NSW Anti-Discrimination case sheds light on the meaning of religion 

Author

Alistair Macpherson

Senior Associate

Brisbane Office

Contact Alistair

Ph (07) 3252 0011

 

OV v QZ (No 2) [2008] NSW ADT 115

A recent decision of the NSW Administrative Decisions Tribunal has shed new light on the meaning of religion, particularly in the application of Anti-Discrimination Legislation and decisions made by religious bodies that are prima-facie discriminatory (for example, discriminatory decisions against same-sex couples). 

Whilst the decision is specific to NSW Legislation, that legislation does have some similarity to the Queensland Anti-Discrimination Act 1991.  For that reason, it is useful to take note of the ramifications of this decision.

 

The facts of the case

 

In 2002, a same-sex couple contacted the Wesley Mission to make inquiries about becoming foster-carers.  They were told that, as a matter of policy, applications from same-sex couple were never accepted.  They lodged a complaint with the Anti-Discrimination Board alleging discrimination on the ground of homosexuality.

 

There was no dispute that the applicants were rejected on the basis of their homosexuality.  The Wesley Mission contended, however, that this policy did not constitute unlawful discrimination, and relied upon the defence for religious bodies, as provided in section 56 of the Anti-Discrimination Act 1977. 

 

Section 56 of the Anti-Discrimination Act 1977

 

Section 56 of that Act provided as follows:

 

Nothing in this Act affects:

 

(c)       the appointment of any other person in any capacity by a body established to propagate religion, or

 

(d)      any …  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.

 

The Anti-Discrimination Act 1991 (QLD) has similar, although not identical, provisions.

 

What does “religion” mean?

 

The Tribunal considered the meaning of "religion".  In particular, they considered whether “religion” was the “religion of the Wesley Mission”, the “religion of the Uniting Church (which the Wesley Mission falls within)” or the “religion of Christianity”.

 

“Religion” is not defined in the Act.  The Tribunal therefore needed to consider what the “common” or “everyday” meaning of religion is.  In considering this, the Tribunal considered the definition of “religion” in various dictionaries, all of which pointed to the conclusion that “religion” was not church or denomination based.

 

In conducting this analysis, the Tribunal commented that “religion” was not a "church or a denomination itself, much less one of a number of churches which espouses and propagates the same fundamental belief system, but the "complex of faith and conduct" to which adherents of the religion subscribe and commit themselves to practice." 

 

The Tribunal continued, by stating that "it is common knowledge that within Christianity there are a number of streams all springing from the same source ….. That there are various streams within Christianity does not however turn each into a separate religion."

 

The Tribunal concluded that the relevant “religion” was “Christianity”, and not the religion of the “Uniting Church”.  It rejected an argument that “religion” could be “denomination based”.

 

The Tribunal noted that this may not have been the intention of the Parliament when section 56 was first drafted.  Nevertheless, the Tribunal concluded that any other reading would require a warping of the plain language of the statute where it uses the word "religion". 

 

What does “Doctrine” mean?

 

The next issue for the Tribunal to consider was the meaning of "doctrine".  “Doctrine was also not defined in the Act, and again the Tribunal needed to consider what the “common” or “everyday” meaning was.

 

The Tribunal noted that "the essence of the concept of a religious doctrine is that it is a principle or set of principles taught by the religion in question, in relation to some issue of real significance to the faithful …  it must have a source in some religious text or oral tradition regarded as authority within the religion itself, or come from a person or group recognised as having authority within the religion to interpret the religious text or tradition in the light of new circumstances."

 

Did the act of the Wesley Mission conform to the doctrines of the Christian religion?

 

The Wesley Mission argued that the relevant doctrine of the Church was the belief that "monogamous heterosexual partnership within marriage is both the norm and ideal", and that the act of preventing homosexual persons from being foster-carers conformed to this doctrine.

 

However, the Tribunal was unable to accept that this was a “doctrine” of Christianity.  In this regard, the Tribunal noted that there was a diversity of views and beliefs within the Christian religion on the issue of homosexuality (the Tribunal also commented that this diversity was also present in the Uniting church). 

 

Was the act of the Wesley Mission necessary to avoid injury to the religious susceptibilities of the adherents of the Christian religion?

 

The Tribunal also considered whether the decision to prevent same-sex couples from becoming foster carers was necessary to avoid injury to the religious susceptibilities of the adherents of the religion. 

 

The Tribunal noted that “injury” requires more than mere offence.  This “injury” must be caused to “the adherents”, and not just “some or an unknown proportion of the adherents”.

 

Again, the Tribunal noted that there was a diversity of views among adherents of the Christian religion about homosexuality.  Indeed, the Tribunal received evidence that another agency of the Uniting Church had allowed homosexual persons to be foster-carers.   Even if actual injury could be proven, this injury would only be to “some or an unknown proportion” of the adherents of the Christian religion, and not to all adherents.

 

The Tribunal upheld the claim of discrimination and ordered the Wesley Mission to pay compensation to the same-sex couple.  The Wesley Mission was also ordered to amend its policies to remove the discrimination.

 

What implications does this decision have for claims under the Queensland legislation?

 

It is important to note that this is a decision of a tribunal, and not a superior Court.  It is therefore unlikely to carry significant judicial weight in Queensland.  Nonetheless, the reasoning of the Tribunal is clearly well considered, and is instructive of how a superior court may determine this type of issue.  For example, a Queensland court would, in our view, have reference to the same reference sources when considering the meaning of “religion” and “doctrine”.  Therefore, this decision should not be dismissed out-of-hand.

 

There are two relevant provisions in the Queensland Anti-Discrimination Act 1991.  Section 25 provides an exemption for religious bodies or schools in the work and work-related areas.  Section 109 is a general exemption for religious bodies, and is similar to section 56 of the NSW Act.

 

Section 25 requires the person’s act to be contrary to the “employer’s religious beliefs”.  In contrast, section 109 requires the discriminatory act of the religious body to be in accordance with the doctrine of the religion concerned and necessary to avoid offending the religious sensitivities of people of the religion. 

 

The principal difficulty for religious bodies is the wider interpretation of “religion” (i.e. the Christian religion).  Because of the diversity of views within the Christian community, it would be very difficult for a respondent to a discrimination complaint to ever prove that their act of discrimination is exempt under the Act (whether pursuant to section 25 or 109). 

 

However, section 25 may provide an employer with greater scope than section 109.  In this regard, the reference to “religious belief” may not require the higher standard for demonstrating a “doctrine of the religion concerned”.  Additionally, section 25 makes specific reference to the “employer’s religious beliefs”.  This may support a broader interpretation of religion as being employer, church or denomination specific.

 

However, section 25 is not an ideal provision.  For example, it:

 

• Requires a work relationship between the parties (employee and employer, including voluntary or unpaid work);

 

• The discrimination must not be unreasonable, taking into account whether the action taken is harsh, unjust or disproportionate, and the consequences of the discrimination; and

 

• The person must openly act in a way that he or she knows or ought reasonably to know is contrary to the employer’s religious belief (i.e. it is essentially a “don’t ask, don’t tell” provision).

 

Practical Steps

 

As a preliminary step, we suggest that all religious bodies outline (in writing and preferably formally adopted by the Leadership) their religious beliefs and doctrines in sufficient detail so that, if a discrimination claim is made, there will be evidence available regarding the beliefs and doctrines.  For example, if a religious body considers that “monogamous heterosexual partnership within marriage is both the norm and ideal”, this should be clearly documented.

 

Ultimately, however, any religious body that is a respondent to a discrimination complaint will still need to overcome the broader interpretation of “religion”.  This requires further judicial determination.  We will need to wait and see how Queensland courts and tribunals interpret the meaning of “religion”.

 

We understand that the decision of the Tribunal is to be appealed. 

 

Additionally, depending on the outcome of the appeal there may be need for peak bodies to make submissions to government for clarifying or amending legislation.