Komentarz (w j. angielskim) autorstwa Vince Chadwick do decyzji Trybunału ds. Cywilnych i Administracyjnych (Australia, Victoria) w sprawie odmowy świadczenia usługi na rzecz osób homoseksualnych przez przedsiębiorcę, który powołał się na religijny etos prowadzonej przez siebie działalności gospodarczej.  W swojej decyzji, Trybunał stwierdził, że przedsiębiorca złamał zakaz dyskryminowania, a istniejący w australijskim prawie wyjątek przewidziany dla organizacji religijnych nie miał w tym przypadku zastosowania.    

Facts
On 7 June 2007, Ms Sue Hackney telephoned the Philip Island Adventure Resort and spoke to Mr Mark Rowe. Ms Hackney is employed by Cobaw Community Health Services Limited (Cobaw) as the co-ordinator of the WayOut project, which aims to prevent youth suicide especially among same-sex attracted young people in rural areas. Ms Hackney called the resort, which is operated by Christian Youth Camps Limited (CYC), with the aim of making a booking for 60 young people and 12 co-ordinators. The aims of the weekend visit are stipulated in the WayOut funding application i.
Mr Rowe and Ms Hackney offer different accounts of what was said during the phone conversation, however the latter claims Mr Rowe refused to accept WayOut’s booking due to the sexual orientation of the proposed attendees.

Legal issues
This prompted Cobaw, on behalf of the proposed attendees, to lodge a complaint of discrimination with the Victoria Equal Opportunity and Human Rights Commissioner. The Commissioner then referred the complaint to the Victoria Civil and Administrative Tribunal (VCAT).
Cobaw alleges that CYC discriminated against the proposed attendees in violation of ss. 42(1) ii and 49(1) iii of the Equal Opportunity Act 1995 (Vic) [EO Act]. CYC disputes the claim made by Cobaw that what was said in the phone conversation of 7 June 2007 amounted to a refusal, and says that even if it did, CYC comes under the religious exceptions to the EO Act in ss. 75(2)iv  and 77v .

Tribunal’s finding
Judge Hampel found in favour of the complainants (Cobaw) and awarded them $5000 AUD (roughly 15,000 PLN), by answering the following questions.

How should the EO Act be read in light of the Charter of Human Rights and Responsibilities 2006 (Vic)?
The issue here was that both the Charter and the EO Act contained anti-discrimination clauses. CYC also argued the freedom of religion clauses in the Charter ought to legitimise its refusal of Cobaw to stay at the resort.
Judge Hampel looked at the purposes of both Acts, noting precedent from the Australian High Court that remedial or beneficial legislation, such as that concerning anti-discrimination, should be given a liberal construction vi . She found the freedom of thought clause in the Charter could not be allowed to operate as a ‘blanket qualification’ to the wider objective of ensuring ‘that courts and tribunals interpret legislation to give effect to human rights’. Rather, freedom from discrimination and freedom of religion were found to co-exist, the tribunal’s role being ‘to determine the least limit which can be imposed on the enjoyment of both rights to achieve a balance between them’.

Does Cobaw have standing to bring this claim on behalf of the proposed attendees?
CYC claimed that Cobaw could not be subject to discrimination due to sexual orientation because an incorporated entity cannot have a sexual orientation. Judge Hampel however agreed with Kirby J in IW v City of Perth when he said ‘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’. In this case the power imbalance between the two parties (on account of the age of the same-sex attracted youth) and the prospect of adverse publicity, meant that Cobaw was qualified to act as a representative of the group of people allegedly discriminated against.

Did CYC refuse to provide services, 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?
Judge Hampel found that a refusal to provide accommodation or services did occur. It was not necessary for an applicant to have made a formal application, in the terms required by the internal processes of CYC. Such an interpretation would be overly ‘narrow, legalistic and technical’ and would allow CYC to effectively deter or prevent a person from making application in the form required by CYC, in order to avoid the operation of the EO Act.
The group were found to have suffered ‘detriment’, including ‘hurt’, ‘humiliation, ‘inconvenience’ and ‘anger’.
CYC attempted to argue that Cobaw was refused access to the resort not on the basis of the sexual orientation of the youths, but because the purpose of the weekend would be to promote homosexuality as something normal and healthy for young people. Judge Hampel responded that ‘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’.

Is CYC able to invoke the religious exemptions to the EO Act on the grounds that it 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? Alternatively, was it necessary for Mr Rowe to act as he did in order to comply with his genuine beliefs or principles?
CYC was unable to show it was a body established for religious purposes. This was because the tribunal found the camp was run largely as a secular, commercial proposition. The resort’s advertising literature was addressed to both secular and religious groups. In 2009 the camp earned $6 AUD million, $1.5 million of which was returned to the Christian Brethren Trustees. As a result Judge Hampel found that ‘although the constitution of CYC declares that the establishment of CYC is actuated or inspired by a religious motive, the activities of CYC conducted at the adventure resort do not involve the spread or strengthening of spiritual teaching, the maintenance of the doctrines of the Christian Brethren religion or the observances that promote or manifest it’.  The purposes of CYC are not directly and immediately religious. 

What remedies should be available to Cobaw?
Cobaw’s main objective in lodging this complaint was to obtain declaratory relief. However, Judge Hampel acknowledged that CYC had imposed their beliefs on others ‘in a manner that denies them the enjoyment of their right to equality and freedom from discrimination in respect of a fundamental aspect of their being’. Her honour found this had caused understandable hurt and offence, and therefore $5000 AUD compensation was appropriate.

Comments
It is encouraging that Judge Hampel opted in this case for an interpretation of the EO Act and the Charter which sought to uphold the spirit of both acts in protecting human rights. The legislation was viewed as complementary rather than capable of being used to thwart each other. 
    On first glance it appears incongruous for an organisation like WayOut to have approached CYC in the first place. However, Judge Hampel confronts this directly in paragraph 94 of her decision, finding no support for the ‘veiled suggestion’ that Ms Hackney called the resort deliberately in an attempt to provoke a refusal which would then lead to adverse publicity for CYC.
That said, it is not impossible to sympathise with CYC in this situation. A discriminatory refusal might appear to be a harsh characterisation of what the judge admits was a civilised conversation. It was the first and only conversation between the two groups. Judge Hampel favoured Ms Hackney’s evidence regarding the phone conversation on the grounds that as an expert in her field, keenly attuned to the potential for discrimination, she had more reason to accurately recollect the conversation. However, later, in the context of evidence concerning the doctrines of Christianity, the expert evidence of a witness called by CYC was deemed to have been compromised in terms of its independence and impartiality.
The analysis of the detriment suffered by the young people represented by Cobaw – such as being denied the chance to visit the nearby fairy penguins – also appears to have been slightly exaggerated. If anything, the real harm here resides in the anger and humiliation suffered thanks to the discrimination itself. 
    Lastly, perhaps the most interesting element of this judgment is the area on which nothing turned, namely, the distinction between doctrine and belief. In order to come under the exemption to the EO Act CYC needed to show that its actions were necessary to conform to the ‘doctrines of the religion’. Judge Hampel found they did not. She rejected expert evidence she considered biased in favour of CYC which had argued for a broad interpretation of doctrine as ‘every aspect of Christian religion’. Judge Hampel responded concisely that ‘although scripture is the source of doctrine, not all that is said in scripture is doctrine’.