Jonathon Samuel Leitch v Christian Outreach Centre & Brian Francis Mulheran
[2024] QCAT 90
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- Unreported Judgment
- Jonathon Samuel Leitch v Christian Outreach Centre & Brian Francis Mulheran[2024] QCAT 90
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Jonathon Samuel Leitch v Christian Outreach Centre & Brian Francis Mulheran[2024] QCAT 90
Jonathon Samuel Leitch v Christian Outreach Centre & Brian Francis Mulheran[2024] QCAT 90
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Jonathon Samuel Leitch v Christian Outreach Centre & Brian Francis Mulheran [2024] QCAT 90 |
PARTIES: | Jonathon Samuel Leitch (applicant) v Christian Outreach Centre (first respondent) BRIAN FRANCIS MULHERAN (second respondent) |
APPLICATION NO/S: | ADL050-23 |
MATTER TYPE: | Anti-discrimination matters |
DELIVERED ON: | 27 February 2024 |
HEARING DATE: | 27 February 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Fitzpatrick |
ORDERS: | The application is dismissed. |
CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION DUE TO POLITICAL OR RELIGIOUS BELIEFS – where the respondent filed an application to summarily dismiss/strike out – where respondent is a school run by a religious organisation – where applicant alleges religious, sexuality and association discrimination – whether the proceedings are vexatious, frivolous or misconceived, lacking in substance or an abuse of process Anti-Discrimination Act 1991 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 State Electricity Commission of Victoria v Rabel and Others [1998] 1 VR 102 Forrester v AIMS Corporation [2004] VSC 506 Gauci v Kennedy [2005] FMCA 1505 Rama v University of South Australia [2004] 136 FCR 344 Beck v Kerry M Ryan Pty Ltd [2019] QCAT 38 Broadbent v Medical Board of Australia [2022] QCA 46 Elderslie Property Investments No 2 Pty Ltd v Dunn & Anor [2007] QSC 192 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
Application to dismiss or strike out
- [1]The respondents Christian Outreach Centre and Brian Mulheran have applied to dismiss or strike out the proceeding under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)[1] on the basis that it is vexatious, misconceived, lacking in substance and otherwise an abuse of process because the proceedings are predicated upon the applicant, Mr Leitch’s objection to an amended enrolment contract, which, it is alleged, did nothing other than recite certain biblical statements with which the applicant had already agreed by allowing his child to remain enrolled at the first respondent’s College throughout the 2021 academic year.
Prohibited discrimination
- [2]The Anti-Discrimination Act 1991 (Qld) (‘AD Act’) prohibits discrimination against a person, which may be direct or indirect, on the ground of certain attributes, in certain areas of activity. In this case the areas of activity are the provision of education and in the provision of goods and services.
Background
- [3]In summary the following factual matters are raised by the parties. A number of matters are in contention.
- In November 2020 the International Network of Churches of which the first respondent is a member, revised its “declaration of faith” to include statements with respect to gender identity and sexuality. The respondents say that they advised parents of students at the school that they should ensure they had reviewed the latest version of the declaration of faith. This is a matter in contention and the subject of a request for disclosure of documents.
- The declaration of faith was promulgated and implemented by the first respondent for the 2021 academic year. There is currently no evidence as to the nature and scope of that promulgation and implementation, insofar as it related to gender identity and sexuality.
- The new section in the declaration of faith - “Family, Marriage, Sexuality and Gender” sets out a belief that sexual activity should only occur between a man and woman within marriage and goes on to provide that:
We believe that any form of sexual immorality (including but not limited to: adultery, fornication, homosexual acts, bisexual acts, bestiality, incest, paedophilia, and pornography) is sinful and offensive to God and is destructive to human relationships and society.
We believe that God created human beings as male or female…and does not make a distinction between male or female…Living in this fullness includes identifying with the gender that God bestowed upon each person in all aspects of their life.
- On 28 January 2022, parents were emailed a link to a new form of enrolment contract to be signed by 8am on 7 February 2022 for the commencement of the 2022 academic year.
- The contract contained what are said to be different clauses to previous contracts signed by parents.
- Key clauses are:
25.In accordance with the Declaration of Faith the college believes that:
- a.God created human beings as biological males (boys) or biological females (girls) (Matthew 19.4; Mark 10.6)
- b.These two distinct and complementary genders (biological sexes), together reflect the image and nature of God;
- c.The Bible ties gender identity to biological sex (Genesis 1;27; Genesis 2:22:24) and does not make a distinction between gender and biological sex.
Accordingly, the College believes that by creating each person, God in His divine love and wisdom, gifted them their gender, as male and female. The College therefore acknowledges the biological sex of a person as recognised at birth and requires practices consistent with that sex. Whilst each Student is individually valued and equally encouraged to pursue opportunities in both academic and co-curricular activities, I/we agree that, where distinctions are made between male and female (inclusive of, but not limited to, for example, uniforms, presentation, terminology, use of facilities and amenities, participation in sporting events and accommodation) such distinctions will be applied on the basis of the individual’s biological sex.
- 26.The Parents acknowledge and accept that, should I/we not share the College’s commitment to fostering these fundamental doctrinal precepts, this will constitute a serious departure from the religious precepts upon which Citipointe Christian College is based and will afford Citipointe Christian College the right to exclude a student from the College who no longer adheres to the College’s doctrinal precepts including those as to biological sex, which constitute an important tenet of the College’s Christian religion.
- 27.To this end, the Parents acknowledge and accept that, in seeking a Christian education for the Student, they will support Citipointe Christian College in its teachings and in its expectation that the Student will grow in faith in Christ Jesus, and that, should the Parents and/or Student no longer support those precepts, or reject those precepts by actions or words, this will afford the College the right to terminate this contract, in accordance with clause 122.
- The declaration of faith is appended to the contract.
- The contract was withdrawn within a period of 5 days.
The Complaint
- [4]Mr Leitch is the father of three children who have been enrolled at Citipointe Christian College, Carindale. As a parent, he has entered into contracts with the College to secure the enrolment of his children on agreed terms and conditions. Mr Leitch makes the complaint on his own behalf.
- [5]At the time of the matters complained about, one of Mr Leitch’s children remained at school and was about to enter Year 12. One of his children, a daughter no longer at school, identifies as bisexual.
- [6]Mr Leitch asserts that as a practising Christian and/or within his own beliefs, and because of his association with his bisexual daughter, he does not hold the religious belief as to gender identity and sexuality he was expressly required to accept in the College’s contract for the 2022 academic year.
- [7]Mr Leitch says that his relevant protected attributes are:
- [8]Mr Leitch says with reference to s 8 of the AD Act that the relevant characteristics of the attributes are that as a practising Christian, and/or in himself, he does not hold the religious belief as to gender identity and sexuality required by the respondents; and that his bi-sexual daughter does not hold the same religious beliefs as the respondents required in the contract.
- [9]As I understand his case, Mr Leitch says that within the terms of s 10 of the AD Act direct discrimination has occurred on the basis of his religious beliefs and association with a bisexual child because:
- he was treated, or it was proposed to treat him,
- less favourably in the terms on which enrolment of his son at the College was granted,
- than another person enrolling their child, who did not have his religious beliefs and association with a bisexual child.
- [10]Within the terms of s 11 of the AD Act with respect to indirect discrimination, Mr Leitch says that indirect discrimination has happened on the basis of his religious beliefs and association with his bisexual child, because:
- the respondents imposed or proposed to impose a term, as to acknowledgement of a belief in relation to gender identity and sexuality expressed in the contract;
- with which he could not comply; and
- a higher proportion of people without his religious beliefs and association with his bisexual daughter are able to comply; and
- that was not reasonable.
- [11]Within the terms of s 11(2) of the AD Act Mr Leitch’s contention is that the term was not reasonable, including for the reason that a consequence of non-compliance with the term was exclusion of his son from the College at a critical time in his education.
- [12]Section 39 of the AD Act provides that an educational authority must not discriminate, relevantly, in any variation of the terms of a student’s enrolment or by treating a student unfavourably in any way in connection with the student’s training or instruction.
- [13]Section 46 of the AD Act provides that a person who supplies goods or services must not discriminate against another person, relevantly by failing to supply the goods or services, in the terms on which goods or services are supplied, in the way in which goods or services are supplied or by treating the other person unfavourably in any way in connection with the supply of goods and services.
The respondents’ position
- [14]The respondents submit that the declaration of faith was agreed to by Mr Leitch because his son remained at the School throughout 2021 when the matters were promulgated and implemented as part of the teaching of the school. On this basis it is said that there was no variation in the enrolment contract issued in 2022.
- [15]Similarly, it is submitted that Mr Leitch’s son remained at the school throughout 2022, so that there was no failure to provide any service.
- [16]The respondents say that the proposition the Tribunal is asked to decide, whether the applicant has been discriminated against because he has now expressed an opinion antithetical to the first respondent’s declaration of faith, to which he had previously subscribed, is an irrefutable example of the applicant vexatiously agitating a complaint lacking in any factual substance.
- [17]By reference to the respondents’ response to Mr Leitch’s statement of contentions I note that it is said the asserted attributes are not protected attributes, but merely opinions and that any consideration by the Tribunal as to whether a supporter of the LGBTQIA+ cause might claim to have been discriminated against because of his objection to traditional statements of Christian belief is not justified by the AD Act and is not a proper complaint to be considered by the Tribunal.
- [18]The respondents deny that Mr Leitch was treated differently to any other parent, who all received the same contract, and the majority of parents had no difficulty with accepting what the respondents say is traditional expressions of theology contained in the amended contract. As to indirect discrimination the respondents say that the term sought to be imposed in the amended contract was reasonable and appropriate given that it did nothing other than repeat matters of traditional theology, already committed to in the first respondent’s declaration of faith which was in place and with which Mr Leitch had agreed throughout the 2021 academic year.
- [19]The respondents do not expressly raise the exemption in s 41 of the AD Act that an educational authority that operates wholly or mainly for students of a particular religion may exclude applicants who are not of the particular religion. It is raised in the response that they are entitled to deliver a faith-based education to persons who seek such an education.
Consideration
- [20]The AD Act is beneficial legislation. Claims of contravention of the Act should not be dismissed without it being very clear that the claims are absolutely hopeless or so clearly untenable that they cannot succeed.[4]
- [21]The application has been made at an early interlocutory stage before all the evidence on which the parties intend to rely is before the Tribunal. One cannot make an assessment that the matter is without prospects until all the evidence is before the Tribunal and at that point the matter should be finally heard and determined. Furthermore, in a case of this type, much probative evidence frequently arises upon cross-examination of a respondent’s witnesses.
- [22]The approach to an application to dismiss a Complaint before the Tribunal under s 47 is not to weigh up such evidence as may be before the Tribunal at an interlocutory stage but rather to consider whether the respondent has shown that the Complaint is absolutely hopeless.[5]
- [23]The respondents’ main objection to the Complaint is that Mr Leitch is said to now express an opinion antithetical to the first respondent’s declaration of faith, to which he had previously subscribed. The respondents submit that is an example of Mr Leitch agitating a Complaint with no factual substance.
- [24]With respect that conclusion is not self-evident.
- [25]Relevant to the respondents’ defence of the claim will be evidence as to circulation of the new declaration of faith, the basis on which it can be said Mr Leitch agreed to all its precepts, whether remaining at the College after publication of the new declaration of faith amounts to acceptance of all its precepts and how those matters relate to the terms of the new contract of enrolment.
- [26]It also occurs to me that in relation to the reasonableness of the term expressed in the contract of enrolment, there may well be competing evidence as to what amounts to “traditional statements of Christian belief” on how children experiencing their emerging identity and sexuality may be characterised and treated.
- [27]As to the fact that the amended contract was withdrawn after five days, I do not think that alters the existence of a claim, given that prospective conduct is caught by the definitions of direct and indirect discrimination. The effect may be to merely limit any remedy available to Mr Leitch.
- [28]Mr Leitch submits that the submissions of the respondents raise questions of fact which need to be resolved by the Tribunal after hearing the evidence and that questions of law need to be determined as to the meaning of a religious belief and whether absence of a religious belief is a protected attribute under the AD Act. I accept that submission.
- [29]The Complaint and Statement of Contentions articulate at least a rational cause of action.[6] I am unable to find on any basis put by the respondent that the case is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process.
- [30]I have noted the cases referred to me by the respondents.[7] The cases do not relate to summary dismissal of an anti-discrimination claim so are of limited relevance, but they are not at odds with the general principles addressed by me.
Order
- [31]The application is dismissed.
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47 (‘QCAT Act’).
[2]Anti-Discrimination Act 1991 (Qld) s 7(i) ('AD Act’).
[3]Ibid ss 7(p), (n), (i).
[4]Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 130.
[5]State Electricity Commission of Victoria v Rabel and Others [1998] 1 VR 102, 109-110; Forrester v AIMS Corporation [2004] VSC 506.
[6]Gauci v Kennedy [2005] FMCA 1505; Rama v University of South Australia [2004] 136 FCR 344, 354-355.
[7]Beck v Kerry M Ryan Pty Ltd [2019] QCAT 38; Broadbent v Medical Board of Australia [2022] QCA 46; Elderslie Property Investments No 2 Pty Ltd v Dunn & Anor [2007] QSC 192.