## Facts

- Christian Youth Camps Ltd. (CYC) operated the Phillip Island Adventure Resort, a commercial camp and accommodation facility associated with members of the Christian Brethren.
- Cobaw Community Health Services Ltd. ran “WayOut,” a government-funded youth suicide-prevention program supporting same-sex attracted young people in rural Victoria.
- In June 2007, Cobaw sought to book the resort for a weekend forum for same-sex attracted youth and youth workers, involving workshops and activities affirming same-sex attraction.
- During booking discussions, Cobaw explained the forum would affirm participants’ sexuality and treat same-sex attraction as normal.
- The resort’s site manager, Mark Rowe, refused the booking; CYC accepted the refusal was because the event would affirm same-sex attraction, which CYC regarded as contrary to its religious beliefs.
- Cobaw brought proceedings alleging unlawful discrimination in the provision of services/accommodation under the Equal Opportunity Act 1995 (Vic.).
- At first instance, the tribunal found CYC and Rowe discriminated and rejected reliance on statutory religious exemptions.
- CYC and Rowe appealed to the Supreme Court of Victoria Court of Appeal.

## Issues

1. Whether refusing the booking constituted direct discrimination “on the basis of” sexual orientation in providing services/accommodation.
2. Whether CYC was liable for the refusal under principles of attribution and statutory vicarious liability, and whether Rowe was personally liable.
3. Whether CYC could claim religious exemptions applicable to a “body established for religious purposes,” and whether the refusal was “necessary” to comply with genuine religious beliefs or avoid injury to religious sensitivities.
4. How statutory interpretation should account for protected rights to equality and religious freedom reflected in the Charter of Human Rights and Responsibilities Act 2006 (Vic.).

## Decision

- The Court of Appeal (Maxwell P and Neave JA; Redlich JA dissenting in part) upheld the finding that CYC unlawfully discriminated by refusing the booking in breach of the statutory prohibition on discrimination in providing services/accommodation.
- The Court held the refusal was “on the basis of” sexual orientation because the forum’s purpose—supporting and affirming same-sex attracted young people—was inseparable from the protected attribute.
- The Court held CYC could not rely on the religious exemptions: CYC was not a “body established for religious purposes” in the relevant sense, and the refusal was not shown to be “necessary” within the statute.
- The Court confirmed CYC’s liability for Rowe’s conduct in the course of operating the accommodation business.
- The Court set aside the finding of Rowe’s personal liability due to legal error in the test applied, without disturbing the discrimination finding against CYC.
- The appeal was dismissed as to the core discrimination finding and relief against CYC.

## Legal Principles

- A refusal of accommodation/services can be discriminatory where the decision is based on a protected attribute, including where the activity’s purpose is closely tied to that attribute.
- For corporate service providers, discriminatory conduct of managers acting within the scope of their role may be attributed to the corporation and enliven statutory vicarious liability.
- Religious exemptions for a “body established for religious purposes” require examination of the entity’s established purposes and actual activities; affiliation with a religion is not sufficient where the relevant activity is a secular, commercial service.
- Statutory “necessity” in religious exemptions is assessed objectively; it requires more than a sincere belief that refusal is required and demands a sufficient connection between the conduct and compliance with qualifying religious beliefs or avoidance of injury to religious sensitivities.
- Exemptions from equality norms are construed narrowly, with interpretation informed by the co-existence of equality and religious-freedom rights rather than treating one as automatically overriding the other.

## Conclusion

The court affirmed that a commercial accommodation provider unlawfully discriminated by refusing a booking for a program affirming same-sex attraction, and it rejected reliance on religious exemptions because the provider was not established for religious purposes in the relevant sense and the refusal was not objectively “necessary,” while setting aside the site manager’s personal liability on a legal-error ground.


Christian Youth Camps Ltd. v. Cobaw Cmty. Health Servs. Ltd., 308 A.L.R. 615 (Vict. Ct. App. 2014)