11 May 2011

VCAT case sheds light on how the Human Rights Charter interacts with Victorian EO legislation

by Dr Graham Smith, Leigh Howard

Employers should continue to exercise caution when seeking to rely on a statutory exemption under the Equal Opportunity Act 1995 (Vic).

In Cobaw Community Health Services v Christian Youth Camps Ltd [2010] VCAT 1613, an organisation called WayOut that conducts suicide prevention projects for same sex attracted youths telephoned Christian Youth Camps Ltd (CYC) to inquire into the hiring of camp grounds for a weekend retreat program. CYC refused to make the booking because of the sexual orientation of the retreat attendees.

In finding that CYC directly discriminated against the attendees, Vice President Judge Hampel of the Victorian Civil and Administrative Tribunal (VCAT) awarded $5,000 in damages and issued a declaration that they had been discriminated against.

Why this case is important

In Victoria, the Equal Opportunity Act 1995 (EO Act) includes exclusions in relation to conduct by a religious body, religious school or conduct necessary to carry out a religious belief.

In Cobaw, CYC contended its conduct (in refusing to provide their camping grounds to WayOut) was exempt under the EO Act and in doing so sought to rely on the exemptions relating to religious beliefs and religious bodies (sections 75 and 77 of the EO Act).

Specifically, CYC argued:

  • its refusal to provide its camping ground was in pursuit of a religious belief; and
  • it was necessary to deny the use of the camping ground to comply with this religious belief.

WayOut argued that it was an unnecessary act of discrimination that bore no nexus to religious beliefs.

Importantly, WayOut contended that interpretative provisions in the Victorian Charter of Human Rights and Responsibilities Act 2006 required VCAT to construe the exemptions narrowly and in conformance with the right to equality before the law.

The Charter is a statute designed to protect and promote the human rights of Victorians. It seeks to do this in a number of ways.

Relevantly, section 32 requires of courts and tribunals, that "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".

The right to equality before the law, one of the 20 listed rights, declares that every person:

  • has the right to enjoy his or her human rights without discrimination; and
  • 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 without discrimination.

CYC countered the argument put forward by WayOut by arguing that its right to freedom of religion (also a Charter right) required VCAT to interpret the exemption as broadly as needed in order to protect its right to practise its religion.

However, Vice President Hampel held that CYC's right to freedom of religion was not more or less important than the attendees' right to equality. Instead, she considered the interpretation had to be done "in a way which [did] not privilege one right over another, but recognise[d] their co-existence".

Ultimately, Vice President Hampel concluded that a Charter-compliant interpretation favoured a narrow, and not a broad, interpretation of the exemptions relied on by CYC.

Specifically, in applying section 32 of the Charter, Vice President Hampel assessed the purposes of the EO Act, which include:

  • the promotion, recognition and acceptance of everyone's right to equality or opportunity; and
  • the elimination, as far as possible, of discrimination against people.

Crucially, the purposes of the EO Act make no reference to the exclusion of certain types of discriminatory activity. She decided that exemptions must therefore be narrowly construed to be Charter-compliant.

Consequently, CYC was not able to rely on the exemption, and WayOut obtained damages and a declaration that CYC had discriminated against the attendees.


It is important to note that the decision of Judge Hampel in Cobaw has been appealed to the Victorian Court of Appeal and a decision is pending. However, if the Vice President's reasoning stands it will likely change how statutory exemptions are viewed and applied in Victoria and also more broadly how the Charter might be applied in claims made generally under the EO Act.

Specifically, given the outcome in Cobaw, employers and other entities who seek to rely on statutory exemptions found in the EO Act must carefully consider whether their conduct is in fact exempt, given the application of the Charter.

It is also important to note that the decision in Cobaw is likely to be considered as part of a Parliamentary inquiry into the operations of the Charter in its first four years of operation.

On 19 April 2011, the Victorian Attorney-General announced the inquiry to be conducted by the Scrutiny of Acts and Regulations Committee, which must report back on its findings by no later than 1 October 2011.

The findings of the Committee may impact on what future direction the current Victorian government takes in respect of the ongoing application of the Charter.

In his press release announcing the inquiry the Attorney-General said that the Charter "has been controversial since the day it was introduced into Parliament", with supporters saying it "enhances and protects human rights" and critics saying it "delivers vague and open-ended powers into the hands of judges, undermines Parliamentary democracy, is costly and bureaucratic and fails to deliver effective remedies for citizens".

Pending the appeal in Cobaw and the outcome of the Parliamentary inquiry, employers should continue to exercise caution when seeking to rely on a statutory exemption under the EO Act – especially if they find themselves acting under the mistaken premise that an exemption applies.


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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.