Dixon v Anti-Discrimination Commissioner of Queensland [2004] QSC 58 [2005] 1 Qd R 33

SUPREME COURT OF QUEENSLAND CITATION: Dixon v Anti-Discrimination Commissioner of Queensland [2004] QSC 058 PARTIES: SHARON LESLEY DIXON (applicant) v THE ANTI-DISCRIMINATION COMMISSIONER OF QUEENSLAND (respondent) FILE NO: BS447 of 2004 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court, Brisbane DELIVERED ON: 18 March 2004 DELIVERED AT: Brisbane HEARING DATE: 1 March 2004 JUDGE: Douglas J ORDER: SET ASIDE THE RESPONDENT’S DECISION OF 18 DECEMBER 2003 AND REFER THE MATTER BACK TO HER FOR FURTHER CONSIDERATION. CATCHWORDS: DISCRIMINATION LAW - STATE PROVISIONS - ANTI- DISCRIMINATION ACT 1991 (QLD) - Discrimination on the basis of ‘religion’ - Where discrimination on the basis of ‘religion’ includes discrimination on the basis of absence of religious belief - Anti-Discrimination Act 1991 ss 7(1)(i), 15(1)(a) STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF STATUTES - Retrospective operation - Declaratory and validating Acts – Act passed to explain former Act – Ambiguity in the former Act may be clarified by the amending Act Anti-Discrimination Act 1991 (Qld) s. 7(1)(i) and 15(1)(a) Church of the New Faith v Commissioner of Payroll Tax (Vic) (1983) 154 CLR 120; JM v QFG [2000]1 QdR 373, considered Harding v Commissioner of Stamps (Qld) [1898] AC 769; Re Gardiner [1938] SASR 6, referred to Commissioner of Taxation v Energy Resources of Australia Ltd (2003) ATC 5179, applied -- 1 of 8 -- 2 Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1997) 152 ALR 182; R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, cited Re Michael; ex parte EPIC Energy (WA) Nominees Pty Ltd [2002] WASCA 231; Southern Cross Pipelines Australia Pty Ltd v Michael, Western Australian Independent Gas Pipelines Excess Regulator [2002] WASC 316; and Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No. 3) (1987) 77 ALR 609, applied COUNSEL: DP O’Gorman for the applicant G Kahlert (solicitor) for the respondent SOLICITORS: Gilshenan & Luton for the applicant Grace Kahlert for the respondent [1] DOUGLAS J: The applicant, Mrs Dixon, was employed in about April 2000 by the Burpengary Baptist Community Church (“the Church”) for the Burpengary Family Support Service (“BFSS”). The BFSS was a community organisation under the auspices of the Baptist Union of Queensland but not invoking the ministry of the Church as such. It was not exempt from the provisions of the Anti-Discrimination Act 1991 (“the Act”). It was funded by the Department of Families, Youth & Community Care (“the Department”) under child and family protection government funding arrangements. [2] Mrs Dixon’s position was one described as “locum coordinator”. The previous coordinator had been on extended leave. Mrs Dixon had attended services at the Church since 1999 but it was not a condition of her employment when she commenced working that she be a member of the Church. She was a Christian but did not identify herself as a Baptist. BFSS, which she managed, was a family support service which required her to counsel people with problems including self mutilation, anorexia nervosa, sexual abuse, drug abuse and suicidal ideation. It provided the only such service in the Burpengary area and had a high demand for the counselling services which she provided with the assistance of other staff and volunteers whom she managed and supervised. [3] In late 2001 Mrs Dixon was informed that the BFFS leadership team, including Mr Keith Buxton, the senior pastor of the Church and the chairperson of the BFSS consultative committee, wished to adopt a new vision for the organisation. She was concerned that this “vision” fell outside the terms of BFSS’s funding agreement and service plan with the Department. At about that time she decided to stop attending the Church “to maintain professional separation” and because of her personal loss of belief in its pastoral direction. [4] In March 2002 she was presented with a new employment contract, the previous contract having expired in December 2000. The position description included selection criteria which required: “‘Christian commitment demonstrated by active involvement in the life and worship of Burpengary Baptist Community Church”, and -- 2 of 8 -- 3 Knowledge of, and the ability to apply, a holistic Christian approach to caring for individuals within the philosophy and framework, and consistent with the vision, of the Burpengary Baptist Community Church.’.” [5] She was also required to: “‘Provide Christian leadership for the BFSS by – (a) fostering and developing a workplace that reflects Christian values of life, caring, teamwork and service; (b) integrating BFSS activities with other community outreach ministries of the Burpengary Baptist Community Church; (c) reaching out to people in Christian love and encouraging them to become devoted followers of Jesus.’ [6] Mrs Dixon was further required to be in possession of appropriate tertiary and professional qualifications, including completion (or working towards completion) of relevant Christian counselling qualifications. [7] Paragraph 21 of her solicitor’s letter of 19 August 2002 directed to the Anti- Discrimination Commission said: “Mrs Dixon protested the terms of her new contract as not only being discriminatory but also significantly different from the terms of her previous contract in that they required her to be directly accountable to the Senior Pastor of the Church, to be subject to performance review by the Church, the absolute discretion of the Church in terms of the granting of study leave and to termination of employment by the Church on the terms as set out in Clause 10 of the new contract. Mr Keith Buxton was aware that these terms were clearly outside the Department’s funding/service guidelines which specifically related to Mrs Dixon in her role as Co-Ordinator of the BFSS;” [8] In about late March 2002 Mrs Dixon went on sick leave on medical advice. In late May 2002 her employment with the BFSS was terminated. The Department had intimated that it would cease funding the counselling arm of BFSS, something she had feared since the implementation of the “new vision” outside the Department’s guidelines. She had expressed those fears to Mr Buxton but to no effect. With the funding ceasing, her position was made redundant. [9] She made a complaint to the Anti-Discrimination Commission of discrimination in that the offer of a new employment contract to her in the form referred to above was in contravention of s. 7(1)(i) of the Act and directly discriminated against her in the work place within the meaning of s. 15(1)(a). [10] Her solicitors’ letter of 16 April 2003 summarised her contentions as follows: -- 3 of 8 -- 4 “The contract discriminates (with reference to s. 7(1)(i) of the Anti- discrimination Act 1991) on the basis of “religion”. It does this in two ways. Firstly, it requires Mrs Dixon to not only attend services at the Church but also, by reasonable inference, to hold Christian religious belief in accordance with the tenets of the Baptist religion and therefore discriminates against her on the basis that she is not of that religion. Secondly, it requires her to participate by way of active involvement in the life and worship of the Church and therefore the Baptist religion and prevents her continued employment with the BFSS if she is not involved in the Church’s activities or does not have a personal affiliation with the Baptist religion and the Church.” [11] The Anti-Discrimination Commissioner in her letter of 18 December 2003 rejected the complaint on the basis that Mrs Dixon had not been discriminated against on the basis of her religion but rather because of an “absence of Baptist religion and/or her non-participation in Baptist religious activities”. The Commissioner asserted that the ordinary meaning of “religion” does not include an absence of religion, in reliance on Church of the New Faith v Commissioner of Payroll Tax (Vic) (1983) 154 CLR 120 and drew comfort from the decision of the Court of Appeal in JM v QFG [2000]1 QdR 373 where Pincus JA at 392 and Thomas JA at 396 took the view that discrimination on the basis of an attribute, the absence of heterosexual activity or sexual inactivity, was not discrimination on the basis of lawful sexual activity. [12] The Commissioner also drew attention to amendments to the Act commencing 31 March 2003 that replace the attribute of “religion” in s. 7(1) with “religious belief or religious activity” which is now defined to include “not holding a religious belief” and “not engaging in a lawful religious activity” to buttress a view that the Act in its previous form did not apply to allegations of discrimination on the basis of absence of religion or non-participation in religious activities. [13] The applicant attacks both bases of her reasons. The reliance on JM v QFG is said to be misconceived because of the differences in the relevant attribute between “religion” and “lawful sexual activity”, with an emphasis on the use of the word “activity”, making it more logical to conclude that discrimination in respect of such an attribute does not apply to inactivity. As Pincus JA said at 391-392: “The problem is whether discrimination on the basis of absence of a certain sort of sexual activity can be held to be discrimination on the basis of sexual activity. Ordinarily, one would treat the word “activity” as describing a doing of something, not the condition of remaining (sic) from doing it: cf. the discussion of whether inactivity may be regarded as “conduct” in Re Dernacourt Investments Pty Ltd; Baker Davis Supply Co. Pty Ltd v. Dernacourt Investments Pty Ltd (1990) 20 N.S.W.L.R. 588 at 615. The question has importance beyond the present case; for example, it may be argued that “trade union activity”, being the immediately preceding category in s. 7(1), can include inactivity, such as failure to join a union or failure to take part in its affairs. One approaches any suggestion that provisions of the Act should be given an expansive interpretation, attributing to terms in it a wide -- 4 of 8 -- 5 meaning, against the background that it should have been evident to those who drew the statute that not engaging in an activity was a possible ground of discrimination. In Victoria the Equal Opportunity Act 1995 defines “lawful sexual activity” as “engaging in, not engaging in or refusing to engage in a lawful sexual activity”. It is also relevant that the Act gives an administrative tribunal, subject only to a limited right of appeal, power to make orders of a very drastic kind, including orders to pay sums of money without limit (s. 209(1)(b), (c)), on the basis of its conclusions on such broad issues as the reasonableness in “all the relevant circumstances” of certain acts of discrimination: see s. 11(2) of the Act. It appears that the proper course is to give the word “activity” its ordinary meaning – of doing something rather than nothing – instead of an extended one; I would exclude from the expression “lawful sexual activity” in s.7(1) the condition of not engaging in a particular sort of sexual activity.” [14] Similarly Thomas J said at 396: “With some slight hesitation, I am of the view that in s. 7, “sexual activity” does not include sexual inactivity. For example, the practice of chastity would not ordinarily be regarded as a form of sexual activity. To the contrary, it is abstinence from sexual activity. In the context of such a person approaching a doctor for artificial insemination services, I would find it difficult to be critical of a doctor who says “Why do you need me? You have not tried to have a baby. You do not demonstrate any need for this special service. You are not ill or disabled and I have no reason to think you infertile. I am not going to provide these special services to you.” This consideration bears both upon the question of reasonableness (soon to be mentioned under ‘Indirect Discrimination’) and as an example, which I think tends to support the view that sexual activity does not include sexual inactivity.” [15] Mr O’Gorman for the applicant also argued that the amendments commencing on 1 April 2003 were designed explicitly to clarify the issue that the “existing ground ‘religion’ includes protection for ‘holding or not holding a religious belief’ and ‘engaging in, not engaging in or refusing to engage in a lawful religious activity” to ensure protection for people with no religious belief, such as atheists; …” [16] That passage is extracted from the explanatory notes to the Discrimination Law Amendment Bill 2002 and Mr O’Gorman’s submission was that an Act that clarifies or interprets the meaning of an earlier Act is regarded as if it came into operation on the date on which the original Act came into operation, and that such an Act is an exception to the general presumption against the retrospective operation of statutes, referring to Harding v Commissioner of Stamps (Qld) [1898] AC 769 and Re Gardiner [1938] SASR 6. [17] The Discrimination Law Amendment Act 2002 was not, in its terms, declaratory of the meaning of the word “religion” but it is appropriate these days for me to take account of the explanatory notes to conclude that the Bill was meant to clarify rather than change the meaning of the word “religion”; see also the discussion in Pearce and Geddes, Statutory Interpretation in Australia (5th ed, 2001) at [10.12]. -- 5 of 8 -- 6 [18] Mr O’Gorman also submitted that the Act, before it was amended, was ambiguous as to whether discrimination in respect of the attribute of religion covered discrimination because of an absence of religious belief. For that reason he submitted that the amendments were legitimate aids to the construction of the Act in his client’s favour. In particular he drew my attention to a decision of the Full Court of the Federal Court in Commissioner of Taxation v Energy Resources of Australia Ltd (2003) ATC 5179 where Ryan and Finkelstein JJ said at [18] – [19] – “18. On the view of s.29 most favourable to the Commissioner, the section is at least ambiguous. Having given the matter close consideration we are not satisfied that the Board’s decisions are plainly erroneous. Moreover, it would clearly be unacceptable to deny to this taxpayer the construction accepted by the Board where other taxpayers for the last fifty years have had to advantage or disadvantage (as the case may be) of this construction. 19. We also take it to be settled law that in construing a provision in a statue it is legitimate to have regard to any subsequent amendments, provided the provision under consideration is ambiguous. In Attorney-General v Clarkson [1900] 1 QB 156, 165 Sir Francis Jeune P said: ‘But, having regard to that Act, it seems to me that it is impossible for us to take any other view of the construction of s.5 than that which, in my opinion, the Legislature have imposed upon us. Our duty is to interpret the meaning of the Legislature, and if the Legislature in one Act have used language which is admittedly ambiguous, and in a subsequent Act have used language which proceeds upon the hypothesis that a particular interpretation is to be placed upon the earlier Act, I think the judges have no choice but to read the two Acts together, and to say that the Legislature have acted as their own interpreters of the earlier Act.’ In Cape Brandy Syndicate v. Inland Revenue Commission [1921] 2 KB 403, 414 Lord Sterndale said: ‘I think it is clearly established in Attorney-General v. Clarkson… that subsequent legislation on the same subject may be looked to in order to see what is the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation, if it proceed upon an erroneous construction of previous legislation, cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier.’ See also Deputy Federal Commissioner of Taxes (South Australia) v. Elders’ Trustee and Executor Company Ltd (1936) 57 CLR 610; -- 6 of 8 -- 7 Grain Elevators Board (Victoria) v. Dunmunkle Corporation (1946) 73 CLR 70.” [19] In the absence of any judicial decision confining the meaning of the attribute of religion by excluding discrimination on the basis of absence of religious belief these arguments are persuasive. Church of the New Faith v Commissioner of Payroll Tax (Vic) is not such an authority. It describes the legal criteria necessary to determine whether a particular system of ideas and practices constitutes a religion. Those criteria do not include absence of religion but the question whether there has been discrimination against an atheist, for example, on the basis of religion is not, in my view, answered simply by the assertion that the attribute of religion does not include an absence of religion. What one must focus on principally is whether there has been discrimination either direct or indirect on the basis of that attribute. [20] Although the Court in JM v QFG rejected an interpretation of “lawful sexual activity” as extending to inactivity partly because of the use of the word “activity”, Pincus JA recognised that it was possible to argue that, for example, “trade union activity” could include inactivity such as failure to join a union or failure to take part in its affairs and Thomas JA reached his conclusion at 396 with some slight hesitation. In that context it is not necessarily irrational to consider discrimination against an atheist in particular circumstances as discrimination on the basis of religion, defined as lack of religion. [21] More to the point in this situation, it seems to me that discrimination on the basis of the lack of a particular form of religious belief does amount to discrimination on the basis of religion. To say that someone is ineligible for a position not covered by the exemptions in s. 29 of the Act because she is not, for example, a worshipper in a Baptist church, is equivalent to saying only Baptists need apply for the position. If the person is not a Baptist because, as in this case, she was baptised as an Anglican and had attended services at a number of other churches but had not identified herself as a Baptist, then, to require her to participate actively in the services of the Baptist church as a condition of her employment, discriminates against her as a Christian who is not a Baptist. [22] It seems to me, therefore, to be strongly arguable that discrimination on the basis of “religion” in the earlier form of the Act carried with it the likely further meaning of discrimination on the basis of the absence of a particular form of religious belief. If this approach is not a complete answer to the stance taken by the respondent it at least illustrates a potential ambiguity in the Act capable of being clarified by the amending Act. The amending Act may also be taken to be an attempt to clarify the intended meaning by Parliament for the reasons expressed in the Explanatory Notes to the Bill. Accordingly I believe that it is appropriate for me to set aside the Commissioner’s decision of 18 December 2003. [23] At the hearing before me the Commissioner made no submissions on the merits of the argument taking the view that she should submit to such order as the Court may make because of the High Court’s views expressed in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 35-36 that the usual course is for a Tribunal to submit to such order as the Court may make and drawing attention to the risks associated with a Tribunal becoming a protagonist and endangering its impartiality. See also Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1997) 152 ALR 182, 195. -- 7 of 8 -- 8 [24] The Church was notified of this application but not served as the Commissioner had not decided to accept the complaint and the applicant was faced with the possibility of having to pay the Church’s costs when it may not have been a necessary party to the proceedings. The Church did not seek to intervene in the application. [25] In my view, the Commissioner has taken the appropriate course on an issue which was not clearly settled against the stance she adopted. She should not, therefore, be visited with the applicant’s costs; see Re Michael; ex parte EPIC Energy (WA) Nominees Pty Ltd [2002] WASCA 231 at [18], [21]; Southern Cross Pipelines Australia Pty Ltd v Michael, Western Australian Independent Gas Pipelines Excess Regulator [2002] WASC 316 at [11] and Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No. 3) (1987) 77 ALR 609, 612. [26] It was argued that she could have taken independent advice, perhaps from a member of the Anti-Discrimination Tribunal. That may have been an appropriate course but would not necessarily have advanced the case to the point where she must have accepted the complaint. In the circumstances I shall set aside her decision of 18 December 2003 and refer the matter back to her for further consideration but make no order as to costs. -- 8 of 8 --