VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
HUMAN RIGHTS DIVISION
ANTI DISCRIMINATION LIST	
vcat reference No.  A208/2008     	

CATCHWORDS	
Anti-discrimination – refusal of services- refusal or failure to accept application for accommodation – sexual orientation – personal association with persons identified by sexual orientation – representative claim – exceptions- body established for religious purposes – conforms - doctrines of the religion – - necessary – injury to religious sensitivities – comply – genuine religious beliefs or principles – right to equality and freedom from discrimination – right to freedom of thought conscience religion and belief – right to freedom of expression – interpretation of remedial legislation – interpretation of exception to remedial legislation – application of the Charter of Human Rights and Responsibilities Act 2006 – intervention by Equal Opportunity and Human Rights Commission - Evidence – whether Briginshaw test applies – Opinion evidence – independence of expert witnesses – relief – declaration – compensation -  Equal Opportunity Act 1995 – ss 1, 6, 7, 8, 12, 42, 49, 75, 77, 102, 104(1B) - Charter of Human Rights and Responsibilities Act 2006 – ss 1, 2, 7, 8, 14, 15, 32, 40 – Evidence Act 2008 – s 140	

APPLICANT	COBAW COMMUNITY HEALTH SERVICES LIMITED.	
RESPONDENT	CHRISTIAN YOUTH CAMPS LIMITED AND 
MARK ROWE	
INTERVENER	VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION	
WHERE HELD	Melbourne	
BEFORE	Her Honour Judge Hampel	
HEARING TYPE	Hearing	
DATE OF HEARING	7 – 9, 12 – 16, 19 – 21, 23, 26 – 27 July 2010	
DATE OF ORDER	8 October 2010	
CITATION	Cobaw Community Health Services v Christian Youth Camps Ltd & Anor (Anti-Discrimination) [2010] VCAT 1613	

Order

1	The complainant has made out its complaint of discrimination under          ss 42(1)(a), 42(1)(c) and (49(1) of the Equal Opportunity Act 1995. 
2	The respondents have not made out their claims for excuse under               ss 75(2)(a), 75(2)(b) or s 77 of the Equal Opportunity Act 1995.
3	Declare that the respondents have discriminated against the ten named persons in contravention of ss 42(1)(a), 42(1)(c) and (49(1).
4	Direct the Respondents pay the complainant compensation of $5,000.

Her Honour Judge Hampel			

APPEARANCES:		
For the Applicant:	Ms D Mortimer SC, Mr J McKenna, Mr E Nekvapil and Ms K Foley, instructed by Mallesons Stephen Jacques	
For the Respondent:	Mr G Garde QC and Mr P Harris, instructed by McCracken and McCracken	
For the Intervener	Ms K Eastman, instructed by Victorian Equal Opportunity and Human Rights Commission	

Introduction
5	The WayOut project is a state-wide youth suicide prevention project targeting same sex attracted young people in rural areas.  The Phillip Island Adventure Resort provides accommodation, conference facilities and associated activities on an 85 acre site at Phillip Island. 
6	In June 2007, Ms Sue Hackney called the adventure resort and spoke to Mr Mark Rowe.  Ms Hackney wanted to book the adventure resort for a weekend forum for 60 young people and 12 workers from across rural Victoria involved in the WayOut project.  What was actually said in the conversation is in dispute, but what is clear is that, when she reflected on the call, Ms Hackney considered Mr Rowe had refused to take her booking, and had done so because of the sexual orientation of the proposed attendees. 
7	That resulted in a complaint of discrimination being made to the Victorian Equal Opportunity and Human Rights Commissioner pursuant to s 104 of the Equal Opportunity Act 1995 (the EO Act). The Commissioner referred the complaint to the tribunal in accordance with s 117 of the EO Act.  
8	The complainant is now known as Cobaw Community Health Services Limited.  Cobaw manages the WayOut project.  Ms Hackney is employed by Cobaw, and is the WayOut project co-ordinator. Cobaw brings the complaint as a representative body, pursuant to s 104(1B) of the EO Act, on behalf of a number of the proposed attendees at the WayOut forum. Cobaw alleges the respondents discriminated against the proposed attendees by refusing to provide services in contravention of s 42(1)(a) of the EO Act, subjecting them to other detriment in connection with the provision of services in contravention of s 42(1)(c) of the EO Act, and refusing or failing to accept its application for accommodation in contravention of s 49(1) of the EO Act. It claims the proposed attendees were discriminated against on the basis of their (same sex) sexual orientation, or their personal association with persons identified by their (same sex) sexual orientation.
9	The respondents are Christian Youth Camps Limited (CYC), which operates the adventure resort and Mr Rowe, the site manager of the adventure resort and an employee of CYC.  CYC was established by the trustees of the Christian Brethren Trust, which in turn was established for purposes connected with the Christian Brethren religion.  The Christian Brethren religion is recognised as a denomination or branch of Christianity.  The respondents deny they contravened ss 42(1)(a), 42(1)(c) or 49(1). They deny an application for a booking was made, or refused. If it is found they did contravene these provisions, they invoke ss 75(2) and 77 of the EO Act, which exempts from the operation of the provisions of ss 42 and 49 certain conduct based on religious doctrines or beliefs.
10	The Charter of Human Rights and Responsibilities Act 2006, (the Charter) was enacted after the events giving rise to the complaint, but before proceedings were issued. The parties raised various issues relating to the operation of the Charter, and its application to the issues raised by the complaint and response. The Victorian Equal Opportunity and Human Rights Commission intervened in the proceeding,  in the exercise of its right under s 40(1) of the Charter.  
Issues
11	The following issues arise for determination in this matter:
(i)	How do the provisions of the Charter in particular s 32, s 7, and ss 8, 14 and 15 affect the interpretation of the relevant provisions of the EO Act?
(ii)	Does Cobaw having standing to bring the complaint pursuant to            s 104(1B) of the EO Act?
(iii)	What was said in the telephone call between Ms Hackney and Mr Rowe?
(iv)	Did what was said in the telephone call amount to a refusal by CYC and Mr Rowe to provide services to anyone, or a refusal or failure to accept an application for accommodation, or subject anyone to any other detriment in connection with the provision of services on the basis of their sexual orientation, or personal association with persons of (same sex) sexual orientation, or lawful sexual activity contrary to     ss 42(1) or 49(1) of the EO Act?
(v)	If so, do the prohibitions on discrimination on the basis of those attributes in the provision of services or offering to provide accommodation not apply to CYC and Mr Rowe because, under           s 75(2) of the EO Act CYC is a body established for religious purposes, whose conduct conformed with the doctrines of the religion, or was necessary to avoid injury to the religious sensitivities of the people of the religion? or
(vi)	do the prohibitions on discrimination on the basis of those attributes in the provision of services or offering to provide accommodation not apply to Mr Rowe  because pursuant to s 77 of the EO Act it was necessary for Mr Rowe to act as he did to comply with his genuine religious beliefs or principles?  
(vii)	If so, is CYC also entitled to the protection of s 77?
(viii)	If Cobaw has standing to bring the complaint as a representative body, and what was said in the telephone call did amount to discrimination by CYC and Mr Rowe in the provision of services or offering to provide accommodation on the basis of the attributes of sexual orientation, lawful sexual activity or personal association with people with one or other of those attributes, and the conduct is not exempt under ss 75(2) or 77 of the EO Act, what remedies or relief should be ordered?
GENERAL APPROACH TO INTERPRETATION INCLUDING APPROACH TO cHARTER (INCL  RETROSPECTIVITY )
12	It provided considerable assistance on the question of whether, and how the Charter affects the issues raised for determination by this complaint and the response.
13	Although each of the provisions of the EO Act and the Charter which must be interpreted and applied here requires separate consideration, there are some general principles of interpretation relevant to my approach to all provisions.
14	Both the EO Act and the Charter must be interpreted in conformity with      s 35(a) of the Interpretation of Legislation Act 1984.  That requires a construction that will promote the purpose or object underlying the Act to be preferred to one which does not promote that purpose or object.
15	The relevant objectives of the EO Act are:
(a)	to promote recognition and acceptance of everyone’s right to equality of apportunity;
(b)	to eliminate, as far as possible, discrimination against people;
….
(d)	to provide redress for people who have been discriminated against … 
16	Section 1(2) of the Charter relevantly provides:
(2)	The main purpose of this Charter is to protect and promote human rights by -
(a)	setting out the human rights that Parliament specifically seeks to protect and promote; and
(b)	ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; …
17	Anti-discrimination legislation is a quintessential example of remedial or beneficial legislation.  In IW v City of Perth Brennan CJ and McHugh J said,  referring to s 18 of the Interpretation Act 1984 (WA), which is in similar terms to s 35(a) of the Interpretation of Legislation Act (Vic):
The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation like the [Equal Opportunity Act 1984 (WA)] is to be given a liberal construction.  It is to be given a ‘fair large and liberal’ interpretation rather than one which is ‘literal or technical’.  
18	The objectives of the EO Act relevant to the complaint are the promotion recognition and acceptance of everyone’s right to equality of opportunity, the elimination of discrimination against people as far as possible and the provision of redress for people who have been discriminated against. Provisions giving effect to those objectives must be given a fair large and liberal interpretation.  Provisions of the EO Act  which give effect to these objectives raised in this proceeding include the meaning of the attribute of (same sex) sexual orientation, what constitutes direct discrimination on the basis of that attribute, or the attributes of personal association with persons identified by their sexual orientation, and the provisions which define the areas of activity in which discrimination is prohibited, specifically here in the provision of services, and dealing with applications for accommodation.  
19	Section 32 of the Charter is in the following terms:
(1)	So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted  in a way that is compatible with human rights.
20	‘Compatible’ is not defined in the Charter. The explanatory memorandum accompanying the Charter said,  
The object of [clause 32(1)] is to ensure that courts and tribunals interpret legislation to give effect to human rights.
21	The Report of the Human Rights Consultation Committee also referred to what became s 32(1) as a means of providing courts and tribunals with ‘clear guidance to interpret legislation to give effect to’ a human right.  
22	In In re an application under the Major Crime (Investigative Powers) Act 2004 Warren CJ held that the human rights contained in the Charter must be interpreted in the broadest possible way.  In R v Momcilovic the Court of Appeal held the interpretative task imposed by s 32(1) required a decision-maker to explore all possible interpretations of the relevant provisions of the statutory provision under consideration, and to adopt the interpretation which least infringes Charter rights.
23	It follows that the provisions of the EO Act under consideration here in respect of the complaint must be interpreted in a way that gives effect, as far as possible consistently with the purposes of the EO Act, to the realisation of human rights. 
24	The Court also held in Momcilovic that s 32 is to be regarded as part of the body of rules governing the interpretative task, not a separate, special rule.
25	Although by s 6, only human beings have the human rights set out in the Charter, the requirement in s 32 to interpret the provisions of the EO Act in a way that is compatible with the human rights in the Charter applies to any task of statutory interpretation. So, although s 6 of the Charter does not confer human rights on Cobaw in its own right, or on CYC, s 32 requires me to interpret the provisions of the EO Act which are concerned with the conduct of Cobaw and CYC, in a way which gives effect to the realisation of the human rights contained in the Charter.  I consider separately below the application of the Charter to the exceptions contained in ss 75(2) and 77 of the EO Act.
26	The Charter makes express provision for its application to the interpretation of statutory provisions enacted before the Charter came into effect.  I have already set out the terms of s 1(2)(b).  In addition, s 49(1) of the Charter provides:
This Charter extends and applies to all Acts, whether passed before or after the commencement of Part II …
		Part II, which includes s 32 came into operation on 1 January 2008.
27	In the time since s 32 came into operation, the Court of Appeal and Trial Division of the Supreme Court have consistently applied s 32 when required to interpret Acts passed before 1 January 2008.  Acts they have considered include the Serious Sex Offenders Monitoring Act 2005 (Vic), the Drugs Poisons and Controlled Substances Act 1981 (Vic), the Road Safety Act 1966, Sex Offenders Registration Act 2004 (Vic) and the Corrections Act 1986 (Vic).
28	Mr Garde QC, who with Mr Harris appeared on behalf of the respondents submitted that the Charter had no application to the EO Act because it was enacted after the EO Act. He did not address s 1(2)(b) or s 49, or seek to distinguish the various decisions of the Court of Appeal or trial division of the Supreme Court which had, in conformity with those provisions, applied s 32 of the Charter to the interpretation of Acts which were passed before the Charter came into effect.   To accept the respondents’ submission would require me to ignore the clear words of s 1(2)(b) and s 49(1), and the acceptance, overt or implicit of the Charter’s operation to earlier enactments in those various decisions.  There is no justification for doing so.   I am satisfied that s 32 of the Charter applies, by reason of s 1(2)(b) and s 49(1) to the interpretation of the EO Act.    
29	The respondents also submitted the Charter did not apply to this proceeding as the events the subject of the complaint occurred before 1 January 2008. The Charter does not affect proceedings commenced or concluded before   1 January 2008, that is when s 32 came into operation. This proceeding was commenced after that date. Once it is appreciated that s 32 of the Charter extends and applies to the interpretation of legislation, whenever enacted, it follows that, absent express provision to the contrary, it applies to the interpretation of legislation in any proceedings commenced after s 32 came into effect.  The Court of Appeal and the Trial Division of the Supreme Court have, consistently with that, applied the interpretation provision of the Charter to conduct occurring before 1 January 2008, in proceedings commenced after that date.
What Charter rights are engaged?
30	This, then leads to consideration of what Charter rights are engaged by this complaint and the response. 
31	Ms Eastman, who appeared on behalf of the Commission submitted, as did the complainant that the right to equality and freedom from discrimination contained in s 8(2) and (3) of the Charter were engaged by the subject matter of the complaint, and so, became relevant pursuant to s 32 of the Charter to the construction of the following provisions of the EO Act:  s 7 (definition of discrimination), ss 42 and 49 (the prohibition on discrimination in the provision of services and accommodation respectively), and s 104(1B)(a) (the capacity of Cobaw to bring a representative complaint).  
32	Section 8(2) and (3) of the Charter provides:
(2)	Every person has the right to enjoy his or her human rights without discrimination.
(3)	Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
33	The respondents submitted that the equality of persons before the law and the right to enjoy human rights without discrimination were not in issue in the proceeding. The effect of that submission was to contend that s 8 of the Charter has no role to play in the interpretation of these provisions of the EO Act. 
34	This submission was not supported by any argument or reference to authority. In my view it is unsustainable. The very nature of the complaint is one of different, discriminatory treatment, of denial of equality before the law on the basis of the (same sex) sexual orientation of the proposed attendees or personal association with persons identified by their (same sex) sexual orientation.  The Charter’s definition of discrimination refers expressly to the definition of discrimination in the EO Act.  The objectives of the EO Act, the definition of discrimination, the attributes it prohibits discrimination on the basis of, and the activities where discrimination is prohibited under the EO Act are all concerned with protecting the rights of equality before the law and ensuring freedom from discrimination which are enshrined in s 8(2) and (3) of the Charter.  I reject the submission.  I am satisfied the rights in ss 8(2) and (3) of the Charter are engaged by the complaint. 
35	The Respondents submitted that the only Charter rights which require consideration in this proceeding are the right to freedom of religion under   s 14 and expression under s 15. 
36	They are in these terms:
14.	Freedom of thought, conscience, religion and belief
(1)	Every person has the right to freedom of thought, conscience, religion and belief, including –
(a)	the freedom to have or to adopt a religion or belief of his or her choice; and
(b)	the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.
(2)	A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

15.	Freedom of expression
(1)	Every person has the right to hold an opinion without interference.
(2)	Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether –
	(a)	orally; or
	(b)	in writing; or
	(c)	in print; or
(d)	by way of art; or
	(e)	in another medium chosen by him or her.
(3)	Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary –
(a)	to respect the rights and reputation of other persons; or
(b)	for the protection of national security, public order, public health or public morality.
37	Although the respondents’ submissions were primarily directed to the effect of ss 14 and 15 when considering the interpretation of the exemptions under ss 75(2) and 77 of the EO Act (a matter I discuss later), Mr Garde also submitted that the rights in ss 14 and 15 applied to the construction and interpretation of ss 7 and 8 (the definitions of discrimination and direct discrimination), ss  42 and 49 (which identify the circumstances in which discrimination in the provision of goods and services or accommodation is prohibited), and to s 104(1B)(a) of the EO Act (the standing of a representative body to bring a complaint).  He submitted that these provisions now needed to be read as if subject to the right to freedom of religion and expression in ss 14 and 15 of the Charter.  In his formulation, the freedom of expression right in s 15 was no more than a means of enjoying the s 14 right.   
38	 Such a submission is in conflict with the principles of statutory construction I have earlier referred to.  It is contrary to the clear words of the objectives of the EO Act and the overall scheme and structure of the Act.  It would require the reading in of a blanket qualification to the objectives of the Act.  It conflicts with the requirement in s 35 of the Interpretation of Legislation Act, to prefer a construction which promotes the objects or purposes of the Act.  It conflicts with the requirement to liberally interpret those provisions of a remedial act like the EO Act in a manner which promotes its objects or purposes.  And it  conflicts with the requirement in s 32 of the Charter  to interpret the provisions of the EO Act, so far as is possible to do so, in a way that gives effect, as far as possible consistently with the purposes of the EO Act, to the realisation of the human rights protected by the Charter, including the right to equality and freedom from discrimination in s 8(2) and (3).
39	The submission amounts to an attempt to privilege one right (freedom of religion and the right to express it) at the expense of another (equality before the law and freedom from discrimination), to adapt the language used by the Canadian Supreme Court in British Columbia College of Teachers v Trinity Western University. This is contrary to the language of  the EO Act.  It is also contrary to the language of the Charter, under which both rights coexist. The scheme of the Charter, consistently with that, allows for the limitation of rights where one persons’s enjoyment of a Charter right impinges on or impairs another’s enjoyment of a Charter right. No right in the Charter, including the right to freedom of religion and  the right to express it is absolute.  The submission ignores the obligation, when rights compete, in that sense, to determine the least limit which can be imposed on the enjoyment of both rights to achieve a balance between them.
40	The correct approach, in my view, when considering the interpretation of the provisions of the EO Act relevant to the complaint, that is those relating to the definition of discrimination in ss 7 and 8, of the provision of services and accommodation in ss 42 and 49, and whether Cobaw had standing to bring a representative complaint under s 104(1B), is to interpret those provisions in a way that gives effect, as far as possible consistently with the purposes of the EO Act, to the realisation of the right of equality and freedom from discrimination in s 8(2) and (3) of the Charter.
41	In considering the interpretation of the provisions of the EO Act relevant to the exceptions relied on by the respondents, that is s 12 and ss 75(2) and 77, that I must interpret those provisions in a way that gives effect, as far as possible consistently with the purposes of the EO Act, to the realisation of the rights of freedom of religion and expression in ss 14 and 15 of the Charter, and of the right of equality and freedom from discrimination in s 8 of the Charter.  I will consider this in more detail when dealing with the respondents’ case on the exceptions.
Does Cobaw have standing?
42	Cobaw brings the complaint as a representative body. CYC and Mr Rowe dispute its entitlement to do so.  Ms Mortimer SC, who appeared with Mr McKenna, Mr Nevkapil and Ms Foley on behalf of Cobaw submitted that Cobaw’s standing to bring the claim as a representative body has already been established, and cannot be challenged by the respondents in these proceedings.  It claims that once the Commissioner of the Equal Opportunity and Human Rights Commission has been satisfied of the standing of a body to make a complaint of discrimination under the EO Act as a representative body (as was the case here), it need not be re-established by a complainant, and cannot be challenged by a respondent, when, as in this case, the complaint is later referred to the tribunal. 
Is the tribunal bound by the acceptance by the Commissioner of Cobaw’s standing?
43	It is convenient first to determine whether the tribunal must decide for itself whether the complainant is entitled to bring the complaint as a representative body, or whether the acceptance by the Commissioner of a representative body’s standing to make complaint on behalf of others is binding on the tribunal.
44	The EO Act requires all complaints of discrimination under the Act to be made to the Commissioner.  There are four categories of people from whom the Commissioner can receive complaints:
(a)	a person who claims they have been discriminated against; 
(b)	someone on their behalf if they are a child or unable by reason of impairment to make the claim themselves; 
(c) 	a person who claims they and others have been discriminated against; and
(d)	a representative body on behalf of one or more persons who claim they have been discriminated against.
45	Section 104(1B) sets out the pre-conditions for the making of a complaint by a representative body.  It is in the following terms:  
A representative body may complain to the Commissioner on behalf of a named person or persons if the Commissioner is satisfied that-
(a)		each person named in the complaint- 
(i)	is entitled to complain under subsection (1)(a); and
(ii)	has consented to the complaint being made by the body on the person's behalf; and
(b)	the representative body has a sufficient interest in the complaint; and
(c)	the alleged contravention arises out of the same conduct.

46	The introductory words to s 104(1B) require the Commissioner to be satisfied of certain matters in order for a representative body to make a complaint.  Once satisfied a representative body can complain to the Commissioner, the Commissioner having notified the respondents of the complaint, can decline to entertain it, dismiss it if it became stale, or endeavour to conciliate it.  If conciliation is futile or unsuccessful, the Commissioner must notify the complainant.  The complainant can take no action, permitting the Commissioner to dismiss the complaint, or can (as Cobaw did in this case) require the Commissioner to refer the complaint to the tribunal under s 117(2).   
47	Section 134 confers jurisdiction on the tribunal to hear and determine a complaint when it is referred to the tribunal in this way.  By contrast to       s 104(1B), there is no express reference in s 134 or any part of the division which deals with the tribunal’s jurisdiction once a complaint is referred to it by the Commissioner to the tribunal’s need to satisfy itself of the matters referred to in s 104(1B) in respect of a complaint made by a representative body.  Section 134A makes the parties to the proceeding the complainant and the respondents to the complaint accepted by the Commissioner. 
48	By s 136, the tribunal, after a hearing, may find a complaint or any part of it proven, or find the complaint or any part of it not proven. That in my view, just as in any other action or claim, requires a determination of whether the complainant is the proper party, that is whether it has the necessary connection with the conduct the subject of the complaint to bring the complaint in conformity with s 104, as well as a determination of whether the conduct alleged occurred, whether the named respondents are responsible for the conduct found to have occurred and whether such conduct amounts to unlawful discrimination as that term is defined. 
49	I do not consider the absence of a specific provision requiring the tribunal to be satisfied a representative body can bring a complaint relieves the tribunal from responsibility for determining whether the complainant has the standing to bring a complaint, any more than it could be relieved from responsibility for determining whether an individual complainant has standing or whether the named respondent is the proper party that is the person who is responsible for the unlawful discrimination against them. 
50	It follows that I consider I must determine for myself whether Cobaw is a representative body for the purpose of the proceeding. 
51	That, then requires a consideration of whether the requirements in                s 104(1B) have been met.  In order to do so, the complainant must satisfy the tribunal:
a.	the people named in the complaint are entitled to complain under   s 104(1)(a), as required by s 104(1B)(a)(i)
b.	the people named in the complaint consented to Cobaw bringing the complaint on their behalf, as required by s 104(1B)(a)(ii)
c.	the contravention alleged arises out of the same conduct as required by s 104(1B)(c) and
d.	Cobaw has a sufficient interest in the complaint as required by as required by s 104(1B)(b). 
The approach to interpretation of the standing provisions and the effect of the Charter
52	In considering these matters consistently with the principles and approach I have already referred to, I must interpret the standing provisions in              s 104(1B) in a manner which gives effect to the rights of persons claiming they have been discriminated against – that their rights to equality and freedom from discrimination have been infringed - to seek and obtain an effective remedy.  
53	The right to a remedy has been recognised as a necessary feature or incident of the enshrining and protection of human rights.  Article 2(3) of the International Covenant on Civil and Political Rights 1966 (ICCPR) provides:
(3)	Each state party to the present covenant undertakes:
(a)	to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b)	to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial administrative or legislative authorities, or by any other competent authority provided for by the legal system of the state, and to develop the possibilities of judicial remedy;
(c)	to ensure that the competent authorities shall enforce such remedies when granted.

54	Article 2(3) of the ICCPR is concerned with substantive and procedural aspects of accessing an effective remedy.  This is consistent with longstanding common law principle.  In Ashby v White Holt LCJ said:
If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of a right and want of a remedy are reciprocal.

55	Both common law principle, and Article 2(3) of the ICCPR, in my view support the conclusion that s 104(1B) should be interpreted in a manner that facilitates the making of a complaint.  To do otherwise would be to risk denying people with a genuine complaint, but who, by reason of age, status or circumstance, are less willing or able than the independent, well resourced and strong willed, the means to seek an effective remedy where they claim they have been subjected to discrimination.  
56	The named persons in this complaint include young people who are same sex attracted, young people who are personally associated with those who are same sex attracted and youth and community workers working with such young people.  At the time of the making of the complaint some of the named persons were under 18.  Some were then, or are now, students.  Whether young people forming part of WayOut’s type of group, or youth workers, the named persons are, as complainants often are, individuals who find themselves subjected to what they believe to be discriminatory conduct, at the hands of a large, well resourced organisation.  That in itself creates a power imbalance which can be an impediment to exercising the right to seek a remedy.  
57	The conduct the subject of a complaint can also be a reflection of a power imbalance.  I consider that is so in this case.  WayOut itself is a project based on a recognition that same sex attracted young people encounter discrimination on the basis of their sexual orientation.  The EO Act provides an important statement about the value of equality and freedom from discrimination, and provides remedies for those subjected to discrimination.  Its existence is a recognition that discrimination does occur.  It needs no expert evidence to appreciate that when the nature of the complaint goes to a matter as personal as sexual orientation, and when it arises out of conduct directed to a group supporting same sex attracted young people to address discrimination and homophobia related to their sexual orientation, that it takes courage and commitment to prosecute a complaint for discrimination.  
58	When one adds to that the age range of the young people associated with WayOut, there is an added dimension to it.  It is one thing to become a member of WayOut, and to want to go to the forum.  It is another to face the prospect of publicity attaching to the hearing of a complaint before the tribunal.  Whether the publicity is limited to a fair and accurate reporting of proceedings or it extends to the realm of commentary or more salacious reporting is a matter beyond the control of the complainant.  Even if the publicity were limited to a fair and accurate reporting of proceedings there is a real prospect of intrusion into the private lives of the young people and of the youth and community workers working with them, which for many is an unpalatable concomitant of seeking to enforce rights.  The prospect of publicity attaching to the identity of a complainant removes from them what capacity they have in their own community to decide when and in what circumstances they reveal their sexual orientation.  This could constitute a significant impediment to people already vulnerable to the adverse effects of discrimination to take steps to assert their rights to equal treatment.  
59	I consider that the power imbalance and prospect of intrusion into private life has the capacity to affect the youth and support workers, as well as the young people themselves.  There is a real prospect, that without the assistance of a representative body to bring complaint on their behalf, that individuals subjected to discrimination of the nature alleged here could by reason of these circumstances be deterred from seeking to vindicate the rights of those the WayOut project was established to assist.  I consider, when interpreting s 104(1B), I should do so in a manner which enables people in the circumstances of the named persons to access an effective remedy.
Are the people named in the complaint entitled to complain under              s 104(1)(a), as required by s 104(1B)(a)(i)?
60	Section 104(1)(a) is in the following terms: 
The following may complain to the Commissioner –
(a)	a person who claims that another person has contravened a provision of Part 3, 5 or 6 in relation to that person;
61	By its amended particulars of complaint, Cobaw names 12 people as those on whose behalf it makes the complaint.  It submits each of the 12 named persons is entitled to complain under s 104(1)(a).  The named persons allege that the respondents have contravened ss 42 and/or 49 of the EO Act in relation to them.  Sections 42 and 49 are provisions of Part 3 of the Act. Part 3 of the Act is contravened if, in respect of the activities referred to in Part 3, a person discriminates against another person on the basis of an attribute.  Section 6 sets out the attributes a person may possess, and in respect of which discrimination is prohibited. Sexual orientation, and personal association with a person who is identified by reference to their sexual orientation are included in the list of attributes in respect of which discrimination is prohibited.
62	The named persons fall into three categories.  Some are workers, connected with Cobaw, or its partner organisations involved in the WayOut project.  Some are same sex attracted young people who were involved in the WayOut project in their local communities through Cobaw or its partner organisations.  Some are young people who are not same sex attracted but who were involved in the WayOut project in their local communities through Cobaw or its partner organisations because they were supportive of the aims of WayOut, and of the same sex attracted young people the WayOut project was designed to reach.  
63	Two of the named persons did not give evidence.  There is no evidence before me in respect of them which could satisfy me of the matters required to be established under s 104(1B).
64	Each of the other ten named persons gave evidence they had intended to attend the forum, and claimed the respondents had discriminated against them in the provision of services within the meaning of s 42(1)(a), or in respect of application for accommodation within the meaning of s 49 or had subjected them to other detriment within the meaning of s 42(1)(c) by their refusal to accept WayOut’s booking to conduct the forum at the adventure resort.  Each of them claimed the discrimination was on the basis of their (same sex) sexual orientation, or of personal association through WayOut with persons who are identified by their (same sex) sexual orientation. 
65	The respondents submitted that the named persons could not be found to be persons claiming the respondents had discriminated against them in provision of services or offering accommodation or had subjected them to other detriment in connection with the provision of services on the basis of their sexual orientation or personal association with persons identified by their sexual orientation.  The respondents deny that Mr Rowe’s conduct, or through him, that of CYC, amounted to a refusal of services to them or a refusal or failure to accept an application for accommodation on their behalf or subjected them to other detriment in connection with the provision of services.  The respondents relied on the evidence that neither of the respondents had any contact with any of the named persons apart from Ms Hackney.   They had no knowledge of the sexual orientation of any of the named persons and, apart from Ms Hackney, of any personal association between any of the named persons and persons identified by their (same sex) sexual orientation.
66	These submissions go to the substantive complaint itself.  I will consider them when considering whether the claim of unlawful discrimination is made out.  
67	It is of course, important to bear in mind that for the purposes of                  s 104(1B)(a)(i) and s 104(1)(a), the question is not whether the claim of discrimination is ultimately made out, but whether the named persons are persons who claim the respondents have discriminated against them by contravening a provision of Part 3 of the EO Act in relation to them. 
68	Each of the ten named persons maintained their claim the respondents have discriminated against them by contravening a provision of Part 3 of the EO Act in relation to them.  I am satisfied therefore of the matters I am required to be in respect of the ten named persons under s 104(1B)(a)(i).
Have the people named in the complaint consented to Cobaw bringing the complaint on their behalf as required by s 104(1B)(a)(ii)?
69	Each of the ten named persons said they consented to Cobaw bringing the complaint on their behalf.  I am satisfied therefore of the matters I am required to be in respect of them under s 104(1B)(a)(ii).
Does the contravention alleged arise out of the same conduct as required by s 104(1B)(c)?
70	The complaints of the ten named persons all arise out of what they complain is the refusal of the respondents in the telephone conversation with Ms Hackney to provide services or accept the application for accommodation at the adventure resort for the WayOut forum they proposed to attend.  The respondents submitted there was no refusal to provide services or accept an application for accommodation.  Again, this is a matter properly to be dealt with when considering whether the claim of unlawful discrimination is made out.  The question for me at this stage is whether the complaints of the ten named persons all arise out of the same conduct.  I am satisfied they do, and therefore of the requirement that the alleged contravention arises out of the same conduct within the terms of       s 104(1B)(c).
Does Cobaw have a sufficient interest in the complaint as required by       s 104(1B)(b)?
71	Section 104(1C) sets out what constitutes a sufficient interest for the purposes of s104(1B)(b):
A representative body has sufficient interest in the complaint if the conduct that constitutes the alleged contravention is a matter of genuine concern to the body because of the way the conduct of that nature adversely affects or has the potential adversely to affect the interests of the body or the interests or welfare of the persons it represents.

72	The ‘conduct that constitutes the alleged contravention’ is ascertained by reference to the complaint. In essence what Cobaw alleges is the contravention  is the refusal of the respondents to accept the booking for the WayOut forum, because of the (same sex) sexual orientation of the proposed attendees, or the personal association of the proposed attendees with persons of (same sex) sexual orientation. 
73	When considering what the phrase ‘conduct of that nature’ means, that requires the conduct the subject of the complaint to be characterised in some way, so that it can be compared with, or distinguished from, other conduct.  That in turn requires a consideration of the essential features of the conduct giving rise to the complaint.  In effect, it requires application of the facts of the particular case to the provisions of the EO Act said to have been contravened by the respondents. So characterised, conduct of that nature is conduct of a person in refusing to provide a service or accommodation on the basis of the (same sex) sexual orientation of the group seeking the service or accommodation, or the personal association of members of the group with persons of (same sex) sexual orientation.
74	The remaining part of the definition requires consideration of three linked matters:  Cobaw’s interests, the interests and welfare of the people Cobaw represents, and whether the contravention was ‘a matter of genuine concern to’ Cobaw.  For these purposes, applying the definition I have of ‘conduct of that nature’, the question is whether a refusal to provide a service or accommodation on the basis of the (same sex) sexual orientation of the group seeking the service or accommodation, or the personal association of members of the group with persons of (same sex) sexual orientation adversely affected, or had the potential to adversely affect Cobaw or the people it represents 
75	This requires an examination of Cobaw’s activities.  A considerable body of evidence was led about Cobaw and the WayOut project.  The respondents submitted the evidence concerning Cobaw’s activities on the WayOut project was irrelevant, as they had no knowledge of Cobaw or WayOut, and the evidence was likely to improperly predispose me to the complainant’s case. Yet the respondents relied heavily on this evidence to argue that it demonstrated that Cobaw did not have a sufficient interest in the proceeding because the WayOut project, and the prosecution of these proceedings fell outside the scope of Cobaw’s authorised activities.  It is therefore necessary to consider this evidence in some detail.  
76	Cobaw is a community health service registered as such under the Health Services Act 1988.  It is based in Kyneton, Victoria. In January 2002, Ms Hackney was employed by Cobaw to set up and coordinate a youth suicide prevention pilot project targeting same sex attracted young people across four local government rural or regional areas.  Its aims include raising awareness about homophobia and the needs of same sex attracted young people, supporting young people and providing them with a safe, welcoming environment in which they could be themselves without fear of negative consequences if they identified as same sex attracted.  The pilot project was funded by the Victorian Department of Human Services.  
77	In June 2005 the Department of Human Services provided ongoing funding to Cobaw to continue the WayOut project on condition that the project catchment area expanded to all rural areas in the state.  Cobaw now manages the state-wide WayOut project in partnership with Gay and Lesbian Health Victoria. The WayOut project has, since then, established and maintained partnerships with other rural organisations which work to raise awareness about homophobia and the needs of same sex attracted young people.  With its partner organisations, it runs various programs targeting the needs of same sex attracted young people in rural areas.  It has also acted as the lead agency or convenor of collaborative initiatives such as joint funding applications.  
78	During 2006, Ms Hackney began discussions with partner organisations and the young people involved in them about organising a weekend forum for young people and workers connected with the various regional groups.  The aim was to share information, provide supportive relationships with individuals and groups outside their own region and to provide positive adult role models.  Having ascertained support for the idea, Cobaw applied for, and was successful, in obtaining a grant from a philanthropic trust, the Reichstein Foundation to fund a weekend forum for 60 young people and 12 workers drawn from the ten partner rural organisations.  Its aims, as set out in the funding application were to:
(a)	build alliances with each other;
(b)	share knowledge and skills, celebrate achievements and provide an opportunity for mutual problem solving of immediate challenges in different locations;
(c)	formulate a longer term collaborative response to the challenge of openly addressing same sex attraction and homophobia in rural and regional Victoria, including identification of local initiatives as well as broader or systemic tasks to undertake in the following two years; and
(d)	to prepare a two year strategic plan for the WayOut project to implement in collaboration with its rural partners.
79	The funding application identified three existing needs the forum intended to address.  They were:
(a)	to connect same sex attracted and heterosexual young people at risk due the effects of homophobia, with other supportive young people and adults;
(b)	to connect to provide information and connections for isolated rural workers supporting such young people;
(c)	to bring together isolated initiatives which address homophobia in rural Victoria to ensure:
	(i)		the most efficient and effective use of scarce resources; and
	(ii)		greater collaboration in addressing systemic/structural change.
80	Ms Hackney gave evidence she had selected the adventure resort as the proposed venue, and obtained some rough costings by telephone from the adventure resort for the cost of accommodation and services in January 2007.  She said Phillip Island was selected as the location after consultation with young people connected with the WayOut project.  Not surprisingly, rural youth, in a State then in the grips of drought had expressed a strong desire to have the forum on the coast.  They had also expressed interest in seeing the fairy penguins.  Ms Hackney had found the adventure resort by doing a fairly cursory Google search of camping and conference facilities at Phillip Island.   
81	On 31 May 2007 Ms Hackney was told the funding application had been approved.
82	It was against that background that Ms Hackney telephoned the adventure resort and spoke to Mr Rowe on 7 June 2007.  On Ms Hackney’s account she intended to make a booking for the forum.  It is Cobaw’s case that Mr Rowe refused to accept her booking on the basis of the sexual orientation of the proposed attendees or of the personal association of the proposed attendees with persons identified by their (same sex) sexual orientation.  That,  Cobaw says, goes to the heart of WayOut’s activities and reason for existence.   
83	It says that the very object of the WayOut project is to raise awareness about the needs of same sex attracted young people, the nature and effects of homophobia in rural communities, and the effect of discrimination on same sex attracted young people.  It says the refusal is discriminatory, and is an example of conduct which treats same sex attracted young people and their friends and supporters differently by refusing them a booking on the basis of their sexual orientation or association with people identified by their sexual orientation.
84	The respondents deny that Mr Rowe refused to accept Ms Hackney’s booking.  Again that is a matter to be dealt with when considering this substantive complaint, not at the stage of considering standing.  
85	The respondents next submitted that the WayOut project itself is outside Cobaw’s objects, as contained in its constitution.  It submits, even if wrong on that, that, in bringing the complaint, Cobaw is engaging in advocacy on behalf of same sex attracted young people.  It says advocacy of such a nature is outside Cobaw’s objects. The respondents submit that such advocacy goes well beyond the provision of community health services whether defined by reference to the ordinary meaning of community health service, or by s 47(2) of the Health Services Act 1988.
86	The respondents submit that none of the purposes listed in Cobaw’s constitution in force at the time of the refusal, and the bringing of the complaint authorise Cobaw to act as a representative body on behalf of other persons in litigation, or to use its powers income or assets for purposes other than those listed in the constitutions.  It submits that Cobaw’s new constitution, in force by the time of the hearing, similarly did not authorise Cobaw to act as a representative body.  Nor, submit the respondents, is there anything in the Memorandum of Understanding between Cobaw and Gay and Lesbian Health Victoria in respect of the management of the WayOut project which authorises Cobaw to act as an advocacy organisation or to undertake litigation on behalf of third parties.  
87	They further submitted that Cobaw’s status as a deductible gift recipient by the Australian Taxation Office, pursuant to s 30-15 of the Income Tax Assessment Act 1997 is inconsistent with advocacy of political or social causes such as this proceeding.  
88	Finally the respondents submitted that the initiation and prosecution of these proceedings is beyond the scope of the aims and purposes of the WayOut project.  
89	In my view, these submissions are misconceived. The test under s 104(1C) focuses on whether conduct of the nature Cobaw alleges the Respondents engaged in is a matter of genuine concern to Cobaw, because of the potential or actual adverse effect of such conduct on Cobaw’s interests, or the interests or welfare of the people Cobaw represents.  Sufficiency of interest under s 104(1C) is not determined by whether Cobaw is acting outside the terms of its constitutions or its deductible gift recipient status.  Cobaw’s objects, and the aims and purposes of the WayOut project do bear on the sufficiency of interest test, but are not necessarily determinative of it.  They are one matter relevant to take into account.  
90	In any event, I am satisfied the WayOut project falls within the objects of Cobaw in both its constitutions.  The aims of the WayOut project are relevant to the objects of Cobaw in each of its constitutions.  An object of the first constitution is the promotion of good health.  Cobaw’s original constitution adopted the World Health Organisation definition from its social model of health as ‘a state of optimal physical, mental and social wellbeing, which is seen as a resource for everyday life, not the object of living’.  The objects of the second constitution include implementing health promotion and community development strategies, to develop the capacities of individuals, families and communities, and to promoting, improving and protecting health and wellbeing.  I am also satisfied that support of, and advocacy on behalf of, the people for whom Cobaw by its constitution provides services in order to promote their good health is within their constitutions. 
91	Further, as the complainant pointed out in its submissions, an act of an incorporated association, as Cobaw was at the time of the events giving rise to the complaint and the institution of the proceedings, or of a corporation as Cobaw was by the time of the hearing of the complaint before me, is not invalid merely because it is contrary to or beyond the objects of its constitution. 
92	The question of whether Cobaw has a sufficient interest must be answered by reference to the words of s 104(1C), interpreted in a way that is compatible with human rights, including the means of vindicating and maintaining rights which have been infringed, not by an analysis of its objects, or its deductible gift recipient status for tax purposes.  
93	I accept the evidence of Ms Hackney and Mr Alan Taylor, the CEO of Cobaw, in respect of Cobaw’s motivation to make the complaint and bring these proceedings.  Mr Taylor said Cobaw seeks to encourage and support its clients to become resilient and self-advocating.  In his opinion it would have been contradictory had Cobaw not seen fit to lead the action against the conduct of the respondents, as it believed their conduct was discriminatory and had the potential to impact negatively on the lives of the young people involved in the WayOut program.  Mr Taylor and Ms Hackney said that the decision to bring the complaint was a considered one.  Ms Hackney first wrote to CYC setting out her recollection of the conversation and inviting a response.  None was forthcoming.  Cobaw sought legal advice in respect of their position and the views of the partner organisations before bringing the complaint.  It reported to its board and obtained board approval before proceeding.
94	There is no evidence to support the veiled suggestion that Ms Hackney was motivated by a desire to manufacture a confrontation with the Christian Brethren, because they believed that homosexuality was against God’s will.  There is no evidence that Ms Hackney knew CYC or the adventure resort were associated with the Christian Brethren, or that CYC or the Christian Brethrens’ beliefs concerning homosexuality meant that they would not take groups who had the attributes or beliefs the WayOut group did, and which were not in accordance with theirs.  
95	I accept Ms Hackney’s evidence that the WayOut project welcomed all people irrespective of their religious beliefs, and that the group included young people and workers who described themselves as Christians and who were comfortable talking openly about their religious beliefs and activities.  I also accept Ms Hackney’s evidence that WayOut had worked successfully with organisations which, like CYC, described themselves as ‘Christian’, and that two of their partner organisations were agencies operated by a Christian church.  
96	The evidence satisfies me that the conduct of the respondents, as Ms Hackney and Cobaw perceived it to be, was a matter of genuine concern to her and it.  The evidence is overwhelming in my view that addressing the negative impact of discrimination on the grounds of sexual orientation against young same sex attracted rural people is the very essence of the WayOut project.  An allegation that the respondents have engaged in the very conduct WayOut seeks to combat, namely discrimination against those proposing to attend the WayOut forum by reason of their (same sex) sexual orientation or personal association with persons identified by their (same sex) sexual orientation, is,  I am satisfied, conduct of a nature that adversely affects or has the potential adversely to affect the interests of Cobaw or the interests or welfare of the same sex attracted persons it represents.
97	I am satisfied by reason of those matters that Cobaw has a sufficient interest in the complaint.
What was said in the phone call
98	The complaint arises out of a short telephone conversation between Ms Hackney and Mr Rowe.  The case was opened on the basis there was dispute in significant respects about what exactly was said by each of Ms Hackney and Mr Rowe in the telephone conversation.  Resolution of what was said was necessary to determine whether the respondents refused to accept WayOut’s application for accommodation, and did so on the basis of the sexual orientation of the proposed attendees, or of the personal association of the proposed attendees with people identified by their sexual orientation, and so discriminated against the applicants as alleged.  The witness statements of Ms Hackney and Mr Rowe filed before the hearing contained versions which were consistent with what was alleged in the particulars of complaint and the particulars of the respondents’ defence respectively.  Given the significance of the conflict about the conversation, when it came to the hearing, I asked that each of Ms Hackney and Mr Rowe give oral evidence-in-chief about the conversation, rather than take their witness statement account as their evidence-in-chief.
Ms Hackney’s account
99	Ms Hackney’s evidence was consistent with what was in her witness statement, the particulars of complaint, the note that she made immediately after the telephone conversation with Mr Rowe and the letter she wrote to Mr Rowe shortly after. 
100	She said:
I said that we’d be bringing a group of young people aged from 16 years through to their early twenties and that our project was a suicide prevention initiative that targeted same sex attracted young people.  
… I said that we aimed to raise awareness about the needs of these young people and then the nature and effect of homophobia in rural communities and the effect of discrimination on young people.
… He said that they were a Christian organisation and that the Board needed to be aware of the aims and beliefs of groups that use their facilities.  
… that he wasn’t sure about how the Board would feel about a group such as ours using their facilities.
… I said that I didn’t want to be disrespectful of their beliefs and that I was aware from working with different Christian schools and organisations over the past five years that there is a lot of different views about homosexuality.  
… that I’d be honest that our project believed that same sex attraction or homosexuality was a normal and natural part of the range of human sexualities, and that what we’d be doing over the weekend was having workshops and discussions to plan ways to raise awareness. 
… He said something along the lines that they’d had a group they called ‘Straight Arrows’, but that was a support group for young people who had AIDS. 
… That the Board would have some difficulties taking a group such as ours and that we would be better off looking at other camps in the area such as Koala Park who he thought would be able to take us. 
… He then went on to add that they wouldn’t be able to take a group such as ours because they are a Christian organisation that supported young people, but that he appreciated my honesty. 
… I said that I needed to be careful about ensuring the well-being of our young people and that I’d leave the conversation there.

The challenge to Ms Hackney’s account 
101	When Ms Hackney was cross-examined, she was challenged on the accuracy of her account of the conversation.  The differences between her account and Mr Rowe’s, as contained in his witness statement, were put to her.  The significant differences between Ms Hackney’s account and Mr Rowe’s centred on what was said about the nature of the forum, the age of the group, the respondents’ response on finding out the nature of the group, and whether there was a refusal to take the booking.  Ms Hackney maintained under cross-examination that the conversation occurred as she had recounted it, and denied that the conflicting accounts on these topics contained in Mr Rowe’s statement actually reflected what had been said.  
102	In respect of those matters, Mr Rowe in his statement had said:
[Cobaw] targeted same sex attracted young people and took the kids away on camp to say that it was okay to be same sex attracted. 
… That her group was about promoting a homosexual lifestyle as both a natural and healthy choice for young people. 
… [She] did not limit the discussion concerning young people to young people or teenagers over 16.  I understood Sue was referring to children 13 years and above. 
I endeavoured to tell her as gently as possible that I did not believe that WayOut Youth was compatible with the aims and purposes of CYC. 
… That I was concerned about how the Board of CYC would view a group which promoted the acceptability of homosexuality or a homosexual lifestyle, especially in view of the age of the children that Sue Hackney was speaking about. 
… After Sue Hackney had explained a bit more about WayOut Youth I advised her that her group was not what CYC was about, we are a Christian camp.
… [As a Christian] I was not about promoting a homosexual lifestyle.
… At the end of the conversation I thought that Sue Hackney had appreciated my Christian beliefs and the Christian nature of CYC and that Sue Hackney was respectful of our views.  At no stage did I tell Sue Hackney that CYC had refused or would refuse to allow the WayOut group to make a booking.  I believed that Sue Hackney had decided to look elsewhere for accommodation as a result of respect for my Christian beliefs and the Christian beliefs of CYC.

103	Mr Rowe’s account of how the issues of youth suicide and CYC’s with Straight Arrows came up also differed from Ms Hackney’s.  He said that Ms Hackney mentioned that one of the aims of WayOut was to avoid suicide amongst rural young people, and that he said that he told Ms Hackney that CYC was very concerned with issues concerning youth suicide and had referred to Straight Arrows in that context.  
Mr Rowe’s evidence
104	When Mr Rowe gave evidence before me about the conversation with Ms Hackney, he qualified or changed his evidence significantly from the account in his statement.  He conceded Ms Hackney did not say they took the kids away on camp to say that it was okay to be same sex attracted.  Ms Hackney had said in evidence she would not have used these words – that to her they carried the implication there was something inappropriate that was going to be done to the young people and she was sensitive about that because to her perception there was a common misconception that homosexuals were paedophiles.  Mr Rowe said that when Ms Hackney described the WayOut project as ‘targeting same sex attracted’ young people, that the message he received from that was that they were told it was okay to be same sex attracted.     
105	He also agreed she did not say that her group was about promoting a homosexual lifestyle.   
106	He agreed that Ms Hackney had described homosexuality as natural and healthy in the context of speaking of the range of human sexualities.  He said that the words he had attributed to her about ‘homosexual lifestyle’ were what he understood Ms Hackney to be talking about.  He was no longer definite about whether Ms Hackney described homosexuality as a choice.  He said he could not recall if she had said that or whether that was the interpretation he put on the conversation.  It should be noted that Ms Hackney had been adamant she would not have described homosexuality as a lifestyle, or choice.  She had said she did not regard a person’s sexuality as a lifestyle, that it was part of a person’s identity or make-up, a part of who they were.    
107	When pressed on what he had said to Ms Hackney about his concerns about CYC’s response to the group, he was no longer confident that he had used the phrase ‘promoted the acceptability of homosexuality or a homosexual lifestyle’, or whether that was simply his ‘take’ when recalling the conversation.
108	Although not prepared to concede Ms Hackney said the age range of the proposed attendees was 16 to early 20’s he agreed Ms Hackney had not said that the attendees could be as young as 13, and said it was his assumption the group included children under 16, and as young as 13. 
109	This left the only remaining significant point of difference between the accounts of Ms Hackney and Mr Rowe the question of whether Mr Rowe had refused to take a booking.  He remained adamant he had not refused to take a booking.
110	He said:
In recalling the conversation and when I was preparing my witness statement I was very clear that at no time did I say to Ms Hackney that her group could not come or CYC would not take a booking from her group. But I did feel that she was going to look elsewhere out of respect for the views I had shared of CYC and my beliefs.

Resolving the conflict in the accounts of the conversation
111	Mr Garde submitted that where there was a conflict between Ms Hackney’s evidence and that of Mr Rowe, that Mr Rowe’s account should be preferred.  He submitted Ms Hackney was prone to dogmatic overstatement and over-confidence in the correctness of what was a faulty recollection.  In support of that, he relied upon the difference in detail between what Ms Hackney had recorded as the rough costings she had received when she telephoned the adventure resort in January 2007, and the evidence of Mrs Fry, an employee of CYC who had taken that call.  He also relied on the evidence of Mr Blood another employee of CYC who said he had taken a call from a person identifying themselves as Sue Hackney on 5 June 2007, and provided some preliminary information, a call which Ms Hackney denied making.  In my view there is little assistance to be gained from the evidence of the preliminary conversations.  They were not significant at the time to any party.  They are concerned with what is, for these purposes, peripheral detail.  They do not in my view reflect adversely on Ms Hackney’s credibility or reliability in respect of the conversation with Mr Rowe.  
112	Mr Garde submitted that Mr Rowe was more measured and careful, inclined to make concessions where appropriate and not prone to overstatement.  I do not accept Mr Garde’s characterisation of either Ms Hackney or Mr Rowe.  I found Ms Hackney to be thoughtful considered and reliable.  I found many aspects of Mr Rowe’s evidence troubling.  I detail them below.  I was left with the impression at the end that he was carefully trying to tailor his evidence to suit the respondents’ case as he perceived it to be.  That was marked in  respect of the three areas where he had made significant concessions in evidence, and also in respect of whether what he had said amounted to a refusal to accept Ms Hackney’s booking.  
113	I found the changes between Mr Rowe’s assertions about the conversation in his statement and his oral evidence troubling for a number of reasons. The respondents’ case, as outlined in its particulars of defence, in opening, in cross-examination of the complainant’s witnesses and in the matters the expert witnesses called by the respondents sought to address, was based in large part on the concerns the respondents expressed about what Mr Rowe was said to have been told by Ms Hackney concerning the proposed attendees being as young as 13, or between 13 and 15 and the promotion of homosexuality and a homosexual lifestyle.  This was the basis upon which Ms Hackney was cross-examined.  Yet their principal witness volunteered or conceded that on these key issues, Ms Hackney had not said what had been, until he got into the witness box, attributed to her by him, and that  his account of the conversation was based on his assumptions or interpretations of what he understood to be the case.
114	In addition to these concessions, there are other matters that affect the reliability of Mr Rowe’s account of the conversation generally.  He did not set down his account of the conversation until a long time after the event. On his account, it was an unremarkable conversation at the time. He had had no reason to recall it in its detail, or with precision at the time.
115	By the time he did set down his account, the complaint had been made, and the respondents’ case, as outlined in its particulars of defence was that if there had been a refusal to take the booking – something strenuously denied – it was justified on the basis of the religious doctrines and beliefs of the respondents because the purpose of the forum was to promote homosexuality or a homosexual lifestyle to children as young as 13, or to children between 13 and 15.  Mr Rowe’s witness statement was consistent with the defence as filed.  However his evidence simply did not support the defence on those material points by the end of his evidence.  
116	By contrast Ms Hackney was using language she was well used to using, to describe the aims of the WayOut project and in respect of same sex attraction, discrimination and homophobia generally.  I accept Ms Hackney’s evidence the language she used was her standard spiel. I also accept her evidence she would not use terminology such as ‘homosexual lifestyle’ or describe homosexuality or sexual orientation generally as a choice.  I also accept her evidence that she was concerned to be precise about the way she defined the ages of her group because of her sensitivity  about stereotypical assumptions about homosexuality and promiscuity. I also accept the effect of the conversation on her was immediate.  She felt the conduct was discriminatory, and went to the heart of the work she was engaged in, and committed to.  
117	So, by contrast to Mr Rowe, Ms Hackney had good reason to recall the detail with precision. She made a contemporaneous note, and wrote a letter to Mr Rowe 2 weeks later, on 21 June setting out her recollection of the conversation. Mr Rowe and CYC did not respond to the letter.  Significantly, that meant that there was no challenge at that very early stage to Ms Hackney’s account of what was said.  In contrast to Mr Rowe, Ms Hackney has been consistent in the account she has given of the conversation.  
Assessment of evidence:  standard of proof
118	The parties before me proceeded on the basis that the complainant bore the onus of establishing that the conduct of the respondents constituted discrimination as alleged, and that the respondents bore the onus of establishing that they came under the exceptions in ss 75(2) and (77) of the EO Act.  They each submitted that the party bearing the onus had to satisfy the tribunal of the matters on which it relied on the balance of probabilities. 
119	The respondents further submitted that having regard to the gravity of the allegations against Mr Rowe and CYC in respect of discrimination, that the complainant’s case should not be made out unless established to the reasonable satisfaction of the tribunal, that is that the test in Briginshaw v Briginshaw should be applied. 
120	In Briginshaw Dixon J said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

121	In other types of matters coming before the tribunal it has been held to be inappropriate to refer to  a matter as needing to be proved on the balance of probabilities, by reference to the principle in Briginshaw v Briginshaw, or any other similar test used in civil proceedings. 
122	However, the scheme of the EO Act is such as to require, in my view, a party alleging discrimination to satisfy the tribunal that the conduct complained of amounts to discrimination in the terms of the Act, and for a party seeking to rely on an exception to satisfy the tribunal they fall within the exception. I am also satisfied that the standard of proof is the civil standard, balance of probabilities.  
123	I do not consider I should apply the Briginshaw test to the complaint of discrimination. In my view, if  an evidentiary standard is to be applied to a matter before the tribunal, it should now be determined by reference to        s 140 of the Evidence Act 2008, and not to the common law. Secondly, even if there were circumstances in which it was appropriate to apply the Briginshaw test in respect of matters before the tribunal, those circumstances do not exist here.
124	Since 1 January 2010, the Evidence Act 2008 applies to all proceedings in a Victorian Court.  It adopts with some small and relatively minor exceptions, the Uniform Evidence Act which has been in operation in other jurisdictions for many years now.  Victorian Court is defined to include “any person or body other than a Court that in exercising a function under the laws of the State is required to apply the laws of evidence”.  Although by s 98(1)(b) of the VCAT Act the tribunal is not bound by the rules of evidence, if rules of evidence are to be applied in a particular case, then in my view, the relevant rules of evidence should be the same as those governing proceedings in courts or other bodies which are required to apply the rules of evidence. It would be anomalous to hold otherwise.  There is considerable guidance from those jurisdictions which have been operating under the Uniform Evidence Act for some time.    
125	So, in Qantas Airways Ltd v Gama the Full Federal Court said:
References to for example the Briginshaw standard or the onerous Briginshaw test have a tendency to lead a tryer of facts into error.  The correct approach to the standard of proof in a civil proceeding in a Federal Court is that for which s 140 of the Evidence Act provides.
126	Section 140 of the Evidence Act provides:
(1)	In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)	Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account –
	(a)		the nature of the cause of action or defence; and
	(b)		the nature of the subject-matter of the proceeding; and
	(c)		the gravity of the matters alleged.

127	In Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission, the Full Federal Court held that common law decisions such as Briginshaw and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd were of assistance in interpreting s140. 
128	In the joint judgment of Mason CJ, Brennan Deane and Gaudron JJ in Neat Holdings their Honours said:
The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary where so serious a matter as fraud is to be found.  Statements to that effect should not however be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engaged in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that on a balance of probabilities a party to civil litigation has been guilty of such conduct.

129	However, the starting point in my view is to consider the words of s 140, and then to consider what assistance the reasoning in Briginshaw and Neat Holdings provide to the interpretation of s 140.  It is important to bear in mind that the standard remains satisfaction on the balance of probabilities.  What s 140 and the judicial considerations of it say, in effect, is, having regard to the nature of the allegations, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary.  
130	Applying s 140, in deciding whether I am satisfied the complainant has proved its allegation of discrimination under s 42 or 49 of the EO Act, I must take into account the nature of the cause of action, namely a claim of unlawful discrimination; the nature of the subject matter of the proceeding, that is anti-discrimination legislation; and the gravity of the matters alleged, here an allegation of a refusal to accept a booking at the adventure resort for the WayOut forum on the basis of the (same sex) sexual orientation of the proposed attendees, or of the personal association of the proposed attendees with people identified by their (same sex) sexual orientation.  This is not a case where fraud or criminal misconduct are alleged in a civil case.  It is not a case where grave consequences will flow from an adverse finding.  In this context grave consequences usually connotes a finding of serious impropriety, either personal or professional which has consequences for the reputation and standing of the individuals against whom adverse findings are made.  This is a complaint of unlawful discrimination on the basis of sexual orientation in the course of a business dealing – an unsuccessful attempt in a brief and polite telephone conversation to book accommodation. 
131	Some cases alleging discrimination may involve allegations of moral turpitude or wrongdoing. In Qantas Airways v Gama the court noted that in cases involving allegations of unlawful discrimination moral opprobrium may, but does not necessarily, attach to an allegation of discriminatory conduct.  Cases alleging sexual harassment where criminal conduct in the nature of sexual assault is alleged are an obvious example of a case involving moral opprobrium. This is not such a case.  I do not accept the respondents’ submission that the complainant’s claim involves allegations of moral turpitude or wrongdoing, or that moral opprobrium attaches to the respondents conduct.
132	Mr Garde submitted the complaint was of such a nature because the respondents were accused of homophobia. That misstates the position in my view, and seeks to divert attention from the real issues for determination by me. The complaint is one of discrimination on the ground of (same sex) sexual orientation. As s 10 of the EO Act makes clear, when considering whether the respondents’ conduct constitutes unlawful discrimination, their motive is irrelevant. It is not part of the case before me to determine if the respondents’ conduct was motivated by homophobia. A respondents’ fear  a motive of homophobia will be imputed to them if a complaint is made out is not sufficient to make a complaint one involving allegations of moral turpitude or one which involves moral opprobrium, and so to add to the gravity of the matters alleged.
133	In McFarlane v Relate Avon Limited Laws LJ dealt with an argument advanced by Lord Carey of Clifton, a former Archbishop of Canterbury that to characterise as discriminatory a person’s  “manifestation of the Christian faith in relation to same sex unions” was equivalent to alleging they were a homophobe, disreputable and a bigot.    Having  pointed out that the prohibitions on discriminatory conduct under consideration were, like to s 7 and 8 of the EO Act, framed by reference to the outcome of the conduct, not the motive of the actor, Laws LJ concluded:
The proposition that if conduct is accepted as discriminatory it thereby falls to be condemned as disreputable or bigoted is a non sequitur. 
134	Mr Garde also submitted that Mr Rowe and CYC had been exposed to moral opprobrium, not only by reason of the making of the allegations, but by what was said to be adverse publicity flowing from the reporting of the proceeding, and from the conduct of the complainant in publicising its allegations.  I do not consider the fact the proceeding has been reported, or the fact both parties have issued press releases and made public statements concerning the proceeding since the complaint was lodged has any bearing on whether the complaint is one involving moral turpitude or one to which moral opprobrium attaches.  If, as I have already found, the nature of the complaint is not one involving allegations of moral turpitude, or which excites moral opprobrium, then publicity concerning it cannot convert it into such a case.  Adverse publicity, or adverse public response to the publicising of the complainant’s allegations or the respondents’ response cannot be a cause or justification for a decision-maker to consider it as relevant to an assessment of the gravity of the allegation.
135	Before leaving this point, I wish to make two further observations.  First, there is no suggestion that any of the public statements on the complainant’s behalf have been inaccurate or misleading.  Nor is there any suggestion the reporting of the proceeding has been inaccurate or misleading.  
136	Secondly, the force of the respondents’ argument they were adversely affected by publicity surrounding the proceedings, in a manner which should affect my assessment of the gravity of the matters alleged was significantly undermined by their conduct in putting out a press release at the commencement of the hearing authorised by  Mr Rowe, which contained information he knew was false concerning the ages of the proposed attendees at the forum.  The conclusion that the issue of the press release containing  that false information was an attempt to manipulate publicity surrounding the proceedings to bolster their cause, and undermine the complainant’s, is inescapable.  
137	In his evidence Mr Rowe acknowledged he had signed and authorised the press release. It asserted that the proposed attendees at the WayOut forum included children as young as 12. That allegation was false, and entirely without foundation. Mr Rowe knew it to be so. His explanation for authorising the release in his name containing that falsehood was unconvincing. That he knew it was false is borne out by the course of evidence. Mr Rowe’s witness statement was filed well before the hearing commenced.  As I have already recounted, in it, his account about the age of the proposed attendees was that it included people as young as 13.   It was not specified in the statement whether Mr Rowe was asserting Ms Hackney had said that, or whether he had inferred or assumed that to be the case. In his evidence, he unequivocally acknowledged Ms Hackney had not said that.  At best, the assertion the proposed attendees included children as young as 13 was an unfounded assumption of his.  He said he based it on an assumption young people meant teenagers, and teenagers could be as young as 13.  Even accepting that reasoning, there is no evidentiary support for the assertion in the press release that the proposed attendees could have been as young as 12.  
138	Bearing in mind that the complainant must discharge its onus of satisfying me on the balance of probabilities that the conversation occurred as Ms Hackney said, having regard to the nature of the cause of action the nature and subject-matter of the proceeding and the gravity of the matters alleged, I have reached the very firm and clear view that on the points of material conflict between Ms Hackney’s account of the conversation and Mr Rowe’s, that I prefer and accept Ms Hackney’s.
DID THE RESPONDENTS’ CONDUCT CONSTITUTE DISCRIMINATION ON THE BASIS OF THE (SAME SEX) SEXUAL ORIENTATION OF THE PROPOSED ATTENDEES, OR THE PERSONAL ASSOCIATION OF THE PROPOSED ATTENDEES WITH  PEOPLE IDENTIFIED BY THEIR (SAME SEX) SEXUAL ORIENTATION? 
139	The complainant must establish that by telling Ms Hackney the adventure resort would not be able to take a group such as WayOut, because they were a Christian organisation, the respondents discriminated against the named persons whom Cobaw represents on the basis of their sexual orientation, or their personal association with persons identified by their (same sex) sexual orientation.
Discrimination
140	Section 7 of the EO Act relevantly provides:
(1)	Discrimination means direct or indirect discrimination on the basis of an attribute ...
(2)	Discrimination on the basis of an attribute includes discrimination on the basis –
(a)	that a person has the attribute or had it at any time, whether or not he or she had it at the time of the discrimination;
(b)	of a characteristic that a person with that attribute generally has;
(c)	of a characteristic that is generally imputed to a person with that attribute;
(d)	that a person is presumed to have that attribute or to have had it at any time.
141	The complainant alleges the respondents directly discriminated against the proposed attendees, including the named persons.  By s 8:
(1)	Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.
(2)	In determining whether a person directly discriminates it is irrelevant –
(a)	whether or not that person is aware of the discrimination or considers the treatment less favourable;
(b)	whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.
Refusal to provide services or refusal or failure to accept an application for accommodation under ss 42(1)(a) and 49(1)
142	The complainant contends the respondents discriminated against the named persons in contravention of ss 42(1)(a), by refusing to provide services to the named persons, s 42(1)(c), by subjecting the named persons to other detriment in connection with the provision of services, and s 49(1) by refusing or failing to accept Cobaw’s application for accommodation.
143	Sections 42 and 49 of the EO Act provides:
42		Discrimination in the provision of goods and services
			(1)		A person must not discriminate against another person –
(a)	by refusing to provide goods or services to the other person;
(b)	in the terms on which goods or services are provided to the other person;
(c)	by subjecting the other person to any other detriment in connection with the provision of goods and services to him or her.
(2)	Subsection (1) applies whether or not the goods or services are provided for payment.
…
49		Discrimination in offering to provide accommodation
			A person must not discriminate against another person –
(a)	by refusing, or failing to accept, the other person’s application for accommodation;
(b)	in the way in which the other person’s application for accommodation is processed;
(c)	in the terms on which accommodation is offered to the other person.

144	It was accepted, or not disputed that the accommodation, conference activity and leisure facilities provided at the adventure resort by CYC were services provided by CYC for the purposes of s 42, and accommodation offered by CYC for the purposes of s 49 of the EO Act.
145	Cobaw submits that by telling Ms Hackney that they would not be able to take a group such as hers, the respondents refused to provide the accommodation, conference, activity and leisure services offered by CYC, and refused or failed to accept her application for accommodation at the adventure resort.  
146	The respondents contend however, there was no refusal to provide services within the terms of s 42(1)(a), and no refusal or failure to accept an application for accommodation within the terms of s 49(1).  The respondents adduced evidence that they required a number of formalities to be complied with before they considered a booking had been made. They included completing and submitting an application in writing, and payment of a deposit. They did not accept bookings from individuals.  Bookings had to be made on behalf of a group. There had to be a designated or nominated person responsible for the group. The booking application had to be signed by a designated responsible person. 
147	They submitted that the conversation never got beyond a preliminary enquiry.  No application form was submitted, and no deposit cheque tendered.  These were essential preconditions they submitted for making a booking at the adventure resort.   Finally, they submitted that bookings at the adventure resort are only available to groups or organisations, not individuals, and Ms Hackney did not identify any group on whose behalf she proposed to make the booking.  Nor was any person designated as the responsible person for the group.  So, it was submitted, there being no application, there could be no refusal of services or refusal or failure to accept an application for accommodation.
148	The effect of the respondents’ submission is that there can be no refusal to provide services, or refusal or failure to accept an application for accommodation until an applicant has made a formal application, in the terms required by the internal processes of a provider of services or accommodation, or in terms more fitted to the law of contract.  This is a narrow, legalistic and technical interpretation of the words ‘refusing to provide… services’ in s 42(1)(a), and ‘refusing or failing to accept the other person’s application for accommodation’ in s 49(1)(a).  Such an interpretation would permit a service or accommodation provider to act in a way which, in practical terms, deters or prevents a person from making application in the form required by the respondents, and so avoid the operation of the EO Act. 
149	There is nothing in the EO Act itself which provides support for such a narrow interpretation. What is required is, for the purposes of s 42(1), where an applicant wishes to be provided with services offered by the respondents, that the respondents convey to them that their application has been, or will be, refused.  For the purposes of s 49(1), what is required, where an applicant wishes to apply for accommodation offered by a respondent, is that the respondent conveys to the applicant their application has been or will be refused, or has not been or will not be accepted. How an applicant will communicate their wish to be provided with services, or to apply for accommodation will be a question of fact in each case.  Similarly, the way a respondent communicates a refusal to provide services, or a refusal  or failure to accept an application for accommodation, will be a question of fact in a particular case. That will vary from case to case.  
150	Where a service provider has indicated it will not provide services, it is not necessary for the applicant to attempt to comply with the respondents’ own procedures for formalising an application before it can complain of a refusal to provide services.  Similarly, where an accommodation provider has indicated it would refuse an application, or would not accept an application for accommodation, it is not necessary for an applicant to attempt to comply with a respondents’ own procedures for formalising such an application. 
151	Conduct on the part of the service provider, or accommodation provider which indicates that an application in the terms required by the provider for the provision of services will, if made, be refused, or an application for accommodation will, if made, be refused, or not accepted falls within the terms of s 42(1)(a) and s 49(1) respectively. To impose a requirement to conform with the internal processes of a service or accommodation provider would frustrate the objects and purposes of the EO Act, and fail to give the fullest possible effect to the enjoyment of the right to be free from discrimination, or to receive equal treatment in connection with the provision of services, or the making of an application for accommodation which is protected by the EO Act and s 8 of the Charter. 
152	A refusal to provide services or a refusal or failure to accept an application for accommodation, construed as widely as its terms permit, and in a way which least infringes Charter rights in my view incorporates conduct which deters a person who intended to make a request for the provision of services from making a formal request for the provision of those services.  It also includes conduct which discourages or deters a person from making an application for accommodation, or which conveys to a person that, if formal application is made, it will be refused. 
153	This broad interpretation is consistent in my view, with the definition of direct discrimination in s 8 of the EO Act which covers proposed as well as actual conduct. 
154	I am satisfied therefore that Mr Rowe, by telling Ms Hackney the respondents would not be able to take a group such as hers, engaged in conduct which amounted to a refusal by the respondents to provide the services offered by CYC at the adventure resort, and a refusal to accept her application for accommodation for the WayOut forum. 
Other detriment in connection with the provision of services under            s 42(1)(c)
155	The complainant submitted that the conduct of the respondents, in saying they would not be able to take a group such as WayOut, subjected it to other detriment in connection with the provision of services.  The complainant submitted the nature of the inquiry into the group, involving, as it did, discussion or disclosure of their sexual orientation, and the hurt and humiliation felt by the named persons on learning of the refusal and the reasons for it, constituted other detriment.  It also relied on the inconvenience of finding another venue, and the apprehension felt about having again to face questioning over the sexual orientation of the proposed attendees, with a fear of a further refusal. The respondents submitted if there was any detriment caused by their conduct, it was trivial, and amounted to no more than minor inconvenience to Ms Hackney in finding another venue.  The respondents submitted that any hurt to feelings resulted, not from their conduct, but from Ms Hackney’s choice to tell the named persons, and the manner in which she did, that the application had been refused because of the sexual orientation and personal association of the proposed attendees.
156	The respondents next submitted that, if the respondents were found, for the purposes of s 42(1)(a), to have refused to provide services, Cobaw, or the named persons were not subjected to any other detriment in the terms required by s 42(1)(c) in respect of the refusal.  
157	The Commission submitted other detriment included impairment of enjoyment of any of the human rights (which includes the right to equality and freedom from discrimination in s 8) contained in the Charter.    
158	Again, applying a fair, large and liberal interpretation to ‘any other detriment’, and the broadest interpretation consistent with the rights contained in the Charter, I accept the Commission’s submission that “other detriment” can include the interference of the enjoyment of the rights conferred by the Charter.  I am satisfied that, in the circumstances of this case, the refusal by the respondents to accept the booking subjected the named persons to another detriment, apart from the refusal of services itself and the refusal or failure to accept the application for accommodation.  For reasons which I outline in the next section I am satisfied that the refusal to provide the services, and the refusal or failure to accept Cobaw’s application for accommodation was on the basis of the attributes of the sexual orientation or personal association with persons identified by their sexual orientation of the proposed attendees.  A refusal to provide services, or a refusal or failure to provide accommodation on the basis of a person’s sexual orientation, or personal association with persons identified by their sexual orientation constitutes an interference with the right to equality and to be free from discrimination contained in s 8 of the Charter.  The denial of the enjoyment of a right conferred on a person by the Charter is, in my view, of itself a detriment.  It follows that the conduct of the respondents in refusing to accept the booking and so denying the named persons the enjoyment of their s 8 rights subjected them to a detriment within the meaning of s 42(1)(c).
159	I do not consider I should exclude from my consideration the effect of the refusal on the named persons, because it was conveyed to them by Ms Hackney or a third party, rather than the respondents.  To exclude consideration of the effect of the conduct because the refusal was not conveyed personally to each of the named persons is a narrow interpretation, which must be rejected if broader possibilities, consistent with the EO Act and the Charter are open.  It would, in my view, be an unduly narrow interpretation of other detriment to exclude from consideration any evidence of hurt, humiliation or anger on the part of any of the named persons solely because they discovered the respondents had refused to take their booking from Ms Hackney, not directly from the respondents.  What is important in my view is the reason for the affront to feelings, not the conduit for conveying the information. There is nothing to justify limiting other detriment to detriment caused by the direct communication to a named person by the respondents of the refusal or the reason for it. 
160	Once a representative body has established it has a sufficient interest to bring a complaint on behalf of named persons,  then giving the widest possible meaning consistently with the objects of the act and the rights contained in s 8 of the Charter, “other detriment” must permit the taking into account of the injury and affront to feelings caused by the conduct of the respondents, to the ten named persons, however that conduct was conveyed to them. These provisions are concerned with the conduct of the respondents and the consequences of it for those who have standing to complain. That, not whether the respondents communicated directly with each person affected by their conduct, must be the determining consideration. To do otherwise would be to deny force to the objects of the EO Act and the rights enshrined in s 8 of the Charter.  
161	It will be a question of fact in a particular case whether the injury to feelings was caused by the conduct of the respondents or the manner in which it was conveyed.  I accept the evidence the named persons suffered injury to their feelings.  They variously spoke of experiencing feelings of upset, anger or hurt.  In my view, the evidence also clearly supports the conclusion it was the knowledge of the respondents’ conduct in refusing to accept the booking from the WayOut group which was the cause of their feelings of hurt, anger and upset. There is no evidence that it was the manner in which Ms Hackney conveyed the information, not the conduct of the respondents, which caused the affront to the feelings of the other of the ten named persons.  And, consistently with the meaning I consider should be given to “other detriment”, the respondents cannot hide behind the fact it was Ms Hackney, not they who told the other named persons of the refusal and the reasons for it. The affront to their feelings is a direct consequence of the conduct of the respondents in refusing to accept the WayOut booking for the reason they did.
162	The inconvenience in finding another venue is, in a sense minor. Ms Hackney did, without it would appear, much difficulty, find an alternative venue at a YWCA facility at Lake Dewar. That of course did not fit the original desire of the young people consulted to go to a place on the coast and where they could see the fairy penguins.  Ms Hackney did not try alternatives at Phillip Island. I accept there were others she could have made inquiries of. However, I do not think it unreasonable, after the respondents’ refusal, to want to hold the forum in a different part of the state, and to be physically distant from the place, and the attractions associated with it, which were then linked with the affront to feelings caused by the conduct of the respondents.
163	I accept, too, that the apprehension felt about having again to face questioning over the sexual orientation of the proposed attendees, with a fear of a further refusal on that ground, is a detriment which interferes with the enjoyment of  right to equality and freedom from discrimination enshrined in s 8 of the Charter.   
To whom was the refusal directed?
164	The scheme of the EO Act is to prohibit discrimination in particular areas of activity including the provision of services (s 42(1)) accommodation          (s 49(1)).  Each of ss 42 and 49 prohibit discrimination by a person ‘against another person’ doing the prohibited thing to the ‘other person’.  So, under  s 42(1)(a) a person must not discriminate against another by refusing to provide services to the other person; under s 42(1)(c) a person must not discriminate against another person by subjecting the other person to any other detriment; and under s 49 a person must not discriminate against another person by refusing or failing to accept the other person’s application for accommodation.
165	The respondents submitted that if there was a refusal to provide services or a refusal or failure to accept an application for accommodation, the refusal was not directed to the named persons, but was directed to Ms Hackney, on behalf of Cobaw in its own right.  Ms Hackney, the respondents submitted, was acting as agent of Cobaw because she was employed by it, and acting in the scope of her employment in organising a forum for a project which Cobaw was funded to run, and which she was employed to administer. This, they submitted, was a classic case of agency.  So, the respondents submitted, when construing s 42, the person who was refused services was Cobaw in its own right, not the named persons, and not Cobaw as a representative body on behalf of the named persons pursuant to s 104(1B) of the EO Act. Similarly, when construing s 49, it was Cobaw in its own right whose application for accommodation was refused, or whose application the respondents failed to accept.
166	It is the person discriminated against – that is the person who is refused the service, or whose application for accommodation is refused or not accepted, or who is subjected to other detriment in connection with the provision of services – who must possess the attribute that forms the basis for the discriminatory conduct.  Cobaw, as an incorporated entity, does not possess the attributes relied on here, namely, sexual orientation or personal association with persons identified by their (same sex) sexual orientation. So, submitted the respondents, Cobaw could not be subjected to less favourable treatment on the basis of those attributes because it does not possess those attributes.  In other words, they submitted, the complainant must be the person with the attribute, and must be the person subjected to the less favourable treatment on the basis of that attribute. 
167	In support of this submission the respondents relied on IW v City of Perth. In that case, under the Equal Opportunity Act 1984 (WA) as it then stood, an aggrieved person could complain of unlawful discrimination, if they suffered a relevant impairment, and were refused services on discriminatory grounds, that is by reason of the impairment. There was at the time no power for a representative body to bring a complaint as s 104(1B) of the EO Act permits here. The complainant, IW, was an individual with a relevant impairment, who complained of a refusal of services by the respondents. However it was not IW, but PLWA, a corporation of which IW was a member who had applied for the service the alleged refusal to provide which was the subject of the complaint.  PWLA was a corporation whose membership was restricted to persons with the particular impairment.  
168	Dawson, Gaudron and Gummow JJ held that IW did not have standing to complain as, although he had a relevant impairment, he had not made the relevant application, and so had not been refused a service.  In strong dissent, Toohey and Kirby JJ held that a person who is a member of a body which is refused services on discriminatory grounds against the members has standing to bring a complaint. 
169	Reliance on the reasoning of the majority in IW does not assist the respondents.  The statutory provisions under consideration in that case were very different from ss 8, 42 and 49 and 104(1B) of the EO Act.  There was no equivalent of s 32 of the Charter to consider.  And the underlying factual circumstances which the High Court had to consider were very different from those under consideration here.  Although in the minority in IW on the question of standing, Kirby J’s observations on general principles of statutory interpretation when considering anti-discrimination legislation are apposite here. He said:
the fact of corporate personality should not be applied to subvert the purpose of the legislation designed as it is to protect individuals against discrimination. Secondly, in applying rights-protective legislation, such as the Act, courts will look to the actual effect of the alleged discriminatory conduct rather than only to its formal legal impact.

170	The respondents’ submission that when she spoke to Mr Rowe, Ms Hackney was acting as agent of her employer Cobaw, and so Cobaw was the person who was refused services or accommodation relies on a narrow and legalistic interpretation of ‘other person’ or ‘another person’ in ss 8, 42(1) and 49(1) of the EO Act. The fact Ms Hackney was employed by Cobaw, and the agency principles relied on by the respondents are not determinative of the question of the identity of the person or group on whose behalf she wanted to make the booking, and whom the respondents refused to provide services to, subjected to other detriment in connection with the provision of services, and whose application for accommodation the respondents refused or failed to accept. 
171	The determination of the question on whose behalf a person is acting when they request the provision of services for the purposes of s 42, or make application for accommodation for the purposes of s 49, will be determined by the evidence in the particular case.
172	Ms Hackney’s evidence was that when she spoke to Mr Rowe, she told him she wanted to make a booking for a group of young people.  She told him about the aims and purposes of the WayOut project.  She described the aims and purposes of the forum.  As Mr Rowe’s evidence made clear, Ms Hackney referred to WayOut but did not make any reference to Cobaw during the conversation. I am satisfied that when Ms Hackney spoke to Mr Rowe, although she was acting within the scope of her employment, and so was in that sense the agent of Cobaw, she was seeking to make a booking on behalf of the proposed attendees of the forum.  The named persons were part of that group of proposed attendees.  The named persons have the relevant attributes.  If the refusal to accept the booking was on the basis of those attributes, then the connection between the persons with the attributes and the refusal on the basis of the attributes necessary for the purposes of    s 8, and ss 42 and 49 of the EO Act will be established.
173	The respondents also submitted that at the time of the telephone call between Mr Rowe and Ms Hackney they did not know the identity of the named persons and had no knowledge of their sexual orientation or personal association with persons identified by their (same sex) sexual orientation.  Thus they submitted the complainant could not establish the necessary causal link between Ms Hackney’s request and the refusal to take a booking on their behalf, as is required of direct discrimination by s 8 of the EO Act.
174	Again, I must apply a fair, large and liberal interpretation to the words ‘other person’ or ‘another person’, and the broadest interpretation consistent with the rights contained in the Charter.  It would be a narrow and legalistic interpretation to restrict ‘other person’ or ‘another person’ to those identified by name,and attribute to the person alleged to have engaged in the discriminatory conduct.  Even without s 32 of the Charter to guide interpretation, such a narrow interpretation was rejected by Stephen J in Koowarta v Bjelke-Petersen: 
While it is not certain that when he refused approval of the transfer the minister knew of the existence of Mr Koowarta, he clearly knew that the property was to be occupied by aborigines.  That was the very ground for his refusal … it is not, I think, to the point that, as a matter of form, what the minister withheld was approval of a transfer to the aboriginal land fund commission.  The minister’s reasons for a refusal disclose that he regarded the approval as involving the use of the property by aborigines and refusal of approval as preventing that use.  

175	I am satisfied that when she spoke to Mr Rowe Ms Hackney was seeking to make a booking on behalf of the proposed attendees, and that the ten named persons fall within that group. I am also satisfied that the proposed attendees have the attributes of (same sex) sexual orientation and personal association with persons identified by their (same sex) sexual orientation. It follows that the application was made on behalf of the people including the named persons, and that they had the relevant attributes.  
Was the refusal on the basis of the attributes of sexual orientation or personal association with persons identified by their sexual orientation?
176	In order for the complainant to make out its case of discrimination under   ss 42(1)(a), 42(1)(c) and 49(1), it must establish that the refusal to accept the booking was on the basis of one or more of the attributes contained in s 6 of the EO Act.  The attributes relied on are sexual orientation or personal association with persons identified by their (same sex) sexual orientation.
177	The respondents submitted that Mr Rowe acted as he did, not on the basis of the sexual orientation of the proposed attendees, or personal association with persons identified by their (same sex) sexual orientation, but because the purpose of the forum was to promote homosexuality to young people as natural and healthy. 
178	In their pre-hearing outline of submissions which were expressly adopted in their final submissions, the respondents put their case in this way:
It is submitted that it was not the attribute of homosexuality of some of the attendees or association with homosexuals which was objected to by Mr Rowe, but rather the whole focus of the forum which was the promotion of homosexuality as a ‘natural and healthy lifestyle’ and in particular to young people, at least one of whom was below the age of consent.

179	Confining my consideration of the basis of the refusal to accept the booking, as I must, to what was said in the conversation and what Mr Rowe knew at the time of the conversation about the proposed forum, the evidence at hearing did not support this contention.  Mr Rowe was not told the focus of the forum was the promotion of homosexuality as a natural and healthy lifestyle.  Although Mr Rowe was told participants were young people, I am satisfied he was not told participants would include people under the age of consent. I am satisfied Ms Hackney told Mr Rowe the participants would be aged between 16 and mid 20’s.
180	Mr Rowe conceded in his oral evidence Ms Hackney did not use the terms ‘promoting homosexuality’ or ‘homosexual lifestyle’.   By the time he gave evidence he was no longer prepared to maintain he had used such terminology in the conversation. I accept Ms Hackney’s evidence he did not use that language. I accept her evidence that she was sensitive to such language and would have confronted him about what he meant by such terms, had he used them.  
181	Mr Rowe also conceded Ms Hackney did not say participants could be as young as 13.  Mr Rowe’s attempt to explain how he came to assert participants would be as young as 13 was evasive and unconvincing.  His language slid from young people to teenagers to young teenagers to 13 year olds.  His imprecision contrasted unfavourably with Ms Hackney’s precision about her words in this context. Again, I accept her evidence about the care she took when describing the ages of the participants, as a result of her sensitivity to unfounded assumptions of a correlation between same sex attraction and paedophilia being made.  
182	Finally, although there was evidence one of the young people who attended the forum eventually held at Lake Dewar was 15, it is clear that neither Ms Hackney nor Mr Rowe knew at the time of the conversation that a request that the minimum age limit set by Ms Hackney be waived to permit participation by this particular young person, or any other person under16 was even contemplated. 
183	The respondents submitted in the alternative that there was no real difference between ‘promoting’ homosexuality, and saying it was okay to be homosexual, or telling young people homosexuality was natural and healthy.  Ms Hackney had agreed in cross examination that the effect of telling young people homosexuality was part of the normal and healthy range of human sexualities was to tell them it was okay to be homosexual. The respondents submitted that, regardless of the actual words used by Ms Hackney, the effect of what she told Mr Rowe was that the purpose of the forum was to promote homosexuality.  
184	This submission distorts Ms Hackney’s evidence. To agree the effect of telling young people homosexuality was part of the normal and healthy range of human sexualities was to tell them it was okay to be homosexual, does not convert her meaning to that contended for by the respondents, namely that Cobaw was taking young people away to say its ok to be same sex attracted. It ignores the context in which Ms Hackney described same sex attraction as part of the normal and healthy range of human sexualities. That must be viewed in the context of the description of the purposes of the forum Ms Hackney gave to Mr Rowe, namely, raising awareness about the needs of same sex attracted young people, the nature and effect of homophobia in rural communities and the effect of discrimination on same sex attracted young people.  
185	It is important to analyse what Mr Rowe meant by promoting homosexuality or a homosexual lifestyle. He said he believed homosexuality was a choice, and that young people should be dissuaded from making the choice to be homosexual. He described homosexuality as abnormal. He described people who were homosexual as ‘challenged in their sexuality’.  He said he believed young people should not be encouraged to ‘follow that path’ – that is to accept their homosexuality.  Mr Rowe said he considered young people to be impressionable, and at risk of being set on a path where they believed themselves to be homosexual when, in truth, they were not.
186	He said he used the terms homosexual and homosexual lifestyle interchangeably.  When asked what they meant to him he gave a number of different, and not always consistent answers.  At times he indicated it meant no more than identifying as homosexual, at other times, he said it meant something more. Examples he gave, or adopted, included living openly as a homosexual, living in a homosexual relationship or engaging in same sex activity.  At times he said or agreed homosexuality or a homosexual lifestyle must involve sexual expression with another person, at other times he said that it was not necessary.
187	In effect, promotion of homosexuality, or a homosexual lifestyle, as he used those terms, meant encouraging or persuading a group of people he regarded as impressionable by reason of their youth to do something abnormal and wrong, namely to choose to be homosexual.  
188	There is no evidence which provides any support for a suggestion Ms Hackney’s words had implied that the purpose of the forum was to promote homosexuality or a homosexual lifestyle in the sense that Mr Rowe used those terms.  Mr Rowe’s acknowledgement that Ms Hackney had used the words natural, healthy and normal in the context of describing same sex attraction as part of the range of normal and healthy human sexualities makes that clear. 
189	I am satisfied that the effect of Mr Rowe’s evidence is that, to him, promotion of homosexuality or a homosexual lifestyle involved any conduct, whether engaged in by same sex attracted people, or those with a personal association with people identified by their (same sex) sexual orientation, which accepted or condoned same sex attraction, or encouraged people to view same sex attraction as normal, or a natural and healthy part of the range of human sexualities. 
190	So understood, the respondents’ attempts to distinguish between homosexuality and promoting homosexuality fail. Mr Rowe’s objection to promotion of homosexuality is, in truth, an objection to same sex attraction, or as the respondents characterised it, homosexuality.
191	Ms Mortimer submitted that sexual orientation means who it is one is sexually attracted to, and nothing more than that.  She relied on what was said by  Baroness Hale in  Ghaidan v Godin-Mendoza:   
sexual ‘orientation’ defines the sort of person with whom one wishes to have sexual relations.  It requires another person to express itself.

192	Sexual orientation is a central part of a person’s being or identity. In R (Amicus) & Others v Secretary of State for Trade and Industry the Court said:
Sexual orientation is a most intimate aspect of private life and personal identity.
193	Sexual orientation, like gender, race and ethnicity, are part of a person’s being, or identity.  The essence of the prohibitions on discrimination on the basis of attributes such as sexual orientation, gender, race or ethnicity is to recognise the right of people to be who or what they are.  That carries with it the enjoyment of the right to equal treatment, or freedom from discrimination, as people with a different sexual orientation, gender, race or ethnicity have. 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.  
194	The respondents’ attempt to distinguish between (same sex) sexual orientation and any conduct which accepts or condones it, or encourages people to see it as normal, or part of the natural and healthy range of human sexualities, would require a forced and strained meaning to be given to sexual orientation. To do so would be inconsistent with the principles of statutory interpretation I have earlier referred to. It does not  permit of a fair, large and liberal interpretation of provisions of a remedial statute which give effect to its purposes.  It does not permit of an interpretation which advances the objects and purposes of the EO Act. It does not permit of an interpretation which is, so far as is possible, compatible with the s 8 Charter rights.  It is not the interpretation which least infringes Charter rights.
195	It follows from the appreciation of the essential nature of sexual orientation to a person’s being, or identity, that the freedom to live openly as a person of that sexual orientation or refusing to hide one’s sexual orientation are characteristics of the attribute of sexual orientation. 
196	Ms Mortimer submitted that talking about the needs of persons who share the same sexual orientation is also a characteristic of sexual orientation. For same sex attracted people, talking about the effects of homophobia and discrimination are, she submitted, also characteristics, because being faced with homophobia and discrimination is a reality of life for same sex attracted people. It is also a characteristic of sexual orientation that people will hold views about whether who they are and how they live is natural and right for them. I accept those submissions. 
197	The purposes of the forum, as described by Ms Hackney, are reflective of efforts to enjoy, and benefit from, the right to equality and the right to be free from discrimination contained in s 8 of the Charter. To object to a forum which  presents a message of acceptance of same sex attraction is to deny the right to equality of treatment based on sexual orientation, or to be free from discrimination on that basis.
198	In my view, what the respondents characterised as promotion of homosexuality and which I have characterised as engaging in conduct which accepts or condones same sex attraction, or encourages people to view same sex attraction as part of the range of normal, or natural and healthy human sexualities is, in truth, no more than affording people of (same sex) sexual orientation the same right as heterosexuals in respect of their sexual orientation. That is, to live their lives in the same way as a person who is heterosexual can; to accept their sexual orientation, and to have it accepted by others, to live openly as a person who is same sex attracted, to seek out and have relationships with people who are also same sex attracted, to engage in lawful sexual activity with a same sex attracted partner, and to speak openly of the issues relevant to people of same sex attraction, including discrimination and homophobia.  
199	There is, in my view, no meaningful distinction which can be drawn between conduct based on a person’s sexual orientation and conduct based on an objection to telling a person their sexual orientation was part of the range of normal, natural or healthy human sexualities.  An objection to  telling a person (same sex) sexual orientation is part of the range of normal, natural or healthy human sexualities is, in truth, an objection to (same sex) sexual orientation. It denies same sex attracted people the same rights to live as who they are, to express their sexual orientation in the manner they choose, and to gather with others of the same sexual orientation and those personally associated with them, to discuss matters of particular significance to them by reason of their sexual orientation, as heterosexuals enjoy.
200	The complainant has put its case primarily as one of discrimination on the basis of sexual orientation and personal association. However it also alleged discrimination on the basis of lawful sexual activity.   Ms Mortimer submitted it was implicit in the manner in which the respondents had pleaded and conducted their case that homosexuality or homosexual lifestyle included engaging in homosexual activity, and that the respondents’ objection to homosexuality or homosexual lifestyle was in part based on their objection to same sex attracted people engaging in sexual activities.
201	I do not consider that a claim of discrimination on the basis of lawful sexual activity is made out. In my view, the references by Mr Rowe and in the respondents’ submissions to sexual activity, or fears of under age sexual activity, are relevant to the issue of  whether the refusal to take the booking was on the basis of the sexual orientation of the proposed participants, or of the personal association of the proposed participants with persons identified by their (same sex) sexual orientation. I am satisfied there was, in Mr Rowe’s mind, a connection between same sex attraction, and the sexual expression of that attraction. In other words, engaging in sexual activity was a characteristic generally imputed by Mr Rowe, and in the respondents’ submissions to people with the attribute of same sex attraction.     
202	In my view, the effect of Mr Rowe’s evidence is that the reason for his refusal to accept the booking was because of his general objection to homosexuality, applied, in the circumstances with which he was presented in the telephone conversation with Ms Hackney, to this group, comprising young people who were same sex attracted, or who had a personal association with people identified by their (same sex) sexual orientation.  The effect of Mr Rowe’s evidence was that identifying as same sex attracted, living openly as a same sex attracted person, and engaging in same sex sexual activity constituted promotion of homosexuality or a homosexual lifestyle.    
203	It follows that I am satisfied that the basis for the refusal of the booking by Mr Rowe was the (same sex) sexual orientation of the proposed attendees, or the personal association of the proposed attendees with persons identified by their (same sex) sexual orientation. I am satisfied this was the only, or dominant, reason for the refusal.
Did the refusal constitute less favourable treatment on the basis of the attributes?
204	Having found the conduct of Mr Rowe in refusing to take Ms Hackney’s booking constituted a refusal to provide services to the named persons under s 42(1)(c), subjected them to other detriment in connection with the provision of services under s 42(1)(c) and amounted to a refusal or failure to accept the application for accommodation under s 49(1), and that the basis for the refusal was the sexual orientation of the proposed attendees or personal association of other proposed attendees with persons identified by their (same sex) sexual orientation, the final question is whether the refusal to take the booking amounted to treating the named persons less favourably than the respondents treat or would treat someone without those attributes, or with a different attribute, in the same or similar circumstances.
205	Ms Mortimer submitted that when considering what were the same or similar circumstances the appropriate comparators were be either a youth suicide prevention initiative which targeted young people which was proposing to hold a forum with the aim of raising awareness about their needs, or a peer support group for young people which was proposing to hold a forum with community health objectives.  She submitted these comparators both involved the same or similar circumstances without the attributes of same sex attraction or personal association.  
206	Mr Garde submitted that the comparators proposed by the complainant focussed attention on the purpose of the forum rather than the attributes of the people proposing to attend the forum.  Mr Garde submitted that the correct comparator was persons without the attribute or with a different attribute.  He submitted that the test was whether Cobaw and the named persons were treated less favourably than a group without the attribute of same sex attraction or personal association with persons identified by their (same sex) sexual orientation, or with a different attribute, for example, heterosexuality, who wished to conduct a forum which promoted the message that same sex attraction was a natural and normal part of human sexuality.  He submitted that, whatever the attribute of the group, had that been the message that was to be promoted at the forum, they would have been treated in the same way, because the message was contrary to the beliefs of the respondents and the Christian Brethren religion.  
207	I have already found that the distinctions sought to be drawn by the respondents between the sexual orientation of the proposed attendees, or the personal association of the proposed attendees with persons identified by their sexual orientation and the purposes of the forum as I have found them to be was not meaningful.  Having been satisfied that the objection was, in truth, an objection to the sexual orientation of the proposed participants and the personal association of the proposed participants with persons identified by their sexual orientation, I consider that the appropriate comparison is with persons of a different attribute who wished to conduct a forum addressing issues relating to that part of  their identity which is defined by or is intimately connected with that attribute. Thus, appropriate comparators in my view would be either young people with the attribute of heterosexuality, or personal association with persons identified by their heterosexuality, or young people with the attribute of a particular race or ethnicity, and people with a personal association with persons identified by that race or ethnicity, who wish to conduct a forum to discuss issues of their identity intimately connected with that attribute. For these purposes, attribute includes a characteristic which a person with that attribute generally has, or a characteristic which is generally attributed to a person with that attribute.    
208	I am satisfied that the conduct of Mr Rowe, in refusing to take the booking, subjected the named persons to less favourable treatment as that term is defined by s 8(1) of the EO Act.  The basis for the refusal was the (same sex) sexual orientation, or personal association with persons identified by their sexual orientation of the proposed attendees.  I am satisfied that a group of young people with the attributes of heterosexuality, or a particular race or ethnicity, proposing to conduct a forum to discuss matters intimately associated with their identity and connected with their common or defining attribute, would not have been treated in the same way, in that they would not have had their booking refused because they proposed to discuss matters relating to that part of  their identity which is defined by or is intimately connected with that attribute.  
Conclusion:  was there discrimination?
209	I am satisfied that Mr Rowe discriminated against the named persons, on the basis of the attributes of (same sex) sexual orientation, or personal association with persons identified by their (same sex) sexual orientation of the proposed attendees at the forum by refusing to provide services, within the meaning of s 42(1)(a), and subjected them to other detriment in connection with the provision of services within the terms of s 42(1)(c).  I am also satisfied that Mr Rowe discriminated against the named persons on the same basis by refusing or failing to accept their application for accommodation within the meaning of s 49(a).  
210	I am satisfied, by the operation of s 102 of the EO Act that Mr Rowe, in refusing to accept the booking, was acting in the course of his employment with CYC and that as a result both CYC and Mr Rowe have contravened ss 42(1)(a), 42(1)(c) and 49(1) of the EO Act. 
THE EXCEPTIONS
211	The respondents submitted that if their conduct, in refusing to accept the booking, constituted discrimination in contravention of ss 42(1)(a), 42(1)(c) or 49(1) of the EO Act, that such discrimination was not prohibited, by reason of what are conveniently described as the religious belief exceptions of the Act.
212	Section 12 of the EO Act provides:
This Act does not prohibit discrimination if an exception in Part 3 (whether or not in the same Division as the provision prohibiting the discrimination) or Part 4 or an exemption under Part 4 applies.
  
213	Part 3 of the Act sets out the areas of activity in which discrimination is prohibited and in respect of each of those areas identifies exceptions.  Sections 42 and 49 are both contained in Part 3. There are specific exceptions to the general prohibition on discrimination in the provision of goods and services contained in s 42 and the general prohibition on discrimination in respect of offering to provide accommodation contained in s 49.  
214	Part 4 of the Act contains a number of general exceptions together with specific provisions for applying for exemptions from the operation of the Act in respect of conduct not otherwise the subject of an exception under Part 3 or the earlier parts of Part 4.  
215	The respondents rely on s 75(2) and s 77, exceptions contained in Part 4 of the Act.  Section 75 provides:
(1)		Nothing in Part 3 applies to -
(a)	the ordination or appointment of priests, ministers of religion or members of a religious order;
(b)	the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; 
(c)	the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice.
(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.
(3)	Without limiting the generality of its application, subsection (2) includes anything done in relation to the employment of people in any educational institution under the direction, control or administration of a body established for religious purposes.
216	Section 77 is in the following terms:
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.
Approach to interpretation of the exceptions
217	The complainant and the Commission both submitted that the exceptions in s 75(2) and s 77 should be construed narrowly and apply only where there is clear evidence to support the application of the exceptions.
218	The respondents submitted that as the EO Act was remedial legislation, all its provisions should be given a fair, large and liberal interpretation.  
219	The respondents’ submission is inconsistent with s 35 of the Interpretation of Legislation Act, and is in my view an oversimplification of the principle that beneficial or remedial legislation should be given a broad interpretation.  It is those provisions of remedial or beneficial legislation which give effect to its objects and purposes which must be given a broad or fair, large and liberal interpretation, and one which advances the purposes or objects of the Act.   
220	The exceptions in the EO Act to the prohibitions against discrimination must be interpreted in light of the objectives of the Act in s 1. The scheme of the EO Act is to give effect to its objectives by prohibiting discrimination (that is less favourable treatment of a person) on the basis of any of the attributes set out in s 6 of the EO Act, in respect of the activities set out in Part 3 of the Act. Parts 3 and 4 contain a number of specific exceptions to conduct which would otherwise constitute prohibited discrimination.  Section 12 provides that discrimination is not prohibited if an exception applies.  Section 75(2) provides nothing in Part 3 applies to anything done by a body established for religious purposes if the conditions in the subsection are established.  Section 77 provides that nothing in Part 3 applies to discrimination by a person against another if the conditions in      s 77 are satisfied. In other words, these exceptions all proceed on the basis that the conduct is still discriminatory, but is not prohibited discrimination. The exceptions limit the freedom from discrimination conferred by Part 3 of the EO Act , or impair the full enjoyment of the rights afforded by ss 42 and 49 of the EO Act and enshrined in s 8 of the Charter.
221	A construction that advances the purposes or objects of the EO Act would favour a narrow, not broad, large or liberal interpretation of the exceptions. The inclusion of the exceptions in the EO Act evidences Parliament’s intention to strike a balance between the right to be free from discrimination, and the right to freedom of religious belief, and the point at which the balance is struck. In construing the exceptions, the right to freedom from discrimination must not be curtailed unless “clearly manifested by unmistakeable and unambiguous language”.  
222	These principles referred to in the previous paragraph must be considered in light of s 32 of the Charter.  The complainant did not take issue with the Commission’s submission that, when construing ss 75(2) and 77 the right to equality and freedom from discrimination under s 8 of the Charter invoked by the complainant was required to co-exist with the rights to freedom of thought, conscience, religion and belief and freedom of expression in ss 14 and 15 of the Charter invoked by the respondents.  The complainant and the Commission both submitted that just as the s 8 rights to equality and freedom from discrimination were not absolute and may be limited in accordance with s 7(2) of the Charter, so too were the rights to freedom of religion and expression not absolute. They too were subject to limitation pursuant to s 7(2).  
223	The respondents submitted that s 32 of the Charter required ss 75(2) and 77 of the EO Act to be interpreted in a manner consistent with the rights to freedom of religion under s 14 and expression under s 15, but without regard to the right to equality and freedom from discrimination in s 8.  The effect of the respondents’ submissions was that the freedom of religion and expression rights trumped the equality and freedom from discrimination rights relied on by the complainant.  For the reasons I expressed when addressing the respondents’ submissions about what Charter rights were engaged in this proceeding, that is not a tenable submission having regard to s 7(2) of the Charter which requires both rights to co-exist.  
224	I accept the Commission’s submission that when considering the application of the Charter rights to the exceptions, both sets of rights invoked by the parties may be limited for the purpose of protecting the rights of another person.  I also accept the Commission’s submission that it is necessary to examine the content of the respective rights to determine the relevance of those rights in the task of interpreting the exceptions.  This must be done, not in the abstract, but by reference to the words of the provisions setting out the exceptions.    
225	I must therefore interpret sections 75(2) and 77, having regard to the purpose of those exceptions, namely to protect religious freedoms, and in a manner consistent with the rights to freedom of thought, conscience, religion and belief in s 14 of the Charter, and freedom of expression in s 15 of the Charter but also, so far as is possible, in a manner which is compatible with the rights to equality and freedom from discrimination in s 8 of the Charter. I must do so in a way which does not privilege one right over another, but recognises their co-existence.   

THE SECTION 75(2) EXCEPTION: anything done by a body established for religious purposes that conforms with the doctrines of the religion or is necessary to avoid injury to the religious sensitivities of people of the religion

226	The respondents submitted that if I found that the refusal to accept the booking was on the basis of the (same sex) sexual orientation of the proposed attendees, or people personally associated with people identified by their (same sex) sexual orientation,  and amounted to discrimination as alleged by the complainant, then the discrimination was not prohibited because CYC was a body established for religious purposes, and the refusal conformed with the doctrines of the Christian Brethren religion, under         s 75(2)(a), or was necessary to avoid injury to the religious sensitivities of people of the Christian Brethren religion under s 75(2)(b). 
227	The complainant submitted that CYC was not a body established for religious purposes, and so, s 75(2) did not apply. If against them on that, they submitted that the doctrines of the religion that needed to be considered were the doctrines of Christianity, not of the Christian Brethren. Finally, they submitted that the refusal of the booking could not be characterised as conduct which conformed with the doctrines of the religion or was necessary to avoid injury to the religious sensitivities of people of the religion. 
228	Before considering those parts of s 75 in respect of which the parties made competing submissions, it is convenient to deal with the matters not in issue.
229	The respondents submitted that, although s 75(2) is confined in its terms to things done by ‘a body established for religious purposes’,  if CYC is entitled to rely upon the exception in s 75(2) then Mr Rowe, acting as its agent, must also be entitled to invoke its protection.  I accept that submission. Mr Rowe was acting in the course of his employment with CYC in his dealings with Ms Hackney.  Section 102 makes any contravention by him of Part 3 equally a contravention by CYC.  In my view, it follows that, if CYC is found to have discriminated against the complainant by the operation of s 102,  but CYC’s discriminatory conduct is not prohibited by reason of the operation of s 75(2), then Mr Rowe’s conduct, as agent of CYC, must equally be protected. His actions were those of an employee acting within the scope of his employment or as the agent of CYC. Such an interpretation is in conformity with the agency principles I have earlier referred to.
230	Section 75 excuses from the prohibitions on discrimination in Part 3 of the EO Act ‘anything done’ by a body established for religious purposes that falls within subparagraphs (a) and (b).  It was common ground the ‘thing done’ for these purposes was the refusal to accept Ms Hackney’s booking, if that was what I found Mr Rowe’s conduct amounted to. 
Is CYC a body established for religious purposes?
231	The threshold question for the respondents, as the parties seeking to invoke the protection of s 75, is whether CYC is a body established for religious purposes.  The complainant contests the respondents’ submission that CYC is a body established for religious purposes.  It submits CYC is a commercial enterprise, and although connected with the Christian Brethren, is not a body established for religious purposes.  
232	The Christian Brethren in Victoria is part of what was described as a world wide movement of Christian Churches, initially called the Open Brethren,  which began in the mid 19th century in England.
233	The Christian Brethren Trust is a trust registered under the Religious Successory and Charitable Trusts Act 1958, now named the Religious and Successory Trusts Act 1958.  Section 5 of that Act permits trusts for ‘public religious educational or charitable purposes’ to be registered.
234	The Trust Deed registered under the Religious and Successory Trusts Act  was made on 1 August 1921.  The trust was established for the purposes of owning land upon which a place of worship and other buildings were to be erected.  The Trust Deed prohibits people from preaching or expounding God’s word or performing acts of religious worship in buildings on trust land, or the teaching of any doctrine or practice on trust land contrary to the ‘fundamental beliefs and doctrines’ of the Open Brethren (as they were then known) and ‘in particular, contrary to the following doctrines’:
Eternal sonship and deity of the Lord Jesus Christ, the full efficacy of his atonement only for the sins of whomsoever believeth:  the resurrection ascension and coming again of Our Lord Jesus Christ:  the quickening indwelling and sanctifying power of the Holy Spirit:  the eternal punishment of the wicked and the plenary inspiration of the Holy Scriptures. 

235	The land on which the adventure resort is situated is owned by the trustees of the Christian Brethren Trust.  By the terms of a supplemental Trust Deed dated 5 February 1962, the trustees have the power to acquire real property and apply it towards the establishment or conduct of such charitable purposes as the trustees deem likely to be of benefit for, or for the furtherance of, the objects and purposes of the Christian Brethren.  The trustees have made a declaration that the acquisition and conduct of the adventure resort land is a charitable purpose they deem likely to be of benefit for or for the furtherance of the objects and purposes of the Christian Brethren.  
236	CYC is the lessee of the land on which the adventure resort is situated.  It is a company limited by guarantee,  formed in January 2001.  It operates the adventure resort.  By the terms of its constitution it operates the ‘camping program’ or ‘camping ministry’ in its own right, and not as a manager for or on behalf of the trustees.  
237	By its constitution the objects for which CYC is established include:
(a)	to conduct such camping conferencing and similar facilities for the benefit of the community and in accordance with the fundamental beliefs and doctrines of the Christian Brethren and in particular the doctrines referred in the Trust Deed dated 1 August 1921;
(b)	to create an atmosphere throughout the facilities that is obviously Christian so that all who use the facilities are aware that the facilities are a place where God is honoured, where there is an atmosphere of peace, and where there is an opportunity of experiencing the truth of God’s love;
(c)	to provide through the provision of the camping conference and related facilities an environment and the opportunity to communicate the Christian faith in a way which is culturally relevant;
(d)	to run camping conference and related facilities to cater for all age groups but in particular to provide facility for primary and secondary school children;
(e)	to permit the use of such facilities under CYC’s control to be used for camping conferencing and related facilities so as to create opportunities for all who visit the campsites personally to experience Christian life and values;
(f)	to provide accommodation and facilities for holidays for disadvantaged persons;
(g)	to provide accommodation and facilities for other compatible charitable groups to use the facilities conducted or operated by CYC to develop and implement their own programs of care;
(h)	to conduct and operate the [campsites including the adventure resort] subject to and consistently with the provisions hereof;
(i)	to conduct and operate the facilities so as to be independent from the trust and to pay to the trust such rental licence and/or other payments as shall be demanded by the trustees for the use of the campsites;
(j)	to make such further payments to the trustees to advance such other charitable purposes deemed by the trustees to be of benefit for or for the furtherance of the objects and purposes of the Christian Brethren or for other objects and purposes which are charitable in law and which are not inconsistent with the objects and purposes of the Christian Brethren; and
(k)	solely for the purpose of furthering the purposes set out in the paragraph immediately above, CYC shall have the power to do all other things which are incidental or conducive to the attainment of the purposes indicated above. 
 
238	By clause 1.9 the income and property of CYC is to be applied solely towards the promotion of the objects of CYC as set forth in the constitution.  The members of CYC are required to subscribe to a declaration of faith which, although couched in different language, is, in its essential particulars, the same as the fundamental beliefs and doctrines referred to in the Trust Deed of 1 August 1921. 
239	These matters, submitted the respondents, established that CYC was a body established for religious purposes.   In OV and OW v Members of the Board of the Wesley Mission Council Basten JA and Handley AJA referred to the meaning to be given to the word ‘established’ in the context of interpreting s 56 of the Anti-Discrimination Act 1977 (NSW).  That provision relevantly provided:
Nothing in this Act affects:
…
(d)		any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherence of that religion.
Their Honours said the past participle ‘established’ in s 56(d) was not strictly used in the past tense.  They adopted and applied what Stephen J had said in Mikasa (NSW) Pty Ltd v Festival Stores of the word ‘supplied’ in s 66B of the Trade Practices Act 1974 (Cth) as then in force:  
[it is] not the past tense but rather a common enough instance of the use of the past participle; it is neutral in temporal meaning and applies equally to the future as to the past.  
So in the Wesley Mission case their Honours held that the past participle ‘established’ in s 56(d) applied to the relevant present.  Thus they said:
The question is whether it can properly be said of the body when the act occurred or the practice was followed that the acts or practices conformed to the doctrines being adhered to at that time, even if those doctrines have been changed or amplified or have evolved since the body was first established.
Applying that principle to the circumstances in this case it is necessary in my view to examine the conduct of the adventure resort by CYC at the time of the refusal of the booking by the respondents in order to determine both whether CYC is a body established for religious purposes, and also whether the conduct of the respondents in refusing to accept the booking conformed to the doctrines being adhered to at the time of the refusal.  
240	In my view it is necessary to look at CYC’s activities, as well as its constitution and the terms of the trust registered under the Religious and Successory Trusts Act in order to answer this first question.  
241	A number of witnesses gave evidence about CYC’s operations and activities.  Most of this concerned the adventure resort, although there was some reference to the other activities conducted by CYC.  Mr Rowe, Ms Linda Fry and Mr Darren Blood, all CYC employees working at the adventure resort gave evidence about aspects of its activities.  Mr George Buchanan, a director of CYC since its formation, gave evidence about CYC’s activities more generally.  He and Mr Rowe also referred to a 1999 strategic planning document which was produced by the respondents.  The strategic planning document was prepared by Christian Youth Camps Inc, the predecessor to CYC.  Reliance was also placed on the CYC website, the adventure resort website, and advertising or marketing brochures concerning CYC and the adventure resort, as they existed at the time Ms Hackney did her google search in January 2007 and found the adventure resort website, and at the time of the conversation between Mr Rowe and Ms Hackney in June 2007.  
242	The strategic planning document was a considered piece of work, produced after considerable consultation and research by Christian Youth Camps Inc.  It is clear from the strategic planning document that as far back as 1999 those operating the adventure resort had identified the significance of secular camping activities in addition to the Christian camps which were conducted at the adventure resort to CYC’s operations.  The strategic planning document identified ten factors which were perceived to give CYC a sustainable competitive advantage in the market.  Not one of those was related to religion.  
243	The manner in which the adventure resort advertised its services in its brochures and on its website was directed to both secular camping activities and camps with an overtly religious component. The home page of the adventure resort website makes no reference to the Christian Brethren religion, the Christian Brethren Trust or to any overtly religious purposes of the adventure resort.  The only reference to CYC is in the copyright notation at the very bottom of the homepage which simply records the copyright is held by Christian Youth Camps Limited.  The links from the homepage to the various services and camps offered by the adventure resort go to separate webpages describing the services offered by CYC for church camps, youth camps, school camps, conferences, corporate groups and international groups.  It is possible to take a link from the homepage to a description of youth camps, school camps, conferences, corporate groups or international groups, without accessing information on the church camps.  There is no reference in any of these linked pages in respect of any of these camps offered by the adventure resort which makes any connection to the Christian Brethren religion, the Christian Brethren Trust or to CYC apart from the same copyright notation as appears on the homepage.  There is nothing in the text of the descriptions of any of these camps to indicate any religious component to the camps, or religious connection or requirement as a pre-condition to booking.  Even the link to church camps makes no specific reference to the Christian Brethren religion or Christian Brethren Trust.  There is reference to Christian Youth Camps having provided quality church camps for over fifty years, but again there is no limitation or qualification described in respect of the type of church group.  
244	The hardcopy brochures make no reference to the Christian Brethren religion, the Christian Brethren Trust or to ‘Christian Youth Camps Limited’ or to church camps.  Even the contact details, the email address and website address do not convey to the uninitiated outsider that there is any connection with the Christian Brethren religion, the Christian Brethren Trust or any Christian association.  The brochures contain a logo with the words ‘A CYC trading company’ but the email and website addresses ‘cyc.org.au’ give no indication to the outsider of any Christian or Christian Brethren connection.  The brochures contain the following words:
The resort can accommodate a full range of educational camps, conferences, seminars, staff/team building and athletic training, or a simple family reunion, for groups from 20 to 420 plus guests.

245	The oral evidence confirmed that CYC operated the adventure resort in the manner held out in the website and the brochures.                
246	The services and accommodation offered by the adventure resort are not limited to camps for members of the Christian Brethren religion, or to camps which have a religious content connected with the Christian Brethren religion.  The services and accommodation offered are not limited to camps conducted under the auspices of church groups or with an overt Christian or religious content.  Much of the camping business conducted by CYC at the adventure resort is secular:  school camps, corporate camps and groups with no obvious or overt religious connection.  The adventure resort is operated as a commercial venture.  Last year its turnover was approximately $6 million and it returned approximately $1.5 million to the Christian Brethren Trustees under the terms of its constitution.  
247	CYC conducts Christian camps at the adventure resort. It also provides its facilities for the conduct of Christian camps conducted by other church groups.  The evidence revealed that CYC itself did not provide any religious input into camps run by other church groups.  A significant part of the adventure resort’s business was school groups, with students from both the public and private school system using the facilities.  CYC provided no religious input, nor did it require any religious content or observance from school groups, or other secular groups.  Collingwood Football Club has stayed at the adventure resort, and another AFL club has visited and used the camp’s facilities.  There was no requirement for any religious content to be included in their camp.  Similarly, there was no requirement for any religious content to the camps conducted for corporate groups or for cultural experience camps for international groups or overseas students conducted at the adventure resort.  
248	The effect of all this evidence is to satisfy me there is no tangible or explicit religious content required as a condition of the provision of the camping facilities provided by CYC to secular users of the facilities.    
249	Much of the curial discussion concerning what constitutes a body established for religious purposes arises in the context of taxation or succession law.  In Roman Catholic Archbishop of Melbourne v Lawlor, in considering whether a bequest to establish a Catholic daily newspaper was a gift for a charitable purpose, and therefore valid, Dixon J said:    
a trust for the purpose of religion is prima facie a trust for a charitable purpose.  It is however not every purpose of religion that falls within the legal conception of charity.  Religious uses or purposes, using these terms in their natural unrestricted meaning, undoubtedly include purposes which may or may not be charitable.  The prima facie rule supplies a presumption which if no contrary intention appears in the trust instrument operates to confine the religious purpose within the boundaries of legal charity. 

250		He went on to say: 
In order to be charitable the purposes themselves must be religious; it is not enough that an activity or pursuit in itself secular is actuated or inspired by a religious motive or injunction:  the purpose must involve the spread or strengthening of spiritual teaching within a wide sense, the maintenance of the doctrines upon which it rests, the observances that promote and manifest it.  The purpose may be executed by gifts for the support aid or relief of clergy and ministers or teachers of religion, the performance of whose duties will tend to the spiritual advantage of others by instruction and edification; by gifts for ecclesiastical buildings furnishings ornaments and the like; by gifts to provide for religious services for sermons for music for choristers and organists and so forth; by gifts to religious bodies orders or societies if they have in view the welfare of others.  A gift made for any particular means of propagating of faith or a religious belief is charitable; moreover a disposition is valid which in general terms devotes property to religious purposes or objects.  But, whether divined widely or narrowly, the purposes must be directly and immediately religious.  It is not enough that they arise out of or have a connection with a faith, a church or a denomination, or that they are considered to have a tendency beneficial to religion, or to a particular form of religion.  The law has found a public benefit in the promotion of religion as an influence on human conduct; but it has no standard by which to estimate what public benefit that order is produced indirectly or incidentally by means which although they may be considered to contribute to the good of religion, are not in themselves religious and do not serve directly a religious object.  

251	In Church of New Faith v Commissioner of Payroll Tax (Vic) Mason ACJ and Brennan J said:
It does not follow that the common religion of a group stamps a religious character on an institution founded maintained or staffed by members of that group or that the purpose or activity of such an institution is religious.  

252	Having regard to this evidence as to the conduct and operation of the adventure resort by CYC at the time that Ms Hackney did her Google search, and at the time of the conversation between Mr Rowe and Ms Hackney, I am not satisfied that the common religion of the members and directors of CYC, the requirement that they subscribe to a statement of faith, or the connection with the Christian Brethren religion or trust is of itself sufficient to stamp a religious character on CYC, or of itself is sufficient to compel the drawing of a conclusion that the purpose or activity of such an institution is religious, to apply what was said by Mason ACJ and Brennan J in Church of New Faith v Commissioner of Payroll Tax.  
253	Nor having regard to those matters am I satisfied that the purposes themselves of CYC in the conduct of the adventure resort are religious.  The camping activities offered by the adventure resort are themselves secular.  Although the constitution of CYC declares that the establishment of CYC is actuated or inspired by a religious motive, the activities of CYC conducted at the adventure resort do not involve the spread or strengthening of spiritual teaching, the maintenance of the doctrines of the Christian Brethren religion or of the observances that promote or manifest it.  The purposes of CYC, are not directly and immediately religious.  They relate to the conduct of camping for both secular and religious groups.  The religious groups are not confined to those who identify themselves as Christian Brethren.  Although CYC has a relevant connection with a faith, church or denomination and the constitution of CYC declares that its establishment is considered to have a tendency beneficial to religion, or to a particular form of religion, that is clearly not sufficient.  
254	I am not satisfied that, for the purposes of considering whether CYC is able to claim the benefit of the exception from liability for conduct which is otherwise discriminatory under the Act, which is afforded to bodies established for religious purposes, that the significant secular component of the services offered by the adventure resort entitle CYC to the protection of s 75(2).  I am not satisfied that for the purposes of s 75(2), that CYC is a body established for religious purposes.   It follows from that that neither it, nor Mr Rowe acting as its agent within the scope of his employment can invoke the protection of s 75(2).  
255	Although this finding makes it unnecessary for me to consider whether the refusal to take the booking was conduct which conformed with the doctrines of the religion or was necessary to avoid injury to the religious sensitivities of people of the religion, having regard to the extent to which these matters were argued before me, I will set out my findings on those matters.  
Section 75(2)(a)
What is the religion?
256	Ms Mortimer submitted that the religion referred to in s 75(2)(a) was Christianity.  Mr Garde submitted the religion was the religion of the Christian Brethren.  In the Wesley Mission case,  it was necessary to determine, for the purposes of s 56(d) of the NSW Anti-Discrimination Act,  what was the religion that the Wesley Mission was established to propagate. The Equal Opportunity Division of the Administrative Decision Tribunal had held that the relevant religion was Christianity, not the Methodist religion, derived from the teachings of John Wesley. 
257	There was some, limited, support for defining the religion here as Christianity. CYC’s constitution contains explicit reference both to the Christian Brethren religion, and to the Christian faith, Christian life and values and a Christian atmosphere.  On the face of it, there appears to be a distinction drawn in the objects between the Christian Brethren faith specifically and what is defined in broader terms as a Christian atmosphere or Christian faith or values. 
258	By the time this matter came on for hearing,  the NSW Court of Appeal had delivered its judgment in the Wesley Mission case. It held the ADT had erred in defining the religion as Christianity. It held there was no basis to infer from the words of s 56 that Parliament had intended to exempt only those acts or practices which formed part of the religion common to all Christian churches.
259	In my view, a similar reasoning process applies to the interpretation of        s 75(2). There is no warrant in my view for inferring that Parliament intended that s 75 should be limited in its operation to those doctrines common to all denominations of a particular religion, or to the religious sensitivities common to all adherents of a particular religion.
260	Such an interpretation is, in my view, consistent with the placing of the word religion with the words thought, conscience and belief in s 14 of the Charter, and the words thought and conscience in Article 18 of the ICCPR. The UN Human Rights Committee’s General Comment no 22 on Article 18,  said “religion” was to be broadly construed. 
261	Two highly qualified theologians, the Reverend Dr Rufus Black and the Reverend Canon Dr Peter Adam were both provided with the 1921 Trust Deed of the Christian Brethren.  Each of them said, based on the fundamental beliefs and doctrines set out in the Trust Deed  that the Christian Brethren are correctly described as a Christian denomination or branch of the Christian religion.
262	I accept their evidence that the Christian Brethren is properly described as a denomination of Christianity. It is the doctrines of the Christian Brethren I must consider for the purposes of s 75(a), and the religious sensitivities of people of the Christian Brethren religion I must consider for the purposes of s 75(b).
What are the doctrines of the religion?
263	In the Wesley Mission case Alsop P emphasised the importance of considering the meaning of an individual word in the context of the phrase or sentence in which it appears. This is important in determining what are the doctrines of the religion for the purposes of s 75(2)(a). 
264	Dr Black gave evidence that the doctrines of Christianity are set out in the statements by the great ecumenical councils of the undivided church of the first five centuries of the common era.  He said the most significant of these is the creed promulgated by the council of Constantinople in 381 which is commonly known as the Nicene Creed.  He said later in the history of Christianity, churches that broke away created subsidiary statements of the critical matters of overall belief or doctrine that distinguished them.  Protestant churches made these later formulations either as confessions of faith in the reform traditions or as articles of faith in the Anglican tradition.  He said the creeds, and later confessions or articles of faith were properly described as doctrines because they were the core architectural statements of faith.  In his opinion, the statement of fundamental beliefs and doctrines of the Christian Brethren in the 1921 Trust Deed appears to be a hybrid that set out the common Christian doctrines like those expressed in the Nicene Creed which are shared with the rest of Christianity and other doctrines like the doctrine of plenary inspiration which are shared with only some Christians.  
265	There had been some discussion in the Wesley Mission case about the manner in which the ADT had approached the task of defining  doctrine. One of the dictionary definitions relied on by it was 
A creed or body of teachings … proclaimed by ecclesiastical bodies as true  
266	In cross examination, Dr Black was taken to that definition of doctrine. He said that definition was on all fours with the concept of doctrine as he had explained it.  He illustrated that by reference to the Nicene Creed. He described it as the definitive creed of Christianity. It was proclaimed by an ecumenical council before the division of the church. He was then taken to the phrase ‘body of teaching’ and asked whether a body of teaching could also be properly described as, or fit within, the definition of doctrine. Although he had not read the Wesley Mission decision, his explanation was in conformity with Alsop P’s injunction in that case to consider the individual word or phrase in context.  Dr Black said ‘body of teachings’ could not be taken in isolation. For a body of teachings to be regarded as containing the doctrines of a religion,  they had to describe the fundamental shape of that form of religious belief.   And, like creed, body of teachings had to be qualified by the phrase which came after it, that is, proclaimed by ecclesiastical authorities as true.    
267	Dr Adam’s written evidence concerning the doctrines of the Christian Brethren appeared to concentrate on what was contained in the 1921 Trust Deed. Like Dr Black, he agreed that what was particularised as the fundamental beliefs and doctrines of the Christian Brethren in the 1921 Trust Deed was a statement of the doctrines of the religion of the Christian Brethren. 
268	In his oral evidence he too was taken to the Wesley Mission definition “creed or body of teachings … proclaimed by ecclesiastical bodies as true”. He was asked what would be the ecclesiastical body authorised to proclaim something as true. He said the Christian Brethren was a Congregationalist church. That is, each congregation is a separate, autonomous entity, although they may form associations with other Christian Brethren congregations. For its purposes the ecclesiastical authority which proclaims a creed or body of teachings to be true could be either the trustees of Christian Brethren Trust setting out their beliefs in the 1921 Trust Deed, or some identifiable body within that church which its members have authorised to pronounce on something.  In the context of the Christian Brethren, that could be either an individual congregation, or a union or association of Congregationalist churches.  He said either the individual church, or the union or association would have a doctrinal statement to which the members subscribe as part of their membership of that union.  
269	His evidence concerning the Congregationalist structure of the Christian Brethren, the authority of the trustees in the 1921 Trust Deed and of individual congregations or a union of congregations to proclaim as true a statement of the doctrines of the doctrines of the religion, was supported by the evidence of Ms Mustafa, Mr Buchanan and Mr Keep. They are all current or former pastors of Christian Brethren congregations in Victoria. 
270	In his oral evidence, Dr Adam advanced a broader definition of doctrine. He was asked about that part of the Wesley Mission definition that referred to a body of teachings. He said doctrine could be constituted by or contained in a body, any body of teachings.  
271	He said that in the past 400 years doctrine had been understood fairly widely to include Christian attitudes to belief, fundamental belief, the details of belief and Christian practice.  He argued that doctrine was used in a wider sense, and was not confined to the deep or fundamental architecture of Christianity. He said it was not limited to the great creedal statements or the confessions or articles of faith by churches who broke away. He said doctrine included teachings on the practice of Christianity and Christian worship, and covered teaching on a wide variety of issues within Christianity.  
272	He gave a number of examples to illustrate his contention. He pointed to three references in the  King James version of the Bible in which he said the word doctrine was used to refer to “teaching, any kind of teaching”. The King James version of the Bible he said was widely used by Protestants from 1611 until the middle of the twentieth century.  He quoted from De Doctrina, a document written by St Augustine of Hippo in the 4th century, which he said was not only about the content of faith but also about the mode of teaching. He quoted Article 22 of the 39 Articles of the Church of England, which described purgatory, and various other beliefs and practices  as “Romish doctrines” and decried them as “a fond thing vainly invented”. He also sought to rely on the dogmatic constitution of the Roman Catholic Church contained in Lumen Gentium, a document of the Vatican II Council as illustrative of a broader application of the term doctrine by the Catholic Church.  However, in cross examination, he agreed that the Vatican II Council’s promulgation of Lumen Gentium meant it was recognised as an official pronouncement of an ecclesiastical body for the Catholic Church. That last example therefore did not support his contention. 
273	At times, in the course of his evidence, Dr Adam used the word doctrine interchangeably with belief. He did not always clearly distinguish between an individual’s personal doctrines or beliefs, expressed in his or her writings or teachings, and the doctrines of a religion.
274	This approach illustrated the dangers referred to by Alsop P in the Wesley Mission case, of taking individual words from a phrase or sentence, without consideration of the whole. In effect, Dr Adam was proposing a definition of doctrine, not of the doctrines of the religion. In cross examination, Dr Adam agreed  it was possible to find different theologians who used the word doctrine differently.  Tellingly, when pressed on the definition he was advancing, he said ‘I was trying to show that it’s a plausible use of the word “doctrine” to understand it more broadly’.  
275	Dr Adam’s contention would require a strained or distorted application of the words “a creed or body of teachings … proclaimed by ecclesiastical bodies as true”.  Whilst accepting that creed was qualified by the proclamation by ecclesiastical bodies as true, he argued that the words a body of teachings, appearing after creed, and before the requirement of proclamation by an ecclesiastical body as true did not have to be so qualified.  That in my view is illogical, and unsupported by any authority.
276	These matters alone would be sufficient for me to reject the broader definition contended for by Dr Adam. However, there are other reasons which reinforce me in that conclusion. The first is his failure to identify any source of doctrines of the Christian Brethren apart from the 1921 Trust Deed. 
277	Despite his contention that doctrine could include any teachings, when asked specifically about the meaning of doctrine in the context of the Christian Brethren church, the only source of doctrine Dr Adam identified was the statement fundamental beliefs and doctrines in the 1921 Trust Deed. This opinion must be considered in light of his earlier evidence that, given the Congregationalist nature of the Christian Brethren Church, the Trustees had the status of an ecclesiastical body with authority to proclaim something as true, and that the statement of fundamental beliefs and doctrines in the Trust Deed was properly characterised as a creed or body of teachings proclaimed by ecclesiastical authorities as true.  
278	Although not identifying any specific teachings of the Christian Brethren to support his opinion, Dr Adam also said, based on the broad definition he was advancing, doctrine for the Christian Brethren would cover “every aspect of Christian doctrine”. He illustrated that by reference to a number of matters which he described as “normative for Christians”,  and which are not found in the creeds. They were  the command love thy neighbour, the practice of prayer, and the celebration of the Lord’s supper. By similar reasoning, or application of his broader definition, Dr Adam relied on the  reference to plenary inspiration in the statement of fundamental beliefs and doctrines in the Trust Deed to opine that the doctrine of plenary inspiration extended to the moral teaching of the scriptures, particularly the new testament.
279	The second additional reason for rejecting Dr Adam’s broader definition of doctrine is his compromised independence and impartiality. Dr Adam was put forward by the respondents as a theologian qualified to express opinions on matters relating to the doctrines of Christianity generally and the Christian Brethren specifically.  His training, study and experience in Christian theology qualified him to express opinions on the doctrines of Christian religions. He has a Ph.D from the University of Durham and undergraduate and post graduate qualifications in theology from universities and colleges of repute. He is an Anglican Minister,  a Canon of St Paul’s Cathedral in Melbourne and is the principal of Ridley College, an Anglican Theological College in Melbourne.  
280	I have considered his evidence as a whole carefully. It is with considerable reluctance, having regard to his qualifications and experience, and the positions he holds, that I have come to a very clear view that his independence and impartiality in respect of the evidence he gave was seriously compromised.  As a result I am not prepared to accept him as an independent expert.  He became in my view an advocate for the cause for which he had been retained and in which he believed.  That cause was to advance the interests of those who hold the belief, based on their literal interpretation of certain passages from the scriptures, that homosexual sexual activity is forbidden by the Scriptures, to engage in it endangers salvation, and that conduct motivated by those beliefs is justified.  
281	The reasons why I have come to this conclusion include the following matters. His two witness statements were the product of extensive collaboration between him and Mr George Morgan, the solicitor for the respondents, and to a lesser extent, counsel for the respondents.  Dr Adam wrote the initial draft of each of his statements, but the many drafts which succeeded them before a final draft was filed were largely drafted by Mr Morgan. The statements were partisan and argumentative in tone. They contained expressions of opinion on matters well beyond his expertise as a theologian. Significant passages of his witness statements, although adopted by him, contained opinions of which he was neither the originator nor the author. Qualifications included in his initial draft about the extent of his expertise to express opinions were removed from the final draft. The final drafts expressed opinions on matters he had initially said he was not qualified to opine about.  
282	Of most concern were the circumstances in which he came to express an opinion in his first statement about the doctrine of plenary inspiration and its connection with the Christian Brethren’s or the respondents’ opposition to homosexuality generally, and, more specifically, to the conduct of  the respondents in refusing to take the booking. Dr Adam had not initially identified plenary inspiration as a doctrine of the Christian Brethren which could be relied on to support the respondents’ contention the refusal to take the booking conformed with the doctrines of the Christian Brethren religion. The reference to plenary inspiration and its connection with the conduct of the respondents first appeared in the third draft of his first statement. Dr Adam said that he had inserted the reference to the doctrine of plenary inspiration as a result of what he took to be legal advice as to how to identify and express his opinion.  He acknowledged that the language in his statement, ‘I am of the opinion that same sex sexual relationships and the promotion of same sex sexual relationships are not in conformity with the doctrine of plenary inspiration of holy scriptures’ was not his. He said the sentence was drafted for him and included in his statement.  He said he agreed with the sentiment and was prepared to have it in the statement in order to “defend the stance of CYC”.  
283	The language used to define or explain plenary inspiration in Dr Adam’s statement was the same as the language appearing in the witness statements of the other witnesses called by the respondents who referred to it. These other witnesses’ statements predated Dr Adam’s statement. A number of these witnesses gave evidence that the author of the description of plenary inspiration as understood by the Christian Brethren which appeared in their statements was Mr Morgan, the solicitor for the respondents. Other evidence revealed Mr Morgan is a trustee of the Christian Brethren Trust, and a director of CYC, the first respondent.   
284	The evidence also indicates Dr Adam was aware in general terms of Mr Morgan’s connection with the Christian Brethren, the Christian Brethren and CYC.   There was an obvious overlap between, or merging of, Mr Morgan’s role as solicitor, and a person with a real interest in the outcome,  by reason of his close connection with the Christian Brethren, and his position as a director of the first respondent.  There was, and should have been understood to be, an even greater need for a person retained as an independent expert to maintain his independence in such circumstances.  
285	A further illustration of Dr Adam’s lack of independence concerns the extensive references in later drafts of his statements to the Charter.  He conceded he did not draft any of the passages referring to the Charter. He said the text of the Charter paragraphs was inserted by the lawyers and he adopted it.  Although he initially sought to justify the opinions in his statements concerning the  Charter as theological statements he ultimately conceded that they could not be so characterised. He acknowledged that he was prepared to say things which he believed to be true and relevant to the case in order to support the stance of CYC.  
286	Although Dr Adam’s statements exhibited the Expert Witness Code of Conduct in PN VCAT 2, in my view, his conduct as I have related it in the preparation of those statements, and the content of the statements did not conform with its requirements in many respects.
287	This brings me back to evidence on which I rely when considering the meaning to give to the word doctrine, in the context of the phrase doctrines of the religion.  In my view, the ordinary, or non-legal technical meaning of the word doctrine, and the construction of the phrase doctrines of the religion are interdependent. 
288	I accept Dr Black’s evidence that, from a theological perspective, doctrine refers to the core architectural statements of faith, or the body of teachings that describes the fundamental shape of that form of religious belief. I accept his explanation that doctrines operate to provide the architecture of belief, that is the essential overall organising ideas, or the essentials of Christianity. That is consistent with the Wesley Mission definition, if both the word creed, and the phrase body of teachings are qualified by the phrase proclaimed by ecclesiastical bodies as true.  I consider that is the only reasonable way to interpret that definition.  
289	I accept Dr Black’s evidence, and in this aspect of his evidence, Dr Adam’s, that from a theological perspective, the statement of fundamental beliefs and doctrines in the 1921 Trust Deed are doctrines of the religion of the Christian Brethren for the purposes of s 75(2)(a).  There is in my view no credible evidence or argument  in support of giving “doctrines of the religion” a wider meaning for the purposes of s 75(2)(a) than that which conforms with the theological and ordinary meaning of the phrase.
290	I also accept Dr Black’s evidence that there are some doctrines common to all forms of Christianity,  and others which create or mark the dividing line between the membership of one particular branch or denomination of Christianity and another. I accept the evidence of Dr Black and Dr Adam that plenary inspiration, one of the matters specified in the statement of fundamental beliefs and doctrines in the Trust Deed  is a doctrine of the Christian Brethren religion, and that it is a doctrine that distinguishes it from many other Christian denominations. 
291	Dr Black and Dr Adam, and  Ms Mustafa, Mr Buchanan and Mr Keep, the three Christian Brethren current or former pastors who gave evidence about the doctrines and teachings of Christian Brethren all agreed plenary inspiration meant the very words, not just the ideas of the text of scriptures are believed and acted upon.  
292	In Dr Black’s opinion this does not mean that all that is said in scripture is doctrine.  He said the doctrine is the belief that the very words, not just the ideas of the text of holy scripture are to be believed and acted upon.  The doctrine is not the words in scripture itself.  He described the role of scripture as a source of material from which doctrines are formed.  
293	He disagreed with the proposition that the belief that homosexuality was forbidden by the scriptures and was against God’s will for humans was a doctrine or a part of the doctrine of plenary inspiration. He said  it was significant that no statement of the essentials of Christianity, of the overall organising ideas of Christianity by the ecumenical councils dealt with homosexuality.  Nor did the major historical formulations of the Reformed or Protestant doctrines.  Similarly the statement of Christian Brethren doctrine in the 1921 Trust Deed did not deal directly with homosexuality.
294	Dr Black said the fundamental doctrines of Christianity are to do with the nature of God, the nature of Jesus, and his interaction with the world.  He pointed out the statement of fundamental beliefs and doctrines in the 1921 Trust Deed are concerned with those matters.
295	Dr Black disagreed with the proposition put to him in cross examination that the concept of marriage and the issue of sexual relationships were among the most fundamental doctrines of Christianity.  He said their lack of presence in the Nicene Creed demonstrated that they were not fundamental.  Consistently with that, he relied on the fact that none of the creeds that Christians are asked to affirm as a fundamental article of their faith include a statement of opposition to homosexuality.  
296	He said that some Christians, including the Christian Brethren, interpret scripture literally.  He noted that, according to Dr Adam’s statement, despite the meaning ascribed to plenary inspiration by the Christian Brethren, they used a broad range of interpretative instruments to interpret the scriptures. He said that a literal reading does not allow for an interpretation of the words based on their operation in a figurative or metaphorical way.  It does not make allowance for any particular meaning words may have had in their historical and cultural setting.  This can be compounded by the difficulties associated with translation of the language used in the original texts. He described the Bible as a complex compilation of histories, myths, poetry, wise sayings, genealogies and religious codes.  
297	Dr Black identified some of the difficulties with the literal interpretation of every word of the Bible including the conflict with well-founded scientific understanding of the world, and its internal self-contradictions.  He said many Christians see that what the Bible teaches needs to be interpreted in the light of our understanding of the historical and cultural conditions of their formation. He said that scripture’s statements about same sex relationships needed to be read as statements reflecting the prevailing cultural beliefs at the time, not as statements for all time.  
298	Dr Black referred to the importance, if some passages of scripture were to be treated as metaphor or allegory, and others to be interpreted literally, of identifying the logic or process of reasoning which informed the choice. He said Christian history has demonstrated that until or unless the reasoning process is exposed, that all manner of prejudice and bias can be hidden, or unexamined. 
299	It is against that evidence that I consider the evidence of Mr Rowe, and Ms Mustafa, Mr Buchanan and Mr Keep, about the doctrine of plenary inspiration, and what, to the Christian Brethren it entails. Each of these witnesses gave evidence they had attended the Christian Brethren bible school, Emmaus Bible College. They had all studied a subject called “Practical Christian Living” taught by Mr Ian McDowell, the principal of the College. Mr McDowell’s teachings on marriage and sexual matters had been instrumental in informing their beliefs as to the Christian Brethren’s attitude to marriage and sexual matters. 
300	Mr Rowe said he strongly believed the Bible taught that God’s intention is that sexual activity be expressed only within the boundaries of a marriage between a man and a woman, that the Bible strongly disapproved of any sexual activity outside marriage and that homosexual sexual acts were not in accordance with God’s plan for humanity.  He relied on passages from both the old and the new Testament. In particular, he identified passages from Leviticus, Romans, Corinthians and Timothy.  He said the Bible made a distinction between same sex friendships and homosexual sexual acts and relationships based on such acts. He said the scriptures had strong words against homosexual acts and relationships and that attempts to promote such relationships as acceptable did not conform to God’s will.  
301	Of plenary inspiration he said:
I understand this expression to mean that the inspiration extends to the very words used in the Bible, not just the concepts or ideas and that the inspiration in the Bible extends to all parts of the Bible and all subject matter of the Bible.  

302	Dr Adam, Ms Mustafa, Mr Buchanan and Mr Keep gave evidence to like effect. Each of them were taken to various passages from the Bible, including a number of passages from the book of Leviticus. They described Leviticus as a book of rules or laws, and relied on a passage from Leviticus as the strongest source of the prohibition on homosexuality.  They agreed there were passages in Leviticus, and other parts of the Scriptures calling for the stoning of mediums, wizards and blasphemers, the killing  of adulterers, permitting slavery, requiring women to obey their husbands and cover their heads when worshipping, and prohibiting the sewing of mixed crops or wearing mixed fabrics. They agreed, despite the meaning they had ascribed to the doctrine of plenary inspiration, that none of these passages were interpreted literally by them. 
303	Various reasons were advanced by them for not doing so.  Some were the result of the countermanding of an old testament prohibition or requirement by the new testament. Some were said to be reflective of the culture or times, and were no longer relevant. Some were said to be a reflection of a reconsideration of the meaning previously ascribed to a passage. An example of this last was the reversal in the  18th and 19th Centuries of the Christian churches previous support for slavery.
304	The effect of this evidence was to demonstrate that, despite the meaning ascribed to the doctrine of plenary inspiration by Mr Rowe, Ms Mustafa, Mr Buchanan and Mr Keep, and Dr Adam,  the doctrine of plenary inspiration is not interpreted by adherents of the Christian Brethren religion as requiring a literal reading of all passages in the scriptures.  Whilst they differ from some other Christian denominations in which matters in the scriptures they consider require a literal interpretation, the Christian Brethren too interpret some passages from the scriptures in the light of their understanding of the historical and cultural conditions prevailing at the time.
305	I accept Dr Black’s evidence that although scripture is the source of doctrine, not all that is said in scripture is doctrine. I accept his evidence about the content of the fundamental doctrines of Christian religions, and the consistency of doctrines in the creeds and the statement of fundamental beliefs and doctrines in the 1921 Trust Deed. I consider compelling his conclusion that the absence of any reference to marriage, sexual relationships or homosexuality in the creeds or declarations of faith which Christians including the Christian Brethren are asked to affirm as a fundamental article of their faith demonstrates the Christian Brethren beliefs about marriage, sexual relationships or homosexuality are not fundamental doctrines of the religion.
306	In my view, when proper regard and deference is had to the evidence of Mr Rowe and Ms Mustafa, Mr Buchanan and Mr Keep on this issue, it is not the doctrine of plenary inspiration itself, but the manner in which it is interpreted and applied to particular passages from the scriptures by the Christian Brethren which gives rise to their beliefs about marriage, sexual relationships or homosexuality. In particular, it is their application of the doctrine of plenary inspiration that informs their belief that it was God’s will that sexual activity should be expressed only within the boundaries of a marriage between a man and a woman, and that God disapproved of all sexual activity outside marriage, whether heterosexual or homosexual.
307	I am satisfied that Mr Rowe believes that homosexuality, or homosexual activity is prohibited by the scriptures, and so is against God’s will. I am satisfied that his belief is based on the manner in which he interprets or applies the doctrine of plenary inspiration. I am satisfied Mr Rowe, Ms Mustafa, Mr Buchanan and Mr Keep’s evidence is representative of the  range of beliefs held by members of the Christian Brethren in Victoria about marriage, sexual relationships and homosexuality.  However, I am not satisfied those beliefs constitute a doctrine of the religion of the Christian Brethren, as I have defined that term.
 What does conforms with the doctrines of the religion mean?
308	Even if I were satisfied that CYC was a body established for religious purposes, and that Mr Rowe’s beliefs, and those of the Christian Brethren in Victoria about marriage, sexual relationships and homosexuality amounted to a doctrine of the Christian Brethren religion, I am not satisfied  the refusal of the booking conformed with the doctrines of the religion. 
309	Both s 14 of the Charter and Art 18 of the ICCPR distinguish between the right to freedom of religion or belief, and the right to demonstrate or manifest religion or belief in worship, observance, practice and teaching. The right to hold a belief is broader than the right to act upon it. In McFarlane v Relate Avon Limited Laws LJ pointed out the right to freedom of religious belief does not confer a right on members of a religion to impose their beliefs on a secular society. He said:
The conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled. It imposes compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since in the eye of everyone save the believer, religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence…
So it is that the law must firmly safeguard the right to hold and express religious belief; equally firmly it must eschew any protection of such a belief’s content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime.
 
310	The respondents submitted that “conforms” should be given its ordinary meaning.  They submitted I adopt the meaning given to conforms by the Anti-Discrimination Tribunal (Vic) in Jubber v Revival Centres International. In that case the Tribunal had adopted as the meaning of conforms “complies with, or is in accord or harmony with”. 
311	The Commission submitted, consistently with its general submissions about the interpretation of the exceptions, that conform should be strictly interpreted. It submitted that conform did not mean anything done by a person holding religious beliefs or motivated by religious beliefs. A construction compatible with the Charter rights engaged here, and which permitted the conflicting rights to religious freedom on the one hand, and equality and freedom from discrimination on the other to co-exist would require a clear connection to be made between the conduct and the religious belief. It submitted that consideration should be given to what a person believes they are obliged to do as a consequence of that belief. 
312	It is important to bear in mind that the exception in s 75(2)(a) is one which exempts discriminatory conduct if it conforms, not with religious beliefs of Mr Rowe or the Christian brethren, but with the doctrines of the religion.  Subject to that qualification, I accept the Commission’s submissions on this point.
313	The complainant submitted that conforms imports a sense of necessity, or obligation to act in a particular way. So, it submitted, for the respondents to establish the refusal conformed with the doctrines of the religion, they had to establish that it was necessary to act as they did. 
314	In the Wesley Mission case Basten JA and Handley AJA posed the following questions in the context of applying s 56 of the NSW Anti- Discrimination Act.  They are helpful in assessing what meaning to give to the word “conforms” in the context in which it appears in s 75(2)(a).  First, whether it can properly be said of the body that, when the act occurred or the practice was followed, the acts or practices conformed to the doctrines being adhered to at that time.   Adapting that question to s 75(2)(a),   whether it can properly be said of the body that the thing done conformed to the doctrines being adhered to at that time.  Secondly, to ask whether there was a doctrine of the religion to which the challenged act or practice conformed.  Adapting that to s 75(2)(a), whether there was a doctrine of the religion to which the thing done conformed.
315	These formulations focus attention on the causal connection between the act or practice or, to adapt the language of the EO Act, the thing done, and the doctrine. That assists me in determining that conforms imports a sense that the doctrine requires, obliges or dictates that the person act in a particular way when confronted by the circumstances which resulted in their acting in the way they did.   
316	I do not consider this is inconsistent with the meaning ascribed to conforms in Jubber. Both conform and comply carry with them a sense of requirement, or obligation. Taken alone “in accord or harmony with”, may imply something less stringent. However, when the need to establish a causal connection between the conduct and the doctrine is appreciated, they too, in my view, carry the sense of requirement, or obligation.
317	Understood in that sense, the meaning I have ascribed to conforms is consistent with the meaning given to the word in Jubber. It is, however, in my view, desirable to focus on those words which more readily convey the sense the doctrine requires, obliges or dictates that adherents of the religious doctrine to act in the way they did, rather than those which suggest a less stringent standard. This formulation is, in my view,  in accordance with the general principles of construction of the exceptions, and of the application of the Charter to which I have already referred. 
318	Applying the test I have formulated, the question for determination is whether the refusal to take the booking conformed with the doctrine of plenary inspiration as it was being adhered to at the time, that is, whether it required or obliged Mr Rowe to refuse to accept the booking, or dictated that he refuse it.
319	It follows from the findings I have already made that it was not the doctrine of plenary inspiration but its interpretation and application to homosexuality or homosexual practices which was the reason why Mr Rowe refused the booking. On that basis, it cannot be said that the refusal conformed with the doctrines of the religion. 
320	Even if I were to find the Christian Brethren belief that it was God’s will that sexual activity should be expressed only within the boundaries of a marriage between a man and a woman, and that God disapproved of all sexual activity outside marriage, whether heterosexual or homosexual, was a doctrine of the religion, I would not be satisfied that the refusal of the booking conformed with it, in the sense in which I have defined the word. 
321	For the Christian Brethren, conformity with their beliefs about sex and marriage required them to restrict their own sexual activity to sex within marriage. Their beliefs permitted same sex attracted people to participate in worship, although they would not permit people who were in sexual relationships outside marriage (whether same sex attracted or heterosexual) to participate in worship. There was no evidence to suggest that conformity with their beliefs about marriage and sexuality required them to avoid contact with people who were not of their faith and who did not subscribe to their beliefs about God’s will in respect of sex and marriage. There was no evidence that Mr Rowe’s beliefs, or CYS’s practices, based on Christian Brethren beliefs about God’s will in respect of sex and marriage, played any part in deciding who would be permitted to make bookings at, or stay at the adventure resort.
322	In particular, no inquiry was made at the time of booking about the marital status of attendees, their sexual orientation or whether they were involved in sexual relationships outside marriage. There was only one instance, remarkable because it was clearly an isolated instance, where Mr Rowe said he had told a university group he was showing to their accommodation that the males and females should sleep in separate accommodation. The evidence from all the respondents’ witnesses involved in taking bookings and attending to groups who stayed at the adventure resort established that no attempt was made on booking or arrival to ascertain the sexual orientation or martial status of attendees, to segregate accommodation to prevent anyone other than married couples from engaging in sexual activity, or to impose any requirement on attendees to conform with Christian Brethren beliefs about God’s will in respect of sex and marriage whilst at the adventure resort.
323	For these reasons the respondents have failed to establish that the refusal to take the booking conformed with the doctrines of the religion, as I have found them to be, or the doctrines of the Christian Brethren religion include their beliefs about  marriage, sexual relationships or homosexuality.
Section 75()(b)
Was the refusal to take the booking necessary to avoid injury to the religious sensitivities of people of the religion?
324	Even if I had found that CYC was a body established for religious purposes, I would not be satisfied that the refusal was necessary to avoid injury to the religious sensitivities of adherents of the Christian Brethren religion. 
325	The respondents submitted that their freedom to demonstrate their religion in worship, observance, practice or teaching, in public or in private, as enshrined in s 14(1)(b) of the Charter permitted or authorised them to act as they did. They submitted that right was reinforced by the s 15 freedom of expression right. There are several problems with this submission. It does not address the terms of s 75(2)(b). Section 14 does not create a stand-alone right. As I have already held, it must co-exist with, and not trump, the right to equality and freedom from discrimination in s 8. The rights contained in the Charter are, by the operation of s 32, to be considered and given effect to, so far as is possible, when interpreting statutory provisions. Sections 14 and 15 do not create an entitlement, as the respondents appeared to suggest, to impose their religious beliefs on others, let alone to do so in a manner which interferes with the rights of those others to  equality and freedom from discrimination. Rather, in considering how to interpret a provision such as s 75(2)(b), I must construe it, so far as is possible to do so, in a manner which gives effect to the rights contained in ss 14 and 15, and s 8.  
326	In any event, having regard to the evidence demonstrating the respondents have not restricted attendance at the adventure resort to those who conform with their beliefs about sex and marriage, or at least are prepared to do so whilst at the adventure resort, the evidence does not support the respondents’ contention that Mr Rowe, or other Christian Brethren would be denied or restrained in their freedom to demonstrate their religion in worship observance practice or teaching by accepting a booking from a group such as WayOut. 
327	Consistently with the approach I have already identified as the correct one, I propose to consider the content of the ss 14 and 15 rights, and the s 8 rights by reference to the words of s 75(2)(b).
328	Injury in this context means more than mere offence.  Injury means causing harm. Consistently with the observations of Laws LJ McFarlane v Relate Avon which I have set out when considering s 75(2)(a),  harm involves something more than offence caused by being exposed to the beliefs or practices of people who do not subscribe to the same religious beliefs or practices as those whose religious sensitivities are in issue.  The harm must be real, and significant. In our secular and pluralistic society, freedom of religious belief and expression carries with it acceptance of the right of others to hold different beliefs, and for those who hold different beliefs to be able to live in accordance with them. This is the essence of the difference between the freedom to hold one’s own beliefs, and the right to impose those beliefs on others.  
329	The sensitivities which must be considered are the religious sensitivities of the adherents of the religion. It is not the subjective sensitivities of one person, but the sensitivities common to adherents of the religion. The sensitivities are the common religious sensitivities. This may be contrasted with, for example,  the social or cultural sensitivities of adherents of the religion.
330	In framing the exceptions under ss 75(2) and 77, Parliament distinguished between doctrines of a religion (s 75(2)(a), genuine religious beliefs or principles (s 77) and religious sensitivities of people of the religion            (s 75(2)(b).  Religious sensitivities must involve something linked to, but different from religious belief, or the doctrines of a religion if each provision is to have a meaningful operation, and not cover the same field as another.  In my view, avoiding injury to sensitivities involves a respect for, or not treating with disrespect, those matters which are intimately or closely connected with beliefs or practices a person values. When the sensitivity is the religious sensitivities of adherents of a religion, avoiding injury to those sensitivities must involve respect for, or not treating with disrespect, those matters intimately or closely connected with, or of real significance to, the beliefs or practices of the adherents of the religion. To satisfy the need for the sensitivities to be religious sensitivities, the beliefs or practices must be based on the doctrines of the religion or the religious beliefs of the adherents of the religion. 
331	When considering what necessary means, the complainant submitted necessary meant more than convenient or reasonable.   This was supported by the Commission, which submitted that it should be interpreted in a manner consistent with international law. They cited a number of UK decisions to the same effect .  I accept those submissions. Ordinary meanings of necessary, consistent with this approach,  include indispensible, vital, essential, requisite, acting from compulsion, not free, involuntary. 
332	It follows that ,in order for it to be necessary to engage in discriminatory conduct to avoid injury to the religious sensitivities of members of a religion, the injury which would be caused if the discriminatory conduct were not permitted must be significant, and unavoidable. The persons engaging in the discriminatory conduct must have been required or compelled by the doctrines of their religion or their religious beliefs to act in the way they did, or had no option other than to act in the way they did to avoid injuring, or causing real harm to the religious sensitivities of people of the religion.  The religious sensitivities of people of the religion would be injured if matters intimately or closely connected with, or of real significance to the doctrines, beliefs or practices of the adherents of the religion are not respected, or are treated with disrespect. 
333	Mr Rowe, Ms Mustafa, Mr Buchanan and Mr Keep said they and other Christian Brethren would be offended horrified or greatly or very upset, if WayOut conducted its proposed forum at the adventure resort. Each of them expressed that view based on the premise, which  I have rejected, that the purpose of the forum was to “promote homosexuality”. That diminishes significantly the weight to be given to their opinions. Even if  I considered the opinions were no more than strong expressions of disapproval of same sex attraction, they would go no higher in my view than asserting the opinion givers disapprove of, or are offended by, same sex attraction.
334	Each of these witnesses expressed compassion for same sex attracted people, because of their belief that homosexuality is against God’s will for humans. Because of that, they did not consider same sex attracted people could be openly so, and remain as members of the Christian Brethren. They differed in their attitudes to same sex attracted people. Some were prepared to welcome them to worship, provided they did not express their homosexuality in a relationship or sexual activity. Some considered that once they acknowledged their sexual orientation, they should not be permitted to be a member of a Christian Brethren congregation if they were not prepared to change. All appeared to accept that same sex attracted people, if not members of the Christian Brethren, were legally entitled to live openly as such, and to make their own decisions about their own relationships and sexual activity.  I accept that their views are reflective of the views held generally by Christian Brethren. 
335	When questioned about the religious sensitivities of the Christian Brethren, and his own religious beliefs , Mr Rowe  steadfastly maintained that his opposition to the WayOut group was promotion of homosexuality or homosexual lifestyle.  He said he would not refuse accommodation to a lesbian couple with children, or a group of same sex families with children.  He said 
‘I might struggle with that a little bit and think well this is not as a Christian what I am about, I think they would be welcome to come’.  
336	He said that his opposition to homosexuality or a homosexual lifestyle was not limited to the act of sex, but included same sex couples cohabiting, operating as a couple in public and as part of the community.  He sought to distinguish between the example of the lesbian couples with children and WayOut on the basis that WayOut was promoting homosexuality to young people who, he said,  “still may not be sure”.  When asked whether his objection to promoting homosexuality or a homosexual lifestyle included a person identifying as homosexual as well as engaging in same sex activities, openly identifying as same sex attracted or living as a couple, the effect of his evidence was to say that, as homosexuality was against God’s plan for humanity, that people who identified as homosexuals and who wanted to honour God in their life had to “make choices”.  Although he said that he and Christian Brethren fellowships encouraged support for people who “struggled” with same sex attraction, that did not extend to acceptance of homosexuality as normal, natural or healthy.  
337	 Mr Buchanan said he was not in favour of the promotion of homosexual practices at CYC campsites, including the adventure resort.  He said he did not believe that homosexuality was part of a natural or normal range of human sexuality and did not believe that this should be communicated to young people of any age.  He was unaware of the content of the Victorian Education Department policies in relation to supporting sexual diversity in schools and of the likelihood that in accordance with that policy, students attending school camps would have been exposed to that policy.  He was acting under the mistaken belief that the proposed attendees included people under 16.  He said that discussion of sensitive issues of sexuality outside a Christian framework would be of great concern to him and he would be opposed to such discussions taking place at the adventure resort.  
338	He said that, as a board member, he would not expect the management of the CYC campsites including the adventure resort to vet people as to whether they were homosexual or not but that he, the board of CYC and the trustees of the Christian Brethren Trust would be most concerned that a group could attend the adventure resort for the purpose of promoting same sexual practice to young people.  He said it would offend his religious sensibilities.  He was supportive of Mr Rowe’s conduct (as he understood it to be) in his conversation with Ms Hackney.  He said, in his view, any person who is a member of the Christian Brethren would be concerned about a group that promoted homosexuality or who said that same sex sexual activity was natural and healthy, especially if that group encouraged young people to believe that.  Again this opinion was influenced by the mistaken belief that the WayOut group included people between the ages 13 and 15.    
339	Ms Mustafa defined homosexuality as the practice of sexual activity between same sex attracted people.  To her that would be sinning.  In her view a person could not be both gay and a Christian.  She said, just as there would be cause for conjecture about how deep or real the was faith of a person who was a thief, yet called themselves a Christian, so too would one question the faith of a homosexual who called himself a Christian.
340	Ms Mustafa agreed that the gospels taught that people should be welcome and included and not turned away because of their sins, but said, nonetheless, if CYC became aware that people were promoting something that the Christian Brethren did not believe in then ‘care has to be taken’.  She said that it would not be alright to allow a group of people involved in same sex relationships and the promotion of that to a CYC camp.  From her perspective it would sufficient justification for CYC to turn people away because they were same sex attracted.  She said ‘from a Christian Brethren point of view, yes, because it’s an activity, a moral activity, that we think goes against God’s word’.  When asked what she meant by activity she said it was the encouragement that same sex activity was natural, healthy and okay.  She said she would take the same stance if a wicked group wanted to stay at the adventure resort and worship through witchcraft.  She said that would offend many people.
341	Mr Keep distinguished between homosexual sexual orientation and sexual activity between same sex attracted people.  It was in his opinion the beliefs of the Christian Brethren about what was objectionable in respect of homosexuality was homosexual sexual activity, not the fact of sexual orientation itself.  As an illustration of that he referred to his time as pastor of the Warrandyte Community Church. He said he had made it perfectly clear that people of homosexual sexual orientation were welcome in that Christian Brethren church.  He said that he would ask same sex attracted people not to live together, even if they were celibate, because living together was putting them unnecessarily in the way of temptation.  
342	When asked from a Christian Brethren perspective how the message in the New Testament about welcome, inclusivity  and tolerance should be understood, he said, that once a person embraced faith in Jesus Christ, they had to live according to that.  He was asked about the way one might teach tolerance and inclusivity to a member of the Christian Brethren in respect of their dealings with a person who was not a member of the Christian Brethren. He was unable or unwilling to answer that. He confined his answer to his dealings with his own church community.  He later said that anybody from anywhere was welcome to come to a Christian Brethren church, that a church was a place of welcome.  He said if people were going to say that they were believers, followers of Jesus then certain things were expected in terms of their ongoing behaviour. They would not welcome into church membership someone who said they were a believer in Jesus but lived in a way that they understood was contrary to the teaching of the scripture.  Again, this did not address attendance at the adventure resort by a group such as WayOut whose members were not members of the Christian Brethren, but were, to use his term, ‘anybody from anywhere’.  If Mr Buchanan’s objections were, as his answers suggested, concerned only with regulating the conduct of people who were, or wanted to become members of the Christian Brethren, then, as the WayOut group were not members of the Christian Brethren, nor asking to become members of it, there should have been no reason to refuse the booking.  
343	These responses highlight the difference between what an adherent of a religion chooses, or agrees to do in conformity with their own religious beliefs and the manner in which they deal with others who do not share their beliefs or adhere to the same religion. It is not part of the doctrines, beliefs or practices of the Christian Brethren that they avoid contact with people who do not share their religious beliefs, Nor is it part of their doctrines or beliefs that they must avoid contact with same sex attracted people who do not share their religious beliefs. Nor is it a doctrine or belief of their religion that they are required to openly express their disapproval of same sex attraction when in contact with same sex attracted people. This is borne out in practice by the evidence about CYC’s general booking policies,  namely that Christian Brethren beliefs about God’s will in respect of sex and marriage played no part in deciding who would be permitted to make bookings at, or stay at, the adventure resort.
344	However strongly Mr Rowe, Ms Mustafa, Mr Buchanan and Mr Keep expressed themselves about their views of accepting same sex attracted people, about sex and marriage, and about whether they would accept same sex attracted people, celibate or not, into their congregations, it was abundantly clear the religious sensitivities of the Christian Brethren  had not been injured by CYC’s conduct in permitting same sex attracted people other than the WayOut group to stay at the adventure resort.  They had not sought to prevent injury to their  religious sensitivities  by taking any steps to prevent people other than married couples who engaged in sexual activity from staying at the adventure resort, or engaging in sexual activity at the adventure resort.  Their conduct consistently demonstrated that  it  was not necessary to avoid injury to the religious sensitivities of the Christian Brethren in respect of sex and marriage to refuse bookings to same sex attracted people, or people who engaged in sexual activity outside marriage. If it was not necessary to exclude other same sex attracted people, or people who had, or might, while at the adventure resort, engage in sex outside marriage to avoid injury to the religious sensitivities of the Christian Brethren,  then it was not necessary to exclude the WayOut group on that ground. The respondents have not made out their claim for excuse under     s 75(2)(b).
345	Before leaving the s 75(2)(b) claim, it is necessary to refer to one final submission made by the respondents. Their final submissions, both oral and  written, asserted the respondents’ conduct in refusing the booking was necessary to avoid what was “tantamount to heresy”.  There was no theological opinion to support that assertion.  Nor did the conduct of the respondents provide any support for such a proposition. The evidence was all to the contrary. The adventure resort was frequently made available to groups whose activities were entirely secular. The respondents did not impose any requirement for any religious content to camps conducted by groups staying at the adventure resort. They did not vet or censor the content of any programs intended to be undertaken or provided to any group. Their conduct in respect of bookings generally, and their requirements, or lack of them, in respect of the conduct of attendees at the adventure resort to which I have already referred is in stark opposition to such a contention.

THE S 77 EXCEPTION: was the discrimination necessary to comply with the genuine religious beliefs or principles of Mr Rowe and CYC?
346	The respondents submitted both respondents were entitled to rely on the exception in s 77. The complainant submitted , as s 77 dealt with a person’s genuine religious beliefs, that it could apply only to a natural person, here, Mr Rowe. It submitted a corporation such as CYC could not hold a belief. It supported that by reference to the definition of person in s 4 of the EO Act which defines “person” as including an unincorporated association, and a natural person of any age. The EO Act definition does not include a corporation. 
347	The respondents relied on the definition of “person” in s 38 of the Interpretation of Legislation Act 1984, and a considerable weight of authority to the effect that a corporation could possess a state of mind. Person is defined in s 38 to include bodies corporate and politic, and individuals. There is no express reference to unincorporated associations. The definition is qualified by the opening words of s 38:
In all Acts …, unless the contrary intention appears-
348	There is force to the respondents’ submission that the definition of person in the EO Act expands, rather than limits the definition of person in s 38 of the Interpretation of Legislation Act. Such an expansive meaning is consistent with the objects of the EO Act. It has long been settled that the prohibitions on discrimination apply to corporations as well as natural persons and unincorporated associations. The provisions of ss 102, 103  and 104(1B) are also consistent with the expanded meaning. They would be deprived of much of their force if they did not apply to corporations. 
349	Once Mr Rowe is found to have discriminated against the named persons by refusing to take the WayOut booking , in contravention of Part 3 of the EO Act, and CYC is, by operation of s 102, also taken to have  contravened Part 3, then it follows, in my view, that CYC should also be able to seek to invoke the s 77 exception.  There is no reason in principle to limit the operation of the exceptions to natural persons, or to natural persons and unincorporated associations, provided they otherwise fall within the exception being invoked. 
350	There is no doubt that a corporation can posses a state of mind. It is an essential precondition of attribution of a belief to a corporation that some person or persons closely and relevantly connected with the corporation hold the belief, in circumstances where their belief or state of mind can be treated as the state of mind of the company.
351	Although there is some attraction in the complainant’s argument that religious belief is subjective and personal, and so, it is incongruous to attribute a religious belief to a corporation, the same could be said of the attribution of an intention to defraud to a corporation. When it is understood that attribution of a belief or state of mind to a corporation derives from the state of mind or belief of a person so closely connected with the corporation that the natural person’s belief is properly regarded as the belief of the corporation, the apparent incongruity disappears.
352	Mr Buchanan gave evidence that he was a director of CYC. All directors of CYC were required to be members of the Christian Brethren, and to subscribe to a declaration of faith in similar terms to that set out in the 1921 Trust deed to which I have earlier referred.  I am satisfied the opinions he expressed about his religious beliefs, the connection between those beliefs and the refusal to accept the booking, and the CYC Board’s support for Mr Rowe’s actions in refusing the booking reflected the opinions of his fellow directors. I am satisfied the opinions of the directors on these matters can properly be characterised as the opinions, beliefs or state of mind of CYC.
353	The real question in respect of the applicability of s 77 to this matter is whether the refusal was necessary to comply with the genuine religious beliefs or principles of Mr Rowe or CYC. I adopt the meaning given to necessary for the purposes of s 75(2)(b).  Comply is similar in meaning to conform which I have considered for the purposes of s 75(2)(a). It too means the religious beliefs require, or oblige a person to act in a particular way, or that their religious beliefs dictate that they act in a particular way.
354	I must consider the evidence in respect of Mr Rowe’s reliance on s 77 separately from the evidence in relation to CYC’s reliance on it. Although there are differences in the meaning ascribed to homosexuality by the various witnesses called by the respondents, and in the stage at which a same sex attracted person would be refused admission to worship in a particular Christian Brethren church,  the evidence of the respondents’ witnesses about the source of their objections to homosexuality is generally consistent. That means insofar as the other respondents’ witnesses’ evidence supports Mr Rowe’s evidence, I rely on it as confirmatory, or supportive of his evidence as to his religious beliefs and principles. When considering the evidence in respect of CYC, Mr Buchanan, in his capacity as a director of CYC is the primary witness I have regard to, but again, I take into account insofar as it is consistent with his evidence, the evidence of Ms Mustafa and Mr Keep, and Mr Rowe as to the religious beliefs and principles of CYC. 
355	I am satisfied Mr Rowe, Mr Buchanan, and Ms Mustafa and Mr Keep genuinely hold the beliefs they express about marriage, sexual activity and sexual orientation. I am satisfied the beliefs they hold are based on their beliefs as members of the Christian Brethren. I accept they are, for the purposes of s 77, religious beliefs, genuinely held. 
356	I am not satisfied, having regard to the evidence I have canvassed at length, and the findings I have already made concerning the conduct of Mr Rowe, and CYC in respect of the manner in which the adventure resort is operated, that it was necessary to refuse the WayOut booking in order to comply with Mr Rowe’s or CYC’s genuine religious beliefs. The respondents have not made out their claim for excuse under s 77.
Relief
357	The complainant has made out its complaint of discrimination under          ss 42(1)(a), 42(1)(c) and (49(1). The respondents have not made out their claims for excuse under ss 75(2)(a), 75(2)(b) or s 77.
358	The complainant seeks a declaration that the respondents have discriminated against the ten named persons in contravention of ss 42(1)(a), 42(1)(c) and (49(1), and compensation, in what they describe as a modest amount, of $5,000, for the hurt and distress caused by the unlawful discrimination of the respondents.
359	I have the power to make the Orders sought. A presidential member may make a declaration by virtue of s 124 of the VCAT Act, and compensation may be awarded following a finding a respondent has unlawfully discriminated against a complainant by virtue of s 136 of the EO Act. 
360	I consider it appropriate to make both orders. The declaration relates to the real question in issue between the parties in the proceeding, and reflects the findings I have made in the complainant’s favour. In that sense  it is determinative of the issues between the parties. I am satisfied the 10 named persons have suffered hurt and injury to feelings as a result of the unlawful discrimination of the respondents.  Although it was made clear from the outset the primary relief sought by the complainant was declaratory relief, I am satisfied it is appropriate in all the circumstances to award compensation. 
361	The conduct of the respondents in refusing the booking was clearly based on their objection to homosexuality. They are entitled to their personal and religious beliefs. They are not entitled to impose their beliefs on others in a manner that denies them the enjoyment of their right to equality and freedom from discrimination in respect of a fundamental aspect of their being.   Having done so, and in a manner that understandably caused hurt and offence, compensation is appropriate.
362	I order the respondents pay compensation in the amount of $5,000.

Her Honour Judge Hampel