted after the EO Act. He did not address s 1(2)(b) or s 49, or seek to distinguish the various decisions of the Court of Appeal or trial division of the Supreme Court which had, in conformity with those provisions, applied s 32 of the Charter to the interpretation of Acts which were passed before the Charter came into effect. To accept the respondents' submission would require me to ignore the clear words of s 1(2)(b) and s 49(1), and the acceptance, overt or implicit of the Charter's operation to earlier enactments in those various decisions. There is no justification for doing so. I am satisfied that s 32 of the Charter applies, by reason of s 1(2)(b) and s 49(1) to the interpretation of the EO Act.
The respondents also submitted the Charter did not apply to this proceeding as the events the subject of the complaint occurred before 1 January 2008. The Charter does not affect proceedings commenced or concluded before 1 January 2008, that is when s 32 came into operation[17]. This proceeding was commenced after that date. Once it is appreciated that s 32 of the Charter extends and applies to the interpretation of legislation, whenever enacted, it follows that, absent express provision to the contrary, it applies to the interpretation of legislation in any proceedings commenced after s 32 came into effect. The Court of Appeal and the Trial Division of the Supreme Court have, consistently with that, applied the interpretation provision of the Charter to conduct occurring before 1 January 2008, in proceedings commenced after that date.

This, then leads to consideration of what Charter rights are engaged by this complaint and the response.
Ms Eastman, who appeared on behalf of the Commission submitted, as did the complainant that the right to equality and freedom from discrimination contained in s 8(2) and (3) of the Charter were engaged by the subject matter of the complaint, and so, became relevant pursuant to s 32 of the Charter to the construction of the following provisions of the EO Act: s 7 (definition of discrimination), ss 42 and 49 (the prohibition on discrimination in the provision of services and accommodation respectively), and s 104(1B)(a) (the capacity of Cobaw to bring a representative complaint).
Section 8(2) and (3) of the Charter provides:

(2) Every person has the right to enjoy his or her human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

The respondents submitted that the equality of persons before the law and the right to enjoy human rights without discrimination were not in issue in the proceeding. The effect of that submission was to contend that s 8 of the Charter has no role to play in the interpretation of these provisions of the EO Act.
This submission was not supported by any argument or reference to authority. In my view it is unsustainable. The very nature of the complaint is one of different, discriminatory treatment, of denial of equality before the law on the basis of the (same sex) sexual orientation of the proposed attendees or personal association with persons identified by their (same sex) sexual orientation. The Charter's definition of discrimination refers expressly to the definition of discrimination in the EO Act. The objectives of the EO Act, the definition of discrimination, the attributes it prohibits discrimination on the basis of, and the activities where discrimination is prohibited under the EO Act are all concerned with protecting the rights of equality before the law and ensuring freedom from discrimination which are enshrined in s 8(2) and (3) of the Charter. I reject the submission. I am satisfied the rights in ss 8(2) and (3) of the Charter are engaged by the complaint.
The Respondents submitted that the only Charter rights which require consideration in this proceeding are the right to freedom of religion under s 14 and expression under s 15.
They are in these terms:

14. Freedom of thought, conscience, religion and belief

(1) Every person has the right to freedom of thought, conscience, religion and belief, including -

(a) the freedom to have or to adopt a religion or belief of his or her choice; and

(b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

(2) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether -

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary -

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

Although the respondents' submissions were primarily directed to the effect of ss 14 and 15 when considering the interpretation of the exemptions under ss 75(2) and 77 of the EO Act (a matter I discuss later), Mr Garde also submitted that the rights in ss 14 and 15 applied to the construction and interpretation of ss 7 and 8 (the definitions of discrimination and direct discrimination), ss 42 and 49 (which identify the circumstances in which discrimination in the provision of goods and services or accommodation is prohibited), and to s 104(1B)(a) of the EO Act (the standing of a representative body to bring a complaint). He submitted that these provisions now needed to be read as if subject to the right to freedom of religion and expression in ss 14 and 15 of the Charter. In his formulation, the freedom of expression right in s 15 was no more than a means of enjoying the s 14 right.
Such a submission is in conflict with the principles of statutory construction I have earlier referred to. It is contrary to the clear words of the objectives of the EO Act and the overall scheme and structure of the Act. It would require the reading in of a blanket qualification to the objectives of the Act. It conflicts with the requirement in s 35 of the Interpretation of Legislation Act, to prefer a construction which promotes the objects or purposes of the Act. It conflicts with the requirement to liberally interpret those provisions of a remedial act like the EO Act in a manner which promotes its objects or purposes. And it conflicts with the requirement in s 32 of the Charter to interpret the provisions of the EO Act, so far as is possible to do so, in a way that gives effect, as far as possible consistently with the purposes of the EO Act, to the realisation of the human rights protected by the Charter, including the right to equality and freedom from discrimination in s 8(2) and (3).
The submission amounts to an attempt to privilege one right (freedom of religion and the right to express it) at the expense of another (equality before the law and freedom from discrimination), to adapt the language used by the Canadian Supreme Court in British Columbia College of Teachers v Trinity Western University[18]. This is contrary to the language of the EO Act. It is also contrary to the language of the Charter, under which both rights coexist[19]. The scheme of the Charter, consistently with that, allows for the limitation of rights where one persons's enjoyment of a Charter right impinges on or impairs another's enjoyment of a Charter right. No right in the Charter, including the right to freedom of religion and the right to express it is absolute. The submission ignores the obligation, when rights compete, in that sense, to determine the least limit which can be imposed on the enjoyment of both rights to achieve a balance between them.
The correct approach, in my view, when considering the interpretation of the provisions of the EO Act relevant to the complaint, that is those relating to the definition of discrimination in ss 7 and 8, of the provision of services and accommodation in ss 42 and 49, and whether Cobaw had standing to bring a representative complaint under s 104(1B), is to interpret those provisions in a way that gives effect, as far as possible consistently with the purposes of the EO Act, to the realisation of the right of equality and freedom from discrimination in s 8(2) and (3) of the Charter.
In considering the interpretation of the provisions of the EO Act relevant to the exceptions relied on by the respondents, that is s 12 and ss 75(2) and 77, that I must interpret those provisions in a way that gives effect, as far as possible consistently with the purposes of the EO Act, to the realisation of the rights of freedom of religion and expression in ss 14 and 15 of the Charter, and of the right of equality and freedom from discrimination in s 8 of the Charter. I will consider this in more detail when dealing with the respondents' case on the exceptions.

Cobaw brings the complaint as a representative body. CYC and Mr Rowe dispute its entitlement to do so. Ms Mortimer SC, who appeared with Mr McKenna, Mr Nevkapil and Ms Foley on behalf of Cobaw submitted that Cobaw's standing to bring the claim as a representative body has already been established, and cannot be challenged by the respondents in these proceedings. It claims that once the Commissioner of the Equal Opportunity and Human Rights Commission has been satisfied of the standing of a body to make a complaint of discrimination under the EO Act as a representative body (as was the case here), it need not be re-established by a complainant, and cannot be challenged by a respondent, when, as in this case, the complaint is later referred to the tribunal.

Is the tribunal bound by the acceptance by the Commissioner of Cobaw's standing?

It is convenient first to determine whether the tribunal must decide for itself whether the complainant is entitled to bring the complaint as a representative body, or whether the acceptance by the Commissioner of a representative body's standing to make complaint on behalf of others is binding on the tribunal.
The EO Act requires all complaints of discrimination under the Act to be made to the Commissioner.[20] There are four categories of people from whom the Commissioner can receive complaints:

(a) a person who claims they have been discriminated against;[21]

(b) someone on their behalf if they are a child[22] or unable by reason of impairment to make the claim themselves;[23]

(d) a representative body on behalf of one or more persons who claim they have been discriminated against.

Section 104(1B) sets out the pre-conditions for the making of a complaint by a representative body. It is in the following terms:

A representative body may complain to the Commissioner on behalf of a named person or persons if the Commissioner is satisfied that-

(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

The introductory words to s 104(1B) require the Commissioner to be satisfied of certain matters in order for a representative body to make a complaint. Once satisfied a representative body can complain to the Commissioner, the Commissioner having notified the respondents of the complaint,[25] can decline to entertain it,[26] dismiss it if it became stale,[27] or endeavour to conciliate it.[28] If conciliation is futile or unsuccessful, the Commissioner must notify the complainant.[29] The complainant can take no action, permitting the Commissioner to dismiss the complaint,[30] or can (as Cobaw did in this case) require the Commissioner to refer the complaint to the tribunal under s 117(2).
Section 134 confers jurisdiction on the tribunal to hear and determine a complaint when it is referred to the tribunal in this way. By contrast to s 104(1B), there is no express reference in s 134 or any part of the division which deals with the tribunal's jurisdiction once a complaint is referred to it by the Commissioner to the tribunal's need to satisfy itself of the matters referred to in s 104(1B) in respect of a complaint made by a representative body. Section 134A makes the parties to the proceeding the complainant and the respondents to the complaint accepted by the Commissioner.[31]
By s 136, the tribunal, after a hearing, may find a complaint or any part of it proven, or find the complaint or any part of it not proven. That in my view, just as in any other action or claim, requires a determination of whether the complainant is the proper party, that is whether it has the necessary connection with the conduct the subject of the complaint to bring the complaint in conformity with s 104, as well as a determination of whether the conduct alleged occurred, whether the named respondents are responsible for the conduct found to have occurred and whether such conduct amounts to unlawful discrimination as that term is defined.
I do not consider the absence of a specific provision requiring the tribunal to be satisfied a representative body can bring a complaint relieves the tribunal from responsibility for determining whether the complainant has the standing to bring a complaint, any more than it could be relieved from responsibility for determining whether an individual complainant has standing or whether the named respondent is the proper party that is the person who is responsible for the unlawful discrimination against them.
It follows that I consider I must determine for myself whether Cobaw is a representative body for the purpose of the proceeding.
That, then requires a consideration of whether the requirements in s 104(1B) have been met. In order to do so, the complainant must satisfy the tribunal:

the people named in the complaint are entitled to complain under s 104(1)(a), as required by s 104(1B)(a)(i) 2. the people named in the complaint consented to Cobaw bringing the complaint on their behalf, as required by s 104(1B)(a)(ii)

the contravention alleged arises out of the same conduct as required by s 104(1B)(c) and

Cobaw has a sufficient interest in the complaint as required by as required by s 104(1B)(b).

The approach to interpretation of the standing provisions and the effect of the Charter

In considering these matters consistently with the principles and approach I have already referred to, I must interpret the standing provisions in s 104(1B) in a manner which gives effect to the rights of persons claiming they have been discriminated against - that their rights to equality and freedom from discrimination have been infringed - to seek and obtain an effective remedy.
The right to a remedy has been recognised as a necessary feature or incident of the enshrining and protection of human rights. Article 2(3) of the International Covenant on Civil and Political Rights 1966 (ICCPR) provides:
- (3) Each state party to the present covenant undertakes:

(a) to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial administrative or legislative authorities, or by any other competent authority provided for by the legal system of the state, and to develop the possibilities of judicial remedy;

Article 2(3) of the ICCPR is concerned with substantive and procedural aspects of accessing an effective remedy. This is consistent with longstanding common law principle. In Ashby v White[32] Holt LCJ said:

If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of a right and want of a remedy are reciprocal.

Both common law principle, and Article 2(3) of the ICCPR, in my view support the conclusion that s 104(1B) should be interpreted in a manner that facilitates the making of a complaint. To do otherwise would be to risk denying people with a genuine complaint, but who, by reason of age, status or circumstance, are less willing or able than the independent, well resourced and strong willed, the means to seek an effective remedy where they claim they have been subjected to discrimination.
The named persons in this complaint include young people who are same sex attracted, young people who are personally associated with those who are same sex attracted and youth and community workers working with such young people. At the time of the making of the complaint some of the named persons were under 18. Some were then, or are now, students. Whether young people forming part of WayOut's type of group, or youth workers, the named persons are, as complainants often are, individuals who find themselves subjected to what they believe to be discriminatory conduct, at the hands of a large, well resourced organisation. That in itself creates a power imbalance which can be an impediment to exercising the right to seek a remedy.
The conduct the subject of a complaint can also be a reflection of a power imbalance. I consider that is so in this case. WayOut itself is a project based on a recognition that same sex attracted young people encounter discrimination on the basis of their sexual orientation. The EO Act provides an important statement about the value of equality and freedom from discrimination, and provides remedies for those subjected to discrimination. Its existence is a recognition that discrimination does occur. It needs no expert evidence to appreciate that when the nature of the complaint goes to a matter as personal as sexual orientation, and when it arises out of conduct directed to a group supporting same sex attracted young people to address discrimination and homophobia related to their sexual orientation, that it takes courage and commitment to prosecute a complaint for discrimination.
When one adds to that the age range of the young people associated with WayOut, there is an added dimension to it. It is one thing to become a member of WayOut, and to want to go to the forum. It is another to face the prospect of publicity attaching to the hearing of a complaint before the tribunal. Whether the publicity is limited to a fair and accurate reporting of proceedings or it extends to the realm of commentary or more salacious reporting is a matter beyond the control of the complainant. Even if the publicity were limited to a fair and accurate reporting of proceedings there is a real prospect of intrusion into the private lives of the young people and of the youth and community workers working with them, which for many is an unpalatable concomitant of seeking to enforce rights. The prospect of publicity attaching to the identity of a complainant removes from them what capacity they have in their own community to decide when and in what circumstances they reveal their sexual orientation. This could constitute a significant impediment to people already vulnerable to the adverse effects of discrimination to take steps to assert their rights to equal treatment.
I consider that the power imbalance and prospect of intrusion into private life has the capacity to affect the youth and support workers, as well as the young people themselves. There is a real prospect, that without the assistance of a representative body to bring complaint on their behalf, that individuals subjected to discrimination of the nature alleged here could by reason of these circumstances be deterred from seeking to vindicate the rights of those the WayOut project was established to assist. I consider, when interpreting s 104(1B), I should do so in a manner which enables people in the circumstances of the named persons to access an effective remedy.

Are the people named in the complaint entitled to complain under s 104(1)(a), as required by s 104(1B)(a)(i)?

(a) a person who claims that another person has contravened a provision of Part 3, 5 or 6 in relation to that person;

By its amended particulars of complaint, Cobaw names 12 people as those on whose behalf it makes the complaint. It submits each of the 12 named persons is entitled to complain under s 104(1)(a). The named persons allege that the respondents have contravened ss 42 and/or 49 of the EO Act in relation to them. Sections 42 and 49 are provisions of Part 3 of the Act. Part 3 of the Act is contravened if, in respect of the activities referred to in Part 3, a person discriminates against another person on the basis of an attribute. Section 6 sets out the attributes a person may possess, and in respect of which discrimination is prohibited. Sexual orientation, and personal association with a person who is identified by reference to their sexual orientation are included in the list of attributes in respect of which discrimination is prohibited.
The named persons fall into three categories. Some are workers, connected with Cobaw, or its partner organisations involved in the WayOut project. Some are same sex attracted young people who were involved in the WayOut project in their local communities through Cobaw or its partner organisations. Some are young people who are not same sex attracted but who were involved in the WayOut project in their local communities through Cobaw or its partner organisations because they were supportive of the aims of WayOut, and of the same sex attracted young people the WayOut project was designed to reach.
Two of the named persons did not give evidence. There is no evidence before me in respect of them which could satisfy me of the matters required to be established under s 104(1B).
Each of the other ten named persons gave evidence they had intended to attend the forum, and claimed the respondents had discriminated against them in the provision of services within the meaning of s 42(1)(a), or in respect of application for accommodation within the meaning of s 49 or had subjected them to other detriment within the meaning of s 42(1)(c) by their refusal to accept WayOut's booking to conduct the forum at the adventure resort_._ Each of them claimed the discrimination was on the basis of their (same sex) sexual orientation, or of personal association through WayOut with persons who are identified by their (same sex) sexual orientation.
The respondents submitted that the named persons could not be found to be persons claiming the respondents had discriminated against them in provision of services or offering accommodation or had subjected them to other detriment in connection with the provision of services on the basis of their sexual orientation or personal association with persons identified by their sexual orientation. The respondents deny that Mr Rowe's conduct, or through him, that of CYC, amounted to a refusal of services to them or a refusal or failure to accept an application for accommodation on their behalf or subjected them to other detriment in connection with the provision of services. The respondents relied on the evidence that neither of the respondents had any contact with any of the named persons apart from Ms Hackney. They had no knowledge of the sexual orientation of any of the named persons and, apart from Ms Hackney, of any personal association between any of the named persons and persons identified by their (same sex) sexual orientation.
These submissions go to the substantive complaint itself. I will consider them when considering whether the claim of unlawful discrimination is made out.
It is of course, important to bear in mind that for the purposes of s 104(1B)(a)(i) and s 104(1)(a), the question is not whether the claim of discrimination is ultimately made out, but whether the named persons are persons who claim the respondents have discriminated against them by contravening a provision of Part 3 of the EO Act in relation to them.
Each of the ten named persons maintained their claim the respondents have discriminated against them by contravening a provision of Part 3 of the EO Act in relation to them. I am satisfied therefore of the matters I am required to be in respect of the ten named persons under s 104(1B)(a)(i).

Have the people named in the complaint consented to Cobaw bringing the complaint on their behalf as required by s 104(1B)(a)(ii)?

Each of the ten named persons said they consented to Cobaw bringing the complaint on their behalf. I am satisfied therefore of the matters I am required to be in respect of them under s 104(1B)(a)(ii).

Does the contravention alleged arise out of the same conduct as required by s 104(1B)(c)?

The complaints of the ten named persons all arise out of what they complain is the refusal of the respondents in the telephone conversation with Ms Hackney to provide services or accept the application for accommodation at the adventure resort for the WayOut forum they proposed to attend. The respondents submitted there was no refusal to provide services or accept an application for accommodation. Again, this is a matter properly to be dealt with when considering whether the claim of unlawful discrimination is made out. The question for me at this stage is whether the complaints of the ten named persons all arise out of the same conduct. I am satisfied they do, and therefore of the requirement that the alleged contravention arises out of the same conduct within the terms of s 104(1B)(c).

Does Cobaw have a sufficient interest in the complaint as required by s 104(1B)(b)?

Section 104(1C) sets out what constitutes a sufficient interest for the purposes of s104(1B)(b):

A representative body has sufficient interest in the complaint if the conduct that constitutes the alleged contravention is a matter of genuine concern to the body because of the way the 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.

The 'conduct that constitutes the alleged contravention' is ascertained by reference to the complaint. In essence what Cobaw alleges is the contravention is the refusal of the respondents to accept the booking for the WayOut forum, because of the (same sex) sexual orientation of the proposed attendees, or the personal association of the proposed attendees with persons of (same sex) sexual orientation.
When considering what the phrase 'conduct of that nature' means, that requires the conduct the subject of the complaint to be characterised in some way, so that it can be compared with, or distinguished from, other conduct. That in turn requires a consideration of the essential features of the conduct giving rise to the complaint. In effect, it requires application of the facts of the particular case to the provisions of the EO Act said to have been contravened by the respondents. So characterised, conduct of that nature is conduct of a person in refusing to provide a service or accommodation on the basis of the (same sex) sexual orientation of the group seeking the service or accommodation, or the personal association of members of the group with persons of (same sex) sexual orientation.
The remaining part of the definition requires consideration of three linked matters: Cobaw's interests, the interests and welfare of the people Cobaw represents, and whether the contravention was 'a matter of genuine concern to' Cobaw. For these purposes, applying the definition I have of 'conduct of that nature', the question is whether a refusal to provide a service or accommodation on the basis of the (same sex) sexual orientation of the group seeking the service or accommodation, or the personal association of members of the group with persons of (same sex) sexual orientation adversely affected, or had the potential to adversely affect Cobaw or the people it represents
This requires an examination of Cobaw's activities. A considerable body of evidence was led about Cobaw and the WayOut project. The respondents submitted the evidence concerning Cobaw's activities on the WayOut project was irrelevant, as they had no knowledge of Cobaw or WayOut, and the evidence was likely to improperly predispose me to the complainant's case. Yet the respondents relied heavily on this evidence to argue that it demonstrated that Cobaw did not have a sufficient interest in the proceeding because the WayOut project, and the prosecution of these proceedings fell outside the scope of Cobaw's authorised activities. It is therefore necessary to consider this evidence in some detail.
Cobaw is a community health service registered as such under the Health Services Act 1988. It is based in Kyneton, Victoria. In January 2002, Ms Hackney was employed by Cobaw to set up and coordinate a youth suicide prevention pilot project targeting same sex attracted young people across four local government rural or regional areas. Its aims include raising awareness about homophobia and the needs of same sex attracted young people, supporting young people and providing them with a safe, welcoming environment in which they could be themselves without fear of negative consequences if they identified as same sex attracted. The pilot project was funded by the Victorian Department of Human Services.
In June 2005 the Department of Human Services provided ongoing funding to Cobaw to continue the WayOut project on condition that the project catchment area expanded to all rural areas in the state. Cobaw now manages the state-wide WayOut project in partnership with Gay and Lesbian Health Victoria. The WayOut project has, since then, established and maintained partnerships with other rural organisations which work to raise awareness about homophobia and the needs of same sex attracted young people. With its partner organisations, it runs various programs targeting the needs of same sex attracted young people in rural areas. It has also acted as the lead agency or convenor of collaborative initiatives such as joint funding applications.
During 2006, Ms Hackney began discussions with partner organisations and the young people involved in them about organising a weekend forum for young people and workers connected with the various regional groups. The aim was to share information, provide supportive relationships with individuals and groups outside their own region and to provide positive adult role models. Having ascertained support for the idea, Cobaw applied for, and was successful, in obtaining a grant from a philanthropic trust, the Reichstein Foundation to fund a weekend forum for 60 young people and 12 workers drawn from the ten partner rural organisations. Its aims, as set out in the funding application were to:

(b) share knowledge and skills, celebrate achievements and provide an opportunity for mutual problem solving of immediate challenges in different locations;

(c) formulate a longer term collaborative response to the challenge of openly addressing same sex attraction and homophobia in rural and regional Victoria, including identification of local initiatives as well as broader or systemic tasks to undertake in the following two years; and

(d) to prepare a two year strategic plan for the WayOut project to implement in collaboration with its rural partners.

The funding application identified three existing needs the forum intended to address. They were:

(a) to connect same sex attracted and heterosexual young people at risk due the effects of homophobia, with other supportive young people and adults;

(b) to connect to provide information and connections for isolated rural workers supporting such young people;

(i) the most efficient and effective use of scarce resources; and

(ii) greater collaboration in addressing systemic/structural change.

Ms Hackney gave evidence she had selected the adventure resort as the proposed venue, and obtained some rough costings by telephone from the adventure resort for the cost of accommodation and services in January 2007. She said Phillip Island was selected as the location after consultation with young people connected with the WayOut project. Not surprisingly, rural youth, in a State then in the grips of drought had expressed a strong desire to have the forum on the coast. They had also expressed interest in seeing the fairy penguins. Ms Hackney had found the adventure resort by doing a fairly cursory Google search of camping and conference facilities at Phillip Island.
On 31 May 2007 Ms Hackney was told the funding application had been approved.
It was against that background that Ms Hackney telephoned the adventure resort and spoke to Mr Rowe on 7 June 2007. On Ms Hackney's account she intended to make a booking for the forum. It is Cobaw's case that Mr Rowe refused to accept her booking on the basis of the sexual orientation of the proposed attendees or of the personal association of the proposed attendees with persons identified by their (same sex) sexual orientation. That, Cobaw says, goes to the heart of WayOut's activities and reason for existence.
It says that the very object of the WayOut project is to raise awareness about the needs of same sex attracted young people, the nature and effects of homophobia in rural communities, and the effect of discrimination on same sex attracted young people. It says the refusal is discriminatory, and is an example of conduct which treats same sex attracted young people and their friends and supporters differently by refusing them a booking on the basis of their sexual orientation or association with people identified by their sexual orientation.
The respondents deny that Mr Rowe refused to accept Ms Hackney's booking. Again that is a matter to be dealt with when considering this substantive complaint, not at the stage of considering standing.
The respondents next submitted that the WayOut project itself is outside Cobaw's objects, as contained in its constitution. It submits, even if wrong on that, that, in bringing the complaint, Cobaw is engaging in advocacy on behalf of same sex attracted young people. It says advocacy of such a nature is outside Cobaw's objects. The respondents submit that such advocacy goes well beyond the provision of community health services whether defined by reference to the ordinary meaning of community health service, or by s 47(2) of the Health Services Act 1988.
The respondents submit that none of the purposes listed in Cobaw's constitution in force at the time of the refusal, and the bringing of the complaint authorise Cobaw to act as a representative body on behalf of other persons in litigation, or to use its powers income or assets for purposes other than those listed in the constitutions. It submits that Cobaw's new constitution, in force by the time of the hearing, similarly did not authorise Cobaw to act as a representative body. Nor, submit the respondents, is there anything in the Memorandum of Understanding between Cobaw and Gay and Lesbian Health Victoria in respect of the management of the WayOut project which authorises Cobaw to act as an advocacy organisation or to undertake litigation on behalf of third parties.
They further submitted that Cobaw's status as a deductible gift recipient by the Australian Taxation Office, pursuant to s 30-15 of the Income Tax Assessment Act 1997 is inconsistent with advocacy of political or social causes such as this proceeding.
Finally the respondents submitted that the initiation and prosecution of these proceedings is beyond the scope of the aims and purposes of the WayOut project.
In my view, these submissions are misconceived. The test under s 104(1C) focuses on whether conduct of the nature Cobaw alleges the Respondents engaged in is a matter of genuine concern to Cobaw, because of the potential or actual adverse effect of such conduct on Cobaw's interests, or the interests or welfare of the people Cobaw represents. Sufficiency of interest under s 104(1C) is not determined by whether Cobaw is acting outside the terms of its constitutions or its deductible gift recipient status. Cobaw's objects, and the aims and purposes of the WayOut project do bear on the sufficiency of interest test, but are not necessarily determinative of it. They are one matter relevant to take into account.
In any event, I am satisfied the WayOut project falls within the objects of Cobaw in both its constitutions. The aims of the WayOut project are relevant to the objects of Cobaw in each of its constitutions. An object of the first constitution is the promotion of good health. Cobaw's original constitution adopted the World Health Organisation definition from its social model of health as 'a state of optimal physical, mental and social wellbeing, which is seen as a resource for everyday life, not the object of living'. The objects of the second constitution include implementing health promotion and community development strategies, to develop the capacities of individuals, families and communities, and to promoting, improving and protecting health and wellbeing. I am also satisfied that support of, and advocacy on behalf of, the people for whom Cobaw by its constitution provides services in order to promote their good health is within their constitutions.
Further, as the complainant pointed out in its submissions, an act of an incorporated association, as Cobaw was at the time of the events giving rise to the complaint and the institution of the proceedings, or of a corporation as Cobaw was by the time of the hearing of the complaint before me, is not invalid merely because it is contrary to or beyond the objects of its constitution.[33]
The question of whether Cobaw has a sufficient interest must be answered by reference to the words of s 104(1C), interpreted in a way that is compatible with human rights, including the means of vindicating and maintaining rights which have been infringed, not by an analysis of its objects, or its deductible gift recipient status for tax purposes.
I accept the evidence of Ms Hackney and Mr Alan Taylor, the CEO of Cobaw, in respect of Cobaw's motivation to make the complaint and bring these proceedings. Mr Taylor said Cobaw seeks to encourage and support its clients to become resilient and self-advocating. In his opinion it would have been contradictory had Cobaw not seen fit to lead the action against the conduct of the respondents, as it believed their conduct was discriminatory and had the potential to impact negatively on the lives of the young people involved in the WayOut program. Mr Taylor and Ms Hackney said that the decision to bring the complaint was a considered one. Ms Hackney first wrote to CYC setting out her recollection of the conversation and inviting a response. None was forthcoming. Cobaw sought legal advice in respect of their position and the views of the partner organisations before bringing the complaint. It reported to its board and obtained board approval before proceeding.
There is no evidence to support the veiled suggestion that Ms Hackney was motivated by a desire to manufacture a confrontation with the Christian Brethren, because they believed that homosexuality was against God's will. There is no evidence that Ms Hackney knew CYC or the adventure resort were associated with the Christian Brethren, or that CYC or the Christian Brethrens' beliefs concerning homosexuality meant that they would not take groups who had the attributes or beliefs the WayOut group did, and which were not in accordance with theirs.
I accept Ms Hackney's evidence that the WayOut project welcomed all people irrespective of their religious beliefs, and that the group included young people and workers who described themselves as Christians and who were comfortable talking openly about their religious beliefs and activities. I also accept Ms Hackney's evidence that WayOut had worked successfully with organisations which, like CYC, described themselves as 'Christian', and that two of their partner organisations were agencies operated by a Christian church.
The evidence satisfies me that the conduct of the respondents, as Ms Hackney and Cobaw perceived it to be, was a matter of genuine concern to her and it. The evidence is overwhelming in my view that addressing the negative impact of discrimination on the grounds of sexual orientation against young same sex attracted rural people is the very essence of the WayOut project. An allegation that the respondents have engaged in the very conduct WayOut seeks to combat, namely discrimination against those proposing to attend the WayOut forum by reason of their (same sex) sexual orientation or personal association with persons identified by their (same sex) sexual orientation, is, I am satisfied, conduct of a nature that adversely affects or has the potential adversely to affect the interests of Cobaw or the interests or welfare of the same sex attracted persons it represents.
I am satisfied by reason of those matters that Cobaw has a sufficient interest in the complaint.

The complaint arises out of a short telephone conversation between Ms Hackney and Mr Rowe. The case was opened on the basis there was dispute in significant respects about what exactly was said by each of Ms Hackney and Mr Rowe in the telephone conversation. Resolution of what was said was necessary to determine whether the respondents refused to accept WayOut's application for accommodation, and did so on the basis of the sexual orientation of the proposed attendees, or of the personal association of the proposed attendees with people identified by their sexual orientation, and so discriminated against the applicants as alleged. The witness statements of Ms Hackney and Mr Rowe filed before the hearing contained versions which were consistent with what was alleged in the particulars of complaint[34] and the particulars of the respondents' defence respectively. Given the significance of the conflict about the conversation, when it came to the hearing, I asked that each of Ms Hackney and Mr Rowe give oral evidence-in-chief about the conversation, rather than take their witness statement account as their evidence-in-chief.

Ms Hackney's evidence was consistent with what was in her witness statement, the particulars of complaint, the note that she made immediately after the telephone conversation with Mr Rowe and the letter she wrote to Mr Rowe shortly after.
She said:

I said that we'd be bringing a group of young people aged from 16 years through to their early twenties and that our project was a suicide prevention initiative that targeted same sex attracted young people.

... I said that we aimed to raise awareness about the needs of these young people and then the nature and effect of homophobia in rural communities and the effect of discrimination on young people.

... He said that they were a Christian organisation and that the Board needed to be aware of the aims and beliefs of groups that use their facilities.

... that he wasn't sure about how the Board would feel about a group such as ours using their facilities.

... I said that I didn't want to be disrespectful of their beliefs and that I was aware from working with different Christian schools and organisations over the past five years that there is a lot of different views about homosexuality.

... that I'd be honest that our project believed that same sex attraction or homosexuality was a normal and natural part of the range of human sexualities, and that what we'd be doing over the weekend was having workshops and discussions to plan ways to raise awareness.

... He said something along the lines that they'd had a group they called 'Straight Arrows', but that was a support group for young people who had AIDS.

... That the Board would have some difficulties taking a group such as ours and that we would be better off looking at other camps in the area such as Koala Park who he thought would be able to take us.

... He then went on to add that they wouldn't be able to take a group such as ours because they are a Christian organisation that supported young people, but that he appreciated my honesty.

... I said that I needed to be careful about ensuring the well-being of our young people and that I'd leave the conversation there.

When Ms Hackney was cross-examined, she was challenged on the accuracy of her account of the conversation. The differences between her account and Mr Rowe's, as contained in his witness statement, were put to her. The significant differences between Ms Hackney's account and Mr Rowe's centred on what was said about the nature of the forum, the age of the group, the respondents' response on finding out the nature of the group, and whether there was a refusal to take the booking. Ms Hackney maintained under cross-examination that the conversation occurred as she had recounted it, and denied that the conflicting accounts on these topics contained in Mr Rowe's statement actually reflected what had been said.
In respect of those matters, Mr Rowe in his statement had said:

[Cobaw] targeted same sex attracted young people and took the kids away on camp to say that it was okay to be same sex attracted.

... That her group was about promoting a homosexual lifestyle as both a natural and healthy choice for young people.

... [She] did not limit the discussion concerning young people to young people or teenagers over 16. I understood Sue was referring to children 13 years and above.

I endeavoured to tell her as gently as possible that I did not believe that WayOut Youth was compatible with the aims and purposes of CYC.

... That I was concerned about how the Board of CYC would view a group which promoted the acceptability of homosexuality or a homosexual lifestyle, especially in view of the age of the children that Sue Hackney was speaking about.

... After Sue Hackney had explained a bit more about WayOut Youth I advised her that her group was not what CYC was about, we are a Christian camp.

... [As a Christian] I was not about promoting a homosexual lifestyle.

... At the end of the conversation I thought that Sue Hackney had appreciated my Christian beliefs and the Christian nature of CYC and that Sue Hackney was respectful of our views. At no stage did I tell Sue Hackney that CYC had refused or would refuse to allow the WayOut group to make a booking. I believed that Sue Hackney had decided to look elsewhere for accommodation as a result of respect for my Christian beliefs and the Christian beliefs of CYC.

Mr Rowe's account of how the issues of youth suicide and CYC's with Straight Arrows came up also differed from Ms Hackney's. He said that Ms Hackney mentioned that one of the aims of WayOut was to avoid suicide amongst rural young people, and that he said that he told Ms Hackney that CYC was very concerned with issues concerning youth suicide and had referred to Straight Arrows in that context.

When Mr Rowe gave evidence before me about the conversation with Ms Hackney, he qualified or changed his evidence significantly from the account in his statement. He conceded Ms Hackney did not say they took the kids away on camp to say that it was okay to be same sex attracted. Ms Hackney had said in evidence she would not have used these words - that to her they carried the implication there was something inappropriate that was going to be done to the young people and she was sensitive about that because to her perception there was a common misconception that homosexuals were paedophiles. Mr Rowe said that when Ms Hackney described the WayOut project as 'targeting same sex attracted' young people, that the message he received from that was that they were told it was okay to be same sex attracted.
He also agreed she did not say that her group was about promoting a homosexual lifestyle.
He agreed that Ms Hackney had described homosexuality as natural and healthy in the context of speaking of the range of human sexualities. He said that the words he had attributed to her about 'homosexual lifestyle' were what he understood Ms Hackney to be talking about. He was no longer definite about whether Ms Hackney described homosexuality as a choice. He said he could not recall if she had said that or whether that was the interpretation he put on the conversation. It should be noted that Ms Hackney had been adamant she would not have described homosexuality as a lifestyle, or choice. She had said she did not regard a person's sexuality as a lifestyle, that it was part of a person's identity or make-up, a part of who they were.
When pressed on what he had said to Ms Hackney about his concerns about CYC's response to the group, he was no longer confident that he had used the phrase 'promoted the acceptability of homosexuality or a homosexual lifestyle', or whether that was simply his 'take' when recalling the conversation.
Although not prepared to concede Ms Hackney said the age range of the proposed attendees was 16 to early 20's he agreed Ms Hackney had not said that the attendees could be as young as 13, and said it was his assumption the group included children under 16, and as young as 13.
This left the only remaining significant point of difference between the accounts of Ms Hackney and Mr Rowe the question of whether Mr Rowe had refused to take a booking. He remained adamant he had not refused to take a booking.
He said:

In recalling the conversation and when I was preparing my witness statement I was very clear that at no time did I say to Ms Hackney that her group could not come or CYC would not take a booking from her group. But I did feel that she was going to look elsewhere out of respect for the views I had shared of CYC and my beliefs.

Resolving the conflict in the accounts of the conversation

Mr Garde submitted that where there was a conflict between Ms Hackney's evidence and that of Mr Rowe, that Mr Rowe's account should be preferred. He submitted Ms Hackney was prone to dogmatic overstatement and over-confidence in the correctness of what was a faulty recollection. In support of that, he relied upon the difference in detail between what Ms Hackney had recorded as the rough costings she had received when she telephoned the adventure resort in January 2007, and the evidence of Mrs Fry, an employee of CYC who had taken that call. He also relied on the evidence of Mr Blood another employee of CYC who said he had taken a call from a person identifying themselves as Sue Hackney on 5 June 2007, and provided some preliminary information, a call which Ms Hackney denied making. In my view there is little assistance to be gained from the evidence of the preliminary conversations. They were not significant at the time to any party. They are concerned with what is, for these purposes, peripheral detail. They do not in my view reflect adversely on Ms Hackney's credibility or reliability in respect of the conversation with Mr Rowe.
Mr Garde submitted that Mr Rowe was more measured and careful, inclined to make concessions where appropriate and not prone to overstatement. I do not accept Mr Garde's characterisation of either Ms Hackney or Mr Rowe. I found Ms Hackney to be thoughtful considered and reliable. I found many aspects of Mr Rowe's evidence troubling. I detail them below. I was left with the impression at the end that he was carefully trying to tailor his evidence to suit the respondents' case as he perceived it to be. That was marked in respect of the three areas where he had made significant concessions in evidence, and also in respect of whether what he had said amounted to a refusal to accept Ms Hackney's booking.
I found the changes between Mr Rowe's assertions about the conversation in his statement and his oral evidence troubling for a number of reasons. The respondents' case, as outlined in its particulars of defence, in opening, in cross-examination of the complainant's witnesses and in the matters the expert witnesses called by the respondents sought to address, was based in large part on the concerns the respondents expressed about what Mr Rowe was said to have been told by Ms Hackney concerning the proposed attendees being as young as 13, or between 13 and 15 and the promotion of homosexuality and a homosexual lifestyle. This was the basis upon which Ms Hackney was cross-examined. Yet their principal witness volunteered or conceded that on these key issues, Ms Hackney had not said what had been, until he got into the witness box, attributed to her by him, and that his account of the conversation was based on his assumptions or interpretations of what he understood to be the case.
In addition to these concessions, there are other matters that affect the reliability of Mr Rowe's account of the conversation generally. He did not set down his account of the conversation until a long time after the event. On his account, it was an unremarkable conversation at the time. He had had no reason to recall it in its detail, or with precision at the time.
By the time he did set down his account, the complaint had been made, and the respondents' case, as outlined in its particulars of defence was that if there had been a refusal to take the booking - something strenuously denied - it was justified on the basis of the religious doctrines and beliefs of the respondents because the purpose of the forum was to promote homosexuality or a homosexual lifestyle to children as young as 13, or to children between 13 and 15. Mr Rowe's witness statement was consistent with the defence as filed. However his evidence simply did not support the defence on those material points by the end of his evidence.
By contrast Ms Hackney was using language she was well used to using, to describe the aims of the WayOut project and in respect of same sex attraction, discrimination and homophobia generally. I accept Ms Hackney's evidence the language she used was her standard spiel. I also accept her evidence she would not use terminology such as 'homosexual lifestyle' or describe homosexuality or sexual orientation generally as a choice. I also accept her evidence that she was concerned to be precise about the way she defined the ages of her group because of her sensitivity about stereotypical assumptions about homosexuality and promiscuity. I also accept the effect of the conversation on her was immediate. She felt the conduct was discriminatory, and went to the heart of the work she was engaged in, and committed to.
So, by contrast to Mr Rowe, Ms Hackney had good reason to recall the detail with precision. She made a contemporaneous note, and wrote a letter to Mr Rowe 2 weeks later, on 21 June setting out her recollection of the conversation. Mr Rowe and CYC did not respond to the letter. Significantly, that meant that there was no challenge at that very early stage to Ms Hackney's account of what was said. In contrast to Mr Rowe, Ms Hackney has been consistent in the account she has given of the conversation.

The parties before me proceeded on the basis that the complainant bore the onus of establishing that the conduct of the respondents constituted discrimination as alleged, and that the respondents bore the onus of establishing that they came under the exceptions in ss 75(2) and (77) of the EO Act. They each submitted that the party bearing the onus had to satisfy the tribunal of the matters on which it relied on the balance of probabilities.
The respondents further submitted that having regard to the gravity of the allegations against Mr Rowe and CYC in respect of discrimination, that the complainant's case should not be made out unless established to the reasonable satisfaction of the tribunal, that is that the test in Briginshaw v Briginshaw[35] should be applied.
In Briginshaw Dixon J said:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[36]

In other types of matters coming before the tribunal it has been held to be inappropriate to refer to a matter as needing to be proved on the balance of probabilities, by reference to the principle in Briginshaw v Briginshaw, or any other similar test used in civil proceedings.[37]
However, the scheme of the EO Act is such as to require, in my view, a party alleging discrimination to satisfy the tribunal that the conduct complained of amounts to discrimination in the terms of the Act, and for a party seeking to rely on an exception to satisfy the tribunal they fall within the exception. I am also satisfied that the standard of proof is the civil standard, balance of probabilities.
I do not consider I should apply the Briginshaw test to the complaint of discrimination. In my view, if an evidentiary standard is to be applied to a matter before the tribunal, it should now be determined by reference to s 140 of the Evidence Act 2008, and not to the common law. Secondly, even if there were circumstances in which it was appropriate to apply the Briginshaw test in respect of matters before the tribunal, those circumstances do not exist here.
Since 1 January 2010, the Evidence Act 2008 applies to all proceedings in a Victorian Court. It adopts with some small and relatively minor exceptions, the Uniform Evidence Act which has been in operation in other jurisdictions for many years now. Victorian Court is defined to include "any person or body other than a Court that in exercising a function under the laws of the State is required to apply the laws of evidence". Although by s 98(1)(b) of the VCAT Act the tribunal is not bound by the rules of evidence, if rules of evidence are to be applied in a particular case, then in my view, the relevant rules of evidence should be the same as those governing proceedings in courts or other bodies which are required to apply the rules of evidence. It would be anomalous to hold otherwise. There is considerable guidance from those jurisdictions which have been operating under the Uniform Evidence Act for some time.
So, in Qantas Airways Ltd v Gama[38] the Full Federal Court said:

References to for example the Briginshaw standard or the onerous Briginshaw test have a tendency to lead a tryer of facts into error. The correct approach to the standard of proof in a civil proceeding in a Federal Court is that for which s 140 of the Evidence Act provides.[39]

Section 140 of the Evidence Act provides:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account -

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

In Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission,[40] the Full Federal Court held that common law decisions such as Briginshaw and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[41] were of assistance in interpreting s140.
In the joint judgment of Mason CJ, Brennan Deane and Gaudron JJ in Neat Holdings their Honours said:

The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary where so serious a matter as fraud is to be found. Statements to that effect should not however be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engaged in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that on a balance of probabilities a party to civil litigation has been guilty of such conduct.[42]

However, the starting point in my view is to consider the words of s 140, and then to consider what assistance the reasoning in Briginshaw and Neat Holdings provide to the interpretation of s 140. It is important to bear in mind that the standard remains satisfaction on the balance of probabilities. What s 140 and the judicial considerations of it say, in effect, is, having regard to the nature of the allegations, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary.
Applying s 140, in deciding whether I am satisfied the complainant has proved its allegation of discrimination under s 42 or 49 of the EO Act, I must take into account the nature of the cause of action, namely a claim of unlawful discrimination; the nature of the subject matter of the proceeding, that is anti-discrimination legislation; and the gravity of the matters alleged, here an allegation of a refusal to accept a booking at the adventure resort for the WayOut forum on the basis of the (same sex) sexual orientation of the proposed attendees, or of the personal association of the proposed attendees with people identified by their (same sex) sexual orientation. This is not a case where fraud or criminal misconduct are alleged in a civil case. It is not a case where grave consequences will flow from an adverse finding. In this context grave consequences usually connotes a finding of serious impropriety, either personal or professional which has consequences for the reputation and standing of the individuals against whom adverse findings are made. This is a complaint of unlawful discrimination on the basis of sexual orientation in the course of a business dealing - an unsuccessful attempt in a brief and polite telephone conversation to book accommodation.
Some cases alleging discrimination may involve allegations of moral turpitude or wrongdoing. In Qantas Airways v Gama the court noted that in cases involving allegations of unlawful discrimination moral opprobrium may, but does not necessarily, attach to an allegation of discriminatory conduct.[43] Cases alleging sexual harassment where criminal conduct in the nature of sexual assault is alleged are an obvious example of a case involving moral opprobrium. This is not such a case. I do not accept the respondents' submission that the complainant's claim involves allegations of moral turpitude or wrongdoing, or that moral opprobrium attaches to the respondents conduct.
Mr Garde submitted the complaint was of such a nature because the respondents were accused of homophobia. That misstates the position in my view, and seeks to divert attention from the real issues for determination by me. The complaint is one of discrimination on the ground of (same sex) sexual orientation. As s 10 of the EO Act makes clear, when considering whether the respondents' conduct constitutes unlawful discrimination, their motive is irrelevant. It is not part of the case before me to determine if the respondents' conduct was motivated by homophobia. A respondents' fear a motive of homophobia will be imputed to them if a complaint is made out is not sufficient to make a complaint one involving allegations of moral turpitude or one which involves moral opprobrium, and so to add to the gravity of the matters alleged.
In McFarlane v Relate Avon Limited[44] Laws LJ dealt with an argument advanced by Lord Carey of Clifton, a former Archbishop of Canterbury that to characterise as discriminatory a person's "manifestation of the Christian faith in relation to same sex unions" was equivalent to alleging they were a homophobe, disreputable and a bigot. Having pointed out that the prohibitions on discriminatory conduct under consideration were, like to s 7 and 8 of the EO Act, framed by reference to the outcome of the conduct, not the motive of the actor, Laws LJ concluded:

The proposition that if conduct is accepted as discriminatory it thereby falls to be condemned as disreputable or bigoted is a non sequitur.

Mr Garde also submitted that Mr Rowe and CYC had been exposed to moral opprobrium, not only by reason of the making of the allegations, but by what was said to be adverse publicity flowing from the reporting of the proceeding, and from the conduct of the complainant in publicising its allegations. I do not consider the fact the proceeding has been reported, or the fact both parties have issued press releases and made public statements concerning the proceeding since the complaint was lodged has any bearing on whether the complaint is one involving moral turpitude or one to which moral opprobrium attaches. If, as I have already found, the nature of the complaint is not one involving allegations of moral turpitude, or which excites moral opprobrium, then publicity concerning it cannot convert it into such a case. Adverse publicity, or adverse public response to the publicising of the complainant's allegations or the respondents' response cannot be a cause or justification for a decision-maker to consider it as relevant to an assessment of the gravity of the allegation.
Before leaving this point, I wish to make two further observations. First, there is no suggestion that any of the public statements on the complainant's behalf have been inaccurate or misleading. Nor is there any suggestion the reporting of the proceeding has been inaccurate or misleading.
Secondly, the force of the respondents' argument they were adversely affected by publicity surrounding the proceedings, in a manner which should affect my assessment of the gravity of the matters alleged was significantly undermined by their conduct in putting out a press release at the commencement of the hearing authorised by Mr Rowe, which contained information he knew was false concerning the ages of the proposed attendees at the forum. The conclusion that the issue of the press release containing that false information was an attempt to manipulate publicity surrounding the proceedings to bolster their cause, and undermine the complainant's, is inescapable.
In his evidence Mr Rowe acknowledged he had signed and authorised the press release. It asserted that the proposed attendees at the WayOut forum included children as young as 12. That allegation was false, and entirely without foundation. Mr Rowe knew it to be so. His explanation for authorising the release in his name containing that falsehood was unconvincing. That he knew it was false is borne out by the course of evidence. Mr Rowe's witness statement was filed well before the hearing commenced. As I have already recounted, in it, his account about the age of the proposed attendees was that it included people as young as 13. It was not specified in the statement whether Mr Rowe was asserting Ms Hackney had said that, or whether he had inferred or assumed that to be the case. In his evidence, he unequivocally acknowledged Ms Hackney had not said that. At best, the assertion the proposed attendees included children as young as 13 was an unfounded assumption of his. He said he based it on an assumption young people meant teenagers, and teenagers could be as young as 13. Even accepting that reasoning, there is no evidentiary support for the assertion in the press release that the proposed attendees could have been as young as 12.
Bearing in mind that the complainant must discharge its onus of satisfying me on the balance of probabilities that the conversation occurred as Ms Hackney said, having regard to the nature of the cause of action the nature and subject-matter of the proceeding and the gravity of the matters alleged, I have reached the very firm and clear view that on the points of material conflict between Ms Hackney's account of the conversation and Mr Rowe's, that I prefer and accept Ms Hackney's.

DID THE RESPONDENTS' CONDUCT CONSTITUTE DISCRIMINATION ON THE BASIS OF THE (SAME SEX) SEXUAL ORIENTATION OF THE PROPOSED ATTENDEES, OR THE PERSONAL ASSOCIATION OF THE PROPOSED ATTENDEES WITH PEOPLE IDENTIFIED BY THEIR (SAME SEX) SEXUAL ORIENTATION?

The complainant must establish that by telling Ms Hackney the adventure resort would not be able to take a group such as WayOut, because they were a Christian organisation, the respondents discriminated against the named persons whom Cobaw represents on the basis of their sexual orientation, or their personal association with persons identified by their (same sex) sexual orientation.

(1) Discrimination means direct or indirect discrimination on the basis of an attribute ...

(2) Discrimination on the basis of an attribute includes discrimination on the basis -

(a) that a person has the attribute or had it at any time, whether or not he or she had it at the time of the discrimination;

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

(d) that a person is presumed to have that attribute or to have had it at any time.

The complainant alleges the respondents directly discriminated against the proposed attendees, including the named persons. By s 8:

(1) Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

(2) In determining whether a person directly discriminates it is irrelevant -

(a) whether or not that person is aware of the discrimination or considers the treatment less favourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.

Refusal to provide services or refusal or failure to accept an application for accommodation under ss 42(1)(a) and 49(1)

The complainant contends the respondents discriminated against the named persons in contravention of ss 42(1)(a), by refusing to provide services to the named persons, s 42(1)(c), by subjecting the named persons to other detriment in connection with the provision of services, and s 49(1) by refusing or failing to accept Cobaw's application for accommodation.
Sections 42 and 49 of the EO Act provides:

42 Discrimination in the provision of goods and services

(1) A person must not discriminate against another person -

(a) by refusing to provide goods or services to the other person;

(b) in the terms on which goods or services are provided to the other person;

(c) by subjecting the other person to any other detriment in connection with the provision of goods and services to him or her.

(2) Subsection (1) applies whether or not the goods or services are provided for payment.

49 Discrimination in offering to provide accommodation

A person must not discriminate against another person -

(a) by refusing, or failing to accept, the other person's application for accommodation;

(b) in the way in which the other person's application for accommodation is processed;

It was accepted, or not disputed that the accommodation, conference activity and leisure facilities provided at the adventure resort by CYC were services provided by CYC for the purposes of s 42, and accommodation offered by CYC for the purposes of s 49 of the EO Act.
Cobaw submits that by telling Ms Hackney that they would not be able to take a group such as hers, the respondents refused to provide the accommodation, conference, activity and leisure services offered by CYC, and refused or failed to accept her application for accommodation at the adventure resort.
The respondents contend however, there was no refusal to provide services within the terms of s 42(1)(a), and no refusal or failure to accept an application for accommodation within the terms of s 49(1). The respondents adduced evidence that they required a number of formalities to be complied with before they considered a booking had been made. They included completing and submitting an application in writing, and payment of a deposit. They did not accept bookings from individuals. Bookings had to be made on behalf of a group. There had to be a designated or nominated person responsible for the group. The booking application had to be signed by a designated responsible person.
They submitted that the conversation never got beyond a preliminary enquiry. No application form was submitted, and no deposit cheque tendered. These were essential preconditions they submitted for making a booking at the adventure resort. Finally, they submitted that bookings at the adventure resort are only available to groups or organisations, not individuals, and Ms Hackney did not identify any group on whose behalf she proposed to make the booking. Nor was any person designated as the responsible person for the group. So, it was submitted, there being no application, there could be no refusal of services or refusal or failure to accept an application for accommodation.
The effect of the respondents' submission is that there can be no refusal to provide services, or refusal or failure to accept an application for accommodation until an applicant has made a formal application, in the terms required by the internal processes of a provider of services or accommodation, or in terms more fitted to the law of contract. This 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.
There is nothing in the EO Act itself which provides support for such a narrow interpretation. What is required is, for the purposes of s 42(1), where an applicant wishes to be provided with services offered by the respondents, that the respondents convey to them that their application has been, or will be, refused. For the purposes of s 49(1), what is required, where an applicant wishes to apply for accommodation offered by a respondent, is that the respondent conveys to the applicant their application has been or will be refused, or has not been or will not be accepted. How an applicant will communicate their wish to be provided with services, or to apply for accommodation will be a question of fact in each case. Similarly, the way a respondent communicates a refusal to provide services, or a refusal or failure to accept an application for accommodation, will be a question of fact in a particular case. That will vary from case to case.
Where a service provider has indicated it will not provide services, it is not necessary for the applicant to attempt to comply with the respondents' own procedures for formalising an application before it can complain of a refusal to provide services. Similarly, where an accommodation provider has indicated it would refuse an application, or would not accept an application for accommodation, it is not necessary for an applicant to attempt to comply with a respondents' own procedures for formalising such an application.
Conduct on the part of the service provider, or accommodation provider which indicates that an application in the terms required by the provider for the provision of services will, if made, be refused, or an application for accommodation will, if made, be refused, or not accepted falls within the terms of s 42(1)(a) and s 49(1) respectively. To impose a requirement to conform with the internal processes of a service or accommodation provider would frustrate the objects and purposes of the EO Act, and fail to give the fullest possible effect to the enjoyment of the right to be free from discrimination, or to receive equal treatment in connection with the provision of services, or the making of an application for accommodation which is protected by the EO Act and s 8 of the Charter.
A refusal to provide services or a refusal or failure to accept an application for accommodation, construed as widely as its terms permit, and in a way which least infringes Charter rights in my view incorporates conduct which deters a person who intended to make a request for the provision of services from making a formal request for the provision of those services. It also includes conduct which discourages or deters a person from making an application for accommodation, or which conveys to a person that, if formal application is made, it will be refused.
This broad interpretation is consistent in my view, with the definition of direct discrimination in s 8 of the EO Act which covers proposed as well as actual conduct.
I am satisfied therefore that Mr Rowe, by telling Ms Hackney the respondents would not be able to take a group such as hers, engaged in conduct which amounted to a refusal by the respondents to provide the services offered by CYC at the adventure resort, and a refusal to accept her application for accommodation for the WayOut forum.

Other detriment in connection with the provision of services under s 42(1)(c)

The complainant submitted that the conduct of the respondents, in saying they would not be able to take a group such as WayOut, subjected it to other detriment in connection with the provision of services. The complainant submitted the nature of the inquiry into the group, involving, as it did, discussion or disclosure of their sexual orientation, and the hurt and humiliation felt by the named persons on learning of the refusal and the reasons for it, constituted other detriment. It also relied on the inconvenience of finding another venue, and the apprehension felt about having again to face questioning over the sexual orientation of the proposed attendees, with a fear of a further refusal. The respondents submitted if there was any detriment caused by their conduct, it was trivial, and amounted to no more than minor inconvenience to Ms Hackney in finding another venue. The respondents submitted that any hurt to feelings resulted, not from their conduct, but from Ms Hackney's choice to tell the named persons, and the manner in which she did, that the application had been refused because of the sexual orientation and personal association of the proposed attendees.
The respondents next submitted that, if the respondents were found, for the purposes of s 42(1)(a), to have refused to provide services, Cobaw, or the named persons were not subjected to any other detriment in the terms required by s 42(1)(c) in respect of the refusal.
The Commission submitted other detriment included impairment of enjoyment of any of the human rights (which includes the right to equality and freedom from discrimination in s 8) contained in the Charter.
Again, applying a fair, large and liberal interpretation to 'any other detriment', and the broadest interpretation consistent with the rights contained in the Charter, I accept the Commission's submission that "other detriment" can include the interference of the enjoyment of the rights conferred by the Charter. I am satisfied that, in the circumstances of this case, the refusal by the respondents to accept the booking subjected the named persons to another detriment, apart from the refusal of services itself and the refusal or failure to accept the application for accommodation. For reasons which I outline in the next section I am satisfied that the refusal to provide the services, and the refusal or failure to accept Cobaw's application for accommodation was on the basis of the attributes of the sexual orientation or personal association with persons identified by their sexual orientation of the proposed attendees. A refusal to provide services, or a refusal or failure to provide accommodation on the basis of a person's sexual orientation, or personal association with persons identified by their sexual orientation constitutes an interference with the right to equality and to be free from discrimination contained in s 8 of the Charter. The denial of the enjoyment of a right conferred on a person by the Charter is, in my view, of itself a detriment. It follows that the conduct of the respondents in refusing to accept the booking and so denying the named persons the enjoyment of their s 8 rights subjected them to a detriment within the meaning of s 42(1)(c).
I do not consider I should exclude from my consideration the effect of the refusal on the named persons, because it was conveyed to them by Ms Hackney or a third party, rather than the respondents. To exclude consideration of the effect of the conduct because the refusal was not conveyed personally to each of the named persons is a narrow interpretation, which must be rejected if broader possibilities, consistent with the EO Act and the Charter are open.[45] It would, in my view, be an unduly narrow interpretation of other detriment to exclude from consideration any evidence of hurt, humiliation or anger on the part of any of the named persons solely because they discovered the respondents had refused to take their booking from Ms Hackney, not directly from the respondents. What is important in my view is the reason for the affront to feelings, not the conduit for conveying the information. There is nothing to justify limiting other detriment to detriment caused by the direct communication to a named person by the respondents of the refusal or the reason for it.
Once a representative body has established it has a sufficient interest to bring a complaint on behalf of named persons, then giving the widest possible meaning consistently with the objects of the act and the rights contained in s 8 of the Charter, "other detriment" must permit the taking into account of the injury and affront to feelings caused by the conduct of the respondents, to the ten named persons, however that conduct was conveyed to them. These provisions are concerned with the conduct of the respondents and the consequences of it for those who have standing to complain. That, not whether the respondents communicated directly with each person affected by their conduct, must be the determining consideration. To do otherwise would be to deny force to the objects of the EO Act and the rights enshrined in s 8 of the Charter.
It will be a question of fact in a particular case whether the injury to feelings was caused by the conduct of the respondents or the manner in which it was conveyed. I accept the evidence the named persons suffered injury to their feelings. They variously spoke of experiencing feelings of upset, anger or hurt. In my view, the evidence also clearly supports the conclusion it was the knowledge of the respondents' conduct in refusing to accept the booking from the WayOut group which was the cause of their feelings of hurt, anger and upset. There is no evidence that it was the manner in which Ms Hackney conveyed the information, not the conduct of the respondents, which caused the affront to the feelings of the other of the ten named persons. And, consistently with the meaning I consider should be given to "other detriment", the respondents cannot hide behind the fact it was Ms Hackney, not they who told the other named persons of the refusal and the reasons for it. The affront to their feelings is a direct consequence of the conduct of the respondents in refusing to accept the WayOut booking for the reason they did.
The inconvenience in finding another venue is, in a sense minor. Ms Hackney did, without it would appear, much difficulty, find an alternative venue at a YWCA facility at Lake Dewar. That of course did not fit the original desire of the young people consulted to go to a place on the coast and where they could see the fairy penguins. Ms Hackney did not try alternatives at Phillip Island. I accept there were others she could have made inquiries of. However, I do not think it unreasonable, after the respondents' refusal, to want to hold the forum in a different part of the state, and to be physically distant from the place, and the attractions associated with it, which were then linked with the affront to feelings caused by the conduct of the respondents.
I accept, too, that the apprehension felt about having again to face questioning over the sexual orientation of the proposed attendees, with a fear of a further refusal on that ground, is a detriment which interferes with the enjoyment of right to equality and freedom from discrimination enshrined in s 8 of the Charter.

The scheme of the EO Act is to prohibit discrimination in particular areas of activity including the provision of services (s 42(1)) accommodation (s 49(1)). Each of ss 42 and 49 prohibit discrimination by a person 'against another person' doing the prohibited thing to the 'other person'. So, under s 42(1)(a) a person must not discriminate against another by refusing to provide services to the other person; under s 42(1)(c) a person must not discriminate against another person by subjecting the other person to any other detriment; and under s 49 a person must not discriminate against another person by refusing or failing to accept the other person's application for accommodation.
The respondents submitted that if there was a refusal to provide services or a refusal or failure to accept an application for accommodation, the refusal was not directed to the named persons, but was directed to Ms Hackney, on behalf of Cobaw in its own right. Ms Hackney, the respondents submitted, was acting as agent of Cobaw because she was employed by it, and acting in the scope of her employment in organising a forum for a project which Cobaw was funded to run, and which she was employed to administer. This, they submitted, was a classic case of agency[46]. So, the respondents submitted, when construing s 42, the person who was refused services was Cobaw in its own right, not the named persons, and not Cobaw as a representative body on behalf of the named persons pursuant to s 104(1B) of the EO Act. Similarly, when construing s 49, it was Cobaw in its own right whose application for accommodation was refused, or whose application the respondents failed to accept.
It is the person discriminated against - that is the person who is refused the service, or whose application for accommodation is refused or not accepted, or who is subjected to other detriment in connection with the provision of services - who must possess the attribute that forms the basis for the discriminatory conduct[47]. Cobaw, as an incorporated entity, does not possess the attributes relied on here, namely, sexual orientation or personal association with persons identified by their (same sex) sexual orientation. So, submitted the respondents, Cobaw could not be subjected to less favourable treatment on the basis of those attributes because it does not possess those attributes. In other words, they submitted, the complainant must be the person with the attribute, and must be the person subjected to the less favourable treatment on the basis of that attribute.
In support of this submission the respondents relied on IW v City of Perth.[48] In that case, under the Equal Opportunity Act 1984 (WA) as it then stood, an aggrieved person could complain of unlawful discrimination, if they suffered a relevant impairment, and were refused services on discriminatory grounds, that is by reason of the impairment. There was at the time no power for a representative body to bring a complaint as s 104(1B) of the EO Act permits here. The complainant, IW, was an individual with a relevant impairment, who complained of a refusal of services by the respondents. However it was not IW, but PLWA, a corporation of which IW was a member who had applied for the service the alleged refusal to provide which was the subject of the complaint. PWLA was a corporation whose membership was restricted to persons with the particular impairment.
Dawson, Gaudron and Gummow JJ held that IW did not have standing to complain as, although he had a relevant impairment, he had not made the relevant application, and so had not been refused a service. In strong dissent, Toohey and Kirby JJ held that a person who is a member of a body which is refused services on discriminatory grounds against the members has standing to bring a complaint.
Reliance on the reasoning of the majority in IW does not assist the respondents. The statutory provisions under consideration in that case were very different from ss 8, 42 and 49 and 104(1B) of the EO Act. There was no equivalent of s 32 of the Charter to consider. And the underlying factual circumstances which the High Court had to consider were very different from those under consideration here. Although in the minority in IW on the question of standing, Kirby J's observations on general principles of statutory interpretation when considering anti-discrimination legislation are apposite here. He said:[49]

the fact of corporate personality should not be applied to subvert the purpose of the legislation designed as it is to protect individuals against discrimination. Secondly, in applying rights-protective legislation, such as the Act, courts will look to the actual effect of the alleged discriminatory conduct rather than only to its formal legal impact.

The respondents' submission that when she spoke to Mr Rowe, Ms Hackney was acting as agent of her employer Cobaw, and so Cobaw was the person who was refused services or accommodation relies on a narrow and legalistic interpretation of 'other person' or 'another person' in ss 8, 42(1) and 49(1) of the EO Act. The fact Ms Hackney was employed by Cobaw, and the agency principles relied on by the respondents are not determinative of the question of the identity of the person or group on whose behalf she wanted to make the booking, and whom the respondents refused to provide services to, subjected to other detriment in connection with the provision of services, and whose application for accommodation the respondents refused or failed to accept.
The determination of the question on whose behalf a person is acting when they request the provision of services for the purposes of s 42, or make application for accommodation for the purposes of s 49, will be determined by the evidence in the particular case.
Ms Hackney's evidence was that when she spoke to Mr Rowe, she told him she wanted to make a booking for a group of young people. She told him about the aims and purposes of the WayOut project. She described the aims and purposes of the forum. As Mr Rowe's evidence made clear, Ms Hackney referred to WayOut but did not make any reference to Cobaw during the conversation. I am satisfied that when Ms Hackney spoke to Mr Rowe, although she was acting within the scope of her employment, and so was in that sense the agent of Cobaw, she was seeking to make a booking on behalf of the proposed attendees of the forum. The named persons were part of that group of proposed attendees. The named persons have the relevant attributes. If the refusal to accept the booking was on the basis of those attributes, then the connection between the persons with the attributes and the refusal on the basis of the attributes necessary for the purposes of s 8, and ss 42 and 49 of the EO Act will be established.
The respondents also submitted that at the time of the telephone call between Mr Rowe and Ms Hackney they did not know the identity of the named persons and had no knowledge of their sexual orientation or personal association with persons identified by their (same sex) sexual orientation. Thus they submitted the complainant could not establish the necessary causal link between Ms Hackney's request and the refusal to take a booking on their behalf, as is required of direct discrimination by s 8 of the EO Act.
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:[50]

While it is not certain that when he refused approval of the transfer the minister knew of the existence of Mr Koowarta, he clearly knew that the property was to be occupied by aborigines. That was the very ground for his refusal ... it is not, I think, to the point that, as a matter of form, what the minister withheld was approval of a transfer to the aboriginal land fund commission. The minister's reasons for a refusal disclose that he regarded the approval as involving the use of the property by aborigines and refusal of approval as preventing that use.

I am satisfied that when she spoke to Mr Rowe Ms Hackney was seeking to make a booking on behalf of the proposed attendees, and that the ten named persons fall within that group. I am also satisfied that the proposed attendees have the attributes of (same sex) sexual orientation and personal association with persons identified by their (same sex) sexual orientation. It follows that the application was made on behalf of the people including the named persons, and that they had the relevant attributes.

Was the refusal on the basis of the attributes of sexual orientation or personal association with persons identified by their sexual orientation?

In order for the complainant to make out its case of discrimination under ss 42(1)(a), 42(1)(c) and 49(1), it must establish that the refusal to accept the booking was on the basis of one or more of the attributes contained in s 6 of the EO Act. The attributes relied on are sexual orientation or personal association with persons identified by their (same sex) sexual orientation.
The respondents submitted that Mr Rowe acted as he did, not on the basis of the sexual orientation of the proposed attendees, or personal association with persons identified by their (same sex) sexual orientation, but because the purpose of the forum was to promote homosexuality to young people as natural and healthy.
In their pre-hearing outline of submissions which were expressly adopted in their final submissions, the respondents put their case in this way:

It is submitted that it was not the attribute of homosexuality of some of the attendees or association with homosexuals which was objected to by Mr Rowe, but rather the whole focus of the forum which was the promotion of homosexuality as a 'natural and healthy lifestyle' and in particular to young people, at least one of whom was below the age of consent.

Confining my consideration of the basis of the refusal to accept the booking, as I must, to what was said in the conversation and what Mr Rowe knew at the time of the conversation about the proposed forum, the evidence at hearing did not support this contention. Mr Rowe was not told the focus of the forum was the promotion of homosexuality as a natural and healthy lifestyle. Although Mr Rowe was told participants were young people, I am satisfied he was not told participants would include people under the age of consent. I am satisfied Ms Hackney told Mr Rowe the participants would be aged between 16 and mid 20's.
Mr Rowe conceded in his oral evidence Ms Hackney did not use the terms 'promoting homosexuality' or 'homosexual lifestyle'. By the time he gave evidence he was no longer prepared to maintain he had used such terminology in the conversation. I accept Ms Hackney's evidence he did not use that language. I accept her evidence that she was sensitive to such language and would have confronted him about what he meant by such terms, had he used them.
Mr Rowe also conceded Ms Hackney did not say participants could be as young as 13. Mr Rowe's attempt to explain how he came to assert participants would be as young as 13 was evasive and unconvincing. His language slid from young people to teenagers to young teenagers to 13 year olds. His imprecision contrasted unfavourably with Ms Hackney's precision about her words in this context. Again, I accept her evidence about the care she took when describing the ages of the participants, as a result of her sensitivity to unfounded assumptions of a correlation between same sex attraction and paedophilia being made.
Finally, although there was evidence one of the young people who attended the forum eventually held at Lake Dewar was 15, it is clear that neither Ms Hackney nor Mr Rowe knew at the time of the conversation that a request that the minimum age limit set by Ms Hackney be waived to permit participation by this particular young person, or any other person under16 was even contemplated.
The respondents submitted in the alternative that there was no real difference between 'promoting' homosexuality, and saying it was okay to be homosexual, or telling young people homosexuality was natural and healthy. Ms Hackney had agreed in cross examination that the effect of telling young people homosexuality was part of the normal and healthy range of human sexualities was to tell them it was okay to be homosexual. The respondents submitted that, regardless of the actual words used by Ms Hackney, the effect of what she told Mr Rowe was that the purpose of the forum was to promote homosexuality.
This submission distorts Ms Hackney's evidence. To agree the effect of telling young people homosexuality was part of the normal and healthy range of human sexualities was to tell them it was okay to be homosexual, does not convert her meaning to that contended for by the respondents, namely that Cobaw was taking young people away to say its ok to be same sex attracted. It ignores the context in which Ms Hackney described same sex attraction as part of the normal and healthy range of human sexualities. That must be viewed in the context of the description of the purposes of the forum Ms Hackney gave to Mr Rowe, namely, raising awareness about the needs of same sex attracted young people, the nature and effect of homophobia in rural communities and the effect of discrimination on same sex attracted young people.
It is important to analyse what Mr Rowe meant by promoting homosexuality or a homosexual lifestyle. He said he believed homosexuality was a choice, and that young people should be dissuaded from making the choice to be homosexual. He described homosexuality as abnormal. He described people who were homosexual as 'challenged in their sexuality'. He said he believed young people should not be encouraged to 'follow that path' - that is to accept their homosexuality. Mr Rowe said he considered young people to be impressionable, and at risk of being set on a path where they believed themselves to be homosexual when, in truth, they were not.
He said he used the terms homosexual and homosexual lifestyle interchangeably. When asked what they meant to him he gave a number of different, and not always consistent answers. At times he indicated it meant no more than identifying as homosexual, at other times, he said it meant something more. Examples he gave, or adopted, included living openly as a homosexual, living in a homosexual relationship or engaging in same sex activity. At times he said or agreed homosexuality or a homosexual lifestyle must involve sexual expression with another person, at other times he said that it was not necessary.
In effect, promotion of homosexuality, or a homosexual lifestyle, as he used those terms, meant encouraging or persuading a group of people he regarded as impressionable by reason of their youth to do something abnormal and wrong, namely to choose to be homosexual.
There is no evidence which provides any support for a suggestion Ms Hackney's words had implied that the purpose of the forum was to promote homosexuality or a homosexual lifestyle in the sense that Mr Rowe used those terms. Mr Rowe's acknowledgement that Ms Hackney had used the words natural, healthy and normal in the context of describing same sex attraction as part of the range of normal and healthy human sexualities makes that clear.
I am satisfied that the effect of Mr Rowe's evidence is that, to him, promotion of homosexuality or a homosexual lifestyle involved any conduct, whether engaged in by same sex attracted people, or those with a personal association with people identified by their (same sex) sexual orientation, which accepted or condoned same sex attraction, or encouraged people to view same sex attraction as normal, or a natural and healthy part of the range of human sexualities.
So understood, the respondents' attempts to distinguish between homosexuality and promoting homosexuality fail. Mr Rowe's objection to promotion of homosexuality is, in truth, an objection to same sex attraction, or as the respondents characterised it, homosexuality.
Ms Mortimer submitted that sexual orientation means who it is one is sexually attracted to, and nothing more than that. She relied on what was said by Baroness Hale in Ghaidan v Godin-Mendoza:[51]

sexual 'orientation' defines the sort of person with whom one wishes to have sexual relations. It requires another person to express itself.

Sexual orientation is a central part of a person's being or identity. In R (Amicus) & Others v Secretary of State for Trade and Industry the Court said:

Sexual orientation is a most intimate aspect of private life and personal identity[52].

Sexual orientation, like gender, race and ethnicity, are part of a person's being, or identity. The essence of the prohibitions on discrimination on the basis of attributes such as sexual orientation, gender, race or ethnicity is to recognise the right of people to be who or what they are. That carries with it the enjoyment of the right to equal treatment, or freedom from discrimination, as people with a different sexual orientation, gender, race or ethnicity have. To distinguish between an aspect of a person's identity, and conduct which accepts that aspect of identity, or encourages people to see that part of identity as normal, or part of the natural and healthy range of human identities, is to deny the right to enjoyment and acceptance of identity.
The respondents' attempt to distinguish between (same sex) sexual orientation and any conduct which accepts or condones it, or encourages people to see it as normal, or part of the natural and healthy range of human sexualities, would require a forced and strained meaning to be given to sexual orientation. To do so would be inconsistent with the principles of statutory interpretation I have earlier referred to. It does not permit of a fair, large and liberal interpretation of provisions of a remedial statute which give effect to its purposes. It does not permit of an interpretation which advances the objects and purposes of the EO Act. It does not permit of an interpretation which is, so far as is possible, compatible with the s 8 Charter rights. It is not the interpretation which least infringes Charter rights.
It follows from the appreciation of the essential nature of sexual orientation to a person's being, or identity, that the freedom to live openly as a person of that sexual orientation or refusing to hide one's sexual orientation are characteristics of the attribute of sexual orientation.
Ms Mortimer submitted that talking about the needs of persons who share the same sexual orientation is also a characteristic of sexual orientation. For same sex attracted people, talking about the effects of homophobia and discrimination are, she submitted, also characteristics, because being faced with homophobia and discrimination is a reality of life for same sex attracted people. It is also a characteristic of sexual orientation that people will hold views about whether who they are and how they live is natural and right for them. I accept those submissions.
The purposes of the forum, as described by Ms Hackney, are reflective of efforts to enjoy, and benefit from, the right to equality and the right to be free from discrimination contained in s 8 of the Charter. To object to a forum which presents a message of acceptance of same sex attraction is to deny the right to equality of treatment based on sexual orientation, or to be free from discrimination on that basis.
In my view, what the respondents characterised as promotion of homosexuality and which I have characterised as engaging in conduct which accepts or condones same sex attraction, or encourages people to view same sex attraction as part of the range of normal, or natural and healthy human sexualities is, in truth, no more than affording people of (same sex) sexual orientation the same right as heterosexuals in respect of their sexual orientation. That is, to live their lives in the same way as a person who is heterosexual can; to accept their sexual orientation, and to have it accepted by others, to live openly as a person who is same sex attracted, to seek out and have relationships with people who are also same sex attracted, to engage in lawful sexual activity with a same sex attracted partner, and to speak openly of the issues relevant to people of same sex attraction, including discrimination and homophobia.
There is, in my view, no meaningful distinction which can be drawn between conduct based on a person's sexual orientation and conduct based on an objection to telling a person their sexual orientation was part of the range of normal, natural or healthy human sexualities. An objection to telling a person (same sex) sexual orientation is part of the range of normal, natural or healthy human sexualities is, in truth, an objection to (same sex) sexual orientation. It denies same sex attracted people the same rights to live as who they are, to express their sexual orientation in the manner they choose, and to gather with others of the same sexual orientation and those personally associated with them, to discuss matters of particular significance to them by reason of their sexual orientation, as heterosexuals enjoy.
The complainant has put its case primarily as one of discrimination on the basis of sexual orientation and personal association. However it also alleged discrimination on the basis of lawful sexual activity. Ms Mortimer submitted it was implicit in the manner in which the respondents had pleaded and conducted their case that homosexuality or homosexual lifestyle included engaging in homosexual activity, and that the respondents' objection to homosexuality or homosexual lifestyle was in part based on their objection to same sex attracted people engaging in sexual activities.
I do not consider that a claim of discrimination on the basis of lawful sexual activity is made out. In my view, the references by Mr Rowe and in the respondents' submissions to sexual activity, or fears of under age sexual activity, are relevant to the issue of whether the refusal to take the booking was on the basis of the sexual orientation of the proposed participants, or of the personal association of the proposed participants with persons identified by their (same sex) sexual orientation. I am satisfied there was, in Mr Rowe's mind, a connection between same sex attraction, and the sexual expression of that attraction. In other words, engaging in sexual activity was a characteristic generally imputed by Mr Rowe, and in the respondents' submissions to people with the attribute of same sex attraction.
In my view, the effect of Mr Rowe's evidence is that the reason for his refusal to accept the booking was because of his general objection to homosexuality, applied, in the circumstances with which he was presented in the telephone conversation with Ms Hackney, to this group, comprising young people who were same sex attracted, or who had a personal association with people identified by their (same sex) sexual orientation. The effect of Mr Rowe's evidence was that identifying as same sex attracted, living openly as a same sex attracted person, and engaging in same sex sexual activity constituted promotion of homosexuality or a homosexual lifestyle.
It follows that I am satisfied that the basis for the refusal of the booking 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.

Did the refusal constitute less favourable treatment on the basis of the attributes?

Having found the conduct of Mr Rowe in refusing to take Ms Hackney's booking constituted a refusal to provide services to the named persons under s 42(1)(c), subjected them to other detriment in connection with the provision of services under s 42(1)(c) and amounted to a refusal or failure to accept the application for accommodation under s 49(1), and that the basis for the refusal was the sexual orientation of the proposed attendees or personal association of other proposed attendees with persons identified by their (same sex) sexual orientation, the final question is whether the refusal to take the booking amounted to treating the named persons less favourably than the respondents treat or would treat someone without those attributes, or with a different attribute, in the same or similar circumstances.[53]
Ms Mortimer submitted that when considering what were the same or similar circumstances the appropriate comparators were be either a youth suicide prevention initiative which targeted young people which was proposing to hold a forum with the aim of raising awareness about their needs, or a peer support group for young people which was proposing to hold a forum with community health objectives. She submitted these comparators both involved the same or similar circumstances without the attributes of same sex attraction or personal association.
Mr Garde submitted that the comparators proposed by the complainant focussed attention on the purpose of the forum rather than the attributes of the people proposing to attend the forum. Mr Garde submitted that the correct comparator was persons without the attribute or with a different attribute. He submitted that the test was whether Cobaw and the named persons were treated less favourably than a group without the attribute of same sex attraction or personal association with persons identified by their (same sex) sexual orientation, or with a different attribute, for example, heterosexuality, who wished to conduct a forum which promoted the message that same sex attraction was a natural and normal part of human sexuality. He submitted that, whatever the attribute of the group, had that been the message that was to be promoted at the forum, they would have been treated in the same way, because the message was contrary to the beliefs of the respondents and the Christian Brethren religion.
I have already found that the distinctions sought to be drawn by the respondents between the sexual orientation of the proposed attendees, or the personal association of the proposed attendees with persons identified by their sexual orientation and the purposes of the forum as I have found them to be was not meaningful. Having been satisfied that the objection was, in truth, an objection to the sexual orientation of the proposed participants and the personal association of the proposed participants with persons identified by their sexual orientation, I consider that the appropriate comparison is with persons of a different attribute who wished to conduct a forum addressing issues relating to that part of their identity which is defined by or is intimately connected with that attribute. Thus, appropriate comparators in my view would be either young people with the attribute of heterosexuality, or personal association with persons identified by their heterosexuality, or young people with the attribute of a particular race or ethnicity, and people with a personal association with persons identified by that race or ethnicity, who wish to conduct a forum to discuss issues of their identity intimately connected with that attribute. For these purposes, attribute includes a characteristic which a person with that attribute generally has, or a characteristic which is generally attributed to a person with that attribute[54].
I am satisfied that the conduct of Mr Rowe, in refusing to take the booking, subjected the named persons to less favourable treatment as that term is defined by s 8(1) of the EO Act. The basis for the refusal was the (same sex) sexual orientation, or personal association with persons identified by their sexual orientation of the proposed attendees. I am satisfied that a group of young people with the attributes of heterosexuality, or a particular race or ethnicity, proposing to conduct a forum to discuss matters intimately associated with their identity and connected with their common or defining attribute, would not have been treated in the same way, in that they would not have had their booking refused because they proposed to discuss matters relating to that part of their identity which is defined by or is intimately connected with that attribute.

I am satisfied that Mr Rowe discriminated against the named persons, on the basis of the attributes of (same sex) sexual orientation, or personal association with persons identified by their (same sex) sexual orientation of the proposed attendees at the forum by refusing to provide services, within the meaning of s 42(1)(a), and subjected them to other detriment in connection with the provision of services within the terms of s 42(1)(c). I am also satisfied that Mr Rowe discriminated against the named persons on the same basis by refusing or failing to accept their application for accommodation within the meaning of s 49(a).
I am satisfied, by the operation of s 102 of the EO Act that Mr Rowe, in refusing to accept the booking, was acting in the course of his employment with CYC and that as a result both CYC and Mr Rowe have contravened ss 42(1)(a), 42(1)(c) and 49(1) of the EO Act.

The respondents submitted that if their conduct, in refusing to accept the booking, constituted discrimination in contravention of ss 42(1)(a), 42(1)(c) or 49(1) of the EO Act, that such discrimination was not prohibited, by reason of what are conveniently described as the religious belief exceptions of the Act.
Section 12 of the EO Act provides:

This Act does not prohibit discrimination if an exception in Part 3 (whether or not in the same Division as the provision prohibiting the discrimination) or Part 4 or an exemption under Part 4 applies.

Part 3 of the Act sets out the areas of activity in which discrimination is prohibited and in respect of each of those areas identifies exceptions. Sections 42 and 49 are both contained in Part 3. There are specific exceptions to the general prohibition on discrimination in the provision of goods and services contained in s 42 and the general prohibition on discrimination in respect of offering to provide accommodation contained in s 49.
Part 4 of the Act contains a number of general exceptions together with specific provisions for applying for exemptions from the operation of the Act in respect of conduct not otherwise the subject of an exception under Part 3 or the earlier parts of Part 4.
The respondents rely on s 75(2) and s 77, exceptions contained in Part 4 of the Act. Section 75 provides:

(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.

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 person's genuine religious beliefs or principles.

The complainant and the Commission both submitted that the exceptions in s 75(2) and s 77 should be construed narrowly and apply only where there is clear evidence to support the application of the exceptions.
The respondents submitted that as the EO Act was remedial legislation, all its provisions should be given a fair, large and liberal interpretation.
The respondents' submission is inconsistent with s 35 of the Interpretation of Legislation Act, and is in my view an oversimplification of the principle that beneficial or remedial legislation should be given a broad interpretation. It is those provisions of remedial or beneficial legislation which give effect to its objects and purposes which must be given a broad or fair, large and liberal interpretation, and one which advances the purposes or objects of the Act.
The exceptions in the EO Act to the prohibitions against discrimination must be interpreted in light of the objectives of the Act in s 1. The scheme of the EO Act is to give effect to its objectives by prohibiting discrimination (that is less favourable treatment of a person) on the basis of any of the attributes set out in s 6 of the EO Act, in respect of the activities set out in Part 3 of the Act. Parts 3 and 4 contain a number of specific exceptions to conduct which would otherwise constitute prohibited discrimination. Section 12 provides that discrimination is not prohibited if an exception applies. Section 75(2) provides nothing in Part 3 applies to anything done by a body established for religious purposes if the conditions in the subsection are established. Section 77 provides that nothing in Part 3 applies to discrimination by a person against another if the conditions in s 77 are satisfied. In other words, these exceptions all proceed on the basis that the conduct is still discriminatory, but is not prohibited discrimination. The exceptions limit the freedom from discrimination conferred by Part 3 of the EO Act , or impair the full enjoyment of the rights afforded by ss 42 and 49 of the EO Act and enshrined in s 8 of the Charter.
A construction that advances the purposes or objects of the EO Act would favour a narrow, not broad, large or liberal interpretation of the exceptions. The inclusion of the exceptions in the EO Act evidences Parliament's intention to strike a balance between the right to be free from discrimination, and the right to freedom of religious belief, and the point at which the balance is struck. In construing the exceptions, the right to freedom from discrimination must not be curtailed unless "clearly manifested by unmistakeable and unambiguous language"[55].
These principles referred to in the previous paragraph must be considered in light of s 32 of the Charter. The complainant did not take issue with the Commission's submission that, when construing ss 75(2) and 77 the right to equality and freedom from discrimination under s 8 of the Charter invoked by the complainant was required to co-exist with the rights to freedom of thought, conscience, religion and belief and freedom of expression in ss 14 and 15 of the Charter invoked by the respondents. The complainant and the Commission both submitted that just as the s 8 rights to equality and freedom from discrimination were not absolute and may be limited in accordance with s 7(2) of the Charter, so too were the rights to freedom of religion and expression not absolute. They too were subject to limitation pursuant to s 7(2).
The respondents submitted that s 32 of the Charter required ss 75(2) and 77 of the EO Act to be interpreted in a manner consistent with the rights to freedom of religion under s 14 and expression under s 15, but without regard to the right to equality and freedom from discrimination in s 8. The effect of the respondents' submissions was that the freedom of religion and expression rights trumped the equality and freedom from discrimination rights relied on by the complainant. For the reasons I expressed when addressing the respondents' submissions about what Charter rights were engaged in this proceeding, that is not a tenable submission having regard to s 7(2) of the Charter which requires both rights to co-exist.
I accept the Commission's submission that 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. I also accept the Commission's submission that it is necessary to examine the content of the respective rights to determine the relevance of those rights in the task of interpreting the exceptions. This must be done, not in the abstract, but by reference to the words of the provisions setting out the exceptions.
I must therefore interpret sections 75(2) and 77, having regard to the purpose of those exceptions, namely to protect religious freedoms, and in a manner consistent with the rights to freedom of thought, conscience, religion and belief in s 14 of the Charter, and freedom of expression in s 15 of the Charter but also, so far as is possible, in a manner which is compatible with the rights to equality and freedom from discrimination in s 8 of the Charter. I must do so in a way which does not privilege one right over another, but recognises their co-existence.

THE SECTION 75(2) EXCEPTION: anything done by a body established for religious purposes that conforms with the doctrines of the religion or is necessary to avoid injury to the religious sensitivities of people of the religion

The respondents submitted that if I found that the refusal to accept the booking was on the basis of the (same sex) sexual orientation of the proposed attendees, or people personally associated with people identified by their (same sex) sexual orientation, and amounted to discrimination as alleged by the complainant, then the discrimination was not prohibited because CYC was a body established for religious purposes, and the refusal conformed with the doctrines of the Christian Brethren religion, under s 75(2)(a), or was necessary to avoid injury to the religious sensitivities of people of the Christian Brethren religion under s 75(2)(b).
The complainant submitted that CYC was not a body established for religious purposes, and so, s 75(2) did not apply. If against them on that, they submitted that the doctrines of the religion that needed to be considered were the doctrines of Christianity, not of the Christian Brethren. Finally, they submitted that the refusal of the booking could not be characterised as conduct which conformed with the doctrines of the religion or was necessary to avoid injury to the religious sensitivities of people of the religion.
Before considering those parts of s 75 in respect of which the parties made competing submissions, it is convenient to deal with the matters not in issue.
The respondents submitted that, although s 75(2) is confined in its terms to things done by 'a body established for religious purposes', if CYC is entitled to rely upon the exception in s 75(2) then Mr Rowe, acting as its agent, must also be entitled to invoke its protection. I accept that submission. Mr Rowe was acting in the course of his employment with CYC in his dealings with Ms Hackney. Section 102 makes any contravention by him of Part 3 equally a contravention by CYC. In my view, it follows that, if CYC is found to have discriminated against the complainant by the operation of s 102, but CYC's discriminatory conduct is not prohibited by reason of the operation of s 75(2), then Mr Rowe's conduct, as agent of CYC, must equally be protected. His actions were those of an employee acting within the scope of his employment or as the agent of CYC. Such an interpretation is in conformity with the agency principles I have earlier referred to.
Section 75 excuses from the prohibitions on discrimination in Part 3 of the EO Act 'anything done' by a body established for religious purposes that falls within subparagraphs (a) and (b). It was common ground the 'thing done' for these purposes was the refusal to accept Ms Hackney's booking, if that was what I found Mr Rowe's conduct amounted to.

The threshold question for the respondents, as the parties seeking to invoke the protection of s 75, is whether CYC is a body established for religious purposes. The complainant contests the respondents' submission that CYC is a body established for religious purposes. It submits CYC is a commercial enterprise, and although connected with the Christian Brethren, is not a body established for religious purposes.
The Christian Brethren in Victoria is part of what was described as a world wide movement of Christian Churches, initially called the Open Brethren, which began in the mid 19th century in England.
The Christian Brethren Trust is a trust registered under the Religious Successory and Charitable Trusts Act 1958, now named the Religious and Successory Trusts Act 1958. Section 5 of that Act permits trusts for 'public religious educational or charitable purposes' to be registered.
The Trust Deed registered under the Religious and Successory Trusts Act was made on 1 August 1921. The trust was established for the purposes of owning land upon which a place of worship and other buildings were to be erected. The Trust Deed prohibits people from preaching or expounding God's word or performing acts of religious worship in buildings on trust land, or the teaching of any doctrine or practice on trust land contrary to the 'fundamental beliefs and doctrines' of the Open Brethren (as they were then known) and 'in particular, contrary to the following doctrines':

Eternal sonship and deity of the Lord Jesus Christ, the full efficacy of his atonement only for the sins of whomsoever believeth: the resurrection ascension and coming again of Our Lord Jesus Christ: the quickening indwelling and sanctifying power of the Holy Spirit: the eternal punishment of the wicked and the plenary inspiration of the Holy Scriptures.

Cobaw Community Health Services v Christian Youth Camps Ltd & Anor

At a glance

Court

Decision date

Before

Source

Judgment (294 paragraphs)

Cobaw Community Health Services v Christian Youth Camps Ltd & Anor (Anti-Discrimination) [2010] VCAT 1613 (8 October 2010)

Cobaw Community Health Services v Christian Youth Camps Ltd & Anor (Anti-Discrimination) [2010] VCAT 1613 (8 October 2010)

Parties

Legislation Cited (15)

Cases Cited (10)