Samoan Mormons Lose Federal Court Appeal Over the Right to Worship in Their Language

Last week (24-28 March 2014), the Full Federal Court handed down its decision in a long running appeal case that examined the question of whether there is a right to publicly worship in a minority language.

The case was brought by a large number of Samoan-speaking applicants against the Church of Jesus Christ of Latter-Day Saints Australia (popularly known as the Mormon Church, "the Church"), and argued that the Church was breaching various anti-discrimination laws. The Samoans had previously lost an appeal to a single judge of the Federal Magistrates Court, and this judgment was upheld in the Federal Court, confirming that there is no single human right covering the situation that can be read into Australia's international law obligations.

Facts

Until 2007 and 2008, the Church had three “wards” (congregational units) in Queensland that operated specifically as Samoan-speaking groups. All the appellants were members of these groups, and could pray, sing and testify in the Samoan language. However, the decision was made to cease these wards, and announcements were made that the appellants could no longer use any language other than English.  (See TimeBase's previous discussion of the case).

In the Federal Magistrates Court

The Federal Magistrates Court distinguished between the mode of delivery of the Church’s services and the availability of the services.  His Honour found [at 39-45]:

Grounds of Appeal

On appeal, the Samoan group primarily argued that the Federal Magistrates Court had ignored their contention that the right to worship publicly as a group in their native language was a “human right or fundamental freedom” for the purposes of s 9(1) and (1A) of the Racial Discrimination Act 1975 (Cth). They also felt that the very brief reasons given by Jarrett FM in his decision meant that he had not fully considered their argument.

Decision

Justice Kenny, who wrote the leading judgment, found that the Samoan group was correct in arguing that his Honour did not fully address the idea of whether or not the right to worship publicly as a group was in fact a human right. 

He then turned to the question of whether or not the right existed. The Samoan group argued that the right stemmed from the freedom of religion, or alternately the right to freedom of expression, or a minority’s right to language. Justice Kenny called freedom of religion a “complex right” that involved beliefs and practices of worship. He acknowledged that “the appellants’ expression of their beliefs is a part of their religious conviction”. However, he drew attention to recent restatements of jurisprudence that emphasised that, “in the case of dissent from Church rulings, an individual’s freedom of religion is protected by the right to leave the Church”. He concluded that, since the Samoan language was not the language customarily spoken by a religious group, there was no reason to depart from these precedents.

He also found that the right could not stem from freedom of expression, or minorities’ right to language, as neither sufficiently covered the appellant’s claims. The right to freedom of expression could not be equated with the right to a particular language, and a minorities’ right to language applies only in community with other members of their group (the Samoan wards included non-Samoan speaking people).

Greenwood and Logan JJ concurred with the whole of Justice Kenny’s reasoning.  The Court did acknowledge that “the brief reason for judgment delivered by the Federal Magistrate left much to be desired” [at 113], which was factored into the decision not to award costs against the appellants.

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 Iliafi v The Church of Jesus Christ of Latter­Day Saints Australia [2014] FCAFC 26