The ICJ welcomes the 16 April 2014 judgment of the Court of Appeal of Victoria, Australia, in Christian Youth Camps Ltd & Anor v Cobaw Community Health Services Ltd & Ors  VSCA 75. The ICJ intervened as amicus curiae in the case.
The Court of Appeal upheld the 2010 ruling of the first instance Tribunal, the Victorian Civil and Administrative Tribunal, that had found Christian Youth Camps (CYC) liable for an act of unlawful discrimination on the basis of sexual orientation, arising from the refusal of its manager, Mark Rowe, to allow one of CYC’s adventure camp resorts to be used by same-sex attracted young people.
Cobaw Community Health Services Ltd, an organization working to prevent suicide among young people and to raise awareness about the needs of same-sex attracted young people and the effects of homophobia and discrimination on them, had made the request to host a retreat for same-sex attracted young people.
When CYC’s manager learned the purpose of Cobaw’s proposed retreat, and who would be attending, he refused the booking.
The ICJ welcomes the decision by the Court of Appeal to uphold the Tribunal’s finding that CYC’s denial of access to its facilities constituted unlawful discrimination on the basis of sexual orientation.
As the ICJ had set out in its submissions to the Court, the Tribunal’s original decision was consistent with Australia’s obligations under international human rights law, including the International Covenant on Civil and Political Rights.
The Court of Appeal rejected CYC’s claim that its conduct was covered by the religious freedom exemption of Victoria’s anti-discrimination law.
By majority, the Court of Appeal held that there was no error of law in the Tribunal’s decision that CYC’s conduct was discriminatory and that neither of the religious freedom exemptions of the Equal Opportunity Act 1995 applied in the circumstances of the case. Accordingly, CYC’s appeal was dismissed.
However, two of the justices allowed Rowe’s appeal, although for different reasons.
The Court’s President, Justice Maxwell, considered that it was CYC itself that committed the act of discrimination and that Mark Rowe could not be held liable as he was acting on his employer’s behalf.
Justice Redlich took the view that the manager’s conduct, which would otherwise have breached the Equal Opportunity Act, was covered by one of the religious belief exemptions.
The ICJ in its submission set out the body of international law and standards and comparative domestic law on conflicts of rights between the right to be free from discrimination and the right to manifest one’s religious beliefs. The ICJ’s written submissions are cited in the Court of Appeal’s judgment.
The ICJ was represented pro bono by Steven Amendola, Taboka Finn and Quyen Le of Ashurst Australia, and F.M. McLeod, R.B.C. Wilson and R.J.C. Watters of counsel.