FEDERAL COURT OF AUSTRALIA

Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    On or before 4:30 pm on 31 March 2014, the parties file a minute of order as to costs (if agreed) or brief written submissions in respect of costs (if not agreed), failing which the appellants pay the respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY J:

INTRODUCTION

1    This is an appeal from the Federal Magistrates Court (as it was called at the time of the judgments under appeal). The appeal is from two judgments in two proceedings (BRG 17 of 2009 and BRG 19 of 2009) in which the learned Federal Magistrate dismissed two applications. For present purposes, the applications were relevantly the same. Each application was brought by numerous applicants against the Church of Jesus Christ of Latter-day Saints Australia (“the Church”). The applications, which were made in the Federal Magistrates Court under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), alleged unlawful discrimination by the Church against the applicants as members of the Church. The two applications were apparently heard together at first instance. The Federal Magistrate delivered the one set of reasons for judgment for both proceedings.

2    The undisputed circumstances in which the appeal was brought can be briefly stated. The Church is an association established to further various charitable purposes, including religious, educational and humanitarian purposes. Church congregations are allocated to congregational units known by the Church as “wards” and “stakes”. A stake is normally a geographical area constituted by five to twelve smaller areas called wards. In Queensland, prior to August 2007, the Church operated Samoan-speaking, non-native language wards at Kingston, Woodridge and Moreton; and, prior to April 2008, at Ipswich and Goodna (“the Samoan-speaking wards”). The appellants were members of the Samoan-speaking wards.

3    In 2007 and 2008, the Church discontinued the Samoan-speaking wards. Until these wards were discontinued, the appellants were able to worship publicly as a group in their native Samoan language at services conducted by the Church in the Samoan-speaking wards. Following the discontinuance of the wards, the Church announced that the appellants were no longer allowed to use any language other than English in public worship and, in consequence, the appellants could no longer use the Samoan language publicly to pray, sing or testify in services of public worship conducted by the Church.

4    The appellants commenced proceedings in the Federal Magistrates Court (as it then was) claiming that the Church had, in making the decisions to discontinue the Samoan-speaking wards and to conduct services exclusively in the English language, done an act that was unlawful pursuant to s 9 of the Racial Discrimination Act 1975 (Cth) (“the Racial Discrimination Act”).

5    Both applications were heard by the Federal Magistrate on 27, 28 and 29 January 2010 and on 17 and 18 March 2010. Judgments were delivered on 30 November 2012, some 2 years and 8 months after the hearing, dismissing the appellants’ applications.

6    As indicated above, this is an appeal from these judgments.

FEDERAL MAGISTRATE’S decision

7    Both parties accepted the Federal Magistrate’s description of the applicants’ claims, which was set out at paragraphs 5 and 6 of his Honour’s reasons. Paragraphs 5 and 6 read as follows:

5.    The applicants in both proceedings to which these reasons relate claim that the respondent unlawfully discriminated against them in contravention of s 9(1) and s 9(1A) of the Act when it made a decision to disband the Samoan speaking wards previously conducted by the respondent at Kingston and Woodridge in Queensland (BRG 017/09), and Ipswich and Goodna (BRG 019/09). The applicants claim that the decision in each case was direct discrimination in contravention of s 9(1) of the Act in that the decision:

(a)    involved an exclusion of, or restriction upon, the applicants’ access to public worship and other services in their native Samoan language;

(b)    was based on race or national ethnic origin, in that it was made by reference to nationality. It involved the removal of designated language units involving non-English speaking nationalities and required that public worship as a group in the Church be in the English language;

(c)    had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of the applicants’ human rights or fundamental freedoms, namely:

(i)    the right to freedom of thought, conscience or religion as conferred by article 5(d)(vii) of the International Convention on the Elimination of All Forms of Racial Discrimination;

(ii)    the right to nationality as conferred by article 5(d)(iii) of the Convention;

(iii)    the right to freedom of expression and opinion as conferred by article 5(d)(vii) of the Convention; and

(iv)    the right to freedom of assembly as conferred by article 5(d)(ix) of the Convention.

6.    Alternatively, the applicants claim that the decision in each case was indirect discrimination in contravention of s 9(1A) of the Act because the decision required the applicants to comply with a term, condition or requirement, namely to worship as a group in English rather than their Samoan language, a requirement with which many of the applicants could not comply. It is argued that it was a requirement that had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of the rights referred to above.

    (Emphasis added)

8    The Federal Magistrate made various findings under the heading “Some Facts”. Chief among these findings were the following:

15.    The respondent:

…

d)    supports the Church in fulfilling its purposes in a wide variety of ways including, inter alia, providing an annual plan which decides the optimal use of the buildings used by Church congregations in various geographical locations for worship purposes (commonly referred to as “churches” or “meeting houses”) and includes:

(i)    the number of members attending each congregational unit (referred to as “wards” and “stakes”);

(ii)    the proximity of the members to their assigned meeting houses;

(iii)    the number of units utilizing [sic] each meeting house;

(iv)    potential growth patterns of the Church in each ward and stake geographical area based on historical data;

(v)    projected membership numbers and location; and

(vi)    the planning of need and location of future meeting houses.

(e)    provides data such as maps and population figures.

16.    A stake president presides over, and directs the work of, the Church in a stake, while a bishop has a similar role in a ward. … Each stake president and bishop lives in the stake and ward for which he has a responsibility.

…

18.    All of the Samoan-speaking non-native language wards were discontinued by the respondent. That came about in the following way:

(a)    in or about 2005, the respondent’s administration perceived a need to reorganise existing wards and stakes in the Brisbane region of the Church and, potentially, to create new wards and stakes to accommodate, and adapt to, the considerable growth in the number of Church members attending Church services;

(b)    in approximately 2005, the Coordinating Council of the Brisbane Region of the Church appointed a sub-committee to consider the need to alter the boundaries of some of the stakes and wards within the Brisbane Region of the Church because of the disproportionate increase in the number of members in some stakes and wards and the decrease in the number of members attending in other stakes and wards[;]

(c)    to that end different mapping overlays of population, growth projections and location of existing meeting houses disclosed that to maximize building usage and to accommodate the projected new members in a better balance, the stake boundary lines in the southwest areas of Brisbane needed to be redrawn. A conclusion was reached that optimal meeting house usage could only be achieved with a new plan;

(d)    the Church devised a new stake boundary plan to accommodate then current meeting house usage and to allow for projected growth patterns for each of the individual units. That was implemented by eliminating all boundaries (both stake and ward) and starting with a clean map of the southwest areas of Brisbane showing membership and growth projections.

(e)    the sub-committee:

(i)    received assistance from the respondent particularly in relation to the provision of maps, spreadsheets and Church member information, including geographical location of members, and this data was relied upon by the sub-committee in the course of its deliberations;

(ii)    was at all material times acting as agents of the respondent, at the behest or direction of the respondent;

(iii)    the sub-committee ultimately recommended that the number of stakes in the greater Brisbane area be increased from seven to eight creating a new “Brisbane Australia Centenary Stake” from a restructuring of the Brisbane Australia Logan Stake, the Brisbane Australia North Stake and the Eight Mile Plains Australia Stake. It further recommended that the Samoan language ward designation attaching to the Kingston, Woodridge, Ipswich Second, Goodna and Moreton wards (and the Tongan language units, the Loganlea Ward and Inala Branch) should be discontinued.

(iv)    the sub-committee recommended that the Samoan language designation attaching to the above-referenced wards should be discontinued because, inter alia:

(i)    the restructuring of the existing stakes and the creation of the eighth stake within the greater Brisbane Region would be easier to accomplish; and

(ii)    many of the Samoan youth who attended these wards were unable to speak the Samoan language;

(v)    the recommendation of the sub-committee were forwarded to the Area Presidency of the Church in Sydney;

(vi)    the Area Presidency in Sydney then forwarded the recommendations to the Church in Salt Lake City[.]

19.    In August 2007, members of the Brisbane Australian Logan Stake and Eight Mile Plains Stake were advised that the recommendations of the sub-committee had been accepted, and in March 2008, members of the Ipswich Australia Stake were advised that the recommendations relating to their stake had been accepted.

20.    The result of the recommendations of the sub-committee being accepted was, as outlined above, that:

(a)    the number of stakes in the greater Brisbane area were increased from seven to eight; and

(b)    the Samoan language ward designation attaching to the Kingston, Woodridge, Ipswich Second, Goodna and Moreton wards was removed or discontinued.

21.    Prior to the decision the applicants had the benefit of being able to publicly worship as a group in their native Samoan language at services conducted by the respondent in the wards operated by the respondent. Following the decision to cease the Samoan language wards, however the ability to continue to worship as a group in the Samoan language was removed in each ward. Announcements were made that the applicants were no longer allowed to use any language other than English, and could no longer use the Samoan language to pray, sing or testify.

22.    Some of the applicants gave evidence about the announcements:

(a)    Tareta Hakula Siakisini (BRG017/09) gave evidence that he was told at a Sunday service on the Sunday following the decisions that they were no longer allowed to use the Samoan language, and were not allowed to sing hymns or to testify in the Samoan language.

(b)    Ann Siakisini gave evidence that she was told by Bishop Willoughby that they were no longer allowed to use the Samoan language in church services. She also gave evidence that she had been present when a member of the church was told not to do their testimonial in the Samoan language. Bishop Willoughby said that testimonials had to be given in English.

(c)    Sisi Polelie (BRG019/09) gave evidence that she had been told she was not allowed to pray publicly in her own language by President Muillo.

(d)    Pelepesite Ah See gave evidence that, two Sundays after the decision, it was announced that no-one was allowed to talk, or say prayers, at sacrament meetings in the Samoan language. In oral evidence, he said that Bishop Willoughby announced that they were not allowed to use the Samoan language in prayer, testimonials or hymns, and they must now use English.

(e)    Marlene Ah See gave evidence that, when she last attended the Woodridge Ward, Mr Willoughby announced they could no longer use the Samoan language.

(f)    Mr Laurensen gave evidence it was publicly announced after the decisions that no-one was allowed to talk or say prayers at sacrament meetings in the Samoan language.

23.    Mr Willoughby, a bishop of the Church expressly accepted that he told his congregation that the Samoan language was no longer allowed to be used in services, and that all services were to be conducted in English. Mr Willoughby also accepted that the ward was to be English speaking and any Samoan conducting a service should use English or have the Samoan language translated into English. As he said in his affidavit, those who were challenged in using the English language would use their own language, but were to be invited “to give talks in sacrament meeting with the assistance of a translator”.

24.    The respondent provided translation equipment to assist non-English speaking churchgoers to follow the services. I accept that was consistent with the claims of some of the applicants that the move away from the Samoan language affected the quality of their experience. Mr Smibert accepted the effect of the decisions was that all Church services had to be conducted in English.

25.    It was clear from the cross-examination, however that the applicants (who were cross-examined) were still able to worship in their native Samoan language, although I accept that the worship there being referred to was private worship, as part of the public service conducted in English.

9    The Federal Magistrate rejected the respondent’s submission that “the decision in question was a matter solely of ritual, doctrine or ecclesiastical issues”. Accordingly, his Honour considered that there was no need to rule on the respondent’s argument that, because the challenged decision concerned ritual, doctrine or ecclesiastical issues, the Court did not have jurisdiction to decide the substantive issues in the applications. The respondent has not challenged this ruling.

10    The Federal Magistrate recorded (at paragraph [26]) that it was the applicants’ (now the appellants’) contention that “the decision of the respondent to cease the Samoan designation of the relevant wards imposed an exclusion upon, or restriction upon, the use of the applicants’ native Samoan language in public worship services”. He continued:

That restriction, it is argued in respect of both the claims of direct and indirect discrimination nullified or impaired the applicants’ “fundamental human right to pray and sing to their almighty God, as a group, in their native language”. That is to say, the applicant’s [sic] argue, it had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of the applicants’ human rights, fundamental freedoms in a field of public life.

11    Further, at paragraph [28], his Honour stated (correctly in the appellants’ view):

The applicants argue that the decision denied them the right to worship in their native language. It denied them the “soul of their prayer”. The applicants argue that the right to worship is recognised as a fundamental human right and it is no answer to say, that they have access to a translation service. The right to worship should be open, it is said, not via a machine.

12    By reference to article 5(d) of the International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (“CERD”), the Federal Magistrate identified the “human rights or fundamental freedoms” in issue as: (1) the right to freedom of thought, conscience or religion in article 5(d)(vii); (2) the right to nationality in article 5(d)(iii); (3) the right to freedom of opinion and expression in article 5(d)(viii); and (4) the right to freedom of peaceful assembly and association in article  5(d)(ix). The parties did not challenge his Honour’s assessment (at paragraphs [33]-[35]) that:

The decisions of the respondent identified by the applicants as offensive to s 9 of the Act do not, in my view, impact upon or impair the applicants’ right to freedom of thought or conscience as conferred by the Convention. No argument was directed to those particular aspects of article 5(d)(vii) of the Convention.

Similarly, no particular argument was directed to articles 5(d)(vii[i]) or 5(d)(ix) of the Convention. In my view, it is difficult to see how the decision sought to be challenged in these proceedings impacts upon or impairs the applicants’ freedom of opinion or freedom of assembly.

The applicants’ argument focussed upon their right to freedom of religion, the right to freedom of expression and perhaps the right to nationality as it found form and substance in the participation by the applicants in the respondent’s church service in their native tongue.

    (Emphasis added)

13    On appeal, the appellants submitted that the Federal Magistrate went astray in the next paragraph [36], where his Honour said:

It can be accepted that the fundamental right to nationality carries with it the right to use or speak one’s native tongue. To be driven by the actions of another to a situation where that is not permitted may well demonstrate an act or decision which engages s 9(1) or s 9(1A)(c) of the Act. However, for the applicants to succeed in their applications they must demonstrate that the content of the human rights and fundamental freedoms just identified included the right to the delivery of the respondent’s church services to them in the Samoan language. It is one matter to assert a human right or fundamental freedom of religion; it is another to define the scope and content of that right or freedom.

    (Emphasis added)

14    At the hearing of the appeal, senior counsel for the appellants submitted that “what his Honour seems to have done is … at that point mischaracterised the applicants’ case, or at the least, not completely stated the applicants’ case, which is that the applicants contended that they had a human right or fundamental freedom to publicly worship as a group in the Samoan language” (emphasis added).

15    At paragraph [37], his Honour again emphasised the notion of the delivery of Church services by the Church, saying:

The evidence demonstrates that since the respondent’s decision concerning the delivery of church services only in English, some of the applicants have continued to worship, albeit at private residences. They have also used their own language during the respondent’s services, although they are discouraged from doing so.

    (Emphasis added)

16    His Honour accepted (at [39]) that “the decision impacted on the mode of delivery of the Church’s services, not the availability of the services themselves” (emphasis original). His Honour explained (at [39]-[45]):

It was not suggested that the applicants could not continue to be members of the Church or pursue their faith as Samoan speaking members of the Church. What was suggested was that the services and sacrament meetings could not be conducted in Samoan language.

The respondent submits that it is of importance to recognise that the courts are anxious to balance against one another competing rights and values that exist in a democratic society. So much was said in Bropho v Western Australia (2008) 169 FCR 59 at [80]-[83], Aurukun Shire Council v [Chief Executive Officer, Office of Liquor, Gaming and Racing in the Department of Treasury [2012] 1 Qd R 1] at [59]-[65] and [156]-[161].

In my view, the respondent is correct when it submits that the provision of public worship services, meetings, preaching, teaching, hymn singing and prayer in the applicants’ Samoan language does not constitute a human right for the purposes of s 9(1), or s 9(1A) of the Act. …

In the present case, it is not sufficient to assert that the respondent’s decision to cease the Samoan speaking wards worked an impairment to the applicants’ enjoyment or exercise of their human right or fundamental freedom of religion. The applicants’ freedom to freely practise their religion has not been the subject of any interference. The applicants are not prevented from attending any service offered by the Church. They remain at liberty to manifest their beliefs in practice.

I accept the respondent’s argument that the applicants’ desire to have services provided by the Church in their native Samoan language must be balanced against other competing rights and values such as:

a)    the [r]ights of those who do not understand the Samoan language to worship;

b)    the rights of the Church to offer religious services in a way that best accords with its aims, doctrines and teachings.

Conclusions

The decision[s], the subject of these proceedings, do not involve determinations that the applicants, as non-English speaking members of the respondent, are to be denied public worship services, and other meetings of the respondent being conducted in their native language.

In my view the decision[s] in question [do] not have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of the applicants’ human rights, fundamental freedoms in a field of public life. For that reason, neither direct, nor indirect discrimination can be made out.

(Emphasis added)

17    Accordingly, the Federal Magistrate rejected the appellants’ claim that the decisions of the Church to discontinue the Samoan-speaking wards imposed a restriction on the use of their native language in public worship services such as to amount to direct and indirect discrimination, under s 9(1) and (1A) of the Racial Discrimination Act.

GROUNDS OF APPEAL

18    There were five grounds of appeal set forth in the appellants’ notice of appeal against the judgments in both proceeding.

Grounds of Appeal

1.    The learned Federal Magistrate wrongly decided that the Respondent's decisions to:

(a)    disband the wards known as the Samoan Wards in the Kingston, Woodridge, Ipswich, Goodna and Moreton ("the Samoan Wards"); and

(b)    ban the use of the Samoan language in church services;

did not involve nullifying or impairing the recognition, enjoyment or exercise of a human right within the meaning of Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (“the convention”).

2.    The learned Federal Magistrate erred in failing to find that the disbanding of the Samoan Wards and banning of the use of the Samoan language in church services nullified or impaired the recognition, enjoyment or exercise on an equal footing of the Appellants’:

(a)    right to freedom of religion;

(b)    right to nationality (which includes but is not limited to language);

(c)    right to freedom of expression.

3.    The learned Federal Magistrate wrongly characterised the decisions made by the Respondent as impacting on the mode of delivery of the church services but not the availability of the services themselves.

4.    The learned Federal Magistrate erred in concluding that in order for the Applicants (now Appellants) to succeed, they must demonstrate that their human rights and fundamental freedoms included the right to delivery of the church services to them in the Samoan language.

5.    The learned Federal Magistrate's decision was based on erroneous findings of fact which were influenced by His Honour's inordinate delay of 2 years and 8 months in giving his judgment.

19    The appellants stated in their written submissions filed prior to the hearing of the appeal that they would seek leave to amend their notice of appeal, effectively to raise amended versions of grounds 2, 4 and 5 as set out above and to abandon the other grounds. Also prior to the hearing, the respondent stated that it would not oppose this application. At the hearing, however, senior counsel for the appellants stated that the appellants no longer sought such leave to amend, although he also stated that he would confine argument to the matters set out in the previously-filed submissions (which were essentially designed to address grounds 2, 4 and 5 of the notice of appeal: see above). The hearing of the appeal proceeded on this basis. No argument was addressed to the other grounds of appeal, which, in any event, relevantly overlapped with grounds 2, 4 and 5.

PARTIES’ SUBMISSIONS

The appellants’ submissions

20    The appellants’ primary argument was that the Federal Magistrate erred because he failed to consider and decide that part of their case that depended on the proposition that the right to worship publicly as a group in the appellant’s native (Samoan) language was “a human right or fundamental freedom” for the purposes of s 9(1) and (1A) of the Racial Discrimination Act. Senior counsel for the appellants explained that, by “public worship”, the appellants meant “the right to articulate out loud and in front of … or as a part of the whole congregation prayers, songs, [and] the giving of testament in the Samoan language together as a group”.

21    Senior counsel for the appellants submitted that the Federal Magistrate should first have determined that the appellants’ right to public worship as a group in their native (Samoan) language was a “human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”. Building on this proposition, the appellants’ argument was that the respondent’s “act”, for the purposes of s 9(1)and (1A) of the Racial Discrimination Act was “to ban or prohibit” the appellants “from worshipping as a group in their own language” and that this act involved “a distinction based on race or national origin, in the sense that the distinction only applied, or the prohibition only applied to people speaking in the Samoan language”, being a distinction which had the effect of impairing the exercise, on an equal footing, of that human right, contrary to s 9(1) of the Racial Discrimination Act. Alternatively, the requirement to use the English language in public worship was a requirement, with which the appellants did not or could not comply, having the effect of nullifying or impairing the appellants’ right to public worship as a group in their native (Samoan) language. The requirement was not a reasonable requirement having regard to the circumstances of the case; and was therefore to be treated as an act of (indirect) racial discrimination, as provided for in s 9(1A).

22    The appellants accepted that their case in the Federal Magistrates Court had included a claim that they had a human right to the provision of the Church’s services in their native language. The appellants abandoned this part of their case on the appeal: the appellants’ senior counsel informed the Court that “we, in this court, no longer contend that there was a right to delivery of a church service in the Samoan language … that is … the preacher was free to conduct it as he liked”. To similar effect, the appellants’ senior counsel also said “in a sense we accept that the primary judge was right … when he talked about delivery or provision of the service, but the point is that he just didn’t go further and deal with the second part” of the appellant’s characterisation of the human right or fundamental freedom at issue.

23    This claimed “delivery” right did not, so the appellants submitted, mark out the entirety of their case. They argued that the Federal Magistrate had mischaracterised their case “as solely asserting that the content of their human rights and fundamental freedoms that was impaired was the right to the delivery or provision of church services to them in the Samoan language; when in fact their case also included the contention that their right to public worship in the Samoan language had been impaired” (emphasis original). In written submissions, the appellants maintained that:

It was a part of the appellants’ case that their human rights and fundamental freedoms included the right to “delivery” or “provision” of church services to them in the Samoan language; but it was not confined to that assertion. The appellants also asserted that their human rights and fundamental freedoms included the right to public worship in their native language. The primary judge did not decide that issue, or, if it is assumed he did, His Honour decided the issue wrongly … .

24    As the appellants’ senior counsel put this at the hearing of the appeal, the Federal Magistrate decided the case on the basis that:

[T]here was no human right or fundamental freedom … being asserted by the applicants … and his Honour arrived at that point by characterising the human right or fundamental freedom that was being asserted as being a right to delivery of church services in the Samoan language. But his Honour forgot or misunderstood that it was a significant part of the applicants’ case, squarely put, that it was a second human right or fundamental freedom that they were asserting, which is the right to publicly worship as a group. His Honour simply didn’t deal with that right.

25    At the hearing of the appeal, senior counsel for the appellants focussed on the existence of a human right to worship publicly as a group in the group’s native language. He emphasised that “the real question is whether there is a human right or fundamental freedom which consists of the right to publicly worship as a group in a native language”. On the appellants’ argument, the right at issue was the right of the group – the group being defined as the Samoan-speaking members of the congregation of the Church who desired to worship, pray and testify in their native Samoan language. Alternatively, as senior counsel for the appellants put it, the group was “something like 47 individual claimants here who complain about their rights as a group being affected”. This right was said to be an expression of one or other or all (it was unclear how precisely this was put) of the three rights upon which the appellants relied at the hearing of the appeal.

26    In support of their argument that the right to worship publicly as a group in their own language was a human right that engaged s 9 of the Racial Discrimination Act, the appellants referred to the non-exhaustive character of the definition of “human right or fundamental freedom” in s 9(2) of that Act, as well as to statements in Gerhardy v Brown (1985) 159 CLR 70 (“Gerhardy v Brown”) and in Aurukun Shire Council v Chief Executive Officer, Office of Liquor, Gaming and Racing in the Department of Treasury [2012] 1 Qd R 1 (“Aurukun”). They referred to article 5 of CERD, relying specifically on article 5(d)(iii) (right to nationality), (vii) (right to freedom of religion) and (viii) (right to freedom of expression); and they also referred to various other international instruments and the opinions of international bodies. The provisions of other international instruments to which the appellants specifically referred included articles 18(1) and 27 of the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (“ICCPR”) and article 3(1) of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res 47/135, UN GAOR, 92nd plen mtg, UN Doc A/Res/47/135 (18 December 1992) (“Declaration on Minorities”).

27    In written submissions, the appellants submitted that:

Each of these articles does not purport to identify separate and distinct rights from those referred to in Article 5 of the CERD. These articles describe with greater clarity than those same rights referred to in Article 5. These articles make clear that the human rights asserted by the appellants at trial (that is, to public worship in their native language) falls within the scope of the rights referred to in Article 5.

28    The opinions of international bodies to which the appellants referred included United Nations Committee on the Elimination of Racial Discrimination, General Recommendation No 20: Non-discriminatory implementation of rights and freedoms (art 5), 48th sess, UN Doc A/51/18 (15 March 1996) (“General Recommendation No 20”), paragraphs [1] and [5]; United Nations Human Rights Committee, General Comment No 22: The right to freedom of thought, conscience and religion (Art 18), 48th sess, UN Doc CCPR/C/21/Rev/1/Add4 (30 July 1993), (“General Comment No 22”), paragraph [4]; United Nations Human Rights Committee, General Comment No 23: The rights of minorities (Art 27), 50th sess, UN Doc CCPR/C/21/Rev.1/Add5 (8 April 1994) (“General Comment No 23”), paragraphs [1], [5.3]. [6.2]; United Nations Commission on Human Rights, Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Note by the Secretary-General, 11th sess, UN Doc E/CN.4/Sub.2/AC.5/2005/2 (4 April 2005) (“Commentary of the Working Group on Minorities”), paragraphs [3], [4], [53]; and the Oslo Recommendations published by the High Commissioner on National Minorities of the Organisation for Security and Cooperation in Europe regarding the Linguistic Rights of National Minorities and Explanatory Note (“Oslo Recommendations”) [1999] 6 International Journal on Minority and Group Rights 359, recommendation 4 and explanatory note at paragraphs [4]-[5].

29    In written submissions, the appellants concluded with respect to this limb of their argument:

The rights to freedom of religion, nationality, and freedom of expression, which are rights referred to in Article 5 of the CERD, have been elaborated upon in the ICCPR and the Declaration on Minorities. Each of these international instruments recognise that the protection of those rights include securing the exercise of those rights both individually and collectively. Further, the Oslo Recommendations reveal that those rights encompass “the right to use a minority language in public worship”. This Court should conclude that the appellants’ asserted right to public worship in the Samoan language is a human right or fundamental freedom.

30    On the second limb of their argument in support of their appeal, the appellants contended that the Federal Magistrate erred in engaging in a balancing exercise to determine whether their asserted right was a human right or fundamental freedom for the purposes of s 9 of the Racial Discrimination Act. The appellants submitted that s 9 did not require nor did it permit a court to engage in the balancing exercise to which the Federal Magistrate referred when he accepted the Church’s submission that “the courts are anxious to balance against one another competing rights and values that exist in a democratic society”: see [16] above.

31    Referring to Gerhardy v Brown at 92 (Mason J), Bropho v Western Australia (2008) 169 FCR 59 at 83-84 [80]-[83], Aurukun at 69 [156], 70-71 [161]-[163] (Keane JA) and Carr v Western Australia (2007) 232 CLR 138 at 143 [5] (Gleeson CJ), the appellants submitted that the Federal Magistrate was “merely required to consider and determine whether the acts attributed to the respondent were lawful or unlawful according to the terms of section 9”. There was, so senior counsel for the appellants submitted at the hearing of the appeal, “no balancing [in s 9], the balancing of interests is done by the legislature under section 10”. In written submissions, the appellants submitted:

It is clear that the primary judge accepted the respondent’s submissions in relation to the balancing exercise. It is not clear what use his Honour made of it, although it seems to have been used in the context of deciding whether the appellants had identified a human right or fundamental freedom. Yet any use of the balancing exercise is “readily seen to be the province of the legislature rather than the judiciary” [citing Aurukun at 70-71 [162] per Keane JA].

32    As an overarching submission, the appellants submitted that the inordinate delay between the hearing and delivery of judgment occasioned the lack of clarity in the Federal Magistrate’s reasons for judgment; and supported an inference that “the primary judge had not readily recalled the appellants’ case as it was developed in oral argument at trial”. This latter inference was, so the appellants submitted, strengthened by the brevity and limited nature of his Honour’s reasons. In consequence, so they suggested, his Honour had failed to address the whole of their claim and failed to determine all the salient issues.

33    In the course of argument, the Court observed that the Federal Magistrate had not addressed separately articles 5(d)(iii), (vii) and (viii) of CERD, being those parts of CERD to which the appellant referred, noting that the analysis differed with respect to each part. Whilst accepting this, the appellant’s senior counsel responded “really the problem here is … that his Honour really in one line dismissed the wrong thing or only part of the argument that was being made without any analysis or reasoning”. Senior counsel agreed that “that the precise content of the relevant right is the right to pray and worship and testify in the Samoan language” and “that the precise content of that right is the expression of those three rights”.

34    In their written submissions filed before the hearing, the appellants contended that his Honour omitted to make certain findings of fact, which he was required to make. Notwithstanding this, they submitted that, if successful, this “Court should determine all extant issues in this proceeding on the basis of the submissions made below, given the delay so far and the costs that will be incurred in conducting a new trial”. In written submissions in reply, the appellants accepted that the task of determining all the issues left undetermined by the Federal Magistrate “would go beyond the usual role of an appellate court” and submitted that the Court should exercise its power under s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth). At the hearing of the appeal, the appellants nonetheless submitted that this court should determine the matter, on the basis that the “factual findings of the primary judge ought to be accepted and not departed from” whilst acknowledging that it might be necessary for the court to make further findings of fact.

The respondent’s submissions

35    At the hearing, senior counsel for the respondent accepted that the Federal Magistrate “did not go through all of the steps that would have been required if he were to find for the applicants”. The respondent’s senior counsel submitted, in effect, that this was not fatal to his Honour’s decision because his Honour found, correctly in the respondent’s submission, that s 9(1) and (1A) were not engaged in this case because there was no relevant “human right or fundamental freedom” at issue for the purposes of these provisions. In written submissions, the respondent argued that there is “simply no human right that gives a person the right or entitlement to insist upon a particular service being provided in that person’s native language, let alone a Church service”. At the hearing, as senior counsel put it, “there is just no way that the public worship via the use of the Samoan language … constituted any of these rights [or freedoms]”.

36    In any event, the respondent argued that the appellants’ right to freedom of religion (in article 5(d)(vii) of CERD) had not been nullified or impaired because:

(a)    The [appellants’] freedom to freely practise their religion has not been the subject of any interference;

(b)    The appellants are not prevented from attending any service offered by the Church;

(c)    In reality, the applicants remain at liberty to manifest their beliefs:

(i)    Many of the appellants are able to understand the English language;

(ii)    Not all of the Church services are conducted in the English language;

(iii)    Private prayer can be in the [appellants’] native Samoan language;

(iv)    Singing can be in the Samoan language;

(v)    The Church’s written materials and videos are largely available in the Samoan language;

(vi)    Facilities to translate the Church services from the English language into the Samoan language when the Samoan language is not used are available for the use of those who prefer to hear the particular Church service in the Samoan language.

37    There was, so the respondent’s senior counsel submitted, no breach of any right to worship publicly, because, with respect to the appellants:

They were still attending after the new regime. They were still able to attend. And, in fact, they were welcome to attend.

38    At the hearing, the respondent’s senior counsel repudiated that there were questions of fact to be ventilated and contested on the assumption that the Federal Magistrate had not dealt with the claimed impairment of the right to nationality and of the right to freedom of expression. Senior counsel for the respondent (who appeared before the Federal Magistrate) explained that the case was not run below on this basis:

The freedom of expression and the nationality were, in effect, wrapped upon the freedom of religion and if one looks at the written submissions of both parties and if one looks at the transcript, one will see that that was the focus. The focus was on the freedom of religion and the freedom of religion or the matters related to religion were, or let me put it this way, that the freedom of expression and nationality matters were intertwined with the religion aspect.

…

[T]he case was run in a way that, in effect, merely used nationality and freedom of expression as different ways of outlining the illegal behaviour that was said to have taken place as a result of the change in the rules relating to the use of the Samoan language.

Senior counsel for the respondent submitted that, bearing in mind the way the case was run, the Federal Magistrate’s findings addressed all three matters. He further submitted that on the appeal the emphasis had remained “on freedom of religion”, saying:

[T]he focus was freedom of religion and it was that freedom of religion that also found a role in the issue of freedom of expression and nationality.

39    The respondent submitted that the appellants’ “desire to have services provided by the Church in their native Samoan language” was to be “balanced against other competing rights and values such as … [t]he rights of those who do not understand the Samoan language to worship; [and] [t]he rights of the Church to offer religious services in a way that best accords with its aims, doctrines and teachings”. The respondent repudiated the notion that delay in the delivery of judgment relevantly undermined the judgment, noting that the appellants had not appealed against any finding of fact.

40    In written submissions, the respondent submitted that, in the event that the appellants were successful, it would not be appropriate for this court to determine the extant issues, because “the issues that would need to be determined by this Court are so great” and “the evidence that would allow the Court to properly embark upon such an exercise is not before the Court”. At the hearing of the appeal, however, the respondent accepted that the matter might be remitted for determination of the evidence as it presently stood, whilst expressing a preference for the matter to remain in this court, which would be, so he submitted, “in as good a position as a primary judge to make any additional findings of fact that might be required”.

CONSIDERATION

Racial Discrimination Act

41    This appeal involves consideration of s 9 of the Racial Discrimination Act and the relevant content of the expression, “any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”, in s 9(1) and (1A).

42    Section 9 of the Racial Discrimination Act provides:

9    Racial discrimination to be unlawful

(1)    It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A)    Where:

    (a)    a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

    (b)    the other person does not or cannot comply with the term, condition or requirement; and

    (c)    the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

(2)    A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

(3)    This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged or applied, for that employment outside Australia.

(4)    The succeeding provisions of this Part do not limit the generality of this section.

43    As Mason J said in Gerhardy v Brown at 92, “[t]he operation of s 9 is confined to making unlawful the acts which it describes”. In order for the appellants to make out their case before the Federal Magistrate, the appellants had to show that the respondent’s act was unlawful because it was an act described in s 9.

44    In the case of direct discrimination under s 9(1), the appellants needed to establish:

(a)    the respondent did an act;

(b)    the act:

(i)    involved a distinction, exclusion, restriction or preference

(ii)    based on race, colour, descent or national or ethnic origin; and

(c)    the act:

(i)    had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of a right of theirs;

(ii)    that right being a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

45    In the case of indirect discrimination under s 9(1A), the appellants needed to show:

(a)    the respondent imposed a term, condition or requirement on the appellants; (b)    the term, condition or requirement is not reasonable in the circumstances;

(c)    the appellants do not or cannot comply with the term, condition or requirement; and

(d)    the term, condition or requirement has the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the appellants, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

46    The central issue on this appeal is whether or not the appellants had in fact identified a right at issue, which was properly described as “a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”, within the meaning of s 9 of the Racial Discrimination Act.

Whether the Federal Magistrate addressed the right at issue, as formulated

47    Although there was a looseness of language in the appellants’ pleadings and submissions, it may be accepted that, in the Federal Magistrates Court, the appellants claimed, amongst other things, that the right to worship publicly as a group in their native language was a “human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”, within the meaning of s 9 of the Racial Discrimination Act. Reference to the appellants’ pleadings in both proceedings in that court shows that, as senior counsel for the appellants submitted, the appellants formulated the alleged human right at issue in terms of the conduct of Church services, which covered both alleged rights to the delivery of services in the appellants’ native language and to worship publicly as a group in their native language (Samoan): see, for example, paragraphs 6 and 17(a) of the points of claim in proceeding BRG – 017/09 and paragraphs 7 and 11(a) of the points of claim in BRG – 019/09; and paragraphs 1, 4, 9 and 11 of the further and better particulars in both proceedings. The appellant’s written submissions were more specific. In paragraph 9(b) of their written submissions in the Federal Magistrates Court, the appellants specifically stated that, following the decisions to discontinue the Samoan-speaking wards, “the ability to continue to worship as a group in the Samoan language was removed in each Ward”.

48    In conformity with the appellants’ submissions in the Federal Magistrates Court, a formulation of the alleged human right to this effect is evident in part of his Honour’s reasons. His Honour’s failure to address this formulation specifically (as discussed below) was, it seems, the product of a lack of clarity on the appellants’ side and, possibly, the considerable delay between the hearing and the delivery of judgment.

49    As the appellants submitted, the Federal Magistrate apparently accepted that the appellants’ ability to worship publicly as a group in their native language in services conducted by the Church was impaired by the Church’s ban on the public use of the Samoan language. This may be inferred from his Honour’s reasons for judgment, including his statement (at [25]) that:

It was clear from the cross-examination, however, that the applicants (who were cross-examined) were still able to worship in their native Samoan language, although I accept that the worship there being referred to was private worship, as part of the public service conducted in English.

50    Nonetheless, as the appellants submitted, his Honour did not address the question whether or not the right to worship publicly as a group in their native language was a “human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”. Instead, his Honour considered only whether “the provision of public worship services, meetings, preaching, teaching, hymn singing and prayer in the applicants’ Samoan language” constituted a human right and held that it did not.

Is there a relevant right to public worship as a group in the appellants’ native language?

51    The Federal Magistrate’s failure to deal with this aspect of the appellants’ case would only have practical significance if the right to worship publicly as a group in their native language did in fact constitute a human right or fundamental freedom of the relevant kind, so as to engage s 9 of the Racial Discrimination Act. If this was the case, it might then be asked whether, in the circumstances of this case, that right had been relevantly impaired.

52    As indicated above, s 9(2) provides that a reference to a “human right or fundamental freedom in the political, economic, social, cultural or any other field of public life” in s 9 includes “any right of a kind referred to in Article 5 of the Convention”. The Convention to which s 9(2) refers is CERD, a copy of the English text of which is set out in the Schedule to the Racial Discrimination Act. As noted above, at the hearing of the appeal, the appellants relied on article 5(d)(iii), (vii), (viii) of CERD. They did not challenge the Federal Magistrate’s view that article 5(d)(ix) (right to freedom of peaceful assembly and association) was not engaged in this case.

53    Article 5 of CERD relevantly states:

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

…

(d)    Other civil rights, in particular:

…

(iii)    The right to nationality;

…

(vii)    The right to freedom of thought, conscience and religion;

(viii)    The right to freedom of opinion and expression;

…

54    The appellant did not explain precisely how it was that an alleged “right” to worship publicly as a group in one’s native language existed separately and apart from these three nominated rights. The closest the appellant came to an explanation was senior counsel’s statement that the asserted “right” was the expression of one or other or all of the three article 5 rights (ie, article 5(d)(iii), (vii) and (viii)). It was unclear precisely how this was put.

55    The occasion for the inquiry as to the existence of the alleged right is, of course, s 9 of the Racial Discrimination Act, which is not engaged unless there is a “human right or fundamental freedom … of a kind referred to in Article 5 of the Convention”. Subject to the following discussion, on the appellants’ case as pleaded and put in the Federal Magistrates Court, whether or not there is such a human right or fundamental freedom requires the Court, first, to ascertain the meaning and effect of paragraphs (d)(iii), (vii) and (viii) of article 5 of CERD; and, secondly, to determine whether the claimed right is a right “of a kind referred to in Article 5 of the Convention”. As this expression indicates, as in s 10, CERD does not contain an exhaustive list of the rights protected by s 9 of the Racial Discrimination Act: see [62]-[63] below; also Aurukun at 59 [116] (Keane JA).

Principles of construction

56    The fact that the Racial Discrimination Act is intended to give effect to Australia’s obligations under CERD means that, in ascertaining the meaning of its provisions, the court must have regard to the manner in which treaties are construed at international law. As Brennan J explained in Koowarta v Bjelke-Pertersen (1982) 153 CLR 182 (“Koowarta”) at 264-265:

Section 9(1) has enacted as municipal law important provisions of the Convention in conformity with the obligation in Art. 5 to prohibit racial discrimination in all its forms. In particular s 9(1) has made unlawful the doing of an act which involves racial discrimination within the meaning of that term in the Convention as defined by Art. 1, cl. 1. That definition of racial discrimination is reproduced precisely by the words of the sub-section. The Act thus makes part of Australia’s municipal law, enforceable by curial process, a key provision of the Convention. When Parliament chooses to implement a treaty by a statute which uses the same words as the treaty, it is reasonable to assume that Parliament intended to import into municipal law a provision having the same effect as the corresponding provision in the treaty … A statutory provision corresponding with a provision in a treaty which the statute is enacted to implement should be construed by municipal courts in accordance with the meaning to be attributed to the treaty provision in international law. … Indeed, to attribute a different meaning to the statute from the meaning which international law attributes to the treaty might be to invalidate the statute in part or in whole, and such a construction of the statute should be avoided.

(Emphasis added; citations omitted)

57    The Court is thus required to have regard to the principles that guide the interpretation of treaties, to ascertain the meaning of article 5, especially (d)(iii), (vii) and (viii), of CERD. These are the principles set forth in the Vienna Convention on the Law of Treaties, opened for signature on 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) (“the Vienna Convention”), especially in articles 31 and 32. These principles guide the process of construing provisions of a treaty, such as CERD, where, as under s 9 of the Racial Discrimination Act, they have, by enactment, become part of the law of Australia: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 (‘QAAH’) at 14-16 [34], citing Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161 at 186 [70]; Povey v Qantas Airways Ltd (2005) 223 CLR 189 (“Povey”) at 202 [24]-[25] and 230 [128]; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 255-6 (McHugh J), 240 (Dawson J); and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75 at [52].

58    The effect of articles 31 and 32 of the Vienna Convention has been explained in numerous Australian cases. Thus, for example, in Povey at 202 [24], Gleeson CJ, Gummow, Hayne and Heydon JJ said:

Article 31 provides that a treaty must be interpreted in good faith, in accordance with the ordinary meaning of the terms in their context and in the light of the object and purpose of the treaty. Interpretative assistance may be gained from extrinsic sources (Art 32) in order to confirm the meaning resulting from the application of Art 31, or to determine the meaning when interpretation according to Art 31 leaves the meaning “ambiguous or obscure” or “leads to a result which is manifestly absurd or unreasonable”.

59    Accordingly, interpretation of the relevant provisions of CERD commences with the text of the provisions, considered in its context and “in light of its object and purpose”: see Vienna Convention, article 31(1). The text of article 5 and, relevantly, paragraphs (d)(iii), (vii) and (viii), is plain enough, although being general and drawing on conceptions that are not detailed in CERD, the text provides little indication of the content of the rights to which it refers (and hence their operation in any particular circumstance). Reference can be made to extrinsic sources, whether to confirm the meaning or to determine the meaning that would otherwise be “ambiguous or obscure”: see the Vienna Convention, article 32. Either basis would in this case justify reference to extrinsic sources.

Construing article 5 provisions

60    The overarching nature and purpose of CERD and of article 5 have already been considered by Australian courts: see, for example, Koowarta at 218-220 (Stephen J), 234-235 (Mason J); Gerhardy v Brown at 124-127 (Brennan J); Aurukun at 37-38 [32]-[35] (McMurdo P), 59-60 [117]-[121], 67 [148] (Keane JA), 97-98 [240]-[242] (Philippides J). It is unnecessary to repeat this discussion here. The approach adopted in these cases is illustrative of the approach outlined above.

61    As stated already, the appellants relied on various international instruments and the opinions of a number of international bodies to support their argument concerning the existence of a right to worship publicly as a group in their native language. These materials were relevant in so far as they threw light on article 5 and on how other international instruments had elaborated on the listed rights.

62    As the appellant submitted, General Recommendation No 20 of the United Nations Committee on the Elimination of Racial Discrimination, established under article 8 of CERD, provides guidance as to the meaning and effect of article 5 at international law: compare Republic of Guinea v Democratic Republic of the Congo (Merits) [2010] ICJ Rep 639 at [66], article 38(1)(d) of the Statute of the International Court of Justice. General Recommendation No 20 makes it plain that the statement of rights and freedoms in article 5 is not exhaustive; and that these rights are the subject of elaboration in the International Covenants on Human Rights, such as the ICCPR. It is therefore legitimate to consider these other instruments, as the appellant would have the Court do.

63    Paragraphs 1 and 5 of General Recommendation No 20 states, amongst other things, that:

Article 5 of the Convention contains the obligation of States Parties to guarantee the enjoyment of civil, political, economic, social and cultural rights and freedoms without racial discrimination. Note should be taken that the rights and freedoms mentioned in article 5 do not constitute an exhaustive list. At the head of these rights and freedoms are those deriving from the Charter of the United Nations and the Universal Declaration of Human Rights, as recalled in the preamble of the Convention. Most of these rights have been elaborated in the International Covenants on Human Rights. … Article 5 of the Convention, apart from requiring a guarantee that the exercise of human rights shall be free from racial discrimination, does not of itself create civil, political, economic, social or cultural rights, but assumes the existence and recognition of these rights. ….

The rights and freedoms referred to in article 5 of the Convention and any similar rights shall be protected by a State Party. Such protection may be achieved in different ways, be it by the use of public institutions or through the activities of private institutions. … To the extent that private institutions influence the exercise of rights or the availability of opportunities, the State Party must ensure that the result has neither the purpose nor the effect of creating or perpetuating racial discrimination.

(Emphasis added)

64    The International Covenants of Human Rights to which Recommendation No 20 referred includes the ICCPR, which can therefore be taken to elaborate on the rights identified in article 5.

65    In this connection, the appellants relied specifically on articles 18(1) and 27 of the ICCPR. I note here that the Court was not taken to Article 19 by the appellants, which provides (among other things) an individual right to freedom of expression (see further below). Article 18(1) relevantly provides:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private to manifest his religion or beliefs in worship, observance, practice and teaching.

Article 27 provides that:

In those States in which ethnic, religious and linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their religion, or to use their own language.

66    In relation to article 18 of the ICCPR, the appellants noted that the United Nations Human Rights Committee, established under article 29 of the ICCPR, had recognised in General Comment No 22 (at paragraph 4) that:

The freedom to manifest religion or belief may be exercised “either individually or in community with others and in public or private”. The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. …

67    In relation to article 27, in General Comment No 23, the United Nations Human Rights Committee recognised that “this article establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant”: see paragraph 1. The Committee also affirmed the existence of the “right of individuals belonging to a linguistic minority to use their language among themselves”, as distinct from other language rights protected under the Convention (including under the general right to freedom of expression): see paragraph 5.3. I return to General Comment 23 below.

68    It may therefore be accepted that, as elaborated by article 18 of the ICCPR, the right to freedom of religion referred to in article 5(d)(vii) of CERD includes personal freedom, either individually or as a group, to engage in public worship. Article 27 of the ICCPR also recognises, in the case of a linguistic minority, a personal right to use the minority language amongst the minority group, in private and in public. The argument for the appellants at the hearing of the appeal was, in substance, that these rights merged into a right to worship publicly as a group in Samoan within the Church. For the reasons outlined below, this argument fails.

69    Whilst it may be accepted that the Declaration on Minorities may elaborate on article 27 of the ICCPR and condign human rights (see Commentary of the Working Group on Minorities, paragraphs 3-4), for the reasons stated below, article 27 of the ICCPR cannot assist the appellants. Accordingly, the Declaration on Minorities is of no assistance to the appellants on this appeal. The Oslo Recommendations is also, therefore, irrelevant in this case.

The content of the rights in question

70    As the Court observed in argument at the hearing of the appeal, articles 18 and 27 of the ICCPR and the statements of the Human Rights Committee to which the appellants referred provided guidance only at a very general level. In this case, the court must turn to any relevant decision of the United Nations Human Rights Committee applying the ICCPR and to the decisions of courts on the operation of the human rights in question. In particular, the jurisprudence of the European Court of Human Rights and, its predecessor, the European Commission concerning rights to freedom of religion and freedom of expression under the Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222 (done at Rome 4 November 1950; entered into force 3 September 1953) (as amended), usually referred to as European Convention on Human Rights (“the ECHR”), provide a more nuanced and analytical account of the manner that the rights on which the appellants sought to rely operate, whether alone or together with other human rights. Professor Carolyn Evans made a similar point when she said that the European Court and Commission of Human Rights possess the longest and most frequent history of engagement with religious freedom, making its jurisprudence instructive more generally of the nature of religion and the problems faced by international institutions charged with the protection of freedom of religion or belief: see Carolyn Evans, “Religious Freedom in European Human Rights Law: The Search for a Guiding Conception” in Mark W Janis and Carolyn Evans (eds) Religion and International Law (Kluwer Law International, 1999) 386.

71    Much of the following discussion draws on this jurisprudence, particularly concerning the rights to freedom of religion and freedom of expression. The court raised this jurisprudence with the parties in argument at the hearing of the appeal. The parties accepted that the court might have regard to this jurisprudence.

72    Article 9 of the ECHR, recognising the right to freedom of thought, conscience and religion, is in substantially the same terms as article 18(1) of the ICCPR. The right is expressed to be subject to limitations similarly expressed; the differences are not relevant here. Article 10 of the ECHR, recognising freedom of expression, is in substantially the same terms as article 19, with, for the purposes of the present discussion, relevantly similar limitations.

73    There is no precise equivalent in the ECHR to article 27 of the ICCPR. I discuss the significance of this latter provision for this case further below.

Freedom of religion

74    The right to freedom of religion is a complex right regarding religious beliefs and practices of worship. In Metropolitan Church of Bessarabia & Ors v Moldova (2002) 35 EHHR 13 (“Church of Bessarabia”), the European Court of Human Rights described religious freedom in the following way (at [114] and [117]):

While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one’s] religion” alone and in private or in community with others, in public and within the circle of those whose faith one shares. Bearing witness in words and deeds is bound up with the existence of religious convictions. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion … . Article 9 lists a number of forms which manifestation of one’s religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief …

…

[I]n principle the right to freedom of religion for the purposes of the Convention excludes assessment by the State of the legitimacy of religious beliefs or the ways in which those beliefs are expressed.

(Citations omitted; emphasis added)

75    Plainly enough, the appellants’ expression of their beliefs is a part of their religious conviction. Furthermore, the European Commission of Human Rights earlier stated that the right to freedom of worship required protection of both the possibility to worship alone and in community with others: see, for example, X v United Kingdom (1982) 4 EHHR 126 at [5].

76    Decisions, both of the European Commission and the European Court of Human Rights, establish that, under the ECHR, a church enjoys and may exercise article 9 rights on behalf of its adherents: see, for example, X and Church of Scientology v Sweden (1979) 16 Eur Comm HR 68. This is explained by the nature of a church. A church is, as the European Commission stated, in Prussner v Germany (1984) 8 EHRR 45 (“Prussner v Germany”) at 79, “an organised religious community based on identical or at least substantially similar views” and is “itself protected in its right to manifest its religion, to organise and carry out worship, teaching practice and observance, and it is free to enforce unanimity in these matters” (emphasis added). In Church of Bessarabia at [118], the European Court expressly linked individual religious freedom to the protection of the autonomy of the collective church, stating that:

[S]ince religious communities traditionally exist in the form of organised structures, Article 9 must be interpreted in the light of Article 11 of the Convention, which safeguards associative life against unjustified State interference. … Indeed the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Articles 9 affords …

(Citation omitted; emphasis added)

The European Court of Human Rights has repeatedly affirmed this statement: see, for example, [78] below; see also Julian Rivers, “Religious Liberty as a Collective Right” (2001) 4 Law and Religion: Current Legal Issues 227.

77    Disputes between the Churches and their members have apparently been analysed in two different ways by the European Commission and the European Court. Thus, in his article, “Balancing Religious Autonomy and Other Human Rights under the European Convention” (2012) 1(1) Oxford Journal of Law and Religion 109 at 125, Professor Ian Leigh wrote:

In early decisions in this field the ECtHR tended to resolve disputes between religious adherents and their churches by finding that individual religious liberty had been surrendered or amounted only to the right to ‘exit’. The Court’s more recent rulings, however, mark an important new development in treating religious autonomy as a consideration subject to balancing against other rights.

78    More recently, however, there has been a re-statement of the earlier jurisprudence that emphasises that, in the case of dissent from Church rulings, an individual’s freedom of religion is protected by the right to leave the Church. Thus, in Sindicatul “Pastorul Cel Bun” v Romania (2014) 58 EHHR 10 (“Sindicatul “Pastorul Cel Bun” v Romania”), the Grand Chamber, overturning a controversial and earlier decision, reiterated (at [136] to [137]) that:

The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is an issue at the very heart of the protection which Article 9 affords. It directly concerns not only the organisation of these communities as such but also the effective enjoyment of the right to freedom of religion by all their active members. Were the organisational life of the community not protected by Article 9, all other aspects of the individual’s freedom of religion would become vulnerable …

In accordance with the principle of autonomy, the State is prohibited from obliging a religious community to admit new members or to exclude existing ones. Similarly, Article 9 of the Convention does not guarantee any right to dissent within a religious body; in the event of a disagreement over matters of doctrine or organisation between a religious community and one of its members, the individual’s freedom of religion is exercised through his [or her] freedom to leave the community (see Mirolubovs and Others v Latvia, no 798/05, § 80, 15 September 2009).

(Emphasis added)

79    These statements strongly echo statements made in 1976 in X v Denmark (1976) 5 Eur Comm HR 157, 158 that “the church is not obliged to provide religious freedom to its servants and members”. While X v Denmark concerned a clergyman’s imposition of duties on adherents contrary to the direction of Church authorities, the Commission’s statements have been treated as applicable to Church members generally: see Carolyn Evans, Freedom of Belief under the European Convention on Human Rights (Oxford University Press, 2001) at 85; and Ian Leigh and Rex Ahdar, Religious Freedom in the Liberal State (Oxford University Press, 2005) at 336. Sindicatul “Pastorul Cel Bun” confirms that this interpretation is correct.

80    Thus, in the jurisprudence of the European Commission and the European Court of Human Rights, unlike in certain other situations in which one human right seemingly conflicts with another human right, including a religious freedom right, assertions of conflicting religious freedom rights within the one religious community are not resolved by a “balancing of rights” approach. The two supposed rights, that is, the supposed right to religious freedom claimed by a dissenting individual or group and the religious freedom right held by the religious community or Church (as the collective of church members), do not overlap at the point of dispute.

81    It may be accepted that article 18 of the ICCPR elaborates on article 5(d)(vii) of CERD, but it does not follow from this that the appellants establish a right to worship publicly as a group in their native language contrary to the decisions made by the respondent Church. The contemporary jurisprudence on the right to freedom of religion would deny the existence of such a right as that claimed. According to this jurisprudence, the fact that the appellants disagreed with the decisions to discontinue the Samoan-speaking wards and to ban the use of the Samoan language in public worship did not mean that their right to freedom of religion was impaired. Rather, the appellants’ right to freedom of religion was preserved by their ability to leave the Church.

82    Some academic commentators have observed that the ‘exit’ strategy for resolving disputes within a church or another religious community may in some instances be unsatisfactory. The nature of some religious communities may make it practically impossible for a dissident member to leave: see, for example, Samantha Knights, Freedom of Religion, Minorities, and the Law (Oxford University Press, 2007) at 74; Ian Leigh and Rex Ahdar, Religious Freedom in the Liberal State (Oxford University Press, 2005) at 337; Jane Norton, “Insular Religious Communities and the Rights of Internal Minorities: A Dilemma for Liberalism” (2003) 9 Auckland University Law Review 404 at 425. These commentators have, either expressly or impliedly, argued that the opportunity to leave must be meaningful.

83    In Hofer v Hofer [1971] 13 DLR (3d) 1 (“Hofer”) (a case concerning members of the Hutterian Brethren Church) Pidgeon J, in dissent, voiced similar concerns. In that case, the Supreme Court of Canada apparently favoured the view that, in choosing to enter a religious community an individual in some sense ‘gives up’ certain aspects of the right to religious freedom in the sense that members of a religious community might ‘contract out’ of their individual freedoms: see Hofer v Hofer [1971] 13 DLR 3d 1 (“Hofer”) at 4 and 13-14. Pigeon J opined (at 21-22) that:

The evidence shows that the rules and practices of this religious group make it as nearly impossible as can be for those who are born into it to do otherwise than embrace its teachings and remain forever within it … Such a construction of the contractual relationship between the members of the Colony means that they really cannot exercise their freedom of religion.

84    In the present case, after the Court raised the question whether members of the respondent Church were free to leave it, the parties each filed a note said to refer to the evidence in the Federal Magistrates Court on this point. It is unnecessary to rehearse this evidence. It suffices to say that there was evidence that some Samoan-speaking families were meeting (outside the auspices of the Church) to worship together in the Samoan language. One member of these families spoke of “not [being] part of the Church now”. Significantly, there was no evidence to support the proposition that the appellants had no “meaningful opportunity” to leave the Church, if they so wished.

85    It may be observed, lest it be thought the point was overlooked, that the right to freedom of religion does not, indiscriminately, guarantee an individual’s the right to worship publicly in a particular language of importance to that individual. In the context of the right to religious freedom, the United Nations Human Rights Committee observed in General Comment No 22 (see above) that the use of a language is likely to be protected where it is the language “customarily spoken by a religious group”. In order to determine whether or not the use of language customarily spoken by a religious group is protected, it is necessary to consider, amongst other things, the identity and scope of that religious group and the possibility that that group may customarily speak many languages. Where, however, as in this case members of a religious group (here the Church) dispute that group’s choice of language for the conduct of their public worship services, then the ‘exit strategy’ analysis applies.

86    As the foregoing analysis shows, the right to freedom of religion, referred to in article 5(d)(vii) of CERD, does not give rise to, or otherwise support the existence of, the right to worship publicly as a group in the appellants’ Samoan language in the Church’s services of public worship, as the appellants would have it.

Freedom of expression

87    As already noted, the appellants also invoked the right to “freedom of expression” in article 5(d)(viii) of CERD, in support of the existence of the supposed right to worship publicly as a group in Samoan.

88    A major difficulty with this part of the appellants’ case is that the appellants did not develop their argument by reference to the meaning and content of this right, as outlined in the relevant jurisprudence. The appellants’ submissions in the Federal Magistrates Court did no more than name the right. The appellants did not traverse and did not attempt to rely on any jurisprudential analysis of the principles concerning freedom of expression that might have been relevant to their case.

89    The right to freedom of expression engages a sophisticated jurisprudential analysis, which the appellants ignored at their peril. As the appellants’ case assumed with respect to other human rights, this analysis is relevant to an appreciation of article 5(d)(viii) of CERD.

90    The nature of this analysis is mentioned hereafter merely to indicate the paths that the appellant might have taken in mounting an argument founded on the right to freedom of expression. As senior counsel for the respondents pointed out at the hearing of the appeal, the appellants did not take any such path in the Federal Magistrates Court. Nor did they seek to so do on appeal.

91    The right to freedom of expression is essentially the freedom to communicate and receive opinion, information and ideas without interference. Thus, the right to freedom of expression in article 19(2) of the ICCPR extends to “every form of subjective ideas and opinions capable of transmission to others, which are compatible with article 20 of the Covenant, of news and information, of commercial expression and advertising, of works of art, etc.; it should not be confined to means of political, cultural or artistic expression”: see Ballantyne & Ors v Canada, Human Rights Committee, Views, Communications Nos 359/1989 and 385/89, 47th sess, UN Doc CCPR/C/47D/359 and 385/1989/Rev.1 (5 May 1993) (“Ballantyne & Ors v Canada”) at [11.3]. As the decision of the United Nations Human Rights Committee in Ballantyne & Ors v Canada shows, the use of a particular language may be protected by the right to freedom of expression, although this right cannot be equated with a “right to language”: see Ballantyne & Ors v Canada at [11.4].

92    As already indicated, the right to freedom of expression does not guarantee “linguistic freedom as such” or “guarantee a right to use the language of one’s choice” in all circumstances: see Fryske Nasjionale Partij v Netherlands (1987) 9 EHHR 240 at 243 (no guarantee “in administrative matters”). Further, the right to freedom of expression is in and of itself limited – a fact reflected in article 19(3) of the ICCPR and article 10(2) of the ECHR, especially where a claimed right of freedom of expression conflicts the “rights of others”. Article 19(3) of the ICCPR “permits freedom of expression to be limited by measures provided by law, and proportionately designed to protect (a) the rights or reputations of others, and/or (b) national security, public order (ordre public), public health, or morals”: see Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights (Oxford University Press, 3rd ed, 2013) (“Joseph and Castan”) at 604 [18.30]. For example, in Ballantyne & Ors v Canada at [11.4], the Human Rights Committee employed, as part of its proportionality analysis, a “minimum impairment” approach to determining whether a Canadian law prohibiting the use of English language in advertising in Quebec infringed the right to freedom of expression: see also Joseph and Castan at 608. The European Court of Human Rights has employed a similar analysis in the application of article 10(2) of the ECHR.

93    On the appeal, as already indicated, the appellants argued that the right to freedom of expression in article 5(d)(viii) of CERD supported the existence of a claimed right to worship publicly as a group in the Samoan language. This argument did not invoke, involve or depend on any aspect of the jurisprudential analysis mentioned above. Thus, for example, whilst the appellants expressly relied on the statement of rights in articles 18 and 27 of the ICCPR (and General Comment No 22 and General Comment No 23 of the UN Human Rights Committee relating to those articles, as well as the Oslo Recommendations regarding the linguistic rights of national minorities). The appellants did not refer to the ICCPR’s article 19 on the right to freedom of expression. Nor did they do so before the Federal Magistrate. Instead, the appellants’ argument took a different route.

94    In the way the appellants put it, the “freedom of expression” that they relied on was an aspect of minorities’ rights in article 27 of the ICCPR. Thus, for example, after the Court had raised aspects of the right of freedom of expression with senior counsel for the respondent, senior counsel for the appellant expressly “started” his reply “by reminding” the Court that “article 27 of the ICCPR deals, in part, with freedom of expression”. This was consistent with the fact that, in oral argument at the hearing, senior counsel for the appellants developed the appellants’ argument that there was a right to worship as a group in the group’s native language by reference to articles 18 and 27 of the ICCPR and without reference to article 19. It is also consistent with the way the appellants’ “right to nationality” argument was run, essentially by formulating the content of the right to nationality with reference to comments by the United Nations Commission on Human Rights regarding the special rights of national or ethnic minorities: see further below at [105]. Having regard to the way the appellants have put their case, both at trial and on appeal, this Court is not justified in considering the application of the right to freedom of expression in article 5(d)(viii) of CERD in so far as it is elaborated by article 19 of the ICCPR. No argument to this effect was advanced by the appellants at trial or on this appeal.

minorities’ right to language (iccpr, article 27)

95    In so far as the appellants invoke article 27 of the ICCPR to make an argument that right to freedom of expression gives rise to the public worship right as claimed by them, this argument must be rejected. Article 27 provides that, in those States in which ethnic, religious or linguistic minorities exist, persons belonging to these minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. Article 27 is concerned with rights conferred on individuals as such, like the other personal rights in Part III of the Covenant. The appellants relied on the proposition in article 27 that persons belonging to an ethnic, religious or linguistic minority in a State shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. (For present purposes, there is no need to consider whether the Samoan population in Australia, or the Samoan population involved in this case is a minority group. At international law, the meaning of minority is not fixed: the parties addressed no argument on this question: see further Ballantyne & Ors v Canada at [11.2].) The appellants asserted that this proposition meant that they had the right to use their own language when they worshipped publicly as a group in the respondent Church’s services of public worship.

96    There is a difficulty at this point, which is fatal to the appellants’ argument. Assuming Samoan speakers are a relevant minority in Australia, then the right in article 27 is a right, in community with other members of their group, to use the Samoan language. That is, as the United Nations Human Rights Committee said in General Comment No 23, the relevant right is “[t]he right of individuals belonging to a linguistic minority to use their language among themselves (whether in private or in public). On the facts as found, there was no impairment of this right, since the appellants were free to use their native language amongst themselves; the ban was on them using their native language to worship in community with Samoan and non-Samoan speaking persons: see paragraph 18(e)(iv) of the Federal Magistrate’s reasons, set out at [8] above. That is, the Federal Magistrate found that a reason for the recommendation to disband the Samoan-speaking wards was that “many of the Samoan youth who attended these wards were unable to speak the Samoan language”.

97    Secondly, in their further and better particulars and in their written submissions in the Federal Magistrates Court, the appellants only referred to “the right to freedom of expression and opinion” in article 5(d)(viii) of CERD. In paragraph [21] of their written submissions filed on appeal, the appellants accepted that at trial the expression right to which they had referred was that in article 5(d)(viii). This “right to freedom of opinion and expression” in article 5(d)(viii) is the right elaborated on in article 19 of the ICCPR, not the right in article 27. The Federal Magistrate did not deal with the minority language right in article 27 because it was not raised at trial; and it may be doubted whether it was, in the circumstances just outlined, open to the appellants to invoke the language right in article 27 on appeal to this court, particularly bearing in mind that the application of this provision might very well have depended on additional evidence.

98    Thirdly, It must be borne in mind that, as the United Nations Human Rights Committee said in General Comment No 23 (at [5.3]), the “right of individuals belonging to a linguistic minority to use their language among themselves … is distinct from other language rights protected under the Covenant” (emphasis added). General Comment No 23 continued (at [5.3]):

In particular, it should be distinguished from the general right to freedom of expression protected under article 19. The latter right is available to all persons, irrespective of whether they belong to minorities or not.

The appellants were in error in so far as they sought to treat the language rights in article 27 as if they merged with the expressive rights in article 19. The appellants were also in error in so far as their argument assumed that the right to freedom of opinion and expression in article 5(d)(viii) was elaborated on (or picked up) by article 27 of the ICCPR.

99    Fourthly, even if article 27 was otherwise applicable and it was open to the appellants to rely on it, there is the further difficulty that article 27 of the ICCPR is to be exercised consistently with other provisions, such as article 18. Thus, the Human Rights Committee said in General Comment No 23 (at [8]) that “none of the rights protected under article 27 of the Covenant may be legitimately exercised in a manner or to an extent inconsistent with the other provisions of the Covenant”. This statement is clear and unambiguous: see also Elizabeth Evatt, “The Role of the United Nations in the Protection of Civil and Political Rights” (Speech delivered to the Cultural Diversity Conference in Sydney, 1995); and Manfred Nowak, CCPR Commentary (NP Engel, 2nd ed, 2005) at 667. The appellants’ reading of the protection given by article 27 to their asserted group right to use the Samoan language in public worship in services conducted by the respondent Church, notwithstanding the Church’s decisions that public worship at such services is to be in English, would conflict with the right to freedom of religion that is being exercised by the Church on behalf of its adherents.

100    Fifthly, as the jurisprudence of the United Nations Human Rights Committee has made clear, some restriction on the use of a minority language, religion or cultural practice does not offend Article 27. As the Human Rights Committee stated in Mavlonov and Sa’Di v Uzbekistan, Human Rights Committee, Views¸ Communication No 1334/04, 95th sess, UN Doc CCPR/C/95/D/1334/2004 (19 March 2005) (“Mavlonov”) at [8.7]):

[T]he Committee … has made clear that the question of whether Article 27 has been violated is whether the challenged restriction has an ‘impact […] [so] substantial that it does effectively deny to the [complainants] the right to enjoy their cultural rights[…]

101    Mavlonov concerned a denial of the re-registration of a minority language newspaper with the effect that the editor was prevented from publishing the paper. The paper was the only non-governmental Tajik-language publication in the Smarkland region of Uzbekistan. The paper was published bi-weekly and distributed to Tajik-speaking schools ([2.1]-[2.2]). Its content was explicitly educational, cultural and political and it was an uncontested fact that the paper published articles and other material for Tajik youth on events and matters of cultural interest and highlighted “particular difficulties facing the continued provision of education to Tajik youth in their own language, including shortages in Tajik-language textbooks, low wages for teachers and the forced opening of Uzbek-language classes in some Tajik school” ([8.7]). The Committee found a violation of article 27, being “of the opinion that the use of a minority language press as means of airing issues of significance and importance to the Tajik minority community in Uzbekistan, by both editors and readers, is an essential element of the Tajik minority culture” (at [8.7]). See further, Joseph & Castan at 861-864.

102    The appellants did not engage with this jurisprudence: they did not argue that the restriction imposed by the Church was “so substantial” that it denied them the right to enjoy their cultural (including language) rights. Nor, as already stated, did the appellants address what, on any view, was a key issue for them: namely, the protection afforded by article 18 of the Covenant for the religious freedom of the Church on behalf of its adherents. In this regard, reference need only be made again to Prussner v Germany (at 79), which recognised that a Church is “itself protected in its right to manifest its religion, to organise and carry out worship, teaching practice and observance, and it is free to enforce unanimity in these matters”; and to Metropolitan Church of Bessarabia (at [114]) where it was said that “[b]earing witness in words and deeds is bound up with the existence of religious convictions”.

103    Lastly, the history of article 27 demonstrates that article 27 is directed to a circumstance very different from that which arises in the present appeal. Its inclusion in the ICCPR sought to answer the “complex and delicate” need of the international community “to take effective measures for the protection of racial, national, religious or linguistic minorities” within Nation-States: see Patrick Thornberry, International Law and the Rights of Minorities (Clarendon Press, 1991) (“Thornberry”) at 149. In the words of the Human Rights Committee in General Comment No 23 (at [9]):

[A]rticle 27 relates to rights whose protection imposes specific obligations on State parties. The protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole. Accordingly, the Committee observes that these rights must be protected as such and should not be confused with other personal rights conferred on one and all under the Covenant. …

The situation confronting the Samoan-speaking members of the Church in this case differs significantly from the protection contemplated by article 27, the nature of which is indicated in Mavlonov. The appellants’ asserted right to worship publicly as a group in their native language in services conducted by the respondent Church is not to be found in article 27. Nor does article 27 protect this situation.

Right to nationality

104    The final right to which the appellant referred in written submissions filed in support of the appeal was the right to nationality referred to in article 5(d)(iii) of CERD. The right to nationality has been described repeatedly as “the right to have rights”: see Trop v Dulles 356 US 86 (1958) 101-102; Commissioner for Human Rights of the Council of Europe, “The Rights of Stateless People Must be Protected” (Statement made at the 4th Council of Europe Conference on Nationality: Concepts of Nationality in a Globalised World, Strasbourg, 17 December 2010). See earlier Hannah Arendt, The Origins of Totalitarianism (Harcourt Brace, [1951]). It is important in a variety of contexts, ranging “from obtaining a valid passport enabling travel abroad to being able to vote”, as well the ability to undertake diplomatic service, none of which appear relevant here: see further, Malcolm Shaw, International Law (Cambridge University Press, 5th ed, 2003) at 584; Kim Rubenstein, “Globalization and Citizenship and Nationality” in Catherine Dauvergne (ed) Jurisprudence for an Interconnected Globe (Ashgate, 2003) 159 at 164. The kind of matters with which the right to nationality is concerned relate to belonging to a Nation-State. They do not appear to have anything to do with the right being asserted by the appellants in this case. Reflecting this, perhaps, the right to nationality itself was not the subject of much argument on the appeal. Since the right to nationality is directed to different concerns from those arising here, it can be put to one side as not providing any additional support for the existence of the appellants’ claimed right to worship publicly as a group in the Samoan language.

105    It is possible that the appellants saw the ‘right to nationality’, to which they referred in their written submissions and to which the appellants’ senior counsel referred tangentially at the hearing of the appeal, as another aspect of the minorities’ rights protected by article 27 of the ICCPR. This is indicated in the way the appellants’ senior counsel introduced the “nationality protection” argument to the Court, in so far as he referred to paragraph 53 of the Commentary of the Working Group on Minorities as “something in reference to the right to nationality”. (Paragraph 53 discusses the view of the working group that “Governments or persons belonging to majorities are often tolerant of person of other national or ethnic origins until such time as the latter assert their own identity, language and traditions”.) It is clear that the Commentary relates to the Declaration on Minorities, which “is inspired by article 27 of the [ICCPR]” (Commentary at [3]) and does not relate to the right to nationality (which is sourced elsewhere). The right to nationality in article 5(d)(iii) of CERD is not, however, an article 27 right. In any event, for the reasons already stated, the appellants’ argument was not assisted by article 27 of the ICCPR.

freedom of association

106    As already noted, the appellants did not challenge the Federal Magistrate’s ruling that article 5(d)(ix) of the CERD (right to freedom of peaceful assembly and association) was not engaged in this case.

The Question of ‘Balancing’

107    As indicated earlier, the appellants also sought to set aside the Federal Magistrate’s decision on the basis that his Honour had engaged, improperly, in a task of “balancing” their alleged rights with the rights and values of others, in determining whether the respondent’s acts were unlawful. This “balancing” is very different to the task of ascertaining, for example, the content of the appellants’ right to freedom of religion under article 5(d)(vii) of CERD in order to determine whether s 9 of the Racial Discrimination Act may be engaged. It is also very different to the task that may confront another court on another occasion when considering a right of another kind in article 5 of CERD, which is itself expressly limited by (among other things) the “rights of others” or by “public order” and all that that term entails at international law.

108    There was no occasion in this case for the Federal Magistrate to engage in any ‘balancing’ of a right properly enlivening s 9 of the Racial Discrimination Act against other rights or values. There was plainly no express requirement to do so. It is not necessary for this court to consider this matter further.

DISPOSITION

109    To summarise the outcome of the above analysis, the appellants’ first submission that the Federal Magistrate did not consider their claim in its entirety is accepted, for the reasons outlined above. This failure does not of itself entitle the appellants to succeed on the appeal. The appellants had to establish that the Federal Magistrates’ failure deprived them of success or at least of the possibility of success, such that a further hearing was warranted.

110    The second limb of the appellants’ case was that the three rights in article 5(d)(iii), (vii), (viii) of CERD in some way, either separately or together, gave rise to a right to worship publicly as a group in their native language at the respondent’s services of public worship. For the reasons stated, the appellants failed to establish the existence of this right and therefore failed to establish that there was a “human right or fundamental freedom … of a kind referred to in Article 5 of the Convention” that engaged s 9 of the Racial Discrimination Act of the kind alleged. None of the rights to freedom of religion or freedom of expression or right to nationality, as articulated by the appellants, protected the appellants’ ability to worship publicly as a group in the Samoan language in the respondent’s services. No language or other right in article 27 of the ICCPR supplied this deficiency.

111    Since the appellants failed to establish the existence of a right which would, in the circumstances of this case, engage s 9 of the Racial Discrimination Act, this provision cannot be engaged at all in this case. There is therefore no occasion to consider the numerous other issues that might have arisen under s 9(1) and (1A) of the Racial Discrimination Act had that possibility remained. There is no justification for a further hearing, whether in this Court or the Federal Circuit Court of Australia, as it is now known.

112    In these circumstances, there should be an order that the appeal be dismissed.

113    In this circumstance, it would ordinarily be appropriate for the appellants to pay the respondent’s costs. Two factors militate against this. As may be apparent by now, the brief reasons for judgment delivered by the Federal Magistrate left much to be desired. As stated, amongst other things, his Honour failed to consider the whole of the appellants’ claim. The lengthy delay between the trial and the delivery of reasons may well have contributed to this omission and other deficiencies in his Honour’s reasons. Absent these deficiencies, the appellants may not have been of a mind to appeal. Secondly, the appellants have been and apparently wish to remain members of the respondent Church. In all the circumstances, the parties may agree on an order for costs that takes account of these matters. They should have this opportunity.

114    In the event that the parties cannot agree on the disposition of costs, the parties may file and serve any costs submissions they wish to make by 4:30 pm on 31 March 2014, failing which there shall be an order that the appellants pay the respondent’s costs.

Associate:

Dated:    19 March 2014

REASONS FOR JUDGMENT

GREENWOOD J:

115    I have had the benefit of reading the reasons for judgment of Kenny J. I agree with the orders proposed by her Honour for the reasons identified by her Honour.

Associate:

Dated:    19 March 2014

REASONS FOR JUDGMENT

LOGAN J:

116    I agree with Kenny J.

Associate:

Dated:    19 March 2014

SCHEDULE OF PARTIES