When Bishop Ross Bay refused Gino Sisneros entry into the Diocese of Auckland’s ordination discernment programme, he wasdiscriminating against him.

There’s no argument about that.

But there’s plenty of argument about whether that discrimination is legal.

Gino Sisneros' lawyer, Mr David Ryken, spent five hours on Wednesday trying to persuade the Human Rights Tribunal that Bishop Ross’s action amounted to illegal discrimination against a gay man who freely admits he's in a same-sex partnership.

Mr Ryken claimed it breaches Section 38 of the Human Rights Act, which outlaws discrimination against job seekers.

He argued, too, that the bishop can’t seek shelter for his refusal from Section 39.1 of the Act – which creates exemptions where religion is concerned.

The only exclusions on offer in Section 39.1, Mr Ryken claimed, concern gender – the Roman Catholic Church, for example, would not be in breach of the Act if it turned down a woman applying to be a priest – and whether the person concerned is a member of the faith concerned.

And because the Anglican Church ordains both men and women, and because Gino Sisneros is an Anglican, he shouldn’t have been refused entry to the discernment process.

In the course of his lengthy submission, Mr Ryken also ran a number of subordinate arguments – including one that says that because some bishops have, in the past, accepted gay people in same-sex relationships for ordination, excluding them cannot be considered part of the doctrine of the church.

Mr Ryken argued, too, that Bishop Ross was denying Mr Sisneros the opportunity to join a pre-employment qualifying programme, on the grounds of relationship. And that’s illegal, too.

The chairman of the Tribunal, Mr Rodger Haines QC, questioned Mr Ryken closely about why he thought Section 39 didn’t protect the church when it appoints priests.

And why it didn't have the right, for example, to decide whether a person's way of life complied with the church's doctrines.

Late in the afternoon, the defence counsel began its closing submissions.

Mr Bruce Gray QC launched these, then handed over to Professor Paul Rishworth, who is an internationally recognised authority in human rights law.

He refuted Mr Ryken’s claim that the church exclusions in Section 39 apply only to gender or whether the plaintiff is, in this case, Anglican.

He said the critical issue was the nature of the church position for which an applicant was being considered.  

In this case the postion sought was priesthood – and Section 39 guarantees the church the right to decide whom it ordains.

Furthermore, said Professor Rishworth, when Parliament framed the Human Rights Act, it had intended that the church should have complete freedom to choose its ordained leaders.

Defence counsel are expected to finish their closing submissions by midday, and the tribunal’s decision will be reserved.