Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia  FCAFC 26 (19 March 2014)
The Church of Jesus Christ of Latter-Day Saints in Queensland undertook a restructure which abolished wards containing predominantly Samoan congregations who conducted services in the Samoan language. The members of those congregations were welcome to attend other congregations, but the services were to be conducted in English and attendees were no longer allowed to use a language other than English in public worship. The Full Court of the Federal Court unanimously held that the Church had not unlawfully discriminated against the Samoan members, contrary to section 9 of the Racial Discrimination Act 1975 (Cth) (RDA), because their rights to freedom of religious expression (and other human rights) were not infringed.
The Church was administered according to geographical areas called “wards”. The Church operated several wards in Queensland in which services were conducted in Samoan. In April 2008, the Church abolished those wards in a restructure. One of the reasons for the abolition was that the wards had many young Samoans who only spoke English. Services in the new wards were only permitted to be conducted in English (although translation equipment was available). The Church mandated that public worship be expressed only in English.
The Federal Magistrates' Court dismissed the Samoan members' initial application, on the basis that the applicants did not have a right to worship services conducted by the Church in Samoan. The applicants appealed to the Full Court.
The key issue in the appeal was whether the appellants had a right to worship publicly in their own language. If the appellants did have such a right, the Full Court would have proceeded to determine whether there was a restriction on the enjoyment of the right that engaged the prohibition on discrimination under the RDA.
The Full Court unanimously dismissed the appeal, holding that the appellants' human rights did not extend to a right to worship publicly in their own language. Justice Kenny delivered the lead judgment, with Justices Greenwood and Logan agreeing.
The appellants argued that two rights were limited: their right to freedom of religious expression, and their right, as a minority group, to freely use their native language in worship. The Court drew on international law under the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights to inform the scope of these rights.
Right to freedom of religious expression (ICCPR article 18(1))
The principles of freedom of religious expression developed by international human rights courts led the Full Court to two important conclusions. First, the right to freedom of religious expression applies to churches as bodies as well as individuals. Second, if an individual was dissatisfied with their church's views or decisions, the individual's right was protected by a freedom to leave the church.
The application of these principles was fatal to the appellants' case. The Full Court held that an individual's right to freedom of religious expression does not extend to expressions that are prohibited by the church. It necessarily followed that the appellants did not have a right to worship publicly as a group in their native language contrary to the decisions made by the Church. There was no evidence that the Church would condemn the appellants for worshipping elsewhere in their native language (for example, at a member's house), or otherwise deprive them of their freedom to leave the Church, so their rights to free expression were not limited.
The right to use one’s own language (ICCPR article 27)
The appellants also argued that the Church's decision to ban public worship in languages other than English infringed their right, as a minority group, to use their own language in community with other members of their group. They contended that, in combination, this right and their right to freedom of religious expression provided a right to worship in their own language. The Full Court rejected this argument for two reasons: first, any infringement was not so substantial that it totally denied the appellants the right to enjoy their culture; second, and critically, the right is directed towards prohibiting governments from doing acts that threaten the cultural, religious and social identity of minority groups, and so it did not directly apply to individuals.
This case highlights a potential tension between a religious organisation's right to autonomy in its practice of religion and the rights of individuals within the organisation freely to express their religion in a manner, and language, they desire.
The Full Court emphasised that the analysis regarding freedom of religious expression did not depend on a “balancing” of rights between the appellants and the Church. Rather, the rights “do not overlap at the point of dispute”: if an individual disagrees with their church, their rights are not limited so long as they are free to leave. In the Full Court's view, there was no tension between the rights held by the Church and its members, and therefore no limitation on rights at all.
This decision may be contrasted with the recent decision of the Victorian Court of Appeal in Christian Youth Camps Limited v Cobaw Community Health Service Limited  VSCA 75 (Cobaw). In that case, the Victorian Court of Appeal held that the operator of a conference facility owned by a religious organisation unlawfully discriminated against a community organisation by refusing to rent the facility to the organisation on the basis of the sexual orientation of the organisation's members. The operator's right to freedom of religious expression did not entitle them to discriminate in the provision of services. The difference between these two cases is that Cobaw concerned discrimination by a religious organisation against non-members, whereas Iliafi concerned a dispute between a church and its own members who, in essence, claimed to have the same rights as the church itself.
The decision is available here: http://www.austlii.edu.au/au/cases/cth/FCAFC/2014/26.html
Thomas Bland is a law graduate at Allens.