State Churches, disendowment and peaceful enjoyment of property

In the recent discussions about disestablishing the Church of England and whether or not the United Kingdom is a “Christian country” any longer, the linked issue of disendowment has at least been hinted at. Proponents point out that when the Church of Ireland was disestablished by the Irish Church Act 1869 it was totally disendowed. Something similar happened when the Anglican dioceses in Wales were disestablished by the Welsh Church Act 1914. What became the Church in Wales in 1921 lost its endowments predating 1662 in favour of the University of Wales and secular local authorities, though it was allowed to retain those endowments settled on it after that date. [For further detail see Philip Jones: Disestablishment, Disendowment and Dismemberment.]

So if the Church of England were disestablished, runs the argument, why should it not also be disendowed at the same time?

Quite apart from the fact that to disendow a disestablished Church of England would require a degree of political will which (in my view, at any rate) does not currently exist, a possible answer to the question might lie in the dates.

Article 1 Protocol 1 ECHR (“A1P1”) provides as follows:

“(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”.

Article 17 (Right to property) of the EU Charter of Fundamental Rights is, if anything, even more prescriptive:

“1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest”.

There is a useful post about A1P1 on UKHRB that draws attention to the decision of the Grand Chamber in Sporrong and Lönnroth v Sweden 7151/75 [1982] ECHR 5, as follows:

“61 [… The Article] comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph”.

Applied to the endowments of the Church of England, presumably it would be impossible to argue that the purpose of disendowment was “to secure the payment of taxes or other contributions or penalties”, since the fact that charities (religious charities included) enjoy a range of tax exemptions is provided for by domestic legislation. However, various points arise:

  1. Endowments are property.
  2. Would disendowment, even if “subject to the conditions provided for by law”, be regarded by the ECtHR as “in the public interest”?
  3. Would disendowment be in accordance with “the general principles of international law”?
  4. If, in addition to A1P1, Article 17 of the EU Charter were to apply, what would constitute “fair compensation being paid in good time” – and wouldn’t paying it merely render the exercise pointless anyway?

Furthermore, it is not clear that there is a body called “The Church of England” to disendow. The Church’s property is held by a multiplicity of charitable trusts, ranging from the Church Commissioners for England (which is both a  statutory body under the Church Commissioners Measure 1947 and registered charity number 1140097) down to individual parochial church councils, each of which is a charity in its own right. When the Anglican dioceses in Wales were disestablished charity law was still based on the Statute of Charitable Uses 1601 and subsequent case-law, notably Income Tax Special Purpose Commissioners v Pemsel [1891] AC 531. Since then, however, charity law has been modernised and consolidated, most recently in the Charities Act 2011.

So in the hypothetical circumstance of a future UK Government deciding completely to disendow the C of E, in the event of a challenge the ECtHR might possibly take the view that expropriation of private property on such a scale exceeded the UK’s margin of appreciation.

Cases before the ECtHR are extremely difficult to predict and hypothetical cases even more so: however, there are indications in the case-law that the Court tends to look with disfavour on expropriation. For example:

  • In Catholic Archdiocese of Alba Iulia v Romania [2012] ECHR 33003/03 the Court held that the failure of the Romanian Government to return to the Archdiocese property – an Astronomical Observatory and the historic Batthyaneum Library – confiscated by the Communist regime in 1947 was without legitimate justification and violated the rights of the Archdiocese under A1P1.
  • In Fener Rum Patrikliği (Ecumenical Patriarchate) v Turkey [2008] ECHR 14340/05 and [2010] ECHR 14340/05 it was held that the Turkish authorities had violated A1P1 by depriving the Ecumenical Patriarchate of a boys’ orphanage belonging to it without appropriate compensation.
  • In Fener Rum Erkek Lisesi Vakfi v Turkey [2007] ECHR 34478/97 an order by the Turkish courts setting aside a title acquired through gifts of property to an Orthodox Church foundation in 1952 and 1958, on the grounds that its constitution did not state explicitly that it had capacity to acquire real property, was held to have violated A1P1. 

Whether it might be possible to construct some kind of partial disendowment that would satisfy the provisions of A1P1 is, of course, another question – and an even more hypothetical one. But my overall conclusion is that accession to the Convention has produced a discontinuity between the situation at the time of the Irish and Welsh disestablishments and the present – and it is no longer possible simply to argue from the one to the other.

Frank Cranmer

(And finally … I’d never come across the word “enounce” before: I had to look it up to check that it wasn’t simply an example of Eurosprach. Which all goes to prove that you’re never too old to learn something new…)

Cornwall, minorities and the law

The United Kingdom signed the Council of Europe Framework Convention for the Protection of National Minorities¸ (CETS No.: 157) on 15 January 1998, and on 24 April 2014 a Treasury/DCLG Press Release announced that “the proud history, unique culture, and distinctive language of Cornwall will be fully recognised under European rules for the protection of national minorities”.  However, it also included the caveat that

“The government’s approach to the Framework Convention is to be modified to recognise the unique position of the Cornish as a Celtic people within England. It is without prejudice as to whether the Cornish meet the definition of ‘racial group’ under the Equality Act 2010, as only the courts can rule on that”.

The circular nature of the definition of “racial group” in section 9(3) of the Act would certainly benefit from some clarification, i.e.  “[a] racial group is a group of persons defined by reference to race; and a reference to a person’s racial group is a reference to a racial group into which the person falls,” but given the government’s reluctance to include “caste” as a protected characteristic under section 9(5) after its substantial defeat in the Lords, further statutory clarification seems unlikely under the present administration. However, a fuller definition is included within the Crime and Disorder Act 1998 (as amended)[1], “A racial group means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins”, for which CPS Guidance includes a number of case-law examples demonstrating its application.

The Cornish language is the only language in England recognised under theSt Piran, St Ives, IMG_3512(02) Council of Europe’s Charter for Regional or Minority Languages. In March 2014, the government announced a further funding of £120,000 to the Cornish Language Partnership for the development and promotion of the Cornish language which since 2010 has received over £500,000 in government funding. Of the 560,000 people in Cornwall recorded in the 2011 census, 84,000 people declared themselves as Cornish rather than English, and although in 2010 the United Nations classified the language as extinct[2], there are now 557 people who claim it as their main language.

Few are willing to speculate on what benefits this new protection as a National Minority, but it is likely that Mebyon Kernow, the “progressive left-of-centre party in Cornwall”, will take advantage of this new status in its campaign for the creation of a legislative National Assembly for Cornwall and greater decentralization. Although clearly not a “law and religion” issue, the so-called “pasty tax” and its recent consequences on a large Cornish producer will be used as an example of the problems caused by “London-based legislation”. However, it could be argued that if the pasty had not been given Protected Geographical Indication (PGI) status in 2011, the effects of the tax on pasties would not be restricted to Cornwall, as in the case for other catering and take-away food.

Duchy of Cornwall

An indirect impact of the recognition of the Cornish people as a National Minority group will be to focus attention on the finances and privileges of the Prince of Wales as Duke of Cornwall. Although not directly linked to recent events, Lord Berkeley’s Private Members’ Bill Rights of the Sovereign and the Duchy of Cornwall Bill [HL] 2013-14, which received its second reading on 8 November 2013, summarizes some of the issues that might be raised. The Bill seeks to:

“ . . . amend the Sovereign Grant Act 2011; to amend the succession to the title of the Duke of Cornwall; to redistribute the Duchy of Cornwall estate; and to remove the requirement for a Parliament to obtain the Queen’s or Prince’s consent to consideration of Bills passing through Parliament.”

The succession to the title of Duke of Cornwall was not changed by the Succession to the Crown Act 2013 during the Bill’s rushed passage through parliament.  The Duchy’s 1337 charter established that the Duke of Cornwall is the eldest surviving son of the monarch and the Heir to The Throne, and when the current Prince of Wales accedes to the throne, Prince William will become Duke of Cornwall, as he still would, theoretically, if he had en elder sister.

A summary of the financial issues relating to the Duchy of Cornwall is to be found on its FAQs web page, which includes information on: the 7,119 hectares of land in Cornwall owned by the Duchy, (i.e. 13 per cent of the total Duchy estate); bona vacantia, its administration by Farrer & Co, and the Duke of Cornwall’s Benevolent Fund; issues of income tax, capital gains tax and corporation tax, and the roles of the Treasury and National Audit Office; the registration of mineral rights; and the Prince’s approval on certain parliamentary Bills, below. However, a different view has been advanced by the Duchy of Cornwall Human Rights Association, here.

Consent of Prince of Wales to Parliamentary Bills

Provisions that expressly mention the Duchy of Cornwall or otherwise have a special application to it are required to have the consent of the Prince of Wales as well as that of the Queen.  Provisions in which Duchy land is treated in the same way as other Crown land do not generally need Prince’s Consent, as the Queen’s Consent is taken to include the Consent of the Prince of Wales.  This has been the subject of a FoI request; but fuller details are contained in the pamphlet Queen’s or Prince’s Consent.  The latter was produced for members of the Office of the Parliamentary Counsel in relation to the process involved in the drafting of legislation; and Annex A contains examples of where it has been required. In modern times, the Prince of Wales has never refused to consent to any bill affecting Duchy of Cornwall interests, unless advised to do so by ministers. Every instance of Prince’s Consent having been sought and given to legislation is a matter of public record.

Stannary Courts and Parliament

Reference to the stannary courts and stannary parliament was made in some of the material in the campaign for National Minority Recognition which noted (in 1999):

“the relevant point in respect of the Cornish claim to be a national minority is that people in Cornwall have revived the claim of Stannary rights, meeting regularly since 1974 and actively demanding the recognition of rights long since ignored by Westminster.  The existence of bodies like the Stannary Parliament both reaffirms the distinct constitutional history of Cornwall and provides an ethnic dimension to contemporary protest movements that is rarely found in England.”

These legislative and legal institutions in Cornwall (and Devon) date from the Middle Ages; administered equity for the region’s tin-miners and tin mining interests; and were courts of record for the towns dependent on the mines.  Their present status and that of the Duchy of Cornwall were outlined in a parliamentary answer on 6 March 2007, [HC Hansard 6 Mar 2007 : Vol 457 Col 1878W]:

Andrew George:  To ask the Minister of State, Department for Constitutional Affairs what assessment she has made of the constitutional status of  (a) the Duchy of Cornwall,  (b) Cornwall and  (c) the Isles of Scilly. [125139]

Ms Harman: The Duchy of Cornwall is a private estate that funds the public, charitable and private activities of the Prince of Wales, the Duchess of Cornwall, Prince William and Prince Harry. Cornwall is as an administrative county of England, which is subject to UK legislation. The county elects MPs to the UK Parliament and has always been an integral part of the Union. Similarly, the Isles of Scilly are represented in Parliament as part of the St. Ives constituency. The Government do not intend to change the legal position of the Duchy nor the constitutional position of Cornwall.

and on 29 March 2007, by Bridget Prentice, Parliamentary Under-secretary, Ministry of Justice in a Commons Written Answer, [HC Hansard 29 Mar 2007 : Vol 458 Column 1673W]:

“ . . . . On the question about stannary organisations, there are no valid Cornish stannary organisations in existence. It is noted that stannary courts were abolished under the Stannaries Court (Abolition) Act 1896.  Cornwall has always been an integral part of the Union. There are no treaties today that apply to Cornwall only. With the exception of geographically limited matters such as Private Acts of Parliament for infrastructure works, Acts of Parliament, regulations and statutory instruments apply in Cornwall as they do throughout England, but do not always apply to the Isles of Scilly. There is no special status for legislation which applies to Cornwall or to Cornish localities.”

[1] Sections 28(4) and 50A(6).

[2] The last sermon to be preached in Cornish was at St Wynwallow’s Church, Landewednack in 1678, although there are rival claims from churches of St Tewennocus, Towednack, and St Paul the Apostle, Ludgvan.

Is Britain a Christian country and, whatever the case, what then?

In the last weekly round-up we noted the current debate on the place of Christianity in the UK but refrained from making any comment ourselves. However, Bob Morris, who has written widely on issues of Church and State, has kindly supplied the following guest post.


Unusually, British politicians have been talking about religion this Easter.

Events, dear Boy

First, the Communities and Local Government Secretary, Eric Pickles, whose Department – rather oddly, one might think – leads on faith relations, and then the Prime Minister, David Cameron, both averred that Britain was still a Christian country – Mr Pickles, with customary brutality, reminding us that there is an established Church and advising people to ‘get over’ that fact. A large number of worthies then wrote jointly to the Daily Telegraph (editorially sympathetic to establishment) to challenge ministers’ views, labelling them as both false and divisive in a pluralised society of multiple belief and unbelief. This was countered by a joint letter disagreeing. Continue reading

Religion and law round up – 27th April

Inevitably a fairly quiet week, dominated by the PM’s views on cultural Christianity and complaints about the lousy soundtrack on Jamaica Inn

A Christian country?

We have studiously avoided posting on the recent dispute about whether or not the United Kingdom (or, as people who should know better nevertheless insist on calling it, “Britain”) is a Christian country. We’ve kept quiet partly on the grounds that if it is a law & religion issue it’s a fairly marginal one, partly because it’s a matter of debate rather than fact, partly because some of the key documents are behind various paywalls – and partly because we’ve no reason to suppose that anyone would be interested in our views on the matter anyway. Following, however, is what we hope is a useful (and balanced) selection of links to some of the main contributions to the discussion:

But for a dispassionate judicial view we cannot do better than to refer readers to the speech by Sir James Munby P on Law, Morality and Religion in the Family Courts. In light of the above it bears re-reading.

Foodbanks, human rights and the PM Continue reading

Closing down a soup-kitchen (or not): Blake v Waltham Forest LB

Christopher Luff has kindly provided this guest post on a case with implications both for equality law and for social action by faith-groups.


Blake & Ors v Waltham Forest LB [2014] EWHC 1027 (Admin) seemed like any other judicial review case when it appeared on my Twitter feed a couple of weeks ago. It was only when my denominational newspaper reported the dispute that I started to make enquiries into the case, which in fact involves a church-run soup kitchen called “Christian Kitchen”.

The soup kitchen has operated with the Council’s permission in a Council-owned car park for some 25 years or more. The Council makes no charge to the trustees of the Christian Kitchen; it is operated by means of a bare licence. It runs 365 days a year and serves 80 hot meals per night. Allegations of anti-social behaviour, coupled with a desire to regenerate the district around the car park, led to the Council seeking to revoke the licence in a decision dated 17 April 2013 [para 1].

It was common ground that the Council was under no obligation to run, support or otherwise facilitate the operation. It could lawfully terminate the Christian Kitchen’s licence, subject only to the requirements of the Public Sector Equality Duty. It was also common ground that the PSED was engaged. The dispute revolved around whether or not the Council had discharged the duty. While the Council was under no obligation to offer an alternative site to the kitchen, it did so. However, that site was a long way from the original site, and was refused by the trustees of the Christian Kitchen on grounds of safety and accessibility [para 2].

Permission to seek judicial review, including grounds rather wider than the PSED alone, was initially refused, [para 3] and on renewal before a judge was granted on the sole grounds of the PSED. Christian Kitchen contended that the Council should have considered the PSED on the basis the soup kitchen would cease rather than relocate, arguing that it was “wholly unreasonable that … users … would suffer no detriment” due to the proposed relocation. In response, the Council claimed that its decision had not been contingent on the alternative site being acceptable. It argued that criticisms on that basis were “irrelevant” and that the decision “in any event plainly complied with the PSED.” [para 6]


The judge recorded that the facts were largely uncontroversial. Anti-social behaviour was being complained of from around 2011, with reports of noise, rowdiness and littering. “A Police Impact Report identified significant support for the soup kitchen; but a mixed attitude to its location with a small majority of residents expressing a preference to have it located away from the High Street and/or in a non-residential area [para 11].

The Council sought to engage with the trustees of Christian Kitchen during the latter part of 2012, although it appears initial contact was unsuccessful. A Council meeting minute from 14 November 2012 records that “the organiser were being compelled to engage and arrange to relocate their soup kitchen” [para 12]. During a subsequent meeting, however, the trustees were not left with the impression that they were being required to move. Importantly, the Council officers made no enquiries about the background characteristics of the soup kitchen users [para 13]. An informal minute recording details of this meeting was not provided to the trustees for some 3 months, and its accuracy was disputed. In particular the claim that soup kitchen users travelled for no more than 30 minutes by bus to access the service was disputed by the trustees, who suggested that few users actually came by bus. It was agreed that the trustees had asserted that “no two nights were the same – service users are not consistent, you may only recognise a few regular faces” [para 14].

The Council officers stated that when assessing alternative sites they focussed on accessibility and safety, and that they were “looking for sites where antisocial behaviour would be less likely … and less intrusive.” Specifically, the decision maker “had in mind the elderly, disabled and women. This is a fundamental aspect of my area of expertise and work” [para 15]. The decision maker stated that he made one “drive past” observation of the soup kitchen in operation, and noted that “users were male [and] less than 45 years old.” He did not notice any female or obviously disabled service users. Nevertheless, “when assessing the alternative site I considered it having in mind that it needed to be accessible to all, i.e. male, female, elderly and/or disabled” [para 17].

At a subsequent meeting the trustees were informed that “it [was] not feasible long-term for them to stay, with £5.5 million being invested in the area.” The “only feasible option” suggested to the trustees was an alternative site in a non-residential location on the North Circular road [para 18]. The trustees were given four weeks to discuss the matter and a further two weeks to relocate, extended to six weeks after protest from the trustees at this “sudden and unjust eviction” [para 19].

The judge records that at no time were the trustees asked about any PSED-type protected characteristics of their service users, the observation of the decision maker, nor any discussion about safety and accessibility regarding the new site [para 20].

The pre-action-protocol letter included information on several specific service users, including one (joint-claimant) “vulnerable disabled woman, street homeless and user of the kitchen every night for 10 years.” She was unable to walk more than a short distance and could not afford the bus fare to the new location. Other elderly and infirm service users were identified, including one 83 year old man. Safety concerns were raised regarding the move away from a well-lit heavily populated area [para 24].

Subsequently, an equality analysis was undertaken by the Council, [para 26] followed by a further meeting with the trustees, who described the Crooked Billet option as “outrageous and provocative” [para 30]. There was a suggestion, taken up later by the Council, [para 35] that the soup kitchen might relocate to a local sponsoring church that had a car park. However, none was identified as suitable [paras 30 & 38].[1] Safety concerns were addressed by the Council offering to put up guardrails and suggesting that volunteers wear high-visibility jackets “if likely to be entering the carriageway during a soup kitchen service” [para 36]. Transport concerns were addressed by the Council suggesting service users might be eligible for a bus “Freedom pass” but there was no published policy suggesting any specific provision for homeless people to apply for one, and many of the street homeless were found not to be in receipt of any benefits at all from which they might afford public transport [para 39].

The Report and Equality Analysis

The analysis summarised the reasons for the Council’s decision and assessment of its impact stating that “the negative impact of the behaviour associated with the service users outweighs the benefits of the service” [para 43]. Crucially, “no data beyond anecdotal data was available to indicate whether there are any disabled service users” although the decision maker assumed that some service users might be disabled. The report considered that there might be a “short-term decrease in uptake of the service” for this reason. The fact the new location was within “easy reach of several bus routes” was seen as a mitigating factor [para 46].

Similarly, anecdotal evidence only was available on the protected characteristic of race, where it was thought a disproportionate number of migrants from Eastern Europe, who have no access to benefits, might be affected. It was felt that publicity and signposting would be sufficient to mitigate the effects of the relocation [para 47].

The report concludes that “there is no evidence to suggest that long-term the relocation will affect their ability to access the soup kitchen.” On the other hand, the relocation “will benefit all users of the High Street area, including those with protected equality characteristics, by addressing antisocial and violent behaviour…”  [para 49].

The Law

The relevant parts of Section 149 of the Equality Act 2010 provide that:

(1) A public authority must, in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.


(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.

(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a) tackle prejudice, and

(b) promote understanding.


(7) The relevant protected characteristics are—

age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation.


Mrs Justice Simler summarised the case law on the PSED, which she described as “well established.” The PSED’s importance for non-discrimination has been “repeatedly emphasised”. It applies even to the private law arrangements of public bodies, “such as the termination of a … licence.” Due regard is a substantive matter to be conducted with an open mind. It is not a box-ticking exercise. The duty is an “essential preliminary” to a decision, rather than a “rear-guard action”. The PSED may involve a duty of enquiry. The role of the court is procedural. It cannot interfere with the weight a decision maker attributes to a relevant consideration. “The court will not micromanage such decisions” [para 54].

The claimants argued that the Council had failed to identify closure of the soup kitchen as a pertinent risk, an issue on which the Equality Assessment was silent [para 55]. The Council argued that the decision to revoke the licence was “not contingent on a suitable alternative site being offered”. There was no obligation on the Council to provide an alternative; it had a free-standing right to revoke the licence [para 56]. Nevertheless, it argued that the Equality Assessment proceeded on the “assumption” that the alternative site would be taken up. The risk of closure was so obvious that it did not need to be mentioned [para 57]. It further argued that it had, in fact, “identified the vulnerable people potentially affected”  [para 57].


Some of the language used by Mrs Justice Simler seems to indicate a frustration with the decision-maker’s actions. She refers to the case concerning “the application of well-established principles”, [para 58] reiterating that those principles include clarity of the equality implications and a structured approach to decision making [para 59]. She pointed to a failure to follow the Council’s own guidance, by failing to identify the adverse impacts of the decision, failing to engage with mitigating measures and failing to address the likelihood of the soup kitchen closing. “The Council, instead, examined and assessed a hoped for and much less serious impact” [para 60].

She referred to the Council’s “substantive obligation to grapple realistically and frankly with the obvious adverse impacts”, its consistent focus on relocation, and failure even to mention the possibility of closure [para 61]. The impacts were all described as short-term, whereas “a risk of closure altogether could not realistically be described as short-term” [para 66]. The Equality Analysis also failed to mention key objections made by the trustees to the alternative site and their refusal to relocate there. “Instead, the opposite impression is created… whether this was deliberate … I know not” [para 63]. Later, “the failure here was at a basic level … a wholly unrealistic approach by the Council … internally inconsistent” [para 69].

Of the Council’s assessment of accessibility, there was “no evidence basis” for its assumptions [para 70]. The decision overall to relocate to the Crooked Billet “fails to accord with reality or common sense … where no facilities likely to be accessed by homeless people are located [and] inevitably lead[ing] to lone women and other vulnerable people to feel unsafe” [para 71]. With respect to those service users who experience mobility difficulties or who cannot afford the cost of public transport, “nowhere does the Council engage with the practical impacts its analysis actually identifies” [para 72].

Ultimately, because the risk of closure was not considered, the process was described by the judge as “vitiated from the outset.” [para 74].


The Council argued that the judge should limit herself to a declaration only. However, “given the importance of the duty in fulfilling the aims of the anti-discrimination legislation” the judge made a quashing order [para 76]. This was expressly on the basis that following a PSED-compliant reconsideration “a different decision might be reached” [para 77].


In view of the comments recorded in the Council meeting of 14 November 2012, it appears the Council’s mind had already been made up, (“compelled to engage and arrange to relocate…”) which is another inconsistency with the PSED, which procedurally is to take place before a final decision is made.

A further inconsistency is apparent in the claims that PSED protected characteristic data was “not available” [paras 46 & 47] but that the Council had “identified the vulnerable people potentially affected” [para 57]. In fact, availability does not appear to have been the operative issue, with service users visiting the soup kitchen at the rate of 80 per evening and therefore available to speak to.

The alternative lay-by location is not obvious using Google Maps. However, it appears likely that the alternative location was very close to the traffic on the North Circular, close to the Holiday Inn, and possibly abutting the dual carriageway itself; hence the Council’s advice to volunteers to wear high-visibility jackets and the contemplation that they may enter the main carriageway while the soup kitchen operated.

Some of the judge’s language appears consistent with a rationality decision, and it is interesting to note that in its original claim the trustees sought permission on several further grounds including irrationality [para 3]. One wonders if permission had in fact been given on those grounds they would have been successful also. The Council appears to have wanted to both have its cake and eat it, in arguing its free-standing right to revoke the licence, while focusing attention on the potential for relocation. Rationality is of course a much more precarious line of challenge. However, in the absence of the PSED, the review of which is contemplated in 2016,[2] it may be the only ground of challenge in similar circumstances.

Nevertheless, in the meantime, a fully compliant Equality Assessment directed at the impact of closure would not seem to be an insurmountable hurdle to overcome if the Council is indeed intent on revoking the soup kitchen’s licence. In legal terms the PSED is, as the judge pointed out, a procedural protection only. However, it may yet reveal a more substantive effect in that compliance could, by highlighting the true nature of the impact of closure, compel the Council to face up to the political and social cost of its decisions.


Note: There is a rudimentary website for the Christian Kitchen, here, and a Facebook page with links to print and television media coverage of the case, here. The original article in the Baptist Times that alerted me to the case can be found here. The housing law blog, Nearly Legal, has a shorter case note here.

[1] One church offered its car park for one night per week, considered unfeasible by the trustees.

HS2, Burial Grounds, (& Richard III)

In earlier posts we have indicated that it is not uncommon for section 25 Burial Act 1857 to be disapplied in relation to large-scale infrastructure projects[1]. It is therefore unsurprising that such provisions are included in the High Speed Rail (London – West Midlands) Bill, here and here: the Commons Second Reading is scheduled for 28 April. The removal of remains and monuments from burial grounds is one of the areas covered, but unlike the circumstances surrounding the exhumation of the remains that proved to be those of Richard III, the Bill envisages a statutory consultation procedure; gives the Secretary of State only limited discretion in this area; and includes a narrow definition of “relatives” and “personal representatives”.

The Bill is being promoted through Parliament by the Secretary of State for Transport, who will also appoint the “nominated undertaker(s)” responsible for delivering the proposed scheme under the powers granted by the Bill[2]. The High Speed Rail (Preparation) Act 2013 received Royal Assent on 21 November, and the Hybrid Bill[3] now under discussion confers the powers required to construct Phase One of the proposed HS2 scheme from London Euston to Birmingham Curzon Street and Lichfield with intermediate stations in West London (Old Oak Common) and at Birmingham Airport. In addition to the Explanatory Notes to the Bill, the House of Commons Library has produced a Research Paper and on 7 April, the Environmental Audit Committee published its report on the proposed HS2 rail link and the environment[4]. Further information, including that relating to archaeology, may be found on the HS2 web site.

The deregulation provisions within the Bill are wide ranging[5] and aspects of those with a potential impact on churches, burial grounds and consecrated land are summarised below.

Listed buildings

The extent of this first phase of the scheme may be gauged from its impacts on listed buildings: those of direct risk from construction works are designated “buildings authorised to be demolished, altered or extended” and are listed Table 1 of Schedule 17[6]; others potentially affected by the development are identified in Table 2 as “buildings authorised to be altered or extended for heritage or monitoring purposes”[7]. The latter includes two Grade 1 and one Grade 2 churches, and a number of tombs, memorials and mausolea.

Burial grounds

The powers to carry out the development works authorized by the Bill are conferred on the “nominated undertaker(s)” designated by the Secretary of State, and under clause 27(1)

“Nothing in any enactment relating to burial grounds and no obligation or restriction imposed under ecclesiastical law or otherwise has effect to prohibit, restrict or impose any condition on the use of any land comprised in a burial ground for the purpose of constructing any of the works authorised by this Act.”

Schedule 19 provides a regime for the removal of human remains and related monuments[8], and specific aspects to note include:

– the developer is designated as the nominated undertaker that issues the relevant licences, rather than the Ministry of Justice (or a faculty under the jurisdiction of an ecclesiastical court).  The nominated undertaker also is given the power to decide whether a person is a relative or personal representative of the deceased, although recourse to the County Court is also available.  When exercising their powers under the Bill, it is likely that nominated undertakers will be regarded as acting as “public authorities” and their decisions will therefore be subject to judicial review.

– The designation of nominated undertakers may precede the Bill receiving Royal Assent, although licences granted during this period will be issued under section 25 Burial Act 1857 by the Ministry of Justice.

– The nominated undertaker must to publish and display notice of the intention to remove any human remains or monuments[9] before any such removal; a personal representative or relative may within 56 days apply for a licence to remove the remains and monument themselves. No notice is required where:

– The Secretary of State has notified the nominated undertaker that the Secretary of State is satisfied that the remains were buried more than 100 years ago and that no relative or representative of the deceased is likely to object.

– The nominated undertaker already holds a licence to remove human remains under section 25 of the Burial Act 1857.

– Upon written application by a relative or personal representative of the deceased, the nominated undertaken must issue a licence to authorise the removal and reburying or cremation of the remains. The reasonable costs of removal and reburial must be paid by the nominated undertaker.

– Where no written application for a licence by a relative or personal representative is received, or where a licence has been issued but the remains have not been removed within 28 days, the nominated undertaker may remove the human remains to a burial ground or crematorium within 2 months.

– The Secretary of State may direct that this period is extended to 12 months or longer to enable archaeological or other studies to be carried out. He/she may also dispense with the requirement to bury or cremate the remains but instead authorise them to be dealt with in some other manner, i.e. in a museum.

– Monuments which are removed by the nominated undertaker may be re-erected at the place where the remains are reburied or removed to some other appropriate place. If that is not done, they are required to be broken up and defaced to prevent inappropriate use.

With regard to “relatives and personal representatives”, clause 11 provides that

(1) In [Schedule 19], references to a relative of the deceased are to a person who—

(a) is a husband, wife, civil partner, parent, grandparent, child or grandchild of the deceased, or

(b) is, or is a child of, a brother, sister, uncle or aunt of the deceased.

(2) For the purposes of [Schedule 19], a person is to be taken to be a relative or personal representative of the deceased if—

(a) the nominated undertaker is satisfied that the person is a relative or personal representative of the deceased, or

(b) the county court, on the application of the person, has declared that the person is a relative or personal representative of the deceased.

Consecrated land

Unlike the other deregulation provisions, those relating to consecrated land are relatively straightforward and are contained in a single clause which disapplies the church law that may hinder development on relevant parts of the route.  Clause 27 states:

(1) No obligation or restriction imposed under ecclesiastical law or otherwise in relation to consecrated land has effect to prohibit, restrict or impose any condition on the exercise of the powers conferred by this Act with respect to works.

(2) Subsection (1) does not apply in relation to the use of land comprised in a burial ground for the purpose of constructing any of the works authorised by this Act.

[1] See annotations relating to section 25 in, here.

[2] There may be more than one nominated undertaker, e.g. HS2 Ltd could become the nominated undertaker for the main railway works, while Network Rail could become the nominated undertaker for works to an existing station such as Euston. But, whoever they are, all nominated undertakers will be bound by the obligations within the Bill and the policies established in the Environmental Minimum Requirements (EMRs).

[3] i.e. it has elements of both a public and a private Bill: it gives both Parliamentary approval and planning permission for the scheme. Those directly and specially affected by the construction of the route will be able to petition a specially-convened select committee on the Bill.

[4] This stated inter alia “better safeguards need to be implemented if harmful environmental impacts of HS2 are to be minimized”.

[5] These include: listed buildings, (clause 24 and Schedule 17); Ancient monuments, (clause 25 and Schedule 18); Burial grounds, (clause 26 and Schedule 19); Consecrated land, (clause 27); Commons and open spaces, (clause 28); Trees, (clause 29); Overhead lines, (clause 30); Water, (clause 31 and Schedule 20); Buildings, (clause 32, Schedule 21(Buildings), Schedule 22 (Party Walls)); Street works, (clause 33 and Schedule 23); Lorries, (clause 34 and Schedule 24); Noise, (clause 35 and Schedule 25); and Local Acts, (clause 36 and Schedule 26).

[6] These include: a monument and an obelisk, both in the London Borough of Camden and both Grade II.

[7] These include: Church of All Souls, (Grade II), 21 Loudon Road,  London Borough of Camden; Parish Church of St Giles, (Grade I), Parish of Chalfont St. Giles; Church of St Lawrence, (Grade I), Parish of Radstone, South Northamptonshire; Church of St John The Baptist, (Grade I), Parish of Thorpe Mandeville; and within Kensal Green Cemetery, Royal Borough of Kensington & Chelsea: four tombs, (Grade II*), and twenty seven tombs, (Grade II); eight mausolea, (Grade II): eight Monuments, (Grade II).

[8] Defined in clause 27(3) as including “a tombstone or other memorial; and references to a monument to a person are to a monument commemorating that person, whether alone or with any other person.”

[9] This includes: notice of removal of remains or monument; removal of remains under licence; removal of remains by nominated undertaker; removal of monuments; records; discharge of functions by nominated undertaker, relatives and personal representatives.

Australia: Christian Youth Camp liable for declining booking from gay support group

The non-discriminatory provision of services gives rise to disputes far beyond the UK and Europe. Neil J Foster, Associate Professor at the Law School and Lecturer in Law and Religion, University of Newcastle, New South Wales, has kindly provided the following guest post on a recent case in Victoria.


The Victorian Court of Appeal has handed down an important and lengthy judgment on appeal from a decision fining a Christian youth camping organisation and one of its officers for declining a booking  from a homosexual support group. In Christian Youth Camps Limited & Ors v Cobaw Community Health Service Limited & Ors [2014] VSCA 75 (16 April 2014) the court, by a 2-1 majority, said that the organization CYC was liable; but by a different 2-1 majority,  ruled that the individual who had declined the booking, Mr Rowe, was not liable.

Background facts

The complainant organisation, Cobaw, runs a project called “WayOut”, designed to provide support and suicide prevention services to “same sex attracted young people”. The coordinator of the project approached CYC (a camping organisation connected with the Christian Brethren denomination) to inquire about making a booking at a Phillip Island campsite that was generally made available to community groups. Mr Rowe, to whom she spoke, informed her that the organisation would not be happy about making a booking for a group that encouraged a homosexual “lifestyle”, as he later put it.

There was some factual dispute about what was said in the telephone conversation. However, in the end the issues were fairly clear. There had been a refusal to proceed with a booking; the reason for the refusal was connected with the CYC’s view of the philosophy of support for homosexuality as a valid expression of human sexuality; their opposition to this view was a result of what was seen by the CYC to be required by the Scriptures. Despite these things, the Tribunal (constituted by Judge Hampel of the Victorian County Court), ruled against the CYC and Mr Rowe, and ordered that they had unlawfully discriminated and should be jointly liable to pay a fine of $5000.

The primary liability imposed was under ss 42(1)(a) and (c), and s 49, of the Equal Opportunity Act 1995 (Vic) (“EO Act 1995”). These provisions prohibited discrimination on certain grounds (among which were same sex sexual orientation, and personal association with persons of same sex sexual orientation), in the areas of “services”, in “other detriments”, and in accommodation. But the Tribunal said that it also had to take into account the Charter of Human Rights and Responsibilities Act 2006 (Vic), which in effect is a general “Bill of Rights” for Victoria. The Charter contains a general prohibition on discrimination, in s 8; importantly, it also contains a right to freedom of religion and religious practice in s 14, and a right to freedom of expression in s 15.

The EO Act 1995 contained two exemptions based on religion. Section 75(2) provided:

“(2) Nothing in Part 3 applies to anything done by a body established for religious purposes that –

(a) conforms with the doctrines of the religion; or

(b) is necessary to avoid injury to the religious sensitivities of people of the religion”.

 And s 77 provided:

“Nothing in Part 3 applies to discrimination by a person against another person if the  discrimination is necessary for the first person to comply with the person’s genuine religious beliefs or principles”.

The Tribunal held, however, that neither of these provisions assisted either the CYC or Mr Rowe.

Issues on appeal

The main issues that the Court of Appeal dealt with can be summarised as follows:

1. Was the Victorian Charter relevant to the case?

2. Was the relevant refusal discriminatory on the basis of sexual orientation of the participants, or could it be seen as based on the support that the weekend was to offer for homosexual activity?

3. Was CYC alone liable under the Act, or were both CYC and Mr Rowe potentially liable?

4. Could CYC rely on the s 75 defence applying to a “body established for religious purposes”?

5. Could Mr Rowe rely on the s 77 defence on the basis of the necessity to comply with his “genuine religious beliefs or principles”?

6. Could CYC as an incorporated body rely on the s 77 defence?

1. Application of the Charter

The Tribunal member, Judge Hampel, had ruled that the Charter was relevant, even though it had commenced on 1 Jan 2008 and the events at issue here occurred before then. Maxwell P ruled that this was a mistake; while the Charter required courts dealing with issues that arose after 1 Jan 2008 to interpret legislation passed before that date in accordance with its principles, it was not fully retrospective. Matters that had taken place before its commencement should be dealt with under pre-Charter law: see paras [176]-[179]. Redlich JA at [509] agreed on this point; Neave JA should probably be seen as impliedly agreeing, as she made no specific comment on the issue.

2. Discrimination based on orientation or behaviour?

CYC argued that the decision not to accept the booking from Cobaw was not based on the “sexual orientation” of the participants, but upon the advocacy of homosexual activity which the event would involve- see eg the summary at [52]. This argument was rejected by Maxwell P, who supported comments that had been made by the Tribunal which were to the effect that sexual orientation is “part of a person’s being or identity” and that:

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.

In essence, his Honour seems to be saying that to criticise homosexual sexual activity is to attack those people who identify as homosexual. In particular the following quote from the UK Supreme Court decision in Bull & Bull v Hall & Preddy [2014] 1 WLR 3741 was supported, where Lady Hale said:

Sexual orientation is a core component of a person’s identity which requires fulfilment through relationships with others of the same orientation.

This view, that decisions made on the basis of same-sex sexual activity, or support for such, are in effect decisions that discriminate against persons who identify as homosexual, seems to be impliedly supported by Neave JA (who simply says at one point that, apart from the question of personal liability, she dismissed the appeal for “substantially the same reasons” as the President- see [360]; and by Redlich JA. His Honour gave more detailed consideration to the issues- see paras [442]-[447]- but essentially took the same position put forward by Maxwell P that “sexual orientation [is] inextricably interwoven with a person’s identity” (at [442]). His Honour then went on to consider a Canadian decision holding that a printing company was guilty of sexual orientation discrimination when refusing to print leaflets which were “promoting the causes of” homosexual persons.

[446]… Efforts to promote an understanding and respect for those possessing such a characteristic should not be regarded as separate from the characteristic itself.  To draw such a distinction was inconsistent with the prohibition against discrimination under the Code.

As will be noted later, Redlich JA also relied heavily on other aspects of the same decision in finding that in fact CYC and Mr Rowe could rely on the s 77 defence. But on this issue, of whether there had been discrimination or not, his Honour agreed with the other members of the Court.

In the end, then, all members of the Court of Appeal in Cobaw seem to take the view that a refusal to support an activity providing support for homosexual sexual activity, is the same as discrimination against homosexual persons. The view that sexual “orientation” is a fundamental part of human “identity”, and the view that this must then be allowed expression in sexual activity, seems to be accepted.

3. Institutional or individual liability?

The third major issue in the decision was whether CYC alone, or both Mr Rowe and CYC, should be held liable for whatever discrimination had occurred.

This is an issue that took up a large part of the judgments in the Court, and it is a fascinating legal question about how legislation applying to corporate bodies should be viewed. Given that the focus of my immediate interest in this note, however, is the law and religion question, I will deal with it briefly here.

To sum up, Maxwell P takes the view that the liability of a corporation under the legislation is “direct”, based on the actions of officers and employees of the corporation whose actions are deemed, under a relevant “attribution rule”, to be those of the company. His Honour says that the provision of the legislation headed “vicarious liability,” s 102 of the EO Act 1995, is not dealing with these standard cases of employees discriminating in the course of carrying out their normal duties. He then also comes to the view that, since corporations are “directly” liable for the actions of officers or employees, this means that the legislation does not intend to also make those individuals personally liable. On this basis, his Honour overturned the Tribunal’s finding against Mr Rowe, while upholding the liability of CYC.

By contrast, both the other members of the Court find that each of CYC and Mr Rowe can be held jointly and severally liable for discrimination. Neave JA notes that the term “vicarious liability”, used in the heading to s 102, does not necessarily have to have all the implications of the common law doctrine of vicarious liability. Even if, as seems plausible, a corporation can be “directly” liable for breach of the EO Act 1995 (see [378]), this does not automatically mean that the employee whose actions are deemed to create direct liability for the company, will then be excused- see [371]. With respect to the views of Maxwell P, it seems to me that Neave JA is correct at this point. The President has moved too quickly from the imputation of direct liability to the company, to the view that the employee should therefore be immune.

Neave JA then also supported this view from her consideration of s 102, the “vicarious liability” provision. As her Honour noted, by reference to academic commentary, the term “vicarious liability” is often used loosely in anti-­discrimination legislation, to refer to different forms of “attributed liability”. Hence there is no need to assume that the Act uses the term only in situations where the corporate employer would be otherwise innocent of wrongdoing, as the common law usage would imply.

Redlich JA agreed with Neave JA generally on this issue, holding that both CYC and Mr Rowe could be held liable for any discrimination that had occurred. Indeed, it seems that Redlich JA, with respect, analysed the situation best when his Honour said that there was, in effect, no need to search for an “attribution rule” for direct liability for CYC, when s 102 provided the relevant rules-­ see paras [456]-­[457].

The result is that there is a 2-­1 majority in the Court of Appeal judgment in favour of the proposition that both the company, and the employee who commits the relevant direct act, can be held liable for discrimination. As we will see below, however, since one of those in favour of this view (Redlich JA) was not in favour of the final order which was made, it could be argued that the precedential status of this proposition is unclear. My own view, for what it is worth, is that as a matter of law the view of Neave JA and Redlich JA is to be preferred.

4. Could CYC rely on the s 75 defence applying to a “body established for religious purposes”?

While both parties could be potentially held liable for discrimination, only CYC could rely on the s 75 defence, which applied to “a body established for religious purposes”. (The word “body” clearly implied a corporate entity of some sort, not an individual.)

The Tribunal had ruled that CYC could not rely on the s 75 defence for a number of reasons: that it was not a body “established for religious purposes”, and in any event that the refusal of accommodation did not “conform with the doctrines” of any relevant religion, nor was it necessary to “avoid injury to the religious sensitivities” of believers. In effect, for similar reasons, the Court of Appeal agreed. In my view this is one of the most problematic aspects of the decision. It is also the feature of the decision that is likely to have the most impact in other jurisdictions like NSW, all of whom have an equivalent of s 75 as a defence.

(a) Was CYC a “body established for religious purposes”?

Maxwell P agreed with the decision of Judge Hampel that CYC was not such a body. There is a long discussion and review of the evidence at paras [199]-­[254]. Features which pointed to the “religious purposes” of CYC were its establishment by the Brethren denomination, the fact that it was required to operate “in accordance with the fundamental beliefs and doctrines of the Christian Brethren”, that it had to aim to create an “obviously Christian” atmosphere, that its provision of camping facilities was to provide “an opportunity to  communicate the Christian faith”, that those who visited the campsites should “experience Christian life and values”, and that it had power to advance to the Trustees of the Brethren church money for “charitable” purposes-­ see paras [204]-­[205]. Members of the Board of CYC were to subscribe to the Brethren declaration of faith- ­[206].

On the other hand, Maxwell P regarded a number of other features of the way that CYC operated as counting against the body being one that was operated “for religious purposes”: advertising on the website and brochures did not contain any explicit reference to Christianity; the site was regularly booked by secular groups; there was no prohibition of any particular type of activity offered on their advertising, and camps were not required to have any Christian content (even though Christian groups did also occasionally use the site.)

The President cited at length from a judgment of Dixon J in an old case dealing with a testamentary bequest, Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1, where his Honour said that to establish the charitable category of a trust for religious purposes, the actual activities themselves must be “religious”. From the examples given by Dixon J, this meant “directly” religious-­spiritual teaching, support of clergy or church buildings or gifts to religious societies. Undertaking a “secular” activity could not be a “religious” purpose, even if motivated by religious reasons-­ [231]-­[232].

Maxwell P distinguished the decision of the High Court in an important recent decision, Federal Commissioner of Taxation v Word Investments (2008) 236 CLR 204, which had held that a body which was itself clearly set up for religious purposes (Bible translation in that case) could still be regarded as “charitable” even though it engaged in secular commercial enterprises to provide funding for those religious purposes. The implication seems to be that if the Christian Brethren church had directly run the camping activities, rather than setting up CYC as a separate organisation, it would have been able to rely on s 75(2).

With respect, it seems as though his Honour is very much relying on a narrow view of what “religion” requires in saying that CYC was not established for “religious purposes”. At [246] he characterises the “very purpose for which CYC exists” as “the commercial activity of making campsite accommodation available to the public for hire”. Yet that is not what CYC’s founding documents say. Of the 10 substantive objects, set out in para [205], four contain an explicit reference to CYC’s religious goals. Maxwell P acknowledges that these exist but still concludes that the main activity is a secular one, and suggests that only if CYC were offering “avowedly religious” camps could it have been described as having religious purposes-­ [249].

On the question as to whether freedom of religion should receive a “broad” or “narrow” interpretation, see also the earlier comments of Maxwell P at [180]-­[188]. On the one hand, his Honour suggests that current High Court Chief Justice, French J, (as he then was) got it wrong in the earlier decision of Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 by giving a broad reading to a “freedom of speech” defence in the RDA. But on the other hand he says that the exemptions in ss 75-­77 should not be “read down” and that neither one of the “co-­existing rights” (that is, freedom from discrimination or freedom  of religion) should be “privileged over the other”-­ at [188]. With respect, while there is lip service paid to the equal status of the rights concerned, it is hard to avoid the conclusion that indeed the discrimination right is being given a much broader reading than that of freedom of religion.

Neave JA seems to impliedly support Maxwell P’s comments on the question of whether CYC is a body established for religious purposes (see [360] where her Honour states in effect that where she makes no other comment on issues, she agrees with the President.) Redlich JA at [439] point (4) also indicates his agreement that CYC was not a “religious body established for religious purposes” (although it should be noted that the first occurrence of the word “religious” in that phrase is not to be found in s 75(2).) With respect, his Honour later makes a number of important points about s 77 (noted below) which seem to me to imply that he ought perhaps to have been more willing to revisit the question of whether CYC was a body “established for religious purposes”.

The result of this unanimity on this point in the decision, if followed elsewhere, seems to be that even a body with explicitly faith-­driven objects may be found to not be a body “established for religious purposes” if it engages in a wide range of community services which do not explicitly require a faith commitment from the recipients. It may be queried whether this is a good policy outcome. Well-known service bodies such as the Salvation Army or St Vincent de Paul offer services to members of the public without inquiring as to their faith stances. Is it really the case that these bodies cannot be said to be established for “religious purposes”? They would presumably argue that Jesus’ teaching in the parable of the Good Samaritan, and a range of other teaching in the Bible, makes “care for widows and orphans” and other community activities a “religious purpose” for those who are committed to Christ.

If a distinction between these bodies, and groups like the CYC, is sought in the fact that CYC charged commercial rates for their services, this seems to be committing the error that Redlich JA points out later in his Honour’s discussion of s 77, of assuming that commercial involvement and religious commitment are incompatible. Does the fact that a Salvation Army fundraiser may charge for sausage sandwiches really preclude them from being a body “established for religious purposes”? Nevertheless, this outcome seems arguable when this aspect of the Cobaw decision is taken into account.

(b) If so, was the refusal of accommodation justified by its doctrines or the sensitivities of believers?

Despite finding that CYC was not entitled to rely on s 75 defences, Maxwell P went on to consider whether, if it were, it could have justified the refusal of the booking on doctrinal or other grounds under s 75(2). Yet again, his Honour operated on a narrow view of “religious activity” which virtually excluded anything except church services and bible studies. Even if CYC had been a religious body, the doctrinal defences, his Honour held, could not apply to “secular” activities. In para [269] CYC’s decision to “voluntarily enter the market for accommodation services” meant that it had to behave in a way that did not allow any consideration of “doctrinal” issues.

In case this was in error, however, his Honour considered whether there would have been any clash with doctrine. He accepted the reasoning of Judge Hampel in the Tribunal, who had adopted the submission of a theological expert that “doctrines” of the Christian faith were to be confined to matters dealt with in the historic Creeds, none of which mentioned sexual relationships-­ see [276]-­[277].

His Honour then further went on to consider what result would have followed were he to accept that views about the exclusivity of sexual relationships to marriage, and the nature of marriage as between a man and a woman, were in fact “doctrines”. He noted that these views functioned as moral guidelines for those within the church, and that no doctrine of Scripture required interference with those outside the church who chose to behave otherwise-­ see [284]. Hence in his Honour’s view a refusal of accommodation cannot have been “required” by Christian doctrine. On this point he held that “conforms to” doctrine must mean that there is “no alternative” but to act in this way-­ [287]. Indeed, his Honour went on to helpfully explain to the CYC what measures they should have taken if they were serious about this doctrine, such as warning guests that sexual activity outside marriage should not take place on the campsite-­ see [290].

There are a number of serious problems with this whole passage of the judgment, in my view. One is that the question of what is a “doctrine” is being resolved by a comparison of expert evidence by a Judge who has no real familiarity with the faith concerned. Can it really be Parliament’s intention that judges of secular courts make a decision as to what is a “core” doctrine or not of a particular faith?

In addition, the view that action in “conformity” with doctrine must be “required” or “compulsory” seems far too narrow. This very view was recently decisively rejected by the European Court of Human Rights in the case of Eweida v United Kingdom [2013] ECHR 37 (15 January 2013). There the action of British Airways in ordering its staff member not to display a cross was at one stage defended on the basis that wearing a cross was not “required” by Christian doctrine. The ECHR in considering a claim under the freedom of religion provision in art 9 of the European Convention on Human Rights ruled that it was not necessary to show a breach of religious freedom that the action in question be “compulsory”. At [82] the Court commented:

In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of  worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question (emphasis added).

In that case the wearing of a cross, while not a “duty”, was clearly a “manifestation” of religious commitment. While the language of s 75(2) is not the same as that of art 9, a similar approach would seem to be desirable. (And it should be noted that Maxwell P accepted that international human rights jurisprudence on freedom of religion was, while not binding, certainly a relevant source to which Australian courts should look-­ see [192]-­[198].)

The other point that should be noted is that Maxwell P’s discussion of Christian doctrine not requiring the “shunning” of non-­Christian persons who do not conform to it (which is clearly correct), fails to deal with the question whether an organisation can be seen to be providing support for a particular viewpoint which has been announced when a booking is made. This point was picked up by Redlich JA in his discussion of s 77 (see below), and is also applicable to the question whether providing a booking here would have involved the CYC providing encouragement and a platform for teaching which they perceived as contrary to an important part of Christian belief. There is a similar approach taken to the s 75(2)(b) question of an injury to “religious sensibilities”. The fact that previously no inquiry had been made of the sexual practices of those attending the camps was taken to mean that simply allowing homosexual persons to attend was not of itself an interference with religious sensibilities. His Honour failed to consider the issues raised by a clear declaration on the part of the person booking that the aim of the camp included an aim of “normalising” homosexual activity, which the CYC considered sinful.

Since Neave JA agreed with Maxwell P that CYC were not a “religious” body, her Honour did not discuss the possible application of s 75 to the corporation. Redlich JA at [439] point (4) very briefly expressed his agreement with Maxwell P that that, for the purposes of s 75, “the beliefs or principles upon which CYC relied were not ‘doctrines’ of the religion”. It seems his Honour was adopting the very narrow view of “doctrines” as purely stemming from the historic Creeds, although his remark is so brief that one cannot be sure. As will be seen, his Honour later took a broader view of “beliefs” under s 77.

It is perhaps worth noticing at this point the odd fact that the whole Cobaw decision very rarely refers to the fairly similar NSW litigation in OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155 (6 July 2010.) In particular, one of the issues in that case was whether a belief that marriage between a man and a woman was the ideal way for a child to be raised, could be justified as being a “doctrine” of the Wesley Mission. After an initial Tribunal finding to the contrary, the Court of Appeal directed a new hearing, noting that there was a need to consider “all relevant doctrines” of the body concerned. On referral to the Tribunal, it held that the word ‘doctrine’ was broad enough to encompass, not just formal doctrinal pronouncements such as the Nicene Creed, but effectively whatever was commonly taught or advocated  by a body, and included moral as well as religious principles. It may be that the Victorian Court of Appeal considered that this final decision, being one of an administrative tribunal not a superior court, was not binding; but it seems unusual that it was not even noted. Certainly some comments of the NSW Court of Appeal were relevant, and in accordance with the High Court’s directions to intermediate appellate courts in Australia, should have been taken into account unless regarded as “plainly” wrong.

5. Could Mr Rowe rely on the s 77 defence on the basis of the necessity to comply with his “genuine religious beliefs or principles”?

For those judges who considered that Mr Rowe was potentially personally liable, the defence in s 77 required consideration. Maxwell P, while holding that in fact Mr Rowe was not personally liable, also offered his views on the question. (As we will note in a moment, his Honour also held that CYC could not rely on s 77, so in fact his comments here are what we might call doubly “hypothetical” or obiter dicta; but they may of course be influential in other decisions.)

For Maxwell P any possible s 77 defence (which authorises actions by a person where “necessary … to comply with the person’s genuine religious beliefs or principles”) was ruled out for reasons similar to those which his Honour thought would have ruled out the s 75(2) defence applicable to CYC: because it was not “necessary” to refuse a booking for Mr Rowe to comply with his religious beliefs. The rule that sex should only be between a heterosexual married couple was a rule of “private morality” and even on its own terms did not have to be applied to others-­ see [330]. As noted above, this of course ignored the fact that Mr Rowe was being asked to support a message of the “normality” of homosexual activity with which he fundamentally disagreed.

Neave JA’s discussion of the s 77 point is important, because for her Honour s 77 was a live issue, given that Mr Rowe could be personally liable. Her Honour’s judgment warrants careful attention, especially since it has to be said that in my respectful view her Honour has misunderstood some of the UK and European jurisprudence which she refers to in reading the Victorian legislation.

The point that the standard of “necessity” must be objectively, not entirely subjectively, determined seems clearly correct. Her Honour’s view at [425] that the phrase “necessary to comply” means “what a reasonable person would consider necessary for Mr Rowe to comply with his genuine religious belief” sums this up well.

However, there was never any dispute about the content of the relevant Christian teaching, or that Mr Rowe was genuinely motivated by that content. What is unfortunate is that her Honour moves from this issue of the “objectivity” of the relevant necessity, into other more debatable propositions. This can be seen in para [426]. While it is true that “subjectively held religious beliefs of one individual do not always override the human rights of others”, this is not what Lord Walker is referring to in the quote then given from R v Secretary of State for Education and Employment; ex parte Williamson [2005] 2 AC 246 (“Williamson”). Lord Walker’s comment, that “not every act which is in some way motivated or inspired by religious belief is to be regarded as the manifestation of religious belief”, is not concerned with the question of subjectivity or objectivity. His Lordship was discussing the meaning of “manifestation”, and considering whether the fact that some behaviour was “motivated” or “inspired” by belief could always be regarded as a “manifestation” of that belief.

In fact it has to be said that Neave JA’s reliance on Williamson and some older UK and ECHR decisions shows a lack of familiarity with recent European law and religion jurisprudence. For example, her Honour at [428] cites Lord Walker’s comment about the “distinction between the freedom to hold a belief and the freedom to manifest that belief” as playing an “important part” in European and UK cases. That may well have been true until recently. In particular, there were European and UK decisions which came very close to holding the very harsh view that the right to freedom of religion in the employment context, for example, could be perfectly well protected by the fact that an employee whose religious freedom was impaired could leave and find another job.

But since the important decision of the European Court of Human Rights in Eweida and others v The United Kingdom [2013] ECHR 37 (15 January 2013) it has been clear that this is no longer the approach to be followed in Europe in dealing with art 9 of the ECHR. The court commented at [83]:

[I]n cases involving restrictions placed by employers on an employee’s ability to observe religious practice, the Commission held in several decisions that the possibility of resigning from the job and changing employment meant that there was no interference with the employee’s religious freedom (see, for example, Konttinen v. Finland, Commission’s decision of 3 December 1996, Decisions and Reports 87-­A, p. 68;  Stedman v. the United Kingdom, Commission’s decision of 9 April 1997; compare Kosteski v. “the former Yugoslav Republic of Macedonia”, no. 55170/00, § 39, 13 April 2006). However, the Court has not applied a similar approach in respect of employment sanctions imposed on individuals as a result of the exercise by them of other rights protected by the Convention, for example the right to respect for private life under  Article 8; the right to freedom of expression under Article 10; or the negative right, not to join a trade union, under Article 11 (see, for example, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 71, ECHR 1999‑VI; Vogt v. Germany, 26 September 1995, § 44, Series A no. 323; Young, James and Webster v. the United Kingdom, 13 August 1981, §§ 54-­55, Series A no. 44). Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate. (emphasis added)

As Julie Maher of the Oxford Human Rights hub has noted:

Eweida was an important turning point in Article 9 jurisprudence, with the Strasbourg Court recognising that an individual’s desire to express their religious belief publicly, beyond the context of church and home, could outweigh the secular interests of an employer. The case stands as an important recognition of the need to attribute a basic weight to individuals’ desires to manifest their religion.

I have taken the time to comment on these recent developments, simply because Neave JA justifiably notes that courts in Australia should be aware of international developments. However, in doing so they need to be aware of the current state of law in these areas.

It has to be said that, while Neave JA does refer to the Eweida decision, her Honour has not captured the complexity of the issues and the important changes in EU jurisprudence signalled by the decision In particular, her Honour’s comment at [433] that it was important to consider whether the discriminatory act arose from a “core feature” of the discriminator’s religious beliefs, is contradicted by the finding of the Eweida court noted previously that the particular behaviour need not be “mandated” by religious belief.

 At [434] her Honour, taking the “narrow” view of religious belief that mainly sees it as applicable to “church services” or “religious rules”, generously accepts that there could be serious issues where a secular law on discrimination:

compels the alleged discriminator to refrain from conduct which is required by their religion (for example participation in religious ceremonies or observance of dietary laws) or to actively participate in an act prohibited by their religion, for example celebrating a marriage between a same sex couple. However, the appropriate balance between religious freedom and freedom from discrimination would be struck by holding that the exemption does not apply in situations where it is not necessary for a person to impose their own religious beliefs upon others, in order to maintain their own religious freedom. (footnote omitted)

There are a number of comments to be made about this somewhat disturbing paragraph. For a start, it seems hard to imagine a circumstance where anti-­discrimination laws would otherwise require someone to not participate in a religious ceremony or observance of a dietary rule. But the rule that her Honour sees as “striking the right balance” has to do with it not being necessary for “a person to impose their own religious beliefs upon others, in order to maintain their own religious freedom”. Presumably her Honour sees the refusal of Mr Rowe here as amounting to such an “imposition”.

Yet to reframe the question in this way seems wrong for two reasons. The first and most obvious is that Mr Rowe was not seeking to “impose” anything on Cobaw. It was Cobaw who were seeking to enter into a contract with CYC through Mr Rowe. Indeed, if either side of the relationship were “imposing” on the other, it was Cobaw who were demanding that CYC make their facilities available to facilitate a camp, whose avowed message of support for the normality of homosexual relationships flew in the face of CYC’s stated commitment to orthodox Christianity.

Second, however, and more importantly, this statement of how the relevant balance should be struck assumes that it is up to the Court of Appeal to do the “striking”. But, as Redlich JA powerfully argues, that is to misunderstand how the legal norms here are spelled out. Yes, there is a need to strike a balance between competing human rights. But it is Parliament which has struck that balance, by spelling out the situations in which a person’s religious commitment may override the law of discrimination. (see below.) Here, however, Neave JA seems to be endeavouring to formulate the appropriate balance herself.

Again, as with the comments of Maxwell P noted previously, there is no attention paid to the imposition upon Mr Rowe of a course of behaviour that supports a view he opposes on religious grounds. That this has been completely forgotten emerges in para [436], where Neave JA regards it as inconsistent of Mr Rowe to have conceded that he would not have refused accommodation to lesbian parents who were attending a school camp of some sort. To say that this “contradicts” his assertion that he regarded the denial of a booking as necessary to comply with his beliefs, is almost incomprehensible. It almost seems that her Honour has decided that, whatever Mr Rowe and CYC say, their “real” reason for refusing the booking was a dislike of homosexual persons. In reality, there is nothing inconsistent in Mr Rowe’s assertion that he would have been happy to accept a booking for a normal school camp, even if he knew there were same sex parents who were part of the group; while being unwilling to accept a booking from a group whose very raison d’etre was the “normalisation” of behaviour seen as contrary to God’s word.

Finally, the comparison that Neave JA finds apt in para [437] is telling. Her Honour concedes that the case of Bull v Hall [2013] UKSC 73, [2014] 1 All ER 919 is “not on all fours” with the Cobaw case. This is an understatement. In the Bull case Christian proprietors of a boarding house had declined double bed accommodation to a same sex couple. A fundamental difference between the UK and the Victorian legislation was that the UK law concerned had no general defence provision applying to individuals, unlike s 77 of the Victorian EO Act. Hence it was not very surprising that boarding house proprietors were found to have unlawfully discriminated.30 When Neave JA says that this case reassures her that s 77 “achieves an appropriate balance” she must, with respect, be wrong; there was no equivalent provision at all at issue in the Bull case. Her Honour’s comment would only be true if s 77 provided no effective protection whatsoever.

By contrast to the decisions of the other members of the Court, Redlich JA considered that not only was s 77 applicable to Mr Rowe, it applied to give him a defence against the claim for discrimination. His Honour’s comments are, in my view, very important for a proper application of a religious freedom defence in Australia.

He commented at [502] that the Tribunal had been wrong to conclude that the s 77 defence did not apply for four reasons:

  • A too-­narrow construction of the defences;
  • An insistence on an “objective” test as to whether the religious beliefs “compelled” action;
  • Holding that commercial activity was an area with limited scope for religious freedom; and
  • Inferences that were drawn about the CYC’s commercial activity.

On the issue of the construction of the defences, Redlich JA noted that the Tribunal had explicitly taken guidance from the Victorian Charter in ruling that it, the Tribunal, needed to strike the appropriate balance between freedom from discrimination and freedom of religion-­ see [510]. In particular, since the defences in ss 75-­77 “impaired the full enjoyment” of a Charter right to non-­discrimination, they should be read very “narrowly”-­ [512]. This, his Honour held, was an error.

It was an error because the EO Act 1995 cannot be said to have only one purpose, as if freedom from discrimination was its sole object. It is Parliament that has set up a system to balance these rights with other important rights, such as religious freedom. It is not up to the Tribunal (or, one may add, a Justice of Appeal) to undertake the balancing process as they see fit. His Honour commented at [515]:

When, as is so obviously the case with s 77, Parliament adopts a compromise in which it balances the principle objectives of the Act with competing objectives, a court will be left with the text as the only safe guide to the more specific purpose.31 Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.

As his Honour said, the Tribunal had adopted an “unworkably narrow interpretation of the exemption in s 77, calculated to frustrate the very purpose of the exemption”-­ see [517].

On the question of the “objective” test as to whether behaviour was “compelled” by religion, Redlich JA noted the inappropriateness of a secular Tribunal or court weighing up moral obligations under a religious set of doctrines or beliefs. Instead, while not arguing for a completely “subjective” test, his Honour said that the subjective beliefs held by the alleged discriminator required at least some consideration-­ [526]. In part his Honour relied on the fact that the provisions of s 77 had actually previously been criticised by a Parliamentary scrutiny body as too easy to satisfy, and that in later legislation, the Equal Opportunity Act 2010, the equivalent provision required discrimination to be “reasonably necessary”. However, his Honour went on in para [533] to note that even a requirement that discrimination be “reasonably necessary” would not be so narrow as the approach to s 77 adopted by the Tribunal in this case.

In particular, his Honour rejected the view that activity in the commercial sphere was somehow not covered by the s 77 defence. Again his Honour criticised the tendency of the Tribunal (and, it should no doubt be implied, his Honour’s colleagues on the Court of Appeal) to give too much attention to international jurisprudence that required the balancing process to be undertaken by judicial or tribunal officers. In particular he noted at [539] that the Strasbourg court in Europe had interpreted the art 9 right there in a narrow way where a person chose to engage in the commercial marketplace such as by employment.

Actually it must be said that, while his Honour’s views about the narrow approach of European and UK courts to these questions at paras [539]-­[540] were correct until recently, the courts since Eweida have adopted a much broader approach, as noted above. Nevertheless, his Honour’s general point about the need for courts to observe the balance struck by Parliament, and not to strike out on a balancing process themselves unless invited to do so by Parliament, seems correct.

Redlich JA then undertakes a careful analysis of the Canadian Brockie case mentioned previously,34 in which he stresses that the outcome of the case was that the court held that there could be the refusal of a service in the commercial sphere “where its use would reasonably be seen to be in conflict with core elements of the belief”-­ see [542] ff.

It is worth noting the facts of Brockie in more detail. The Board of Inquiry there had found Mr Brockie guilty of discrimination because he declined to print leaflets for an organisation whose literature indicated that it “represented [the] interests of ‘gays’ and ‘lesbians’”. The Board ordered that Mr Brockie was to provide printing services to “lesbians and gays and to organizations in existence for their benefit”-­ see para [17] of the appeal decision. In the course of their decision, as noted above, the judges of the Divisional Court ruled that “efforts to promote an understanding and respect for those possessing any specified characteristic should not be regarded as separate from the characteristic itself”-­ see [31].

Mr Brockie argued that to require him to support and promote the cause of homosexuality would require him to behave in a way which conflicted with his Christian beliefs, and would be a breach of his right to freedom of religion under the Canadian Charter – see Brockie, [37]. The Divisional Court impliedly rejected the narrow view that rights to freedom of religion could not operate in the “commercial” sphere, by agreeing that in some circumstances the very broad order of the Board, that Mr Brockie publish whatever the organization requested, would indeed amount to a disproportionate burden on his freedom of religion.

[49] However, the order [of the Board] would also extend to other materials such as brochures or posters with editorial content espousing causes or activities clearly repugnant to the fundamental religious tenets of the printer. The Code prohibits discrimination arising from denial of services because of certain characteristics of the person requesting the services, thereby encouraging equality of treatment in the marketplace. It encourages nothing more. If the order goes beyond this, the order may cease to be rationally connected to the objective of removing discrimination.

The Divisional Court then provided some examples of the distinctions it thought needed to be drawn:

[56] If any particular printing project ordered by Mr. Brockie (or any gay or lesbian person, or organization/entity comprising gay or lesbian persons) contained material that conveyed a message proselytizing and promoting the gay and lesbian lifestyle or ridiculed his religious beliefs, such material might reasonably be held to be in direct conflict with the core elements of Mr. Brockie’s religious beliefs. On the other hand, if the particular printing object contained a directory of goods and services that might be of interest to the gay and lesbian community, that material might reasonably be held not to be in direct conflict with the core elements of Mr. Brockie’s religious beliefs. (emphasis added)

The Board’s order that the specific printing project go ahead was upheld, but it was to be qualified by the addition of extra words:

[59]…Provided that this order shall not require Mr. Brockie or Imaging Excellence to print material of a nature which could reasonably be considered to be in direct conflict with the core elements of his religious beliefs or creed.

When this aspect of the decision is taken into account, it can be seen that the final order of the Court is more in line with the submissions of CYC than those of Cobaw. Redlich JA noted that Judge Hampel in the Tribunal in Cobaw had found that the aims of the proposed camp included “conduct… 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”-­ see [443]. In this way requiring the CYC to make their camping facilities available to Cobaw was indeed to “convey a message” that was contrary to CYC’s beliefs (and hence to fall within the area that the Divisional Court in Brockie said would have been going too far and beyond power.)

Redlich JA commented at [544] that, consistently with the outcome in Brockie, s 77 “protects such an obligation when it arises in similar circumstances”. Any judicially created limit which would restrict the operation of s 77 in the commercial sphere would undermine the very balance that Parliament itself has chosen to strike:

[550]….The section does not confine the right to manifest religious beliefs to those areas of activity intimately linked to private religious worship and practice. The legislature intended that it operate in the commercial sphere. The approach of the Strasbourg institutions confining freedom of religion to freedom to believe and to worship is not reflected in the legislative policy of the Act, or in the text of the exemption, which permits a person’s faith to influence them in their conduct in both private and secular and public life (emphasis added)

Redlich JA’s concluding discussion of how s 77 ought to have been applied in the particular circumstances of this case brings together these themes, and clearly demonstrates the error of the Tribunal. His Honour notes that it is not necessary for an activity to be a “religious” one such as a church service or evangelism, for it to be an activity that is motivated by religious belief. While CYC may not have been a body “established for religious purposes”, it was a body with a religious character, and Mr Rowe of course had his personal religious commitments. He was entitled to the benefit of s 77.

In particular his Honour clearly brings out the point made above, that refusing the booking was appropriate once the purpose of the seminar was made known to Mr Rowe. It was reasonable of CYC to offer its services to all without making any particular enquiries about their personal beliefs. But:

[567]….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. (emphasis added)

As his Honour noted at [571], it could hardly be doubted that if told that a seminar to be run at the campsite would be aiming to persuade the attendees to deny the Christian faith, that CYC would have been entitled to decline the booking. The proposed purpose here was seen as just as antithetical to the beliefs of the members of the organisation.

Hence his Honour held that s 77 excused Mr Rowe from liability. He also went on briefly to note that once s 77 operated in relation to an employee whose actions had made the employer liable, then the employer was also not liable-­ see [578].

6. Could CYC as an incorporated body rely on the s 77 defence?

This brings us the final of the major issues in the case: could the corporate body CYC rely on the s 77 defence “directly”? That is, since s 77 applies to a “person”, and since under established principles of interpretation “person” usually includes an incorporated body, could CYC argue that it had relevant “religious beliefs or principles” which were protected?

Maxwell P took the view that the s 77 defence was not applicable at all to a corporate body-­ see [309] ff. His Honour’s main reasons were by reference to the scheme of ss 75-­77, which seemed to distinguish between rights given to “bodies” and those to “persons”. In particular his Honour said that it would be odd if a corporate body could rely on the apparently wider defence in s 77, if it did not satisfy the description of a “body established for religious purposes” under s 75. He conceded that “churches” had been said in European jurisprudence to have “rights of religious freedom”, but disputed that those rights were appropriate for other incorporated bodies-­ see [322].

Neave JA agreed with Maxwell P on this issue-­ see [413]-­[422]. Redlich JA did  not; his Honour noted that corporations are regularly held liable for various “states of mind” attributed from their controllers. While there might be problems in other cases, in this situation all the directors of CYC were required to subscribe to a statement of faith-­ see [479]. The different provisions in s 75 and s 77 operated in different areas and to exclude corporations from s 77 would   produce anomalous results, particularly for small businesses where the defence would be excluded if they decided to adopt a corporate structure for other reasons-­ see [490].

Summary and Preliminary Evaluation

In brief, the result of the decision on the six points noted above, then, was:

  1. Was the Victorian Charter relevant to the case? No, by all members of the Court.
  2. Was the relevant refusal discriminatory on the basis of sexual orientation of the participants, or could it be seen as based on the support that the weekend was to offer for homosexual activity? All members of the Court rejected the distinction. A decision based on activity, or support for the activity, would be seen as a decision based on sexual orientation.
  3. Was CYC alone liable under the Act, or were both CYC and Mr Rowe potentially liable? By a 2-­1 majority (Neave JA & Redlich JA), both CYC and Mr Rowe were potentially liable.
  4. Could CYC rely on the s 75 defence applying to a “body established for religious purposes”? No-­ because (by all members of the Court) it was not established for such purposes. Nor, apparently, was it necessary to decline the booking based on its “doctrines” (although Redlich JA found that it had a defence based on its “beliefs” under s 77).
  5. Could Mr Rowe rely on the s 77 defence on the basis of the necessity to comply with his “genuine religious beliefs or principles”? Neave JA said that the s 77 defence was not made out; Redlich JA that it was. As Maxwell P had ruled that the obligations did not apply to Mr Rowe personally, the decision fining Mr Rowe was overturned, though for two completely different reasons.
  6. Could CYC as an incorporated body rely on the s 77 defence? By a 2-­1 majority (Maxwell P & Neave JA), no-­ a body that did not fall within s 75 could not rely on a general s 77 defence.

The fact that the Court was split in different ways on different issues makes the precedential value of some of its comments problematic. For the purposes of a future court wanting to know what principle of law flows from this case, where different reasons are offered by different members of an appellate court for coming to the same outcome, is it not possible to say that there is any specific ratio of the decision. Kirby J in XYZ v Commonwealth [2006] HCA 25; (2006) 227 ALR 495; (2006) 80 ALJR 1036 at [71] summed up the principle in this way:

the binding rule is to be derived from the legal principles accepted by those members of the Court who, for common reasons, agreed in the Court’s orders

Here there are some propositions in Cobaw for which there is no majority among those Justices who concurred in the final outcome (support for a proposition offered by members of the Court who did not agree in the outcome cannot be aggregated under this principle.) So there is no majority ratio here on the question as to whether under the legislation a corporate body has “direct” liability, or whether its liability is “vicarious” based on the specific statutory version of attributed liability. Of those members of the Court who found CYC liable, Maxwell P favoured direct liability and Neave JA vicarious; since Redlich JA found that CYC was not liable, his Honour’s support for vicarious liability cannot be counted.

However, there do appear to be relevant majorities for the following views:

  • That a corporation cannot rely on the s 77 defence applying to “persons”-­ this view was adopted by Maxwell P and Neave JA, who agreed that CYC were liable.
  • That a body situated similarly to CYC is not a “body established for religious purposes” and hence cannot rely on the s 75 defences-­ a view shared by all members of the Court. Of course it will be necessary to isolate which characteristics of such a body preclude “religious purposes”, but it seems that operating competitively in a commercial marketplace may do so.

o There may, it seems, be majority support for a related issue, which is that a body established for religious purposes needs to find its “doctrines” in official doctrinal statements. However, since as noted above on this issue the Cobaw court seems to ignore previous comments made by the NSW Court of Appeal in OV & OW, it may be that this aspect of the decision would not be binding in a NSW court at least.

  • That the Victorian Charter does not apply to events occurring before its commencement.
  • That discrimination on the basis of sexual orientation occurs when differentiation on the basis of homosexual activity, or support for homosexual activity, takes place.

Of these matters, the third is likely not to be of much continuing relevance, given that the Charter has now been in effect some time. But the first, second and fourth are important propositions likely to have a future impact.

The practical effect of these views on faith-­based organisations in the future may be significant. Some that immediately come to mind are as follows:

  1. That a general freedom of religion defence applying to “persons” does not apply to incorporated bodies seems to be a serious derogation from freedom of religion. Similar issues, of course, are currently being litigated in the United States of America in relation to the possible application of new healthcare initiatives requiring organisations to fund the provision of abortions, and whether those provisions apply equally to commercial entities which may be run on Christian principles.
  2. The very narrow view adopted as to the characteristics that a body has to have before it will be held to be “established for religious purposes” will have an impact on the application of defences similar to s 75 of the previous Victorian Act, which are in place around Australia. While this will clearly be a question of fact to be dealt with on a case by case basis, the fact that a body all of whose board were required to subscribe to a statement of faith, and 40% of whose direct objects made a reference to its desire to act in accordance with faith principles, was found not to be established for such purposes, will be of great concern to similar bodies which operate in the commercial sphere with an aim of showing  Christian love and concern to the community at large.
  3. While it seems consistent with international decisions on the matter such as the Bull v Hall case, it will still be of some concern that a policy based on upholding traditional Christian views about human sexuality, based on behaviour, is being interpreted as amounting to discrimination against the persons involved. But this seems to be something that Christian organisations will need to take into account-­ even if, in the end, they resolve that to be faithful to their principles they need to continue to make decisions as they have done in the past.

Finally, will the Cobaw decision be the last word on these issues? With great respect, it seems to me that there are some important legal errors in the decision that would justify an appeal to the High Court of Australia. Since, as Maxwell P himself notes at [14], this litigation raises novel (for Australia) and inherently difficult issues of the conflict of rights, and since there is a fair degree of uncertainty remaining over some of these important issues even after this decision, it is to be hoped that the High Court would accept the invitation if offered by one or more of the parties.

Neil Foster

Associate Professor, Newcastle Law School Lecturer in Law and Religion

 21 April 2014

The full text of this article, with footnotes is available here.