Members of the Board of the Wesley Mission Council v OV and OW (No 2)  NSWADTAP 57 (1 October 2009)
The Wesley Mission Council (WMC) recently successfully appealed the 2008 decision by the NSW Administrative Decisions Tribunal (OV v QZ (No 2) NSW ADT 115) (which had found that the refusal by the Wesley Mission of an application by a homosexual couple to become foster carers was discriminatory under the NSW Anti-Discrimination legislation.)
In the case, 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 argued that they were exempt under section 56 of the Anti-Discrimination Act 1977.
The initial decision concluded that the exemption in section 56 did not apply.
The case before the appeals panel centred around the Tribunal’s reliance on definitions of key words in the legislation, which it used to make its decision. A number of questions of law were determined to have prejudiced the decision and the Appeal Panel subsequently remitted the decision back to the Tribunal to be reconsidered in light of the findings.
The Meaning of Religion
In the initial decision, the Tribunal 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.
The Tribunal concluded 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.”
- “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 relevant “religion” was “Christianity”, and not the religion of the “Uniting Church”. It rejected an argument that “religion” could be “denomination based”.
- 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”.
The Appeal Panel decided that the Tribunal’s definition of religion was too narrow and that Wesleyanism did indeed fall within the meaning of ‘religion’. Their reasoning was that where more than one definition of a word exists, the definition which gives accord to the purposes of the legislation in question should be used. As a result, the question of religion will be reconsidered by the Tribunal.
What does “Doctrine” mean?
“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.”
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, as 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).
The success of the appeal on this point came down to a procedural technicality. The Tribunal relied on a definition of “doctrine” without giving the parties a chance to comment on it’s reliability and veracity (truthfulness of the source). Accordingly, the Appeal Panel held the decision by the Tribunal was not in itself incorrect, but required the decision to be reconsidered in accordance with proper procedure.
Was the act of the Wesley Mission necessary to avoid injury to the religious susceptibilities of the adherents of the Christian 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 Appeal Panel however concluded that the Tribunal’s decision that, when an ‘unknown proportion’ of adherents is affected, the exemption is excluded, is incorrect. The Appeal Panel decision also found that the Tribunal’s definition of ‘adherents to the religion’ was too narrow, causing an error of law. This resulted in the Appeal Panel requiring this aspect of the decision to be reconsidered as well.
What implications does this decision have?
The principal difficulty for religious bodies was the Tribunal’s 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.
The fact that a broader definition of religion (which can encompass denominational bodies) has been suggested by the Appeal Panel is an encouraging sign for religious institutions. We will await with interest the decision by the tribunal on a rehearing of the matter.
Not withstanding the Appeal Panel’s decision, 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.
This article was written by Alistair Macpherson, Director.