In a very interesting recent decision, Bevege v Hizb ut-Tahrir Australia [2016] NSWCATAD 44 (4 March 2016), the NSW Civil and Administrative Tribunal has found that an Islamic group unlawfully discriminated against a female member of the audience for a seminar they were running, by requiring her to sit in a “women only” area.

In my view the decision is somewhat disturbing, and has the potential, if followed in the future, to undermine the appropriate recognition of religious freedom in NSW. The implications may extend beyond Muslim groups to a range of religious groups. 

Background Facts

Hizb ut-Tahrir Australia are a fairly well-known Islamic group which has taken a number of controversial positions on the role of Islam in Australia. Alison Bevege is a free-lance journalist who wanted to attend a lecture the group had organised on 10 October 2014, on the war in Syria. Ms Bevege’s own account of the events, and the subsequent difficulty she had in making her claim of discrimination, can be found in her online article “I took on Hizb ut-Tahrir. And I won” (Daily Telegraph, March 7, 2016).

The facts as found by the Tribunal were that Ms Bevege travelled to the meeting with a male friend, simply called “SR” in the judgment; but the two entered the lecture hall separately. SR was allowed to sit in the front section, with the men in the audience; Ms Bevege was, she said, approached by a woman who “directed her” to sit in the back of the hall, in an area reserved for women and children. Ms Bevege protested but was told that she was to sit in the women’s area- see para [60]. Her account was corroborated by SR, although a letter from a representative of the organisation claimed that she would have been allowed to sit elsewhere if she requested, and that she made no complaint- see [64]. In the end the Tribunal accepted Ms Bevege’s account of events.

Legal Issues concerning identity of the defendant(s)

One of the issues in the proceedings was who it was that could be sued for what was claimed to be an act of unlawful sex discrimination. Hizb ut-Tahrir, it seems from all the evidence, is not incorporated, and hence must be regarded at law as an “unincorporated association”. Issues about the liability of such associations are discussed by the Tribunal from para [100] onwards.

The question of whether a religious group has a “corporate identity” is not a new one. It has been raised many times before in relation to Christian churches. Indeed, probably one of the most notorious decisions about the liability of the Roman Catholic church to be sued for sexual assault committed by a priest, Trustees of the Roman Catholic Church v Ellis [2007] NSWCA 117 (24 May 2007), turned on this very issue in finding that there was no appropriate entity which could be sued.

In these proceedings the Tribunal also held that Hizb ut-Tahrir had no legal identity, and could not as such be sued. However, the approach of the common law in those cases is not to simply excuse the people involved in the organisation, but instead to hold all or some of the leaders at the time personally accountable. In this case the view was taken that the individuals responsible for organising the public lecture could be liable- see [106]. Five individuals were considered possibly liable and attempts made to serve those individuals. In the end the main person held responsible was Mr Ismail Alwahwah, who was named in leaflets advertising the meeting as a contact person. He was the person who held the main leadership responsibilities, and would be held personally accountable for any wrongdoing by the organisation on the day- see para [123]. (The incorporated body which owned the building where the lecture was held, Public Forums Inc, was also included in the list of possible defendants, but in the end the Tribunal found that there was insufficient evidence that this body knew of the seating arrangements for the meeting, and hence they were held not to be liable- see para [133].)

The main legal issue- sex discrimination

The substantive complaint made by Ms Bevege was that she was a victim of sex discrimination. Section 33 of the Anti-Discrimination Act 1977 (NSW) (“ADA”) makes it unlawful for someone who provides “services” to discriminate against a person on the ground of sex in the terms on which those services are provided. “Discrimination” on the grounds of sex means, under s 24 of the ADA, treating someone less favourably than someone of the opposite sex would be treated. Under s 4, the definition of “services” includes “access to, and the use of any facilities in, any place… that the public or a section of the public is entitled or allowed to enter or use, for payment or not”.

Here the Tribunal ruled that allowing members of the public generally to attend a public lecture amounted to the provision of a “service” in the terms of the legislation. (Just in case there is any doubt, the word here is used in a generic sense, and this does not automatically mean that a religious “service” in the specific sense of the word would be covered. However, it seems likely that where members of the public generally are permitted to come in to a church, or mosque, or synagogue, or other religious venue, then it would be regarded as sufficiently open to the public to be a “service” under the ADA- see para [58] here.)

Was there a defence of religious freedom?

Whatever view one takes of the detriments of being further away from the front of a meeting, the most obvious response to this claim would seem to be: “This is a conservative Muslim group. It is well known that men and women are often segregated in that context.” In other words, why was there no religious freedom defence based on the beliefs of this avowedly Muslim organisation?

The first point to make is that, unfortunately in my view, the organisation Hizb ut-Tahrir, and all the individual defendant leaders of the group, declined to appear before the Tribunal. Much time is spent in the judgment noting the efforts to serve all the defendants, and the fact that it seems fairly clear that they were aware of the proceedings. But they chose not to engage with the litigation.

As a consequence, the most obvious defence that would seem to arguably have applied, the application of s 56 of the ADA, was not the subject of detailed evidence or submissions from the defendants. A letter from Mr Alwahwah, quoted at para [88], does point out that segregation of men and women is a “fundamental consideration in Islam”, and the practice has a “philosophical basis in Islam”. But interestingly the letter actually denied that the seating arrangements had been made on “purely religious grounds”, arguing that they had been put in place for pragmatic reasons- the children were likely to be noisy and so they were sitting with the women in the rear of the hall, and these seats were closer to the fire exits. But beyond these points there was no appearance at the hearing, or any expert evidence as to Islamic beliefs.

These things could have been quite significant. Section 56 of the ADA provides that:

56 Religious bodies

Nothing in this Act affects:
(a) the ordination or appointment of priests, ministers of religion or members of any religious order,
(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order,
(c) the appointment of any other person in any capacity by a body established to propagate religion, or
(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.

Here it would seem to be clearly arguable that seating men and women in different areas was, under para 56(d), an “act or practice” of Hizb ut-Tahrir which conformed to the doctrines of Islam, and which was necessary to avoid injury to the “religious susceptibilities” of the adherents. In a previous series of cases, part of which was the decision of the NSW Court of Appeal in OV and OW v Members of the Board of the Wesley Mission Council (2010) 270 ALR 542, this provision had been applied to allow the Wesley Mission to decline to offer fostering arrangements to a same sex couple.

Here, however, s 56 was held not to be applicable. First, while it would seem to be a matter of common knowledge that Hizb ut-Tahrir has among its aims the “propagation” of Islam, the Tribunal referred to a part of the evidence describing the organisation as a “political party”- see [96]. Ignoring the fact that one of the characteristics of Islam is that it sees itself as an agent of political change as well as a religion, the Tribunal seems to have concluded that the two descriptions were inconsistent, and that there was no evidence to show that it was “established to propagate a religion”.

Second, and this was based on the explicit concession in the letter received by the Tribunal from Mr Alwahwah, the seating arrangements had been said not to have been made on religious grounds, and it was claimed that if Ms Bevege had requested, she would have been able to sit in the men’s area- see [98]. Hence by its own admission the organisation had made it impossible to argue that such seating was “necessary” to avoid injury to religious susceptibilities of those attending.

Outcome of the proceedings

Ms Bevege had apparently initially wanted an apology (so she says in the recent press report of the proceedings she has written) but by the time of the Tribunal hearing this claim was not pressed- see [137]. Instead she asked for an order that future gender segregation not take place, and an order of maximum damages of $100,000.

The Tribunal declined to order damages. Accepting her annoyance and frustration, and that her experience of the lecture was “diminished”, she had suffered no other damage.

However, having found the organisation guilty of discrimination, the Tribunal ordered that any future events should clearly display a sign indicating that segregated male and female seating arrangements “are not compulsory”, and that ushers etc are all made aware of this fact. In the end this, of course, is perfectly consistent with the claims made in the letter to the Tribunal about the current policy. Since the organisation itself could not be subject of the order, the formal order bound Mr Alwahwah to ensure that such policies were implemented in future public events.

Concluding comments and concerns

While in the end the organisation has formally not suffered any detriment beyond what it claimed its policy was already, the proceedings do seem to be unfortunate. It has been the subject of a finding that there was unlawful discrimination. In broad terms, the question that is posed is whether a religious group should be allowed to organise its meetings on its own terms, in accordance with its beliefs, or whether outside visitors can demand that general community standards be imposed on the group.

The case raises complex and interesting issues about the intersection of two of the values which our society seems committed to: multiculturalism, and feminism. On the one hand we are generally committed to allowing groups with different cultural norms to express those differences in their lives together. On the other hand, where some of those differences relate to the roles of men and women, we are justifiably concerned about detrimental treatment of women.

This intersection is then further complicated by the need to recognise religious freedom. In this case it seems quite plausible that a case may have been made that the organisation was a “body established to propagate religion”, under s 56 ADA. It also seems plausible that appropriate evidence may have established that segregation of men and women in a public meeting, if not absolutely “essential”, at the very least “conforms to the doctrines” of Islam, or at least some substantial parts of Islam. Without in any way supporting some of the more extreme positions of Hizb ut-Tahrir concerning implementation of sharia law, one must ask: was it really necessary for a Western reporter to assert her right to equal seating in a meeting organised by an Islamic group and aimed, apparently, at presenting an Islamic perspective on issues?

It used to be regarded as an act of politeness, even if one had the legal right to do something, not to assert that tight where the waiver of the right would harm no-one else, and assertion would cause offence and upset to others. (The apostle Paul commends this policy in the New Testament, in 1 Corinthians 10:23-33). Even putting aside for the moment the issues of courtesy, however, it seems plausible that a better case could have been made that the longstanding and deeply held religious beliefs of this group, should not really have been over-ridden for the sake of the minor benefits of a different seat in the room.

I trust no-one will read this piece and suppose I am personally in favour of Hizb ut-Tahrir, or the seating segregation of men and women as a general principle. I am not. But if we are to navigate a world where there are sometimes deep ideological differences between groups in the community, but where we want to live together in peace, then giving appropriate weight to firmly held religious commitments, where no harm is caused to others, seems a wise principle. Asserting our right to impose majority orthodoxy on the way that religious groups organise themselves, when those who are part of the group are not harmed and are happy with the way things are done, does not seem to be a good idea.