Cobaw strikes blow against ability of religious organisations to discriminate

Around this time seven years ago, I was working through a fairly unremarkable list of things to do for a social worker at Cobaw, a small rural community health centre. The list included amongst other things “book camp.” The camp was to be for young people and workers involved with the WayOut project.

WayOut was a youth suicide prevention project funded by the Victorian Government. I had been coordinator since it started in 2002 and it aimed to raise awareness about the needs of same sex attracted young people and the nature and effects of homophobia in rural communities. The project had been funded because same sex attracted young people attempt suicide at rates 4-14 times higher than their heterosexual counterparts.

The camp had been in the planning stages for some time and excitement was building as were now getting to details such as dates and location. The young people decided that it should be near a beach where they could go and see fairy penguins.

I expected the next steps of finding and booking somewhere at Phillip Island would be straightforward. I did a quick google search, found the Phillip Island Adventure Resort, made an initial phone enquiry and it seemed suitable. After additional funding for the camp had been confirmed, on 7 June 2007, I then went to book a weekend for our group. I phoned the resort and spoke to the Manager and we discussed possible dates. He then asked what type of group we were and I explained that we were a suicide prevention project for same sex attracted young people. He then said that they were a Christian organization and couldn’t take a group such as ours.

Ultimately, that conversation formed part of a case recently determined in our favour by the Court of Appeal. In the opening pages of the decision Maxwell J made the comment “It can be safely assumed that, in scale and complexity, these proceedings are without precedent in Victorian anti-discrimination law.” (para 14)

As we now plan our celebrations, those of us who were involved are reflecting on our experiences over the years and this opinion piece provides a snapshot.

One of the most significant historical events was when Cobaw Community Health Services Inc made the decision to proceed with lodging a representative complaint. Alan Taylor was CEO at the time and Iike myself, he subscribed to the “Social Model of Health” that recognises that to reach a complete state of health and wellbeing, humans need not only access to adequate food, clean water, income and housing etc, but also social inclusion and freedom from discrimination.  Conceptually, there was no need to explain how and why the booking refusal was especially offensive and hurtful to people involved in our project.

We initially tried to resolve the matter informally by writing to the Manager. When we did not receive a reply, I sought pro bono legal advice through Justice Connect (then called Public Interest Law Clearing House) and was referred to Mallesons.

Prior to doing this, I knew a major problem would be the religious exceptions in our anti-discrimination laws that provide a carve-out for religious groups that enables them to engage in what would otherwise be prohibited discrimination. I was angry and frustrated at how much of a deterrent they were to anyone considering making a complaint such as ours.

All of the relevant information was then presented to the Board of Cobaw. At that time, many of members also drew from the social model of health in their governance of the organisation. As Alan describes, “it really wasn’t a difficult decision for them. They discussed various aspects and risks. They then said that if the young people felt they had been discriminated against and wanted to pursue the matter… then Cobaw had a moral obligation to act on their behalf. ” 

Over the subsequent years of going through the Equal Opportunity Commission and VCAT, proceedings became increasingly complex, demanding and stressful. At times I had grave doubts about whether we had made the right decision. I knew from working with young people that although they felt strongly about standing up for who they are, many were very cynical about ‘the system.’ This was very understandable because of previous complaints they had made about discrimination at school that seemed to go nowhere. It was difficult to keep spirits up when the only tangible evidence of progress was more reams of paper work or yet another directions hearing.

Fortunately we had an enormous amount of support and this came from many different sources - philanthropic trusts such as the Reichstein Foundation, groups and individuals in the GLBTI community as well as ‘random’ people in the broader community that sent us emails congratulating us on pursuing the matter.

One of the young people named in the complaint, Kat Ettwell, said that from their perspective “although we really didn’t know what to expect from the legal side of things, we knew it was really important to stand up for our own rights and for other young people like us.” She added, “it was overwhelming at times like sitting and waiting to be called to tell our part to the judge in the tribunal … Then when we were watching and listening to the other side – their beliefs, comments and attitudes towards us.” 

Kat added that “the legal team were amazing and I didn’t expect that we would ever be supported like that – their hard work, eagerness and understanding.” She recalled a time in the Tribunal when Jack, one of the other young people involved, had to testify but had forgotten to wear a tie. “Then Jim (McKenna, barrister) offered him one of his for the day.” 

When I asked Kat if she would do it again, she replied “definitely … but I would want the same legal team.”

From the very beginning we never doubted that the way we were treated was discrimination because of our sexuality. However, the crucial question was whether the law would regard that as acceptable in our case because it gives special privileges to people with religious beliefs.

I still hold the firm view that the religious exemptions have no place in our human rights and equal opportunity legislation. Although it has cost an enormous amount of many people’s time, skill and conviction over a period of seven years, we are very proud of pursing the matter. We hope that it makes it easier for others like us who will no doubt whatsoever, continue to be treated badly by some people purporting to be Christians. We also hope that the decision will assist others’ efforts to reform the legislation and provide truly equal protection.

Sue Hackney was the coordinator of the WayOut project.

Note: Christian Youth Camps have since filed an application for special leave to the High Court to challenge the decision.

A casenote about the Cobaw decision can be found here and the HRLC’s media release about the decision can be found here.