Balancing religious freedom and anti-discrimination: Christian Youth Camps Ltd. v. Cobaw Community Health Services Ltd.

• Jurisdiction: Australia
• Author: Murphy, Bobbi
• Date: 01 January 2017

CONTENTS I Introduction II Liberty and Equality through the Prism of Religious Exemptions A Liberty and Equality B The 'Asymmetry Tesis': Are Religious Exemptions to Anti-Discrimination Law Justifable? C Anti-Discrimination Legislation in Australia and Victoria III Cobaw and the Religious Exemptions A The Cobaw Case and Decision B Key Elements of the Court of Appeal's Decision 1 Multi-Dimensional Equality 2 Finding on Discrimination: The Concept of Dignity 3 Transformative Equality: Corporate and Individual Responsibility 4 Redistributive Equality: Definition of a Religious Body 5 The Meaning of 'Doctrine' 6 Reasonable Necessity or Objective Test for Impugned Conduct 7 Reliance on International Jurisprudence C Shortcomings of the Cobaw Decision 1 Judicial Decisions on Subjective Religious Matters 2 Inconsistent Interpretative Approaches? IV Religious Exemptions Post-Cobaw A Effect of Changes to the EOA 1995 on the Cobaw Decision 1 Broadening of the Defnition of 'Religious Body' 2 Protection of 'Beliefs and Principles' in Section 82 3 Section 84 B Effect of the Charter 621 C Adequacy of Past Reforms and Changes in the Future 1 Exemptions are Still Overly Broad 2 Enforcement and Limitations V Conclusion I INTRODUCTION

Courts in Australia are rarely called on to discuss the tension between free exercise of religion and rights arising under the general law. (1) However, the concept of religious freedom in Australia is fiercely contested 'in the extent to which it is lawful for religious groups to discriminate' through the operation of carve-outs to anti-discrimination legislation. (2)

The scope of religious exemptions to Victorian anti-discrimination legislation was recently tested in Christian Youth Camps Ltd v Cobaw Community Health Services Ltd ('Cobaw'). (3) Cobaw Community Health Services successfully sued Christian Youth Camps ('CYC') for unlawful discrimination on the basis of sexual orientation, as CYC was unable to bring its conduct within the religious exemptions.

Cobaw was a landmark case. It was the first time that the Victorian Supreme Court considered the religious exemptions in the Equal Opportunity Act 1995 (Vic) ('EOA 1995'), and the majority's approach represents a significant departure from the narrow, technical approach other courts have often taken to discrimination law. (4) While on the High Court, Kirby J repeatedly lamented the Court's focus on the 'technical' language of statutes to the detriment of claimants seeking relief. (5) In the 2006 case of New South Wales v Amery, his Honour noted that in the past decade, no party claiming relief under any anti-discrimination legislation had succeeded. (6) Far from these failures being pre-ordained, Kirby J appeared to view them as the result of a narrowing of the Court's approach to anti-discrimination legislation. (7)

Part II of this case note briefly outlines the liberty-equality debate, and its embodiment in the EOA 1995 and the Equal Opportunity Act 2010 (Vic) ('EOA 2010'). In a democratic and plural society where value conflicts are inevitable, Sandra Fredman's multi-dimensional approach to equality provides a useful tool for their resolution. Part III will therefore consider the operation of the exemptions in Cobaw by reference to her model. It will focus on key elements of the Court of Appeal's approach, many of which appropriately reinforce the protective function of the EOA 1995.

Part IV will consider how legislative changes to the EOA 2010 may affect the position in Cobaw, and highlight some relevant considerations for possible future reform. This case note argues that the 2010 reforms do not go far enough to achieve the Act's objective of eliminating discrimination 'to the greatest possible extent', (8) but a deeper and more significant problem is the complaint-based model on which the Act is premised.

II LIBERTY AND EQUALITY THROUGH THE PRISM OF RELIGIOUS EXEMPTIONS

A Liberty and Equality

At the heart of the balancing act between the right to freedom of religion and the right to be free from discrimination is a tension between liberty and equality, two of the values underpinning most democratic and pluralist societies. Both are considered fundamental rights, deserving of legislative protection. In many cases, they are also mutually reinforcing. For example, Ronald Dworkin argues that equality of resources 'can only be achieved if each individual is not only free to make choices but must also take responsibility for those choices based on the cost of their decisions to other people.' (9)

However, as the focus of anti-discrimination law shifts from access and distribution to self-identity, these two values more frequently come into conflict. (10) The legislation itself enshrines this sense of opposition. It requires both sides to argue that their interest in protection or liberty respectively should be given the greater weight. An example outside of the present case is freedom of speech and racial vilification laws. In legislating against acts that are likely to 'offend, insult, humiliate or intimidate', (11) but providing for public interest-based exemptions, (12) Australian law seeks to sustain a balance between robust public debate, and the need to protect marginalised or disadvantaged groups from hate speech. (13)

Religious exemptions to anti-discrimination legislation also exist at the intersection between these two competing values. On the one hand, they affirm the importance of the right to religious liberty, which is protected by numerous domestic and international legal instruments. (14) We acknowledge that particular groups need to affirm and express their identity collectively, and sometimes this involves the right to exclude. For example, it might seem acceptable for an Indigenous group to protect its cultural identity and beliefs by excluding non-Indigenous people. A similar argument can be made for religious groups.

On the other hand, religious exemptions to anti-discrimination legislation seem to push the values of liberty and equality into conflict. As Altman notes, 'claims of religious liberty are frequently made by persons who wish to engage in activities that appear to amount to discrimination.' (15) It is the unenviable task of governments and the law to maintain a balance by 'restricting ...liberty for the sake of upholding, perhaps even promoting, equality'. (16)

This tension between religious ethics and an increasing commitment to enshrining the value of equality in the law has resulted in a series of exceptions for religious bodies. In the case of the EOA 1995, as in other legislation, the terms of the religious exemptions represent the balance that has been struck by the legislature between these two important rights.

B The Asymmetry Thesis': Are Religious Exemptions to Anti-Discrimination Law Justifiable?

Sandra Fredman's concept of multidimensional equality, discussed in Part III, is particularly useful in determining how these conflicts should be resolved. But the very idea of balancing--and thus implicitly limiting--an individu-al's right to equality against the rights of individuals wishing to discriminate, is controversial. (17)

The validity of striking a balance between religious freedom and equality is subjected to a sustained and powerful attack by Cass Sunstein, who objects to what he calls the 'asymmetry thesis': the fact that, in the application of law to religious institutions, they are subject to ordinary criminal and civil law, but frequently exempt from anti-discrimination legislation. (18) This is the case in the EOA 2010.

One response to Sunstein is that this comparison is unfair: there are significant interests backing much of the criminal and civil law, including the right to bodily integrity, (19) and property rights. Religious beliefs requiring human sacrifices would not justify an exemption from the law against murder, but the belief that only men can be priests might justify an exemption from sex discrimination law. Private property's importance to economic and social structures may also explain why a religious connection to particular land does not justify trespass.

Sunstein suggests that the 'asymmetry' referred to above is largely explained by our intuition that the state should only interfere with religious practice when it has compelling reasons to do so, and that the interests protected by the ordinary criminal and civil law provide such compelling reasons--and those behind anti-discrimination law do not. (20) However, as Sunstein points out, this intuition does not always reflect reality. It is true that the interests protected by the criminal law are often significant. But the civil law in particular is also directed against less serious harms--for example, 'intentional infliction of emotional distress'. (21) Religious organisations are subject to these laws, despite the fact that they prohibit only low-level harms. The same cannot always be said for anti-discrimination law. (22)

It is also difficult to justify treating the interest of being free from discrimination on the basis of sexuality and its attendant assault on dignity as less worthy of protection than the interests underpinning other civil laws. Asserting that discrimination always causes less harm than other civil wrongs simultaneously overestimates the harms caused by civil wrongs (which represent the vast majority of laws to which religious bodies are subject) and underestimates the harm caused by discriminatory acts. (23) Of course, the nature of harm caused by discrimination, and what is morally wrong about discrimination itself, are not settled notions. (24) For the purposes of this case note, I adopt Deborah Hellman's view that the core of the harm or wrong is that discrimination demeans or denigrates those against whom it is directed. (25) In Hellman's account, 'demeaning' is defined as differentiating between people in a way that fails to treat them as being of equal moral worth. (26) The United...