Christian Youth Camps Ltd v Cobaw Community Health Services Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0143
CHRISTIAN YOUTH CAMPS LTD (ACN 095 681 342)	First Applicant
and
MARK ROWE	Second Applicant
v
COBAW COMMUNITY HEALTH SERVICES LTD (ACN 136 366 722)	First Respondent
and
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION	Second Respondent
and
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Intervener

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JUDGES	MAXWELL P, NEAVE and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20-21 February and 2 August 2013
DATE OF FINAL SUBMISSIONS	6 September 2013
DATE OF JUDGMENT	16 April 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 75	1^st Revision: 26 September 2017 (paragraph numbering)
JUDGMENT APPEALED FROM	Cobaw Community Health Services v Christian Youth Camps Ltd & Anor (Anti-Discrimination) [2010] VCAT 1613 (Judge Hampel)

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DISCRIMINATION LAW – Refusal to provide accommodation – Whether refusal ‘on the basis of’ sexual orientation – Accommodation provider was corporation – Whether refusal was conduct of corporation or of accommodation manager – Whether liability of corporation direct or vicarious – Accommodation provider affiliated with Christian Brethren religion – Whether provider ‘established for religious purposes’ – Whether refusal of accommodation ‘conformed with doctrines’ or ‘necessary to avoid injury to the religious sensitivities’ – Whether corporation capable of holding religious belief – Whether refusal of accommodation ‘necessary to comply with religious beliefs’ of accommodation provider or manager – Equal Opportunity Act1995 (Vic) ss 6-8, 42, 49, 75–77, 98, 102–3.

STATUTORY INTERPRETATION – Human rights – Prohibition against discrimination – Prohibition applicable to corporations – Attribution – Agency – Whether conduct of manager counts as conduct of corporation – Whether liability of corporation direct or vicarious – Whether manager personally liable – Equal Opportunity Act1995 (Vic) ss 42, 49, 98, 102–3.

STATUTORY INTERPRETATION – Human rights – Prohibition against discrimination – Exemptions – Religious freedom – Whether exemptions to be construed narrowly – Whether special rule of interpretation applicable where exemptions protect human rights – Whether international human rights jurisprudence applicable – Equal Opportunity Act1995 (Vic), ss 42, 49, 75–77.

STATUTORY INTERPRETATION – Corporations – Attribution of states of mind – Legal fiction – Religious freedom – Exemption from prohibition against discrimination – Whether religious belief attributable to corporation – No express provision – Whether attribution necessarily implied – Ascertainment of corporation’s religious belief – Equal Opportunity Act 1995 (Vic) ss 75–77.

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APPEARANCES:	Counsel	Solicitors
For the 1^st and 2^nd Applicants (20.2.13 hearing)	Mr J G Santamaria QC with Mr P J Harris and Mr M Gronow	McCracken & McCracken
For the 1^st and 2^nd Applicants (2.8.13 hearing) For the 1^st Respondent (20.2.13 hearing) For the 1^st Respondent (2.8.13 hearing) For the 2^nd Respondent For the Intervener	Mr M R Pearce SC with Mr P Harris and Mr M Gronow Ms D S Mortimer SC with Mr J C McKenna and Ms E A Bennett and Mr E M Nekvapil and Ms K E Foley Mr P J Hanks QC with Mr J C McKenna and Ms E A Bennett and Mr E M Nekvapil and Ms K E Foley Ms K Eastman SC Mr S McLeish SC with Ms J Davidson	McCracken & McCracken King & Wood Mallesons King & Wood Mallesons Victorian Equal Opportunity And Human Rights Commission Victorian Government Solicitor
For the Amicus Curiae (International Commission of Jurists)	Ms F McLeod SC with Mr R Wilson and Mr R Watters	Ashurst
For the Amicus Curiae (Ambrose Centre for Religious Liberty Ltd)	Mr R Mimmo (Solicitor)	Rocco Mimmo Lawyer

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MAXWELL P:

Summary

Freedom from discrimination is a fundamental human right. So too is freedom of religion. The present appeal arises under the Equal Opportunity Act 1995 (Vic) (the ‘EO Act’), which gives legislative force to the first of these rights. One of the objectives of the EO Act is:

[T]o eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes.[1]

[1]EO Act s 3(b).

The EO Act recognises, however, that compliance with the obligation to act in a non-discriminatory way may, in certain circumstances, conflict with the enjoyment of the right to religious freedom. That is, a requirement that a person do, or refrain from doing, a particular thing in order to avoid prohibited discrimination may conflict with the religious doctrines to which the person subscribes.

The present case is said to involve just such a collision of these rights. At issue is the refusal by the applicants, Christian Youth Camps Ltd and Mark Rowe (to be referred to as ‘CYC’ and ‘Mr Rowe’ respectively), to allow the first respondent (‘Cobaw’) to hire a camping resort owned and operated by CYC, for the purposes of a weekend camp to be attended by same sex attracted young people (‘SSAYP’).

Cobaw is an organisation concerned with youth suicide prevention. It focuses particularly on SSAYP, aiming ‘to raise awareness about their needs and the effects of homophobia and discrimination on young people and rural communities generally’.[2] CYC was established by the trustees of the Christian Brethren Trust, itself established for purposes connected with the Christian Brethren Church. Mr Rowe was the resort manager. CYC and Mr Rowe are opposed to homosexual sexual activity, as they consider it to be contrary to God’s teaching as set out in the Bible.
[2]See further [26]–[28] below.

The Victorian Civil and Administrative Tribunal (the ‘Tribunal’) held that the refusal amounted to unlawful discrimination on the basis of the sexual orientation of those who would be attending the proposed camp. On the appeal to this Court, CYC disputed that finding, maintaining that there was a fundamental distinction between an objection to ‘the syllabus’ to be taught at the proposed camp — that is, to beliefs or opinions which would be expressed by Cobaw to those attending the camp — and discrimination on the basis of the sexual orientation of those attending.

Before the Tribunal, CYC contended that if, contrary to their principal submission, the refusal would otherwise have constituted unlawful discrimination, the exemption provisions in the EO Act concerning religious freedom were applicable, such that there had been no contravention. As will appear, these exemptions apply to conduct ‘by a body established for religious purposes’[3] and to discrimination by a person which is necessary for that person ‘to comply with the person’s genuine religious beliefs or principles’.[4] The Tribunal held that neither exemption was applicable.
[3]EO Act s 75(2).
[4]Ibid s 77.

The complaint brought by Cobaw alleged that it was Mr Rowe who had committed the act of discrimination. CYC, his employer, was said to be liable only vicariously. In the result, the Tribunal upheld both of these claims, concluding that Mr Rowe was directly liable and CYC vicariously liable for the contravention of the EO Act.

An appeal from a decision of the Tribunal is by leave only. The decision having been made by a Vice-President of the Tribunal, her Honour Judge Hampel, the application for leave is made to this Court.[5] As s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) makes clear, the appeal is on a question of law only. A number of the grounds of appeal concern the Tribunal’s findings of fact. It was common ground that the only question of law which could arise in relation to a finding of fact was the question whether it was reasonably open to the Tribunal on the evidence before it to make that finding.[6]
[5]The application for leave was referred to the bench which would hear the appeal if leave were granted.
[6]Victorian WorkCover Authority v Michaels (2009) 26 VR 88, 91–2 [8], [11].

Central to the resolution of the questions raised by the appeal is the correct interpretation of the provisions of the EO Act. What has to be discerned is how the Victorian Parliament intended that the ‘balance’ be struck between the right to freedom from discrimination and the right to religious freedom, where the two came into conflict.

A threshold issue for the Tribunal, and again for this Court, was whether these questions of interpretation were governed by the interpretive rule in s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the ‘Charter’). The Tribunal ruled that the Charter did apply. The Solicitor-General for Victoria, representing the Attorney-General as intervener, submitted that her Honour in that regard fell into error. As will appear, I would uphold that submission, although it was common ground that the error had no effect on the Tribunal’s analysis or reasoning.[7] Section 32(1) being inapplicable, the questions of interpretation fell to be determined on ordinary principles of statutory interpretation.
[7]See [178] below.

For reasons which follow, I have concluded that there was no error of law in the Tribunal’s conclusion that:

(a)there was discrimination on the basis of sexual orientation; and
(b)neither of the exemptions directed at preserving religious freedom applied in the circumstances of the case.

I have, however, concluded that the act of discrimination was committed by CYC itself, on whose behalf Mr Rowe was acting, and that he himself has no liability for the contravention. I would therefore allow Mr Rowe’s appeal. In the case of CYC, on the other hand, I would grant leave to appeal but would dismiss the appeal.

These are very lengthy reasons. The Tribunal’s reasons were of a comparable length. The hearing at first instance took 14 days, and the hearing of the appeal two full days. The appeal hearing would have been much longer but for the lengthy and helpful written submissions prepared by all participants, including the two bodies which made amicus submissions.[8] (As appears from pt 3 of these reasons, the Court itself raised a number of questions, which necessitated further written submissions and an additional day’s hearing.)
[8]The International Commission of Jurists (‘ICJ’) and the Ambrose Centre for Religious Liberty.

It can safely be assumed that, in scale and complexity, these proceedings are without precedent in Victorian anti-discrimination law. But that is not, I think, an indication that discrimination law in this State has become impossibly complex, or that to bring — or defend — a claim of discrimination is now beyond the reach of ordinary Victorians. Rather, it is a reflection of the novelty — and inherent difficulty — of the questions which arise when rights come into conflict. Such questions have been much litigated elsewhere but, for Victoria, represent hitherto uncharted territory.

These reasons are organised as follows:

PART 1: THE COMPLAINT OF DISCRIMINATION

The relevant provisions of the EO Act.

The refusal of accommodation.

Who was refused accommodation?

Discrimination ‘on the basis of’ sexual orientation.

The proper comparator?

Who committed the act of discrimination?

No vicarious liability.

PART 2: THE RELIGIOUS FREEDOM EXEMPTIONS

The approach to interpretation

– section 32 of the Charter.

– interpreting exemptions which protect a human right.

– international human rights law.

The exemption under s 75(2):

– ‘a body established for religious purposes’;

– ‘conforms with the doctrines of the religion’;

– ‘necessary to avoid injury to religious sensitivities’.

The exemption under s 77:

– is the exemption available to a corporation?

– ‘necessary to comply with religious beliefs or principles’.

PART 3: PROCEDURAL HISTORY

PART 1: THE COMPLAINT OF DISCRIMINATION
The relevant provisions of the EO Act

As the then Attorney-General told the Victorian Parliament in May 1995, the EO Act is the lineal successor of both the Equal Opportunity Act 1977 (Vic) (enacted by the Hamer Liberal Government) and the Equal Opportunity Act 1984 (Vic) (enacted by the Cain Labor Government). The Attorney-General noted that a comprehensive review of the 1984 Act by the Parliament’s Scrutiny of Acts and Regulations Committee had made numerous recommendations for reform ‘which the Committee felt were needed to meet the changing needs, beliefs and work patterns of Victorians’.

The Minister said:

The concept of equal opportunity is concerned with ensuring that all people have equal access to specified public benefits and resources, such as employment, accommodation and access to goods and services.
This bill seeks to promote the recognition and acceptance of everyone’s right to equality of opportunity by prohibiting a decision maker from considering a person’s irrelevant characteristics, such as their sex or age, when deciding whether to grant that person access to a particular benefit or resource.[9]

[9]Victoria, Parliamentary Debates, Legislative Assembly, 4 May 1995, 1249 (Jan Wade, Attorney-General).

The objects of the EO Act are set out in s 3, as follows:

(a)to promote recognition and acceptance of everyone’s right to equality of opportunity;
(b)to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes;

(c) to eliminate, as far as possible, sexual harassment;
(d)to provide redress for people who have been discriminated against or sexually harassed.

Part 2 of the Act is headed ‘What is Prohibited Discrimination?’. Section 6 contains a list of attributes ‘on the basis of which discrimination is prohibited’. The relevant attribute in the present case is ‘sexual orientation’.[10] Section 7, in turn, defines discrimination to mean ‘direct or indirect discrimination on the basis of an attribute’. Section 8 defines ‘direct discrimination’ in these terms:
[10]EO Act s 6(l).

(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.

In determining whether or not a person discriminates, the person’s motive is irrelevant.[11]

[11]Ibid s 10.

Part 3 of the EO Act identifies the areas of activity in which discrimination is prohibited. Relevantly, the Act provides that a person must not discriminate against another person by:

· refusing to provide goods or services to the other person;[12] or
Ÿ refusing, or failing to accept, the other person’s application for accommodation.[13]
[12]Ibid s 42(1)(a).
[13]Ibid s 49(a).

The refusal of accommodation

As mentioned earlier, Cobaw approached CYC about booking a holiday camp at Phillip Island. The critical communications took place between Ms Sue Hackney on behalf of Cobaw and Mr Rowe on behalf of CYC. Ms Hackney was employed by Cobaw as the project co-ordinator of the WayOut Project, which is described as a rural Victorian youth and sexual diversity project. At the time of her first contact with CYC, Ms Hackney had held that position for five years.

Mr Rowe was the site manager at the Phillip Island Adventure Resort (the ‘Resort’), one of four campsites conducted by CYC. He had held that position since 2001, following CYC’s acquisition of the Resort. Mr Rowe had been brought up as a member of the Christian Brethren Church.

The conversation between Ms Hackney and Mr Rowe took place on 7 June 2007. Their respective accounts of the conversation, as set out in their witness statements, differed in important respects. There was extensive cross-examination of each of them, in the course of which a number of the differences disappeared. Mr Rowe, in particular, acknowledged under cross-examination that statements which he had attributed to Ms Hackney were, on reflection, based on his assumptions or interpretations.

After carefully reviewing the evidence, her Honour said she had:

reached a very firm and clear view that on the points of material conflict between Ms Hackney’s account of the conversation and Mr Rowe’s, I prefer and accept Ms Hackney’s.[14]

There was no challenge to this finding.

[14]Cobaw Community Health Services v Christian Youth Camps Ltd & Anor (Anti-Discrimination) [2010] VCAT 1613 (Judge Hampel) (‘Reasons’), [138].

As the judge noted, Ms Hackney made a detailed contemporaneous file note of the conversation, and followed it up with a letter to Mr Rowe a fortnight later. The content of both the file note and the letter were consistent with the evidence which Ms Hackney gave. What follows is based on Ms Hackney’s account but there was, in the end, no real dispute about the key elements of the conversation.

Ms Hackney told Mr Rowe that she was looking to book the Resort for a weekend. Mr Rowe then asked about the nature of the group and the activities which would be conducted over the weekend. Ms Hackney replied that her organisation:

was a youth suicide prevention initiative that targeted same sex attracted young people and … aimed to raise awareness about their needs and the effects of homophobia and discrimination on young people and rural communities generally.

Mr Rowe responded that the Resort was a Christian youth camp, which needed to be ‘mindful of the aims and beliefs of groups that used their facilities’. He said that he did not know how ‘the Board’ would feel about a group such as Cobaw.

Ms Hackney said to Mr Rowe that she did not want to be disrespectful of their beliefs and that, through her experience of working with a range of Christian schools and organisations over the previous five years, she understood that there was a range of views about homosexuality:

I said that I would, however, be honest about our project’s aims and beliefs and that we did have the view that homosexuality or same sex attraction is a natural part of the range of human sexualities. I added that our project would be conducting workshops etc over the weekend to plan ways to raise awareness.

Mr Rowe then said that the Board of CYC ‘would have difficulties’ taking a group such as Cobaw and that they would be better off investigating the availability of other camps in the area. He stated that CYC would not be able to take Cobaw because CYC was ‘a Christian organisation that supports young people’.

The first question of fact before the Tribunal was whether there had been a ‘refusal’ within the meaning of the EO Act. Her Honour found that there had. The applicants’ grounds of appeal, and their written submissions, challenged that finding. In oral argument, however, their counsel abandoned those grounds.

Who was refused accommodation?

The complaint of discrimination was made by Cobaw which, at the relevant time, was an incorporated body. But Cobaw did not complain that it had been discriminated against. Cobaw asserted that it was bringing the complaint as a ‘representative body’, within the meaning of s 104(1B) of the EO Act, and was doing so ‘on behalf of the persons named in the Schedule’ (‘the individuals’).[15]
[15]Although it was alleged in the Particulars of Complaint (‘PoC’) that Cobaw had been refused services/accommodation, only the individuals were said to have been discriminated against.

Section 104(1B) is a machinery provision which enables a representative body to bring to the Commission, and then to the Tribunal, one or more individual complaints of discrimination. There are several conditions to be satisfied before a complaint may be made by a representative body on behalf of named persons. In particular, each named person must have been entitled, as an individual, to make a complaint of discrimination in his or her own right.[16]
[16]EO Act s 104(1B)(a)(i).

Accordingly, in the present case, it needed to be established that each named individual could complain of being refused services or accommodation on a prohibited ground. The complaint lodged by Cobaw alleged that the individuals had been discriminated against, in that they:

·were refused services;[17]
·were subjected to a detriment in connection with the provision of services to them;[18] and
·had an application for accommodation (made on their behalf by Ms Hackney) refused.[19]

(For the sake of simplicity, these reasons will refer only to the refusal of an application for accommodation.)

[17]PoC, [31(a)].

[18]PoC, [31(b)].

[19]PoC, [32(a)].

The trial judge was satisfied that each of the individuals was entitled to make a complaint of discrimination. As her Honour noted,[20] the individuals fell into three categories, as follows:

(a)workers connected with Cobaw or its partner organisations;
(b)SSAYP involved in the WayOut project; and
(c)other young people involved in the WayOut project, who supported its aims.

[20]Reasons, [62].

Each of the 10 individuals who gave evidence said that he/she had intended to attend the forum. Each claimed to have been discriminated against because of the refusal of accommodation.[21] The Tribunal upheld those claims.[22]
[21]Ibid [64].
[22]Ibid [175], [202]–[203].

The contention for CYC at trial was that none of the individuals had been refused accommodation and that it was Cobaw in its own right which had been refused accommodation. This was so, it was said, because Ms Hackney was acting in her capacity as an officer of Cobaw and on its behalf. It was ‘a classic case of agency’.[23] It was Cobaw, as the sponsoring organisation, which needed to secure accommodation in order for it to conduct the proposed camp.
[23]Ibid [165], [170].

In any case, CYC contended, Ms Hackney could not have been acting on behalf of the individuals as their identity was not known to her at the date of her conversation with Mr Rowe. As at 7 June 2007, WayOut’s partner organisations had simply been asked to start talking about who would like to go to the camp, although one organisation ‘had pretty well finalised who wanted to go’.

The trial judge rejected CYC’s contentions, holding that Ms Hackney was relevantly acting on behalf of the named individuals, being proposed attendees at the camp.[24] Her Honour said:

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.[25]

[24]Reasons, [172], [175].

[25]Ibid [172].

Her Honour held that it was not necessary for the individuals to have been identified at the time of the application for accommodation:[26]

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.
…
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 10 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 the 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.[27]

[26]Ibid [174].

[27]Ibid [174]–[175].

Part 3 of these reasons traces the procedural history of this appeal and, in particular, of the evolution of the notice of appeal. As there described, the grounds of appeal did not challenge the finding that it was the named individuals who were refused accommodation. The only relevant ground was directed at a quite different point, namely, whether the refusal could have been ‘on the basis of’ sexual orientation given that Mr Rowe did not know the identity, less still the sexual orientation, of any of the individuals.[28]
[28]See [345] below.

After the appeal hearing had concluded, however, the applicants sought leave to amend the notice of appeal to add a ground contending that Ms Hackney could not have been acting on behalf of the individuals as they had not been identified at the time of the application. The amendment application is opposed by Cobaw. For reasons set out in pt 3, I would refuse leave to amend.

Discrimination ‘on the basis of’ sexual orientation

Accordingly, the first question of law to be addressed on the appeal is whether it was open to the Tribunal, on the evidence, to conclude that the individuals were discriminated against ‘on the basis of’ their sexual orientation (or their personal association with persons identified by their sexual orientation). Was that attribute the reason — or at least a substantial reason — for Mr Rowe’s refusal to accept the application for accommodation?[29]
[29]EO Act s 8(1)(b); University of Ballarat v Bridges [1995] 2 VR 418, 424 (decided under the equivalent provisions of the Equal Opportunity Act 1984 (Vic)).

The basis of Mr Rowe’s objection to the proposed camp was made quite clear, both in his statement and in his oral evidence. He believed that homosexual activity was wrong because it was contrary to God’s teaching as set out in the Bible. Accordingly, he said:

It offends my Christian beliefs that young people in particular are told that there is nothing wrong with homosexual sexual activity.

Mr Rowe said:
I believe that the Bible teaches that homosexual acts are not in accordance with God’s plan for humanity. The Bible opposes same sex sexual practices by specific words …
The Bible makes a distinction between same sex friendship which occurs with people like David and Jonathan but has very strong words against homosexual sexual acts and relationships based on such acts. Attempts to promote such relationships as acceptable do not conform to God’s will.[30]

[30]Emphasis added.

As to the proposed camp, Mr Rowe said:

In view of my Christian beliefs I was and am very concerned that a group like WayOut were going to say to kids with some same sex attraction that it was natural and healthy for them to adopt a homosexual lifestyle.

His understanding of how Ms Hackney described the purpose of the weekend camp:
was that the weekend or forum was very much about telling the young teenagers or young people who attended that homosexual activity was natural and healthy.

In cross-examination, Mr Rowe confirmed that ‘following through’ on same sex attraction ‘in sexual action’ was wrong. He would discourage people from doing that. If he were in the position of making law ‘based on what I believed God’s word taught and said was right and wrong’, he would outlaw homosexual sexual activity.

Mr Rowe’s ‘strong belief’ was that:

[T]he Bible teaches that God’s intention is that sexual activity be expressed only within the boundaries of a marriage between a man and a woman and that the Bible strongly disapproves of any sexual activity outside such a marriage.

Mr Rowe confirmed that, as a result, he would not:
have a group promoting heterosexual young people to say it was healthy and natural to have sex before marriage either, because I believe that’s also outside what I believe the Bible teaches.

It was submitted for the applicants on the appeal that, on a proper reading of Mr Rowe’s evidence, he was objecting to Cobaw telling the young people attending the camp that it was appropriate to have sex outside marriage. In truth, it was said, Mr Rowe was voicing an objection to pre-marital sex, not to sexual activity between same sex attracted people. This was, so it was said, the only finding of fact reasonably open.

This point may be disposed of shortly. Enough of Mr Rowe’s evidence has already been set out to show that the submission is without foundation. There was certainly reference in the evidence to the belief of Christian Brethren that sexual activity should take place only within a marriage between a man and a woman.[31] But this was not a case about pre-marital sex. On the contrary, the whole thrust and tenor of Mr Rowe’s evidence, in his statement and in cross-examination, concerned what he referred to as ‘homosexual sexual activity’. That activity, he believes, is expressly prohibited by the Bible. The evidence of CYC’s expert witnesses was likewise directed at identifying the doctrinal foundation for that specific prohibition.
[31]See [282] below.

The judge’s findings

The submission for CYC before the primary judge was as follows:

[I]t 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 …[32]

As her Honour pointed out, Mr Rowe conceded in his oral evidence that the terms ‘promoting homosexuality’ and ‘homosexual lifestyle’ had not been used in the conversation.

[32]Reasons, [178].

Her Honour found:

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, [CYC’s] 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 [CYC] characterised it, homosexuality.[33]

[33]Reasons, [188]–[190].

Her Honour continued:

In my view, what [CYC] 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.
…
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.[34]

[34]Ibid [198]–[199], [202]–[203].

The applicants’ submission was that her Honour had here fundamentally mischaracterised the nature of the objection to the proposed camp. The ‘substantial reason’ for Mr Rowe’s response to Ms Hackney was:

because of his concern from what he was told that the forum was to be used to propagate or encourage the notion that homosexuality was part of the normal range of human sexualities to young people. … The attribute of the proposed attendees was not a reason let alone a substantial reason for his actions.

As the point was expressed in oral argument, Mr Rowe should be understood to have had ‘no animus against homosexual people’ or against ‘forums for SSAYP or to help them’. Rather, his objection was to ‘a syllabus that says it is all right’.
Consideration

Her Honour’s finding as to Mr Rowe’s reason for refusing the application for accommodation was a finding of fact. As is apparent, the complaint is that her Honour made the wrong finding. It follows that the applicants could only succeed on this aspect of the appeal if they could establish that the finding which her Honour made was not open on the evidence. (Although it was suggested in oral argument that the finding reflected a misconstruction of the relevant provisions, neither the grounds of appeal[35] nor the written submissions raised any such question of construction.)
[35]Grounds 5(c)(ii), (d), (e) and (f).

The submission for CYC had a beguiling simplicity. It was obvious, so the argument went, that an objection to the views or opinions which would be conveyed to those attending the camp was quite different from an objection to the sexual orientation of those who would be attending. The point was clearly made in the grounds of appeal:

It was the propagation of the belief or opinion that homosexuality is a normal and natural part of the range of human sexualities … that [CYC] objected to and not the sexual orientation or personal associations of the [attendees].[36]

[36]Grounds of appeal 5(c)(ii).

To illustrate this distinction, the submission drew attention to evidence which Mr Rowe gave under cross-examination, in response to the following hypothetical question put by senior counsel for Cobaw:

If a group of school children … with their same sex parents wanted to come to [the Resort] and the woman who rang up to make the booking said, ‘Hi, we’re a bunch of parents from X primary school; we are all same sex attracted people and we’ve all got kids and we want to bring our kids to [the Resort]’, would you accept that group?

Mr Rowe’s response, and the succeeding questions and answers, were as follows:
MR ROWE: … I would ask, like every family group, ‘What are you about?’ You know, ‘Do you know what we are? Are you hoping to come here and,’ you know, ‘enjoy and experience time together as family?’ If I had a group just like you’re saying … come and I’d say, ‘Are you about creating memories with everybody and all together, or are you about promoting something?’ If it was about like you are saying and they want to come to the island, they could be able to stay with our facility.
COUNSEL: But if they said, ‘We think it’s normal and healthy for children to have parents of the same sex, two women as parents or two men as parents’, is that where you draw the line if somebody said that to you in the conversation?
MR ROWE: I drew the line on this group because of the promotion to a group of people.
COUNSEL: I’m asking you about a hypothetical, Mr Rowe. I’m saying to you, I’m asking you that this woman that’s ringing you up who’s a lesbian and who has children — and she says to you, ‘Well, of course we want to come away with our children and enjoy them and spend time together as a family, but we think it’s normal and healthy for our children to have two women as parents’. Still going to let them come?
MR ROWE: I think I would in that case. I don’t think they were there promoting it to everybody else. I don’t think they’ve — I think that’s the scenario you get — I think I would.
COUNSEL: They’re already converted in your view, Mr Rowe. Is that the difference?
MR ROWE: No, the aim of CYC … is set out clearly and is that we want all guests to be able to come and experience Christian values and Christian life. If we have an opportunity for them to come and it’s not in direct contrast as in opposing or promoting something that’s direct.
COUNSEL: Why in my example, Mr Rowe, is there any material difference? Here you have a lesbian woman saying to you, ‘We think it’s okay, we think it’s normal and healthy for these children to have two women as parents’. That is just as objectionable as the scenario that we’re all here talking about to your beliefs, isn’t it?
MR ROWE: When Ms Hackney rang me and said her group — I said, ‘What is the nature of your — what is your group about?’ She said, ‘Our group targeted same sex attracted young people to bring them away on camp to say it was okay to be same sex attracted’. It all comes down to, your Honour, that the content of the conversation I had — it was about the promotion of homosexuality as natural and healthy to a wide range of young people.

Mr Rowe agreed, under questioning from her Honour, that if CYC were to permit a group of same sex parents with children to hold a camp, it could be seen as promoting same sex parenting as normal and natural. He sought, however, to distinguish counsel’s example from ‘having forums, having input, standing up and actually teaching and speaking to young people who still may not be sure’. According to Mr Rowe, counsel’s example was about:

coming away as families with children and I would have assumed that that [the appropriateness of same sex relationships] would have been promoted the whole time that they were living wherever they were living.

The appeal submission for Cobaw was that the purported distinction — between the sexual orientation of those attending the camp and what would be said to them about their sexual orientation — was misconceived. Reliance was placed on the following statement in her Honour’s reasons:

Sexual orientation, like gender, race and ethnicity, [is] 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. … 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.[37]

As the amicus submission of the ICJ pointed out, the proposition that sexual orientation is an important aspect of a person’s identity has been affirmed in other jurisdictions.[38]

[37]Reasons, [193].

[38]See R v Ministry of Defence; ex parte Smith [1996] QB 517, 564; R v Secretary of State for Trade and Industry; ex parte Amicus [2004] EWHC (Admin) 860, [192]; Egan v Canada [1995] 2 SCR 513, 528; Living Word Distributors Ltd v Human Rights Action Group (Wellington) [2000] 3 NZLR 570, 588 [67].

In my respectful opinion, the finding which her Honour made about Mr Rowe’s reason for refusing the application for accommodation was well open on the evidence. As the applicants themselves pointed out on the appeal, her Honour’s task was to identify ‘the true characterisation of the reason for [Mr Rowe’s] conduct’. Successive decisions of the High Court have made clear that the task of the fact-finder in such a case is to determine why the impugned conduct took place, to determine the ‘true basis’ for the act or decision. The explanation or justification given by the decision-maker is relevant but not determinative.[39]
[39]Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, 176; Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92, 142–3 [157]–[160], 163 [236]; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044, 1052–3 [44]–[45].

In my view, her Honour was right to reject the distinction between ‘syllabus’ and ‘attribute’, for the reasons which her Honour gave. There was no error of law.

Mr Rowe was aware that the camp would be attended by SSAYP. He knew that the purpose of the camp was to affirm, reinforce and support the sexual orientation of these young people. What Mr Rowe described as ‘promotion’ was, in truth, affirmation of same sex attraction as ‘a natural part of the range of human sexualities’. As Ms Hackney told Mr Rowe, the WayOut project was responding to difficulties which are confronted by SSAYP as a result of homophobia and discrimination.

Mr Rowe was perfectly frank about his strong objection to sexual activity between same sex attracted people. It was, he believed, contrary to God’s law and should be discouraged. CYC’s expert witnesses confirmed that the relevant religious prohibition was directed at the sexual act itself. As senior counsel for Cobaw pointed out in the Tribunal, sexual orientation and sexual attraction are inseparable.[40] Reliance was placed on the following statement by Baroness Hale in Ghaidan v Godin-Mendoza:[41]

Sexual ‘orientation’ defines the sort of person with whom one wants to have sexual relations. It requires another person to express itself.

In the recent Supreme Court decision of Preddy v Hall,[42] her Ladyship expressed the point in this way:
Sexual orientation is a core component of a person’s identity which requires fulfilment through relationships with others of the same orientation.[43]

[40]Reasons, [191].

[41][2004] 2 AC 557, 607 [142].

[42][2014] 1 WLR 3741 (‘Preddy’).

[43]Ibid 3755 [52].

What Mr Rowe objected to about the proposed forum was that the SSAYP attending would be encouraged to accept their sexual identity, including its expression in sexual activity. They would be supported and reassured about their sexual orientation, in the face of the hostility experienced by them elsewhere.

In my opinion, the evidence regarding the hypothetical group of same sex attracted parents with children reinforced, rather than undermined, her Honour’s conclusion. Mr Rowe’s answers made clear that what he objected to was conduct which affirmed same sex orientation as ‘normal and natural’. He was prepared to contemplate the possibility that the hypothetical group might be allowed to come to the Resort, provided that they made no show of their sexual orientation. For example, if they were wearing T-shirts proclaiming the virtues of same sex parenting, that would be permissible — but only if it was ‘done in their own area’. Mr Rowe said he ‘wouldn’t go down there’.

What he would object to was the active expression of same sex orientation. In other words, he would not permit attendance by a group which would be explicit about same sex orientation or its appropriateness. He drew the same distinction in his evidence regarding pre-marital sex. He would not police the sexual activities of people attending the Resort — some of whom, he acknowledged, would be likely to engage in pre-marital heterosexual sex — but he would object to an event which affirmed, or proclaimed, or openly encouraged, pre-marital sex.

Both in his statement and in his oral evidence, Mr Rowe expressed the view that it was not ‘homophobic discrimination’ for him to hold (on religious grounds) a different view from Ms Hackney regarding homosexuality. The same point was raised by the grounds of appeal.[44]
[44]Ground 4(d).

This contention must also be rejected. What occurred on 7 June 2007 was not merely the expression of a difference of opinion. Plainly enough, that would not have constituted discrimination. Rather, what occurred was that, because of his strong belief that homosexual sexual activity was morally wrong, Mr Rowe on behalf of CYC refused to allow the Resort to be used by SSAYP for an activity in which their identity as such would be expressed and affirmed.

The proper comparator?

Section 8 of the EO Act provides as follows:

8 Direct discrimination
(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.

Having concluded that the refusal of accommodation was made on the basis of the sexual orientation of those proposing to attend the camp, the Tribunal had to decide whether they had been treated less favourably than Mr Rowe would have treated applicants without that attribute. Her Honour concluded that:

[T]he 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 young people with the attribute of a particular race or ethnicity, … who wish to conduct a forum to discuss issues of their identity intimately connected with that attribute.[45]

[45]Reasons, [207].

Her Honour concluded as follows:

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.[46]

[46]Ibid [208].

The applicants’ written submission contended that the Tribunal had here ‘applied the wrong test and misdirected itself in law’. In argument, however, counsel for the applicants conceded that if the attack on the ‘basis of the refusal’ failed, the attack on the ‘proper comparator’ must also fail.

That concession was properly made. There was, in any event, no misdirection. Her Honour addressed the question posed by the section and, given the range of possible comparators available, the choice which her Honour made was reasonably open.[47] Her Honour’s conclusion about how the comparator group would have been treated was a conclusion of fact, and it was well open to her Honour on the evidence.
[47]Cf Collier v Austin Health (2011) 36 VR 1, 15 [66]ff.

I turn now to consider by whom the act of discrimination was committed.

Who committed the act of discrimination?

This proceeding raises an important question concerning the liability of a corporation for discriminatory conduct which occurs in the course of the corporation’s business. The relevant prohibitions in pt 3 of the EO Act are expressed in these terms:

·‘A person must not discriminate against another person by refusing to provide goods or services to the other person’;[48]
·‘A person must not discriminate against another person by refusing, or failing to accept, the other person’s application for accommodation’.[49]

[48]EO Act s 42(1)(a).

[49]Ibid s 49(a).

Where a complaint is made that there has been a discriminatory refusal of this kind, it is necessary to identify the ‘person’ who engaged in the alleged conduct. Where the service provider or accommodation provider is a corporation, and the decision to refuse is made by a person employed by the corporation to make such decisions, the question which arises is this: for the purpose of applying pt 3 of the EO Act, which ‘person’ committed the (alleged) act of discrimination? Was it the natural person (the employee) or the corporation on whose behalf the employee was acting in making the decision to refuse?

The answer to that question depends both upon the proper construction of the EO Act and upon the applicability, in this statutory context, of principles of agency and corporate personality. The following propositions are, however, uncontroversial:

1.A corporation is a ‘person’ for the purposes of the Act.[50]
2.The prohibitions against discrimination were intended to apply directly to the activities of corporations.
3.Corporations can act only through the agency of natural persons.
4.The only way a corporate provider of services or accommodation could itself commit an act of discriminatory refusal would be for a natural person, employed by the corporation to make such decisions, to refuse to provide the corporation’s services or accommodation (and to do so on a prohibited ground).

[50]Except where a contrary intention appears: see [312] below.

In my view, Parliament must have intended such an act of refusal to be attributable to the corporation for the purposes of the EO Act, so as to make the corporation directly liable as the ‘person’ committing the act of discrimination. Otherwise, no corporation could ever contravene the EO Act in its own right. (Vicarious liability is dealt with separately under the EO Act, and will be discussed below.)

The present case is, of course, of exactly this kind. Mr Rowe was employed by CYC to manage the Resort. He had full authority over the conduct of CYC’s accommodation business at the Resort, including authority to accept or refuse applications for accommodation. When he refused Ms Hackney’s request, he was acting on CYC’s behalf.

For reasons which follow, I consider that this was an orthodox example of a corporation acting through a natural person — in this case, a manager. For the purposes of the Act, this was a refusal by CYC, not by Mr Rowe. That is not, however, how the proceeding has been conducted. As noted earlier, Mr Rowe was found to have committed the contravention; CYC’s only liability was vicarious. And, as will appear, both Cobaw and the Attorney-General maintain that this is how the EO Act was intended to be applied in such circumstances.

The claim of discrimination

The claim brought by Cobaw on behalf of the individuals alleged that it was Mr Rowe who had committed the act of discrimination, by refusing the individuals’ applications for accommodation. It was not contended that CYC had itself committed an act of discriminatory refusal. (Nor, apparently, did Mr Rowe take any such point in answer to the complaint against him.) The only liability alleged against CYC was vicarious liability, in reliance on s 102 of the EO Act.

The Tribunal upheld the complaints against Mr Rowe.[51] In refusing to take the booking, Mr Rowe had subjected the individuals to ‘less favourable treatment’ as defined in s 8(1) of the Act. He had contravened ss 42 and 49 in his own right.
[51]Reasons, [209].

As already mentioned, the complaint so far as it related to CYC relied on s 102 of the Act. Section 102 appears in div 4 of pt 6, which is headed ‘Vicarious Liability’. Division 4 comprises ss 102 and 103, which provide as follows:

102 Vicarious liability of employers and principals
If a person in the course of employment or while acting as an agent—
(a) contravenes a provision of Part 3, 5 or 6; or
(b)engages in any conduct that would, if engaged in by the person's employer or principal, contravene a provision of Part 3, 5 or 6—
both the person and the employer or principal must be taken to have contravened the provision, and a complaint about the contravention may be lodged against either or both of them.

103Exception to vicarious liability
An employer or principal is not vicariously liable for a contravention of a provision of Part 3, 5 or 6 by an employee or agent if the employer or principal proves, on the balance of probabilities, that the employer or principal took reasonable precautions to prevent the employee or agent contravening the Act.

In its pleading, Cobaw relied on s 102(a), contending that Mr Rowe had contravened the EO Act himself, and that he had done so both ‘in the course of employment’ and while acting ‘as agent’ for CYC.[52] Her Honour agreed, holding that when Mr Rowe refused to provide accommodation to the individuals, he was acting both in the course of his employment with CYC and as an agent for CYC.[53]
[52]PoC, [36]–[38].
[53]Reasons, [210], [229].

By force of s 102, the Tribunal held, ‘both CYC and Mr Rowe have contravened’ the relevant provisions. By operation of law, therefore, CYC was made liable — vicariously liable — for Mr Rowe’s act of discrimination and was deemed to have contravened the EO Act.

As foreshadowed above, I consider that both the complaint as filed and the Tribunal’s findings were based on a misapprehension of the legal capacity in which Mr Rowe was acting. When he refused to make the Resort available, Mr Rowe was not acting in his own right but as agent for CYC. It was CYC, not Mr Rowe, which offered accommodation to the public and it was CYC, acting through the agency of Mr Rowe, which decided whether or not to accept applications to hire its accommodation. For the purposes of the EO Act, the act of refusal was the act of the company, not of its agent.

As I have said, no such case was advanced by Cobaw at trial, and no point was taken at trial by Mr Rowe. Nor did any of the grounds of appeal challenge her Honour’s conclusion that Mr Rowe was the contravenor and that CYC was (only) vicariously liable.

There are, however, numerous grounds of appeal disputing her Honour’s findings that the religious freedom exemptions were not available either to Mr Rowe or to CYC. As will appear, the terms in which the exemptions are created make it necessary to decide whether it was the corporate entity or its human agent which committed the act of discrimination.

Because of the importance of correctly identifying the discriminator, the Court decided that it was necessary, notwithstanding that the issue had not been raised by the parties, to invite submissions on the following questions:[54]

Given that CYC was the accommodation provider, and Mr Rowe was found to have been acting in his capacity as agent for CYC, how could he have committed an act of discrimination in his own right? As a matter of law, was he not acting under the authority of his principal, CYC, such that the refusal of accommodation was in law the refusal of CYC, it being the accommodation provider?
In relation to [that] question … to what extent are common law agency principles applicable under the Act?
[54]See [342]–[344] below.

The supplementary submissions

In supplementary submissions responding to these questions, the applicants changed their position quite dramatically. They submitted — for the first time — that the Tribunal had erred in finding that Mr Rowe was the contravenor and that CYC was only vicariously liable. According to this new submission, the conduct of Mr Rowe was conduct engaged in by him in his capacity as an employee of CYC. The accommodation which he was alleged to have unlawfully refused to make available was CYC’s, not his.

According to the submission, common law agency principles should be applied to determine whether CYC had contravened a provision of the Act. There was nothing in the EO Act which excluded those principles, either expressly or by necessary implication. Since a body corporate could only act through human agency, the conduct of Mr Rowe, as the manager responsible for deciding whether to accept applications for accommodation, was the conduct of CYC itself.

It followed, so the applicants now contended, that Mr Rowe himself could not have contravened the Act. Accordingly, s 102 of the Act could not operate to make CYC vicariously liable. Section 102(a) was not engaged since Mr Rowe had not contravened himself. Nor was there any scope for s 102(b) to apply, since this was not a case of Mr Rowe engaging in ‘conduct that, if engaged in by his employer, would have contravened’ the Act. For it was conduct which CYC had engaged in, through the agency of Mr Rowe. In other words, CYC was either directly liable, or not at all. And Cobaw had never contended that CYC itself had committed the act of discrimination.

In response, Cobaw submitted that its reliance on s 102 was correct. It was said that Mr Rowe’s conduct in refusing to take the booking fell within s 102(b):

because it was conduct that would contravene a provision of Part 3 if engaged in by CYC itself (as the accommodation provider).

This was, it would appear, a change of position. As noted earlier, the pleaded complaint invoked only s 102(a), alleging that Mr Rowe had himself contravened the Act.[55] The supplementary submission did not indicate whether that allegation was maintained.

[55]See [82] above.

Cobaw contended that the applicants’ argument was ‘circular’. Their reliance on the corporate status of the employer was said to be an attempt ‘to avoid the operation of s 102’:

Such an approach is misconceived because it would exclude an entire class of persons (those employed by corporations) from the operation of the EO Act on the mere basis that a company must act through people.
For example, no person providing goods or services to the public on behalf of a company could be held liable for discrimination in the manner in which those goods or services were provided.
Moreover, it is clear that s 102 is designed to capture precisely the current circumstances — that is, where an individual acts as an agent of an employer. The legislation makes clear that in that event, both the individual and the company employer will be liable.[56]

[56]Emphasis in original.

The submission for the Attorney-General (intervening) was to similar effect. The Minister contended that s 102 operated to the exclusion of common law principles. That section, together with ss 98, 99 and 103, ‘set out the circumstances in which a body corporate may be responsible for the actions of its employees and agents’.

The Attorney’s submission relied on the distinction drawn by Lord Reid in Tesco Supermarkets v Nattrass,[57] between:
[57][1972] AC 153, 170 (‘Tesco’).

·a person who is ‘the embodiment of the company’ or its ‘directing mind and will’;[58] and
·a person who is a servant, representative, agent or delegate of the body corporate.

According to Lord Reid, a person in the first category:
is acting as the company and his mind which directs his acts is the mind of the company … He knows and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company’s servant or agent. In that case any liability of the company can only be a statutory or vicarious liability.[59]

[58]Ibid 171, citing Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 and citing H L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd [1957] 1 QB 159, 172.

[59]Tesco [1972] AC 153, 170. The highlighted passage was relied on by the Attorney-General.

The Attorney-General submitted that Mr Rowe fell into the second of Lord Reid’s categories. He was ‘merely the company’s servant or agent’. Accordingly, it was said, CYC’s liability ‘could only be a statutory or vicarious liability’. So far as vicarious liability was concerned, the Attorney-General submitted that ss 102 and 103:

set out the circumstances in which an employer or principal, including a body corporate, can be liable for the acts of its employees or agents. … [B]oth the parties are prima facie liable for the contravention.
…
It follows that an agent’s refusal to provide accommodation on a ground prohibited by Part 3 renders both the agent and the principal responsible for contravening Part 3, and the question whether the refusal was, in law, that of the principal, does not arise.
The Act asks a different question and does not attribute liability solely to a principal.
Section 102(a) expressly contemplates that a person acting as an employer or agent may contravene a provision of Part 3 in that capacity.

Developing this submission in argument, the Solicitor-General submitted that the word ‘refuse’ in the relevant provisions of the EO Act was to be read literally. That is, the natural person who spoke the words of refusal — in this case, Mr Rowe — was the person who refused the application for accommodation, and hence contravened the Act. This was so regardless of whether or not it was his/her accommodation to offer. Whether that person’s employer had any liability for the contravention was to be determined by recourse to s 102. In other words, s 102 of the EO Act left no room for consideration of whether the refusal was, in law, the employer’s refusal.

Consideration

For reasons which follow, I consider that the applicants’ supplementary submissions should be accepted on this point. CYC’s liability for the discriminatory refusal was direct liability. The vicarious liability provisions have no application.

It was common ground that:

·CYC was the provider of the accommodation for which Ms Hackney applied;
·if the application had been accepted, the accommodation would have been provided by CYC;
·Mr Rowe had no accommodation of his own to provide; and
·Mr Rowe was authorised by CYC to accept or reject applications for accommodation on its behalf.

In those circumstances, it follows both from the language of the EO Act and from orthodox rules of attribution of conduct to corporations that the act of refusal was the act of CYC, not of Mr Rowe personally. As noted earlier, s 49 of the EO Act prohibits a person from discriminating against another person ‘by refusing … the other person’s application for accommodation’. As a matter of ordinary language, the reference to a person ‘refusing’ to provide accommodation must be a reference to a person who is in a position to provide accommodation. Only the accommodation provider can sensibly be said to ‘accept’ or ‘refuse’ an application for accommodation.

To take a commonplace example, if a person rings a hotel asking to book a room, and is told by the person in charge of bookings that there is no room available, it can hardly be doubted that it is the hotel proprietor (a company) which has refused the application for accommodation, not the person who answered the telephone call. The fact that the words of refusal are spoken by a servant of the company, duly authorised in that behalf, does not alter the analysis. It is, rather, the foundation of the analysis. Likewise, if the bookings officer accepted the booking, the contract which came into existence would be between the customer and the hotel company.

The point may be expressed differently, by reference to the Act’s objective of eliminating discrimination. Parliament plainly intended that accommodation providers — like CYC, or the hotel proprietor in my example — be directly liable if they refused on a prohibited ground to provide accommodation. Equally obviously, in my view, Parliament intended that direct liability should attach when such decisions were made on their behalf by appropriately authorised officers. How else could the provider itself be liable?

Where — as here — the accommodation provider is a corporation, principles of agency and attribution are necessarily brought into play. Axiomatically, the corporation must rely on authorised persons to conduct the accommodation business on its behalf. As Brennan J said in Northside Developments Pty Ltd v Registrar-General:[60]

A company, being a corporation, is a legal fiction. Its existence, capacities and activities are only such as the law attributes to it. The acts and omissions attributed to a company are perforce the acts and omissions of natural persons. A company is bound by an act done when the person who does it purports thereby to bind the company and that person is authorized to do so or the doing of the act is subsequently ratified ...

[60](1990) 170 CLR 146, 171–2 (emphasis added) (‘Northside Developments’).

In the same case, Dawson J clarified the relationship between the principles of agency and the ‘organic theory’ of attribution (of which Tesco[61] is an example):

The organic theory, which was originated by Lord Haldane LC in Lennard's Carrying Co Ltd … has been used to impose liability upon companies beyond that which could be imposed by the application of the principles of agency alone. It is an approach which has been particularly useful in criminal cases where the liability of a company has depended upon a mental element … But the organic theory merely extends the scope of an agent's capacity to bind a company and there must first be authority, actual or apparent. It is only then that a person may be regarded not only as the agent of a company, but also as the company itself — an organic part of it — so that ‘[t]he state of mind of [the agent] is the state of mind of the company’: H L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd, per Denning LJ. Thus the application of the theory depends in the first instance upon there being authority, that is to say, agency.[62]

[61][1972] AC 153.

[62]Northside Developments (1990) 170 CLR 146, 201–2 (citations omitted, emphasis added).

When any question arises as to the liability of a corporation for the conduct of such an authorised person, rules of attribution are engaged, as elucidated by the Privy Council in Meridian Global Funds Management Asia Ltd v Securities Commission.[63] As their Lordships said in Meridian, there would be little sense in deeming a company to exist as a fictional person:

unless there were also rules to tell one what acts would count as acts of the company. It is therefore a necessary part of corporate personality that there should be rules by which acts are attributed to the company. These may be called ‘the rules of attribution’.[64]

[63][1995] 2 AC 500, 506 (‘Meridian’).

[64]Ibid 506. See, in the different context of occupational health and safety, R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321, [29]–[32].

The ‘primary rules of attribution’ are to be found in the company’s articles of association. But further such rules are required, since:

These primary rules of attribution are obviously not enough to enable a company to go out into the world and do business. Not every act on behalf of the company could be expected to be the subject of a resolution of the board or a unanimous decision of the shareholders. The company therefore builds upon the primary rules of attribution by using general rules of attribution which are equally available to natural persons, namely, the principles of agency. It will appoint servants and agents whose acts, by a combination of the general principles of agency and the company’s primary rules of attribution, count as the acts of the company. And having done so, it will also make itself subject to the general rules by which liability for the acts of others can be attributed to natural persons, such as estoppel or ostensible authority in contract and vicarious liability in tort.
…
The company’s primary rules of attribution together with the general principles of agency, vicarious liability and so forth are usually sufficient to enable one to determine its rights and obligations. In exceptional cases, however, they will not provide an answer. This will be the case when a rule of law, either expressly or by implication, excludes attribution on the basis of the general principles of agency or vicarious liability.[65]

[65]Meridian [1995] 2 AC 500, 507.

The decision in Tesco,[66] relied on by the Attorney-General, laid down a specific rule of attribution, applicable in cases of a particular kind, being those where criminal liability is sought to be affixed to a corporation for an offence requiring proof of mens rea. In a case of that kind, the prosecution may need to establish that those who constituted the ‘directing will or mind’ of the company had the relevant state of mind.
[66][1972] AC 153.

As the Privy Council explained very clearly in Meridian, however, that particular rule of attribution was adopted in Tesco as a matter of construction of the statute which created the offence. The decision in Tesco did not purport to expound ‘a general metaphysic of companies’.[67] To illustrate this point, their Lordships drew attention to the decision in Re Supply of Ready Mixed Concrete (No 2)[68] where — in a different context — a much less stringent rule of attribution had been adopted. The offence there in question required proof of the defendant company’s knowledge. The House of Lords held that, for that purpose, the conduct and state of mind of an employee could be attributed to the company. As a matter of construction, it was immaterial that those who constituted ‘higher management’, and ‘the directing mind’, of the company had no relevant knowledge.[69]
[67][1995] 2 AC 500, 509.
[68][1995] 1 AC 456.
[69]Meridian [1995] 2 AC 500, 508–9.

In 1997, in Director of Public Prosecutions Reference No 1 of 1996,[70] this Court had occasion to apply the Meridian analysis in considering the possible liability of a company for offences such as manslaughter or negligently causing serious injury. Callaway JA (with whom Phillips CJ and Tadgell JA agreed) summarised the key propositions from Meridian in these terms:
[70][1998] 3 VR 352.

1.The first step is to decide whether a corporation … is capable of committing the offence in question.
…
The next step is to decide whose acts or omissions, or state of mind, are, for the purposes of the relevant offence, to count as the acts or omissions or state of mind of the corporation.
2.The search is not for the officers, employees or agents for whose acts or omissions the corporation might be liable in a civil action. The question is whose acts or omissions or state of mind are taken to be the acts or omissions or state of mind of the corporation itself for the purpose at hand. The liability is direct, not vicarious.
…

4.Sometimes only the board of directors acting as such, or a person at or near the top of a corporation’s organisation, will be identified with the corporation itself. On other occasions, someone lower, and perhaps much lower, in the hierarchy will suffice.
5.The rule of attribution depends on the offence and on the facts of the case.[71]

[71]Ibid 354–5 (emphasis added, citations omitted).

In conclusion, Callaway JA said:

As at present advised, I should have thought, with respect, that Lord Hoffmann’s approach to the problem of corporate liability was correct, but it does not tell us the rule of attribution for either manslaughter or negligently causing serious injury. It merely provides a framework for analysis and dispels the notion that, for all offences, the person with whom a corporation is identified must be its directing mind and will.[72]

[72]Ibid 355 (emphasis added).

Since that time, this approach — of identifying the ‘rules of attribution’ appropriate to the particular statutory context — has been widely applied, notably in successive decisions of the New South Wales Court of Appeal. For example, in Director General, Department of Education and Training v MT,[73] Spigelman CJ said:

It is necessary to identify, in each specific statutory context, what Lord Hoffmann [in Meridian] has felicitously called ‘the rules of attribution’ … These are rules adopted to determine which acts, knowledge or mental states of persons, through whom an organisation necessarily acts, are to be attributed to the organisation for the purposes of the legislative scheme.[74]
[73](2006) 67 NSWLR 237, 242 [17].
[74]See also Nationwide News Ltd v Naidu (2007) 71 NSWLR 471, 504–5 [228]–[236] (‘Nationwide News’); Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241, 246–7 [15]–[18]; Bunnings Group Ltd v Chep Australia Ltd (2011) 82 NSWLR 420, 453 [109].

Again, in North Sydney Council v Roman,[75] McColl JA pointed out that it was necessary to identify ‘the rule of attribution the legislature intended to apply … taking into account the language of [the relevant provision], its content and policy’. As her Honour said, the rules of attribution appropriate for criminal liability are likely to be more stringent than those appropriate for civil liability.[76]
[75](2007) 69 NSWLR 240, 252–3 [43].
[76]Ibid 252 [41]. In AAPT Ltd v Cable and Wireless Optus Ltd (1999) 32 ACSR 63, 88 [91]–[92], Austin J held that a ‘special rule of attribution’ was necessary in order to identify the corporate officers whose intentions were capable of being attributed to their company for the purposes of a particular provision of the Corporations Law.
Attribution under the EO Act

The starting-point in the present case is that the EO Act was intended to apply to companies. A company is ‘a person’ for the purposes of the EO Act. Companies which provide services must not discriminate in the course of doing so. It is equally clear that liability under the EO Act for discriminatory conduct does not depend on proof of an intention to discriminate, or even of an awareness of the discrimination.[77] All that is required is proof that the alleged discriminator treated the other person less favourably on the basis of — that is, by reason of — an attribute.
[77]EO Act s 8(2)(a).

Where the service provider is a corporation, the question of construction which arises is this: whose act, and whose reason for acting, was for this purpose intended to count as the act, and the reason for acting, of the company?[78] (As set out below, some comparable statutory schemes include their own rules of attribution as between companies and their servants and agents. The Victorian Act contains no such provision.)
[78]Meridian [1995] 2 AC 500, 507.

In my opinion, Parliament is to be taken to have intended that the general principles of agency should apply where discriminatory conduct by a company is alleged. There is nothing in the EO Act to suggest otherwise.[79] That is, Parliament intended that the conduct of those persons whom the company has authorised to provide the relevant services on its behalf should ‘count as’ the conduct of the company for this purpose. If that were not so, it would never be possible to establish that a company was itself a contravenor.
[79]Cobaw and the Attorney-General both submitted that the vicarious liability provisions (ss 102–3) excluded common law agency principles pro tanto. I deal with this below: [125] ff.

The Commission submitted that this was how the EO Act should be interpreted. This was how the EO Act (and its predecessor) had conventionally been understood to operate. At the Court’s request, the Commission identified a series of discrimination cases, adjudicated by the Tribunal or by the Commission over the period 1984–2013, said to illustrate the point.[80]
[80]See, eg, Rigby v Whitecliffs to Cameron Bight Foreshore Committee of Management [2013] VCAT 1314, an impairment discrimination claim against a camping ground operator; Parr v Steamrail Victoria [2012] VCAT 678, a victimisation and sexual harassment claim against a recreational association; SAF v ZON Pty Ltd [2011] VCAT 88, a victimisation and impairment discrimination claim against a property management company; Bayside Health v Hilton [2007] VCAT 1483, concerning a sex and marital status discrimination claim against a hospital; Towie v State of Victoria [2007] VCAT 1489, an impairment discrimination claim against the Department of Justice; Byham v Preston City Council (1991) EOC 92–377, an impairment discrimination claim against a city council; Whitehead v Criterion Hotel (1985) EOC 92–129, a sex discrimination claim against a hotel; and Henderson v Victoria (1984) EOC 92–105, a sex discrimination claim against the State. In three further cases provided — Perrett Abrahams v Qantas Airways Ltd [2000] VCAT 1634, Staberhofer v The City of Sale (1990) EOC 92–292 and Torres v Monash University [2006] VCAT 1208 — the liability of the respondent companies was approached, at least implicitly, as a question of vicarious liability.

Where there is a refusal by such an authorised person to provide the company’s services, and the refusal is on a prohibited basis, Parliament’s intention was that the discriminatory refusal should ‘count as’ the company’s discriminatory refusal. On this view, the conduct of Mr Rowe, which occurred within the scope of his authority and in the course of his employment as the manager of the Resort, ‘counts as’ the conduct of CYC.

It is unnecessary for the purposes of this proceeding to define the outer limits of this rule of attribution. As I have said, the rule undoubtedly applies to Mr Rowe, who had in effect complete authority from CYC to conduct its business at the Resort. Indeed, on the approach taken by the New South Wales Court of Appeal, he might be said to have been ‘the mind and will’ of CYC in relation to the conduct of that business.[81]
[81]See Nationwide News (2007) 71 NSWLR 471, 505 [236].

For reasons already given, the objectives of this legislation strongly suggest that Parliament intended a rule of attribution of wide scope. But whether Parliament intended that the rule should extend to the conduct of any servant or agent of a company, provided that the conduct was engaged in within the scope of that person’s authority, is a question to be decided when it arises.

The transplanting of human rights law conceptions concerning religious freedom, or its expression in the Charter, produced a narrow construction of the exemption by the Tribunal which is contrary to the clear legislative intent. Section 77 and the other exemptions on religious grounds are legislative measures intended to preserve the right to manifest a religious belief or principle in the circumstances which are described in each provision. The ambit of religious freedom is defined and so is the limitation on the freedom from discrimination. There is no basis for an implication that s 77 is intended to burden a sincere religious believer by requiring the person to forgo or violate a religious belief or principle. Unlike international human rights instruments, the legislature has stipulated the degree to which the manifestation of the one right may produce a restriction on the other. The legislative intent of the statutory regime being clear, the task of the Tribunal was to construe the particular language used in its own statutory context without regard to international instruments and their jurisprudence.[378]
[378]Carr v Western Australia (2007) 232 CLR 138, 143 [5].

Whether s 77 is to be characterised as giving effect to the right to religious freedom or as confining the right against discrimination, s 77 does define the limits of a person’s right to rely upon their religious belief or principles when committing a discriminatory act. It does not exclude a person’s ability to manifest religious beliefs in any particular sphere of activity because the person could choose to manifest those religious beliefs or principles in other non-discriminatory ways. If it is construed with fidelity, without preconception and giving full recognition to the legislative intent, discriminatory conduct proscribed in Part 3 which occurs in the commercial sphere will not apply to persons who are able to bring themselves within the exemption. To construe ‘necessary to comply’ as subject to an implicit limitation that reflects the scope of the right to religious freedom under international human rights law would severely curtail, if not remove, the right to manifest one’s religious belief in the commercial or public sphere. The person’s freedom to believe would be impaired by a restriction upon their conduct which they engaged in to give effect to their belief. Such a construction is inimical to the legislative intent that where it is necessary for a person to comply with their religious belief, they may be protected from liability in respect of discriminatory conduct in the commercial sphere.

The conclusion to be drawn from the manner of activity in the commercial sphere

As noted above, the Tribunal undertook an objective evaluation of whether the applicants’ particular beliefs or principles necessitated their discriminatory act. The Tribunal found that the fact that CYC conducted the Resort in the marketplace as a commercial activity, and did not advertise its religious connections to potential customers, supported the conclusion that the applicants’ ‘genuine religious beliefs or principles’ did not necessitate the refusal of the WayOut booking. In my opinion, the manner in which the applicants conducted the camp site could not support the conclusion as to their religious belief or principles.

Engagement in a commercial activity will not ordinarily support an imputation that the person does not in that setting rely upon their religious beliefs or principles or has abandoned their obligation of obedience to them. For the following reasons the Tribunal was, in my view, in error in reaching that conclusion.

There may be a case in which involvement in a commercial activity can support an inference that it is not necessary for those who engage in that activity to act in accordance with a particular religious belief in the same way as they would in the private sphere. The nature of the commercial activity may found an inference that the person places no reliance upon a particular religious belief or principle in that area of activity.[379] But in most circumstances the nature of the activity or the manner in which it is conducted will simply not permit the drawing of such an inference. This was such a case.
[379]For example, if a person had a religious belief that there should be no sex before marriage became the proprietor of a brothel.

Some submissions before the Tribunal and in this Court drew upon international human rights jurisprudence to suggest that the exemption should be confined to ‘worship, teaching, practice and observance’. Those arguments are reflected in the Tribunal’s conclusion, which presupposes that a person and their religious identity are somehow separable; that their beliefs can be separated within their day-to-day activities, with their influence being confined to certain activities. In the context of international law instruments, the writer of Legal Protection of Religious Freedom in Australia referred to the difficulty of identifying to what parts of a person’s life the protection of their religious beliefs or principle may be applied:

[O]ne of the most complex issues in defining the scope of religious freedom is determining what actions are manifestations of religion or belief that are protected in international law and what actions are merely motivated by religion or belief and are thus not protected. For some religious believers or those who hold a comprehensive philosophical view of the world, their religion or belief is part of almost every decision and action that they take.[380]

[380]Carolyn Maree Evans, Legal Protection of Religious Freedom in Australia, Sydney: Federation Press (2012), 36.

The precepts and standards which a religious adherent accepts as binding in order to give effect to his or her beliefs are as much part of their religion as the belief itself. The obligation of a person to give effect to religious principles in everyday life is derived from their overarching personal responsibility to act in obedience to the Divine’s will as it is reflected in those principles. Religious faith is a fundamental right because our society tolerates pluralism and diversity and because of the value of religion to a person whose faith is a central tenet of their identity. The person must, within the limits prescribed by the exemptions, be free to give effect to that faith.

In the Church of the New Faith v Commissioner of Pay-Roll Tax (Vic)[381] Mason ACJ and Brennan J said:

Religious belief is more than a cosmology; it is a belief in a supernatural Being, Thing or Principle … Religion is also concerned, at least to some extent, with a relationship between man and the supernatural order and with supernatural influence upon his life and conduct … What man feels constrained to do or to abstain from doing because of his faith in the supernatural is prima facie within the area of his legal immunity, for his freedom to believe would be impaired by restriction upon conduct to which he engages in giving effect to that belief. The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself.[382]

Wilson and Deane JJ also identified as one of the indicia of religion that the ideas about the supernatural are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct.[383]

[381](1983) 154 CLR 120.

[382]Ibid 134–5.

[383]Ibid 174.

The authors of Religious Freedom in the Liberal State emphasise the width of activities to which the religious belief may extend and the sense of obligation or obedience that accompanies such belief:

[T]he broad right to ‘practice’ or ‘manifest’ (to use the wording of the European Convention on Human Rights) one’s religion or belief would seem to embrace a huge variety of activity if one takes the view — as many religions do — that all life is inspired by or generated by faith and belief. The most mundane of human behaviours can be ‘spiritualized’ and take on a religious connotation. One is practising one’s religion when one eats, drinks, works, plays and gardens, as much as when one reads scripture, prays or meditates. In Christianity, ‘the righteous will live by faith’,[384] ‘everything that does not come from faith is sin’,[385] and ‘whether you eat or drink or whatever you do, do it for the glory of God’.[386] On this view there is no activity which is not generated by one’s obedience (or disobedience) to God. Countless schools, hospitals, orphanages and shelters have been run by religious organizations as part of their religious mission. Running a café, gymnasium or bookshop could equally be part of one’s religious calling.[387]

[384]Galatians 3:11.

[385]Romans 14:23.

[386]1 Corinthians 10:31.

[387]Rex Adhar and Ian Leigh, Religious Freedom in the Liberal State, Oxford University Press (2005), 155.

Each of the major religions rejects any notion of separation of religious duty by insisting that activity in the marketplace carries with it moral responsibility for the manner in which the business is conducted. For example, the vocation of the business person is regarded as ‘a genuine human and Christian calling’.[388] Engagement in commerce, in the Christian context, ‘actively enhance[s] the dignity of employees and the development of virtues such as solidarity, practical wisdom, justice and many others.’[389] In the United States, religious discrimination laws recognise that persons or entities engaged in commercial activities for profit can have a religious identity when discriminated against or when discriminating against others on religious grounds.[390] These laws do not reflect any incompatibility between commercial activity for profit and religious pursuits.
[388]Pontifical Council for Justice and Peace, Vocation of the Business Leader: A Reflection (3^rd ed) (2012) Vatican City: Pontifical Council, 5.
[389]Ibid 4.
[390]Mark Rienzi, ‘God and the Profits: Is there religious liberty for money makers?’ 21 George Mason Law Review (2013) 59, 94.

The balance which the legislature has struck in s 77 does not seek to limit the area of activity in which the protection may be applied. There is nothing in the text of the exemption or any implication that can be drawn from the Act from which it may be said that the relevant religious belief or principle may not give rise to an obligation of obedience to that principle in the commercial sphere.

The manner in which CYC conducted the Resort is said to support the Tribunal’s conclusion that the applicants were not obliged to comply with their religious principles. Attention was drawn to the absence of any information published by CYC concerning its religious beliefs or any restriction on who may book the Resort. Those matters were plainly relevant to and inform the question whether CYC was a body established for religious purposes under s 75(2). The fact that CYC did not advertise its Christian faith or any particular belief or principle to potential customers, or consistently make specific enquiries of each customer as to their intended use of the camping facilities, cannot however support the conclusion that it was not necessary to refuse Cobaw’s application to use the camp site once the purpose of the forum was disclosed.

The Tribunal treated these matters as buttressing its findings that CYC was not a ‘body established for religious purposes’ for the purposes of s 75(2). In its relatively brief consideration of s 77, it drew upon those matters, without any further elaboration, as matters which supported the conclusion that the applicants’ religious beliefs did not make it ‘necessary’ that the booking be refused. That conclusion presumed to determine the place of their particular belief in the religion, and presumed that it did not dictate their response. The exemption does not contemplate as part of the judicial function that there be an inquiry into whether the applicants have properly interpreted the belief or principle on which they rely, or whether compliance with it was unreasonable.

The absence of advertising of their religious position and the absence of enquiry about the use of the camp site only support a conclusion that the applicants had no objection to a person possessing any particular attribute using the facility. The Tribunal had found that the belief of the applicants and other adherents to the faith of the Christian Brethren did not require them to avoid contact with persons who were not of their faith or did not subscribe to their beliefs about the Divine’s will in respect of sex and marriage. The Tribunal found that none of those who testified as to the religious principles or beliefs of the Christian Brethren suggested that there was an obligation to interfere with or obstruct the expression by another person of their sexual preference. The Tribunal found there to be a consistency of acknowledgement that an adherent to the Christian Brethren religion should be tolerant of differences and, in particular, of people who might be regarded as sinners. That belief explained why CYC did not make inquiry as to the sexual orientation of every person wishing to use the camp site. None of these matters bore upon the necessity of the applicants to refuse the booking. What enlivened the applicants’ obligation to refuse Cobaw the use of the facility was the disclosure of a particular proposed use of the facility for the purpose of discussing and encouraging views repugnant to the religious beliefs of the Christian Brethren. The purpose included raising community awareness as to those views. It was the facilitation of purposes antithetical to their beliefs which compelled them to refuse the facility for that purpose. To the applicants, acceptance of the booking would have made them morally complicit in the message that was to be conveyed at the forum and within the community. How they would have perceived their complicity, had they not refused the booking, was central to the issue. This consideration was not addressed by the Tribunal because of its conclusion that their religious belief did not necessitate discriminatory conduct in pursuing their commercial activity.

There is no expectation that persons running a commercial enterprise make enquiries of every potential customer in order to establish precisely how they intend to make use of the business’s services. The absence of general inquiry about those who would use CYC’s campsite, or its use, did not inform the question of whether an obligation to refuse the booking arose once the matters that would be discussed at the forum were disclosed to the applicants. It cannot be in doubt that religious freedom and obedience to belief will often involve ‘abstention’ from particular acts.[391]
[391]See, for example, Employment Division of the Department of Human Resources of Oregon v Smith 494 US 872 (1990).

It is trite to say that the absence of advertising as to the provision of a service or inquiry as to the purpose for which the service is required would not mean, for instance, that the person had abandoned a right to refuse to allow persons to use the service to commit a crime. It is recognised that knowledge of the use to which goods or services may be put carries with it legal, moral and ethical obligations to act. The obligation to act when knowledge is acquired is not a novel concept to the law. It resides in a strong moral and ethical foundation.

Religious faith is a matter of personal conscience and of consistency with the canons of conduct derived from the person’s religious belief. To knowingly provide a forum for the purpose of discussing, developing and disseminating a particular message can be seen as condoning, if not encouraging, that message. But the submissions of the applicants are not confined to moral argument. They rely upon their obligation of obedience to the will of the Divine. Once they became aware that the particular purpose for which the campsite was to be used was contrary to their religious beliefs or principles, they were compelled by those beliefs to refuse to allow their camp site to facilitate such a purpose.

For example, assume that the applicants had been informed that the purpose of the proposed forum was to gather together for the purpose of discussing the contentions that the Divine does not exist and that Christ does not save, and of how the community might be made aware of those views. Once the applicants became appraised of that purpose, I do not doubt that it would have been necessary for them to refuse the use of their facility for such purposes. That their beliefs necessitated such a course flows from the findings made by the Tribunal under s 75(2) as to the content of the Christian Brethren’s beliefs and principles. The same must hold true for other religious beliefs or principles which the adherents of their faith genuinely believed reflected the wills of the Divine and commanded obedience.

Section 77 excuses an act of discrimination in the marketplace when it is known that to perform the act will facilitate a purpose that is fundamentally inconsistent with the person’s belief or principles. The application of the exemption does not depend upon CYC having advertised that it was a religious organisation or provided some means of forewarning that particular uses of their facility would be refused. The absence of such steps could not give rise to the inference that their religious principle or belief did not necessitate the refusal of the request. As adherents to the faith of the Christian Brethren the applicants’ beliefs dictated their response upon being informed of the intended use of their facility. Once the applicants were invested with knowledge of the purposes of the WayOut forum and the matters which, as Ms Hackney acknowledged, would inevitably be discussed, the applicants were bound by their principles and beliefs to refuse the use of their facility for that purpose.

Because of the narrow construction given to the exemption, which effectively removed its intended scope of protection for discriminatory acts in the market place, and because of the erroneous consequential findings which the Tribunal said flowed from the fact that the applicants were engaged in a commercial activity, the applicants were denied the benefit of the exemption. The Tribunal erred in its finding that the applicants’ conduct was not necessary in order for them to comply with their genuine religious beliefs or principles.

Whether the religious belief of the employee or agent may provide an exemption for the body corporate

It remains to consider the question whether if, contrary to my opinion, CYC could not hold a religious belief, it may rely upon the belief of its employee or agent. As s 102 provides that the employer or principal and employee or agent may be jointly and severally liable for a contravention of Part 3 of the Act, each of them may avail themselves of the exemptions in Part 4 of the Act in response to such a complaint.

If the body corporate may have a religious belief, then having regard to the Constitution and Memorandum and arts of Association that belief will be that of the persons who are the ‘embodiment of the company’ or its ‘directing mind and will’. They will ordinarily include the board of directors.

Where the conduct of an employee or agent satisfies the criteria in ss 75(2) or 77 of the Act, their terms make plain that the employee or agent and the employer or principal are relieved of liability for the contravention. That is because both provisions attach to the action done rather than to the person who performed the act. Section 75(2) states that ‘nothing in Part 3 applies to anything done’ etcetera. Although s 75(2) refers only to religious bodies, in Jubber v Revival Centres International[392] the Anti-Discrimination Tribunal found that the provision also protects a person who acts on behalf of the religious body or at its direction. Section 77 similarly provides that ‘nothing in Part 3 applies to discrimination by a person’.
[392][1998] VADT 62.

The terms of each provision refer to the conduct which, by operation of s 102, is taken to have been conduct of both parties contravening Part 3 of the Act. Just as s 102, for the purpose of liability, treats employee or agent the same as employer or principal, so ss 75(2) and 77 treat them identically. The Solicitor-General’s contention that there is no reason why Parliament would have provided an exemption for conduct done by a person directly but not when done through an employee or agent should be accepted. That must be so whether the employer or principal is a body corporate, an individual or another entity within the scope of the Act.

Even if the religious beliefs or principles of the employee or agent cannot be attributed to the employer or principal, once s 77 applies to the conduct of the employee or agent, neither party is liable.

Conclusion as to application of religious freedom exemption

As Part 3 of the Act does not apply to the discrimination by CYC and Mr Rowe by virtue of s 77, the appeal by both applicants should be allowed and the orders of the Tribunal set aside.

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[2014] VSCA 75

16 April 2014