HORDYK and WANSLEA FAMILY SERVICES INC

[2022] WASAT 117

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION:   HORDYK and WANSLEA FAMILY SERVICES INC [2022] WASAT 117

MEMBER:   PRESIDENT PRITCHARD

JUDGE K GLANCY, DEPUTY PRESIDENT

MS S GILLETT, SENIOR SESSIONAL MEMBER

HEARD:   1 DECEMBER 2020 TO 9 DECEMBER 2020

15 DECEMBER 2020 AND 16 DECEMBER 2020

8 MARCH 2021

27 APRIL 2021 AND 28 APRIL 2021

DELIVERED          :   23 DECEMBER 2022

FILE NO/S:   EOA 12 of 2019

BETWEEN:   BYRON HORDYK

First Applicant

KEIRA HORDYK

Second Applicant

AND

WANSLEA FAMILY SERVICES INC

Respondent

CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF COMMUNITIES

Intervenor

Catchwords:

Discrimination law - Claim of discrimination on the grounds of religious conviction in the provision of services - Discrimination prohibited by s 62 of the Equal Opportunity Act 1984 (WA) - Claim of indirect discrimination as defined in s 53(2) of the Equal Opportunity Act 1984 (WA) - Service alleged to be the assessment of an application for approval to foster children - Refusal to assess foster care application - Meaning of "services" in s 4(1) of Equal Opportunity Act1984 (WA) - Whether refusal to progress application to assessment panel was a refusal to provide "services" - Whether applicant's views on sexual orientation and gender identity constitute a "religious conviction" - Whether refusal was "on the ground of" the applicants' religious conviction - Whether respondent imposed a requirement or condition on the applicants - Proper characterisation of the requirement or condition - Whether the applicants could comply with the imposed requirement or condition - Ascertainment of base group and comparator group - Whether the requirement and condition was not reasonable in the circumstances - Whether respondent could have made accommodations in light of the applicants' religious conviction – Whether employees of the respondent were officers of the Department or performing statutory functions - Whether Children and Community Services Act 2004 (WA) impliedly repeals relevant provisions of the Equal Opportunity Act 1984 (WA) - Whether there is an operational inconsistency between Children and Community Services Act 2004 (WA) and EqualOpportunity Act 1984 (WA) - Remedies to be awarded under s 127 of the EqualOpportunity Act1984 (WA) - Damages - Orders to otherwise redress the discrimination

Legislation:

Act Amendment (Lesbian and Gay Law Reform) Act 2002 (WA)
Anti-Discrimination Act 1997 (NSW), s 4
Children and Community Services Act 2004 (WA), s 3, s 7, s 8, s 8(1)(a), s8(1)(g), s 8(2), s 9, s 15, s 15(1), s 15(1)(a), s 15(2), s 16, s 16(2), s 16(3), s16(4), s 16(6), s 18(4), s 18(5), s 19, s 21, s 21(1), s 21(1)(a), s 22(1), s 24(1), s 24(2), s 24(3), s 24(5), s 28(2), s 29, s 30, s 79(2)(a), s 79(2)(a)(ii), s 79(4), Pt 2, Pt 4, Div 3, Div 5
Children and Community Services Regulations 2006 (WA), reg 4, reg 4(1)(a)
Equal Opportunity Act 1984 (Vic)
Equal Opportunity Act 1984 (WA), s 3, s 4, s 4(1)(e), s 4(3), s 53, s 53(1), s 53(2), s 53(2)(a), s 62, s 83, s 89(1), s 89(2), s 90(1), s 90(2), s 107(3), s 123(b)(iii), s 127, s 127(b), s 127(b)(i)
Interpretation Act 1984 (WA), s 5, s 18, s 31
Public Sector Management Act 1994 (WA), s 3
State Administrative Tribunal Act 2004 (WA), s 32
Working with Children (Criminal Record Checking) Act 2004 (WA)

Result:

Complaint of discrimination in the provision of services substantiated
Damages of $3 000 awarded to each applicant
Order for amendment of notification to the Department's Foster Carer Directory made to provide redress for the discrimination

Category:    B

Representation:

Counsel:

First Applicant	:	S Penglis SC & CPK Russell & SB Nadilo
Second Applicant	:	S Penglis SC & CPK Russell & SB Nadilo
Respondent	:	P Giles SC & VK Atchamah & Ms E Latif
Intervenor	:	S Keighery (hearing dates between 1 December 2020 and 8 March 2021), Ms ID Petersen (19 March 2021), Mr A Sefton SC (27 and 28 April 2021)

Solicitors:

First Applicant	:	Human Rights Law Alliance
Second Applicant	:	Human Rights Law Alliance
Respondent	:	Minter Ellison
Intervenor	:	State Solicitor's Office

Case(s) referred to in decision(s):

Adelaide Company of Jehovah's Witnesses Incorporated v Commonwealth (1943) 67 CLR 116

Airflite Pty Ltd v Goyal [2003] WASCA 45

Australian Iron & Steel Pty Ltd v Banovic & Ors [1989] HCA 56; (1989) 168 CLR

Briginshaw v Briginshaw (1938) 60 CLR 336

Butler v Attorney-General (Vic) (1961) 106 CLR 268

Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120

Clarke v Catholic Education Office (2003) 76 ALD 84; 202 ALR 340; [2003] FCA 1085

Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745

Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78

Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Another (1995) 63 FCR 74 (Dopking No 2)

Director General, Department of Community Services v MM [2003] NSWSC 1241

Edoo and Minister for Health [2010] WASAT 74

Farah v Commissioner of Police of the Metropolis [1998] QB 65; [1997] 1 All ER 289

Goodwin v Phillips (1908) 7 CLR 1

IW v The City of Perth and Ors (1997) 191 CLR 1

Jennings Industries Ltd v Commonwealth of Australia (1984) 57 ACTR 5; 69 FLR 189

Jordan v North Coast Area Health Service (No 2) [2005] NSWADT 258

Krysiak v Public Transport Authority [No 2] [2017] WASC 103

Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

NEAT Domestic Trading Pty Ltd v AWB Ltd and Another [2003] HCA 35, (2003) 216 CLR 277

Paff v Speed (1961) 105 CLR 549

Perth City and Ors v DL and Ors (1996) 90 LGERA 178

R (Williamson and Ors) v Secretary of State for Education and Employment and Ors [2005] UKHL 15

R v Turner [1975] QB 834

Rawcliffe v Northern Sydney Central Coast Area Health Service & Ors [2007] FMCA 931

Reserve Capital v Seascapes Supermarket WA Pty Ltd [2022] WASC 56

Richardson v Oracle Corporation Australia Pty Ltd and Another (2014) 223 FCR 334

Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770

Savjani v Inland Revenue Commissioners [1981] 1 QB 458

Secretary, Department of Foreign Affairs and Trade v Styles and Another (1989) 23 FCR 251

State of New South Wales v Amery (2003) 129 IR 300

Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1, 27

Waters and Ors v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

Table of Contents

Introduction

The Parties' positions

The Hordyks' discrimination claim and remedies sought

Wanslea's position

The Intervenor's position

Issues

Outcome

Definitions of some terms used in the assessment process, in the hearing and in this decision

Procedural history and jurisdiction of the Tribunal in relation to the complaint

Onus and standard of proof

The legislative framework relevant to the complaint and Wanslea's conduct

The EO Act

The CCS Act

The Children and Community Services Regulations 2006 (WA) and the Carer Competencies

Findings relating to witnesses' evidence

The Hordyks

Wanslea's lay witnesses

The expert evidence and the weight to be given to it

Factual findings

Wanslea

The Service Agreement and the service standards

The Department's Foster Carer Directory and the Protocols for the Foster Carer Directory

Other organisations also provide foster care services

Mrs Keira Hordyk

Mr Byron Hordyk

The Hordyks' commitment to their religious beliefs

Wanslea's process of approving foster carers and placing a child with a foster carer

The Assessment Manual

Was Wanslea required to assess whether foster care applicants met the Carer Competencies in respect of all children aged under 18 years?

Mr and Mrs Hordyk apply to become foster carers

The assessment process

The Case Study

Wanslea's response to the Case Study

How was the Case Study prepared and used?

Indirect discrimination

The Hordyks' claim of discrimination

Was Wanslea providing services to the Hordyks?

The ordinary definition of the word 'service'

The submissions of Wanslea and the Intervenor

Conclusion – Wanslea was providing a service

What is a religious conviction?

What does the FRCA teach about sexuality and gender?

Dr Durie's evidence

Dr Bredenhof's evidence

Conclusion – the FRCA views about sexuality and gender are religious convictions

Are the Hordyks' beliefs in relation to the sinfulness of homosexuality and in relation to gender identity a religious conviction?

Was the Hordyks' answer to the Case Study based upon a religious conviction?

Did Wanslea impose a requirement or condition – What was it?

Did the evidence establish that Wanslea held any SOGI views?

Conclusion – requirement or condition

Could the Hordyks comply with the requirement or condition?

Could a substantially higher proportion of persons who do not hold that religious conviction comply with the condition?

Professor Hughes' evidence

Reasonableness of the requirement or condition

How is the reasonableness of a requirement or condition to be assessed?

Expert evidence relevant to the reasonableness of Wanslea's requirement or condition

Wanslea's justification for the requirement or condition

Our conclusion as to reasonableness

Conclusion regarding indirect discrimination

Was Wanslea performing the statutory functions of the CEO under the CCS Act when assessing foster care applicants?

Implied repeal and operational inconsistencies

Implied repeal

Operational inconsistency

Conclusion in relation to the Hordyks' complaint of discrimination

Remedies

Damages

Order amending Wanslea's Notification to the Department's Foster Carer Directory - redress

Proposed Orders

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. The applicants, Mr and Mrs Hordyk, are members of the Free Reformed Church of Australia (FRCA), in its Baldivis congregation.  In 2017, they decided they could assist the community by becoming foster parents.  They wished to provide short­term, temporary or emergency foster care to children who were younger than five years of age, which was at that time the age of their eldest child.

2. The respondent, Wanslea Family Services Inc (Wanslea), is an incorporated, not-for-profit, association that contracts[1] with the State of Western Australia to arrange foster care for children who have been placed in the care of the Chief Executive Officer of the Department of Communities (CEO).  Wanslea's role includes assessing and approving people who wish to provide foster care and finding foster care placements for children when asked to do so by the CEO.  As Wanslea receives and assesses applications, it is required to provide information to the CEO who maintains a foster carer directory through the Department.  Wanslea is contractually bound to approve only persons who meet certain competencies, which are known as the 'Carer Competencies'.  Wanslea only approves foster carers it considers to be competent to provide a foster child with a physically and psychologically safe environment while in foster care.

   [1] The contract is known as the Service Agreement. 

3. The Hordyks applied to Wanslea for approval as foster carers.  They were provided with access to information and training about fostering through Wanslea.  Some of the training was in fact delivered by the Department for Child Protection and Family Support, which on 1 July 2017 was renamed the Department of Communities as part of an amalgamation between it and other government departments (the Department).

4. During the assessment process, the Hordyks revealed, in answer to specific questions asked of them, that they held the view that the Seventh Commandment in the Old Testament of the Bible requires sexual relationships to take place only between a man and woman who are married and that other expressions of human sexuality are sinful.  The Hordyks believe that same-sex relationships are sinful and that people who feel same-sex attraction must fight the sin in order to live in conformity with the Commandments.  They informed Wanslea that, as a result of their beliefs, in the event that a foster child who had been placed in their care was found kissing a child of the same sex at school, they would tell the child that they were loved but that the behaviour was sinful and needed to be resisted.  The Hordyks said they would have to end the placement of a foster child who continued to behave in that way.  They qualified that statement by saying that they would not terminate the placement immediately but could not foster that child in the long term.

5. Following the Hordyks' expression of those views, Wanslea's staff decided not to proceed to a final assessment of the Hordyks' application and instead terminated the assessment process (Wanslea's conduct).  Wanslea notified the Department that the Hordyks 'withdrew prior to the Organisation Panel', which appears to be a reference to what was called the Assessment Panel by Wanslea throughout the proceeding.  The reason given was 'assessed to not meet competencies'.[2] 

   [2] See Outcome of Foster Carer Assessment in Witness Statement of Kay Brenda Symes (Exhibit 3.2), pages 341-342.

The Parties' positions

The Hordyks' discrimination claim and remedies sought

1. The Hordyks have pursued this proceeding in the Tribunal under the Equal Opportunity Act 1984 (WA) (EO Act) in respect of Wanslea's conduct. The Hordyks complain that Wanslea indirectly discriminated against them on the grounds of their religious conviction by either refusing to provide them with services (in the nature of a foster care assessment), or in the terms and conditions on which Wanslea provided services to them, or in the manner in which they provided them with such services, and that in doing so, Wanslea was in breach of s 62 of EO Act.[3]

   [3] Applicants' Second Further Amended Statement of Issues Facts and Contentions dated 30 November 2020, para 3.

2. The Hordyks seek the following relief pursuant to s 127(b) of the EO Act:[4]

   1.an order that their complaint is substantiated;

   2.an order that Wanslea pay damages to each of them for hurt feelings and humiliation in an amount the Tribunal considers is appropriate to compensate them for those feelings.  It was submitted that the sum of $3 000 each is both appropriate and consistent with analogous cases; and

   3.an order requiring Wanslea to correct its Notification Form within the Foster Carer Directory of Western Australia by deleting the words 'assessed to not meet competencies' and replacing them with the words 'application discontinued' as the notification of the outcome of the Hordyks' application. 

Wanslea's position

[4] Applicants' Closing Submissions dated 22 April 2021, paras 139–143.  At para 145 of the Applicants' Closing Submissions, it was expressly stated that the other relief detailed in the Applicants' Statement of Issues, Facts and Contentions was no longer sought.

1. Wanslea says that the Hordyks are not entitled to any relief.  It submits:

   1.The EO Act does not apply to the assessment of foster care applicants because it has been repealed by the Children and Community Services Act 2004 (WA) (CCS Act), which regulates the provision of foster care in Western Australia.

   2.The assessment of a foster care applicant does not constitute a service for the purposes of the EO Act.

   3.If it does provide a service to a foster care applicant by assessing their application, the service is properly characterised as an assessment for competency.  That service was provided to the Hordyks in a manner that was not discriminatory.

   4.It did not require the Hordyks to comply with any requirement or condition.

   5.If it did impose a requirement or condition, the requirement was a requirement that they demonstrate in respect of the care of children of all sexual orientations or gender identities. 

   6.If it did impose a requirement or condition, the requirement or condition was reasonable having regard to the best interests of foster children, including children manifesting non-heterosexual sexual orientations and diverse gender identities.

   7.If it did impose a requirement or condition, it was not one with which the Hordyks could not comply because of their religious conviction.  The rigidity they demonstrated in their proposed response to a child expressing homosexual attraction was not part of their religious conviction.

The Intervenor's position

1. On 17 November 2020, President Pritchard made an order granting the CEO leave to intervene in the proceeding for the purposes of making written and oral submissions in relation to the interpretation of s 62 of the EO Act, the precise construction of the alleged requirement or condition identified by the applicants for the purposes of s 53(2) of the EO Act, and the reasonableness of the requirement.

2. In summary, the Intervenor makes the following submissions:

   1.the assessment of foster care applications is not a service as that term is used in the EO Act; and

   2.the requirement of s 7 of the CCS Act, that the best interests of the child is the paramount consideration, is operationally inconsistent with s 62 of the EO Act, with the consequence that s 62 of the EO Act does not apply in this case.

Issues

1. Resolving the complaint requires us to determine the following issues: 

   1.Was the assistance and training and the assessment of the Hordyks' application to be approved as foster carers the provision by Wanslea of a service to the Hordyks for the purposes of s 62 of the EO Act?

   2.What were the Hordyks' views with respect to sexual orientation and gender identity (SOGI) issues, and did those views constitute or reflect a religious conviction?

   3.Did Wanslea impose a requirement or condition on the Hordyks with which they would have to comply in order for their application to be approved?  If so, what was the requirement or condition?

   4.Were the Hordyks able to comply with the requirement or condition?  If not, was that because of their religious conviction?

   5.Were a substantially higher proportion of people who hold a different religious conviction from that of the Hordyks able to comply with the requirement or condition imposed by Wanslea?

   6.Was the condition or requirement imposed on the Hordyks by Wanslea reasonable or could Wanslea have made accommodations in light of the Hordyks' religious convictions?

   7.In so far as the EO Act prohibits conduct which discriminates against a person on the ground of their religious conviction in the provision of services, then, if that same conduct is in the best interests of a child, does the CCS Act impliedly repeal the EO Act to the extent of the inconsistency?

   8.Was there an operational inconsistency between the relevant provisions of the CCS Act and the EO Act in this case that result in the provisions of the EO Act being inoperative to the extent of that inconsistency?

   9.What relief (if any) should be ordered?

Outcome

1. For the reasons set out below, we have concluded that the Hordyks' complaint of discrimination in the provision of services on the grounds of their religious conviction has been substantiated.  As a consequence of the loss and damage we find they suffered, we find that Wanslea should compensate the Hordyks with damages in the sum of $3 000 each.  In order to redress the discrimination, we will also make an order that Wanslea provides an amended Notification Form to the Department's Foster Carer Directory reflecting that the Hordyks' application was discontinued.

2. Our conclusion that the Hordyks' complaint is substantiated depended on the specific facts of this case.  Our findings are concerned with whether there was discrimination in the assessment process Wanslea adopted in relation to the Hordyks' application.  They do not relate in any way to other parts of the process of arranging foster care placements for children.

Definitions of some terms used in the assessment process, in the hearing and in this decision

1. In the course of the assessment process and during the Tribunal's hearing, various expressions were used to refer to the Hordyks' beliefs, to refer to certain gender identities and sexual orientations and to describe what was said by the Hordyks to be the condition or requirement imposed upon them by Wanslea.  We have set them out below because they have frequently been used throughout these reasons.

   •SOGI – sexual orientation and gender identity.

   •SOGI beliefs – the beliefs of an individual (in this case primarily the Hordyks) about issues related to sexual orientation and gender identity.

   •LGBTQ – lesbian, gay, bisexual, transgender and queer.

   •LBTQI – lesbian, gay, bisexual, transgender, queer and intersex.

   •LGBTQIA+ – lesbian, gay, transgender, queer, intersex, asexual and/or questioning.  It is used as an umbrella term for all non-heteronormative identities.

   •Cisgender – a term for people whose gender identity generally matches the gender assigned for their physical sex.

Procedural history and jurisdiction of the Tribunal in relation to the complaint

1. Before turning to the facts we have found and the resolution of issues that arise in this case, it is appropriate to say something about the history of the proceedings and the nature of the Tribunal's jurisdiction in resolving it.

2. As required by the EO Act, the Hordyks originally brought their complaint before the Commissioner for Equal Opportunity (Commissioner) pursuant to s 83 of the EO Act. Their complaint was framed as both a complaint of discrimination on the grounds of religious conviction and political conviction. Pursuant to s 89(1) of the EO Act, the Commissioner dismissed the complaint of discrimination on the grounds of religious conviction on the basis that it was lacking in substance and dismissed the complaint of discrimination on the grounds of political conviction on the basis that it was both lacking in substance and misconceived.[5] The Commissioner notified the Hordyks of his reason for dismissing the complaint as required by s 89(2) of the EO Act and, in that notice, informed them of their right, under s 90(1) of the EO Act, to require the Commissioner to refer the complaint to the Tribunal.[6] The Hordyks gave the Commissioner notice that they required the complaint to be referred to the Tribunal and the Commissioner then referred the matter to the Tribunal in compliance with his obligation in s 90(2).[7]

   [5] Letter dated 10 April 2019 from the EOC to Mr and Mrs Hordyk advising that their complaint had been dismissed (Exhibit 1.13).

   [6] Exhibit 1.13.

   [7] Letter dated 30 May 2019 from EOC to SAT (Exhibit 1.1).

3. When a complaint is referred to the Tribunal pursuant to s 90(2) of the EO Act, the Tribunal is then required by s 107(3) of the EO Act to 'hold an inquiry' into the complaint. As was said in Krysiak:[8] 

   The ordinary meaning of the word 'inquiry' is 'the action of seeking truth, knowledge, or information' concerning something; search, research, investigation, examination' and 'an investigation into a matter'. An 'inquiry' in this context thus does not involve a 'review' of any previous decision of a decision maker, but rather an examination of the allegation made in the complaint (namely, an allegation of discrimination contrary to the EO Act) (footnotes omitted).

   [8] Krysiak v Public Transport Authority [No 2] [2017] WASC 103 (Krysiak) at [37] (Pritchard J).

4. In doing so, the Tribunal exercises its original jurisdiction in determining the complaint.[9]  In conducting its inquiry, the Tribunal is not bound by the rules of evidence, may inform itself on any matter as it thinks fit and must act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms.[10]

   [9] Krysiak at [30] and [36] - [38] (Pritchard J).

   [10] SAT Act, s 32.

5. In the proceeding in the Tribunal, the Hordyks did not persist with the allegation of discrimination on the basis of political conviction and the inquiry which we conducted concerned only an allegation of indirect discrimination in the provision of services on the grounds of the Hordyks' religious conviction.

Onus and standard of proof

1. The Hordyks bear the onus of proof of all matters necessary to establish their complaint.  In determining the complaint, the standard which we must apply is the balance of probabilities but because allegations of discrimination are serious matters, bearing in mind the observations made by the High Court in Briginshaw,[11] we must feel an actual persuasion that the discrimination alleged in fact occurred in order to find the complaint substantiated.[12]  

   [11] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 in which it was held that the seriousness of an allegation, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved.

   [12] Edoo and Minister for Health[2010] WASAT 74 (Edoo) at [53] (Pritchard P and McNab SSM).

The legislative framework relevant to the complaint and Wanslea's conduct

1. We next set out the relevant portions of the EO Act and the CCS Act, which governed the assessment of individuals seeking to be foster carers and the placement of children in need of foster care with approved foster carers as they applied at the time the Hordyks' application was being considered by Wanslea.

The EO Act

1. The long title to the EO Act is:

   An Act to promote equality of opportunity in Western Australia and to provide remedies in respect of discrimination on the grounds of sex, marital status, pregnancy, sexual orientation, family responsibility or family status, race, religious or political conviction, impairment, age or publication of details on the Fines Enforcement Registrar's website, or involving sexual or racial harassment or, in certain cases, on gender history grounds. 

2. The objects of the EO Act are set out in s 3 of the EO Act. Importantly for present purposes, the objects include the following:

   1.to eliminate, so far as possible, discrimination against persons on the ground of sex, marital status or pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age, publication of relevant details on the Fines Enforcement Registrar's website or, in certain cases, gender history in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs (s 3 object (a)); and

   2.to promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages (s 3 object (d)).

3. As we have said, in this case, the Hordyks complain that they suffered discrimination on the basis of their religious conviction in the way in which Wanslea provided them with services.

4. The term 'service' is defined in s 4 of the EO Act as follows:

   services includes —

   (a)services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; and

   (b)services relating to entertainment, recreation or refreshment; and

   (c)services relating to transport or travel; and

   (d)services of the kind provided by members of any profession or trade; and

   (e)services of the kind provided by a government (other than the assessment of an application for suitability for adoptive parenthood, or the placement of a child for adoption or with a view to the child's adoption, under the Adoption Act 1994), a government or public authority or a local government body.

5. Discrimination in the provision of services on the grounds of religious conviction which is alleged by the Hordyks is made unlawful by s 62 of the EO Act. That section provides:

   Goods, services and facilities

   It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's religious or political conviction —

   (a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

   (b)in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

   (c)in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

6. Section 53 of the EO Act sets out that which constitutes discrimination on the ground of religious conviction (and political conviction). That section provides as follows:

   Discrimination on ground of religious or political conviction

   (1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of religious or political conviction if, on the ground of —

   (a)the religious or political conviction of the aggrieved person; or

   (b)a characteristic that appertains generally to persons of the religious or political conviction of the aggrieved person; or

   (c)a characteristic that is generally imputed to persons of the religious or political conviction of the aggrieved person, the discriminator treats the aggrieved person less favourably than in the same circumstances or in circumstances that are not materially different, the discriminator treats or would treat a person of a different religious or political conviction.

   (2)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of religious or political conviction if the discriminator requires the aggrieved person to comply with a requirement or condition —

   (a)with which a substantially higher proportion of persons who are of a different religious or political conviction comply or are able to comply; and

   (b)which is not reasonable having regard to the circumstances of the case; and

   (c)with which the aggrieved person does not or is not able to comply.

7. Discrimination of the kind referred to in s 53(1) is known as 'direct discrimination'. Discrimination of the kind referred to in s 53(2) is known as 'indirect discrimination'. The term 'person' as used in the EO Act includes an association or body of persons, whether corporate or unincorporate.[13]  The term 'person' thus is capable of encompassing an incorporated association such as Wanslea.

The CCS Act

[13] Interpretation Act 1984 (WA), s 5.

1. Foster care in this State is governed by the CCS Act.[14]  There are several types of arrangements for the care of children needing care.  In this case, we are concerned only with what is known as 'general foster care' and which we will call 'foster care' throughout our judgment.  Foster care involves children in need of care being placed with an approved foster carer or carers to live in a family-like arrangement with the foster carer or carers.[15] Only children who are in 'provisional protection and care', or in respect of whom a protection order (time limited) or a protection order (until 18) has been made under Pt 4, Div 3 of the CCS Act can be placed in foster care. Protection orders can be made only for children who are found to be in need of protection. Where a child is in 'provisional care and protection' or is the subject of a protection order (time limited) or a protection order (until 18), the child is in the CEO's care.[16] 

   [14] The CCS Act has been amended since 2017. As Wanslea's conduct occurred primarily between July and August of 2017, the CCS Act as in force on 1 July 2017 applies.

   [15] Other kinds of arrangements include children being placed in group homes or in secure care.

   [16] CCS Act, s 30.

2. Definitions of terms used in the CCS Act are set out in s 3 of the CCS Act. Relevantly, they include the following:

   child means a person who is under 18 years of age, and the absence of positive evidence as to age, means a person who is apparently under 18 years of age.

   carer means a person who provides care for a child under a placement arrangement.

   CEO means the chief executive officer of the Department.

   Department means the department of the public service principally assisting the Minister in the administration of this Act.

   harm, in relation to a child, includes harm to the child's physical, emotional or psychological development.

   in the CEO's care has the meaning given to that term in section 30.

   placement arrangement means an arrangement under section 79(2) for the placement of a child.

   service provider means a person who-

   (a)provides or promotes social services; or

   (b)conducts research and development

   under an agreement referred to in section 15(1).

   social services means services provided to assist children, other individuals, families, and communities including, but not limited to, the following services —

   (a)preventative services;

   (b)protective services;

   (c)placement services;

   (d)child care services;

   (e)information and advisory services;

   (f)education and training services;

   (g)counselling services;

   (h)therapeutic services;

   (i)advocacy services;

   (j)mediation services;

   (k)crisis services;

   (l)family violence services;

   (m)support services.

   wellbeing, of a child, includes the following-

   (a)the care of the child;

   (b)the physical, emotional, psychological and educational development of the child;

   (c)the physical, emotional and psychological health of the child;

   (d)the safety of the child.

3. Section 7 of the CCS Act is of central importance in the legislative framework established by the CCS Act. It provides:

   In performing a function or exercising a power under this Act in relation to a child, a person, the Court or the State Administrative Tribunal must regard the best interests of the child as the paramount consideration. 

4. Section 8 then sets out the matters that must be taken into account in determining what is in a child's best interests for the purposes of the CCS Act. Those matters include, among other things, the following:

   i.the need to protect the child from harm;[17]

   ii.the importance of continuity and stability in the child's living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from parents, siblings, carers and others who are significant in the child's life;[18]

   iii.the need to maintain contact with the child's parents' siblings and other people who are significant in the child's life;[19]

   iv.the child's age, maturity, sex, sexuality, background and language;[20]

   v.the child's cultural, ethnic or religious identity;[21]

   vi.the child's physical, emotional, intellectual, spiritual and developmental needs.[22]

   [17] CCS Act, s 8(1)(a).

   [18] CCS Act, s 8(1)(g).

   [19] CCS Act, s 8(1(h).

   [20] CCS Act, s 8(1)(i).

   [21] CCS Act, s 8(1)(j).

   [22] CCS Act, s 8(1)(m).

5. Section 8(2) of the CCS Act provides that the matters identified in s 8(1) do not limit the matters that may be taken into account in determining what is in the child's best interests.

6. Section 9 of the CCS Act provides:

   In the administration of this Act, the following principles must be observed:

   (a)the principle that the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing;

   (b)the principle that the preferred way of safeguarding and promoting a child's wellbeing is to support the child's parents, family and community in the care of the child;

   (c)the principle that every child should be cared for and protected from harm;

   (d)the principle that every child should live in an environment free from violence;

   (e)the principle that every child should have stable, secure and safe relationships and living arrangements;

   (f)the principle that intervention action (as defined in section 32(2)) should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing;

   (g)the principle that if a child is removed from the child's family then, so far as is consistent with the child's best interests, the child should be given encouragement and support in maintaining contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;

   (ha) the principle that if a child is removed from the child's family then, so far as is consistent with the child's best interests, planning for the child's care should occur as soon as possible in order to ensure long-term stability for the child;

   (h)the principle that decisions about a child should be made promptly having regard to the age, characteristics, circumstances and needs of the child;

   (ia)the principle that decisions about a child with disability should be made giving special consideration to any difficulties or discrimination that may be encountered by the child because of the child's disability and should support the child's full and effective participation in society;

   (i)the principle that decisions about a child should be consistent with cultural, ethnic and religious values and traditions relevant to the child;

   (j)the principle that a child's parents and any other people who are significant in the child's life should be given an opportunity and assistance to participate in decision-making processes under this Act that are likely to have a significant impact on the child's life;

   (k)the principle that a child's parents and any other people who are significant in the child's life should be given adequate information in a manner and language that they can understand, about —

   (i)decision-making processes under this Act that are likely to have a significant impact on the child's life; and

   (ii)the outcome of any decision about the child, including an explanation of the reasons for the decision; and

   (iii)any relevant complaint or review procedures;

   (l)the principle set out in section 10(1).

7. Section 15(1)(a) of the CCS Act provides that the Minister may, on behalf of the State, enter into an agreement with a person for the provision or promotion of social services by that person. Section 15(2) provides that an agreement made under s 15(1) may contain any provision that the Minister considers appropriate.

8. Section 16 provides that the Minister may delegate to the CEO, any power or duty of the Minister under the CCS Act. The delegation must be in writing and signed by the Minister.[23]  The Minister's delegation may expressly authorise the CEO to further delegate the power or duty.[24] Section 16(6) provides that nothing in s 15 limits the ability of the Minister to perform a function through an officer or agent.

   [23] CCS Act, s 16(3).

   [24] CCS Act, s 16(4).

9. Section 16(2) provides that powers and duties that may be delegated include any power to be exercised or duty to be performed in the course of governing the affairs of the Children and Community Services Ministerial Body under s 18(4). The Children and Community Services Ministerial Body is a body corporate with perpetual succession,[25] is governed by the Minister,[26] and is an agent of the State with the status, immunities and privileges of the State.[27] Section 19 provides that the purpose of the Ministerial Body is to provide a body corporate though which the Minister can perform any of the Minister's functions under or for the purposes of the CCS Act that can be more conveniently performed by a body corporate than an individual.

   [25] CCS Act, s 18(2).

   [26] CCS Act, s 18(4).

   [27] CCS Act, s 18(5).

1. The CEO's functions are set out in s 21 of the CCS Act. They include considering, initiating or assisting in the provision of social services to children, other individuals, families and communities.[28]

   [28] CCS Act, s 21(1)(a).

2. Section 22(1) provides that in performing functions under the CCS Act, the CEO must endeavour to work in cooperation with public authorities, non-government agencies and service providers.

3. Section 24(1) of the CCS Act provides that the CEO may delegate to an officer, a service provider, or another person any power or duty of the CEO under another provision of the CCS Act. Section 24(2) requires a delegation made under s 24(1) to be in writing. Section 24(3) empowers the CEO to permit the delegate to sub-delegate the power or duty. Section 24(5) provides that the power to delegate does not limit the ability of the CEO to perform a function through an officer or agent.

4. Part 4, Div 5, Subdivision 2 of the CCS Act deals with the making by the CEO of placement arrangements (other than in a secure care facility) for children in the CEO's care. Section 79(2)(a) of the CCS Act provides that the CEO may make an arrangement for the placement of a child:

   (i)with an individual approved by the CEO in accordance with the regulations; or

   (ii)with a person who has entered into an agreement under s 15(1) for the provision of placement services; or

   (iii)in a residential facility operated or managed by the Department or another public authority.

5. Section 79(4) provides that the regulations may make provision for and in relation to the approval of individuals for the purposes of subsection (2)(a)(i).

The Children and Community Services Regulations 2006 (WA) and the Carer Competencies

1. The Children and Community Services Regulations 2006 (WA) (Regulations) were made under the CCS Act.

2. Regulation 4 provides as follows:

   Approval of carers (Act s 79(2)(a)(i))

   (1)The CEO may approve an individual for the purposes of section 79(2)(a)(i) if —

   (a)the CEO is satisfied that the individual —

   (i)is able to provide care for a child in a way that promotes the wellbeing of the child, promotes the child's family and interpersonal relationships, and protects the child from harm; and

   (ii)is able to provide a safe living environment for a child; and

   (iii)is able to work cooperatively with officers, a child's family and other people when providing care for a child; and

   (iv)is able to take responsibility for the development of his or her competency and skills as a carer; and

   (v)is a person of good character and repute;

   and

   (b)a negative notice or an interim negative notice has not been issued to the individual under the Working with Children (Criminal Record Checking) Act 2004.

   (2)The CEO may, subject to subregulation (3), revoke an approval under subregulation (1) if —

   (a)the CEO can no longer be satisfied as to a matter referred to in subregulation (1)(a) in relation to the individual; or

   (b)a negative notice or interim negative notice has been issued to the individual under the Working with Children (Criminal Record Checking) Act 2004; or

   (c)there are reasonable grounds for believing that the approval was obtained improperly. 

   (3)Before revoking the approval the CEO must —

   (a)give a written notice to the individual —

   (i)stating the reasons for the proposed revocation; and

   (ii)informing the individual that the individual is entitled to make representations to the CEO in respect of the proposed revocation within 28 days after receipt of the notice;

   and

   (b)have regard to any representations made within the period referred to in paragraph (a)(ii).

3. The five matters in reg 4(1)(a)(i) to 4(1)(a)(v), of which the CEO must be satisfied in order to approve an individual as a foster carer, are commonly known as, were referred to by the parties and witnesses as, and are referred to in the remainder of the judgment as 'the Carer Competencies'.

Findings relating to witnesses' evidence

1. Before dealing with the facts, we make the following observations in relation to the lay witnesses who gave evidence.

The Hordyks

1. Mr and Mrs Hordyk gave evidence.  We found both Mr and Mrs Hordyk to be honest witnesses.  They answered questions asked of them thoughtfully and without exaggeration.  In relation to matters concerning their interaction with Wanslea, their evidence, and in particular the evidence given by Mrs Hordyk, was consistent with Wanslea's records and with the evidence given by Wanslea's officers.

Wanslea's lay witnesses

1. The following current or former employees of Wanslea gave evidence in this proceeding.  They were either directly involved in some aspect of the Hordyks' foster care application or had an administrative role at Wanslea:

   •Madeline McLeod.  Ms McLeod holds a Bachelor of Social Work and a Bachelor of Arts from the University of Western Australia and a Certificate in Drug and Alcohol Counselling.  She was employed by Wanslea between February 2013 and November 2019.  During that time she held the roles of Social Worker, Senior Social Worker and Coordinator.  She acted in the role of Operations Manager from time to time. 

   •Charlotte Cain.  Ms Cain holds a Masters in Social Work which she obtained in England.  She also holds a Bachelor of Arts (Honours).  She came to Australia in 2007 and worked at Wanslea from July 2007 to June 2020.

   •Stephen Lund.  Dr Lund holds a Doctor of Philosophy in Social Work and Social Policy and a Bachelor of Social Work.  In addition to some lecturing and research, since June 2019, he has run a private consultancy business through which he provides consultancy services to organisations within the community services sector including the assessment of foster care applications. Between July 2008 and July 2009, he worked as the Manager of the Out of Home Care and Specialist Services teams at Wanslea and between July 2009 and June 2019 he held the position of Executive Manager of Out of Home Care at Wanslea. 

   •Christine Lindahl.  Ms Lindahl holds a Bachelor of Social Work which she obtained in Norway.  Between 2009 and 2010, she worked as a Social Worker for the Department for Child Protection in Norway.  She moved to Australia in 2011.  She began working for Wanslea in April 2017.  In August 2002, she was promoted to Operations Manager.  In 2020, she was also acting in the role of General Manager.  While employed by Wanslea, before being appointed to the position of Operations Manager she worked in the roles of Social Worker, Senior Social Worker and Acting Coordinator for various periods of time.  

   •Kay Symes.  Ms Symes holds a Bachelor of Social Work and Social Work Bicultural Practice.  She also holds Diplomas in Adult Education, Social Work and Community Work.  Ms Symes moved from New Zealand to Australia in August 2013.  She worked in various roles in the social work and welfare sector in Australia before joining Wanslea in April 2015.  While there she held the roles of Social Worker and Senior Social Worker.  She left employment at Wanslea in October 2019. 

   •Patricia Murray.  Ms Murray is the Chief Executive Officer of Wanslea.  She was appointed to that position in 2004.   She has worked in organisations involved in the provision of social services for over 40 years.  She was awarded an Order of Australia in 2020 for her significant services to the community through social welfare organisations.[29] 

   [29] Witness Statement of Patricia Anne Murray (Exhibit 3.6), pages 3–4, paras 1–6.

2. We accept the evidence of the Wanslea witnesses about their respective roles, experience and qualifications, the concerns they have for children needing foster care and the process adopted by them in assessing foster carer applicants.  However, we did have concerns about some aspects of the evidence given by Wanslea's lay witnesses.  Where we had concerns about aspects of Wanslea's witnesses' evidence, and where it is relevant to determining a fact in issue in this proceeding, we have referred to it when we deal with the particular evidence in these reasons. 

3. In particular, we were left with the impression that Ms Murray's evidence was avoidant, defensive and crafted to cast events and decisions in the most favourable light for Wanslea.  For example, rather than agreeing in cross-examination with what we regard to be an obvious proposition that she could see a connection between the Hordyks' SOGI beliefs and their religion, she repeatedly stated that such a connection might be 'inferred'.[30]  We found her refusal to accept that Wanslea was able to approve as a foster carer someone who could not care for children of every age between 0 - 18 years despite having done so in the case of foster carers who smoke, to be an example of disingenuous evidence which we found was given with the intention of painting Wanslea's decision in its most favourable light.  We also found Ms Murray to have endeavoured to avoid answering questions asked in cross-examination the answers to which she appeared to anticipate would not assist Wanslea's case.[31]  For those reasons we are cautious about accepting any of her evidence about Wanslea's views about LGBTQI+ issues, and their reasons for refusing to progress the Hordyks' application to the Assessment Panel and the way in which Wanslea assesses applicants. 

The expert evidence and the weight to be given to it

[30] ts 585, 589, 595 and 598, 15 December 2020.

[31] See for example:  ts 464–465, 470–471, 7 December 2020.

1. The parties relied on expert evidence in relation to particular aspects of their cases, namely evidence from Dr Kenny, Dr Durie, Dr Bredenhof, Dr Hughes and Dr Moore. 

2. Wanslea submitted that we should give either little or no weight to much of the evidence in the expert reports of the following witnesses which were received as evidence in this proceeding:

   •Dr Kenny – whose evidence the Hordyks rely upon to demonstrate that the requirement or condition was neither reasonable or necessary;[32]

   •Dr Durie – whose evidence the Hordyks rely on to establish that their religious convictions on SOGI matters are consistent with the teachings of the FRCA;[33]

   •Dr Bredenhof – who is relied upon by the Hordyks to establish that their religious convictions on SOGI matters are consistent with the teachings of the FRCA;[34] and

   •Dr Hughes – who is relied upon to establish that the requirement or condition imposed by Wanslea was one with which a substantially higher proportion of persons who do not hold the same religious conviction are able to comply.[35]

   [32] First Report of Dr Dianna Kenny dated 16 April 2020 (Exhibit 2.4); Supplementary Report of Dr Kenny dated 30 October 2020 (Exhibit 2.5); Redacted Joint Report of Dr Moore and Dr Kenny (Exhibit 14).

   [33] Expert Opinion of Dr Mark John Durie (Exhibit 2.6).

   [34] Expert Opinion of Dr Wesley L. Bredenhof (Exhibit 2.7).

   [35] Report of Professor Phillip Hughes (Exhibit 2.8).

3. Wanslea submits that we should adopt the reasoning of Heydon JA in Makita (Australia) Pty Ltd v Sprowles[36] (Makita) on questions of weight and that no, or little, weight should be given to the evidence of those witnesses having regard to the principles articulated in that case.

   [36] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (Makita).

4. In Makita, Heydon JA said that for expert evidence to be admissible or given full weight it must:[37]

   1.be demonstrated that there is a field of specialised knowledge;

   2.be an identified aspect of that field of knowledge in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert;

   3.be wholly or substantially based upon the witness' expert knowledge;

   4.so far as the opinion is based on facts 'observed' by the witness, be identified and admissibly proved by the expert;

   5.so far as the opinion is based on assumed or accepted facts, be identified and provided by some other means;

   6.be established that there is a proper factual foundation for the opinion; and

   7.involve a demonstration of examination of the scientific or other intellectual bases for the conclusion reached.  That is, the expert's evidence must explain how the field of specialised knowledge in which the witness is an expert by reason of training, study or experience and upon which the opinion is wholly or substantially based applied to the facts observed or assumed so as to produce the opinion expressed.  

   [37] Makita at [85].

5. In that case, his Honour concluded that to the extent that the evidence is not clear in these material respects, it should be given less or no weight and that where an expert has the underlying facts wrong or has taken into account irrelevant facts or failed to consider relevant facts, the opinion may be valueless.[38]

   [38] Makita at [69], citing Lawton W in R v Turner [1975] QB 834 at 840.

6. The Hordyks reject the application of the principles derived from Makita in these proceedings. They note that the Tribunal, by s 32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), is not bound by the rules of evidence, can inform itself in any way it sees fit and is to act in accordance with equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms and submit the Makita is therefore not apposite in Tribunal proceedings. 

7. While s 32 of the SAT Act does allow the Tribunal to rely on evidence which would be inadmissible in proceedings where the rules of evidence apply, we consider that it is appropriate to adhere closely to the principles that would apply in courts in relation to the admissibility of expert opinion evidence.

8. We respectfully adopt the following summary of the principles concerning the admissibility of expert evidence recently set out by Smith J in Reserve Capital v Seascapes Supermarket WA Pty Ltd:[39]

   [39] Reserve Capital v Seascapes Supermarket WA Pty Ltd [2022] WASC 56 at [16]–[18].

   The learned author of Cross on Evidence summarises the following conditions for the admissibility of expert opinion evidence. These are, first, it must be demonstrated that there is a field of specialised knowledge.  Second, there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert.  Third, it must be demonstrated that the opinion proffered is wholly or substantially based on the witness' expert knowledge.  Fourth, the expert must identify the assumptions of primary fact on which the opinion is offered (assumption identification rule). Fifth, the opinion is not admissible unless evidence has been, or will be, admitted, whether from an expert or from some other source, which is capable of supporting the findings of primary fact (basis rule).  Sixth, there must be a demonstration that the facts on which the opinion is based form a proper foundation for it (proof of assumption rule).  Seventh, the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached (statement of reasoning rule).

   As to the first, second and third conditions of admissibility, the Court of Appeal in Liyanage v The State of Western Australia summarised the circumstances in which expert opinion evidence will be admissible in a criminal trial:

   …

   An affirmative answer must be given to at least the following four questions before 'expert' opinion evidence on a scientific subject matter will be admissible:

   1.Is the opinion relevant; ie could the evidence rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding?

   2.Is a person of ordinary experience unable to form a sound judgement on the subject matter without the assistance of an 'expert' witness with special knowledge or experience in the area?

   3.Is the subject matter part of a body of knowledge or experience that is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience?

   4.Has the witness acquired, by study or experience, sufficient knowledge of the subject to render her opinion of value in resolving the issues before the Court?

   The principles in Liyanage v The State of Western Australia also apply to the admissibility of expert opinion evidence in civil proceedings.

9. Unless those matters are satisfied, the evidence of an expert is not helpful to the Tribunal's determination of the complaint. 

10. We explain our application of those tests in relation to the experts' reports as we discuss them below.  In summary, we have found that each expert who gave evidence in this proceeding was qualified to express the opinions given in their evidence.  They all indicated that they had read the Tribunal's Guide for Experts Giving Evidence Information Sheet 11 and understood their duties to the Tribunal in doing so.  The weight we give the evidence of the experts called by the Hordyks was not diminished by any of the objections raised by Wanslea. Where we rely upon the evidence of a particular expert or experts we refer to that evidence in these reasons.    

Factual findings

1. For the most part, the factual background to this matter was not in dispute.  The findings of fact which we make were largely unchallenged.  To the extent that there was a factual dispute we explain our reasons for particular findings as we make those findings below.

Wanslea

1. Wanslea is a not-for-profit incorporated association.  It was established in 1943.  It is a non-denominational organisation with a mission to 'promote community, family and individual development through partnerships and services'.[40]  It operates in the Perth Metropolitan area, the Bindjareb, the Great Southern and the Goldfields regions of Western Australia, in the Northern Territory and Tasmania.[41]  The services provided by Wanslea include family support, out of home care which includes foster care, community capacity building and childcare.[42] 

   [40] Exhibit 3.6, page 4, para 8.

   [41] Exhibit 3.6, page 4, paras 7–8.

   [42] Exhibit 3.6, page 4, para 7. 

2. Wanslea has provided services to the Department of Communities (or its predecessors) for over 20 years. It currently provides foster care services within Western Australia under service agreements that it has entered into with the CEO in whose care all foster children are placed under the CCS Act.[43]

The Service Agreement and the service standards

[43] Exhibit 3.6, page 5, para 17.

1. As we have set out above, s 15(1) of the CCS Act authorises the Minister to enter into agreements with persons for the provision or promotion of social services, which are defined in s 3 of the CCS Act to include 'placement services'.

2. At the relevant time, Wanslea was a party to a Service Agreement CPSFS 2012/30872 (Service Agreement).[44]  Wanslea was known as the Service Provider under that Service Agreement.  Because it governed Wanslea's obligations to the State and is relevant to the way in which Wanslea assessed the Hordyks' application, it is important that we set out in quite some detail the relevant parties to, and provisions of, the Service Agreement.

   [44] Exhibit 3.6, pages 20–96.

3. The letter, dated 26 August 2013 by which the Department accepted Wanslea's offer for the provision of foster care services and which enclosed the Service Agreement states that the Department for Child Protection and Family Support is the other contracting party, to be known in the Service Agreement as the 'State Party'.[45]  In contrast, Part B of the Service Agreement itself refers to the 'State Party' as the 'Children and Community Services Ministerial Body through the Department for Child Protection'.[46]  The letter by which the Department is said to have accepted Wanslea's offer to provide the services set out in the Service Agreement was executed by the Executive Director, Service Standards and Contracting Directorate.[47] We have no evidence of any delegation from the Minister to the CEO authorising a further delegation to the Executive Director, Service Standards and Contracting Directorate which applied at the relevant time. Nevertheless, the validity of the Service Agreement was not in issue in the proceeding. In the circumstances, we find that the Service Agreement, being an agreement of the kind provided for in s 15 of the CCS Act, is an agreement either with the Minister (via a delegate) or the Ministerial Body Corporate (via a delegate). We come to that conclusion because the Department, not being a legal entity, has no capacity to contract, whereas and the Minister either personally or via the Ministerial Body Corporate continued under s 18(1) of the CCS Act as the 'Children and Community Services Body Corporate' have the power to enter into agreement for the provision of social services, pursuant to s 15 and s 19 of the CCS Act (including by delegates authorised under s 16 or s 24 of the CCS Act).

   [45] Exhibit 3.6, pages 17–20.

   [46] Exhibit 3.6, page 22. 

   [47] Exhibit 3.6, page 19.

1. The Service Agreement is expressed to be an agreement for the provision to the State Party of the Wanslea Foster Care Service for a period of two years and nine months from 1 October 2013 to 30 June 2016.[48]  The Service Agreement incorporates the General Provisions for the Purchase of Community Services by Public Authorities - February 2012 Edition.[49]

   [48] Exhibit 3.6, page 17.

   [49] The General Provisions for Purchase of Community Services by Public Authorities – Feb 2012 Edition is found at Exhibit 3.6, pages 57-98.

2. The terms of the Service Agreement made provision for its extension beyond the specified term.[50]  On 16 December 2016, the Department's Executive Director, Service Standards and Contracting Directorate wrote to Wanslea's Chairperson informing Wanslea that the Service Agreement was extended to 31 December 2017.[51]

   [50] Exhibit 3.6, page 17.

   [51] Exhibit 3.6, page 100.

3. Part C of the Service Agreement sets out the services which are to be provided by Wanslea pursuant to the Service Agreement.[52]  They are variously referred to as 'foster care services' and 'general foster care services'.

   [52] Exhibit 3.6, pages 29–34.

4. Clauses 2 and 3 of Part C of the Service Agreement provide as follows:

   2. STATEMENT OF REQUIREMENTS

   General Foster Care Services are a key element of a range of placement services available to meet the needs of children and young people in the care of the CEO.  The services operate in a way that is complementary to and integrated with the provision of other out-of-home care services.

   General Foster Care Services provide children and young people aged 0 to 17 years with accommodation, nurturing and support to meet their individual needs, including cultural and spiritual, in the homes of approved and registered foster families.  Foster carers have met screening and selection criteria and attained minimum competencies.  Where possible a foster carer will have a child or young person or sibling group from only one family placed with them at any one time.

   General Foster Care Services are responsible for the recruitment and assessment of foster carers, ongoing support and training of foster carers and identifying foster carers that best meet the needs of the children and young people referred by the Department.  All foster carers' details will be placed on the Department's Foster Carer Directory.  Any changes to foster carer details or approval and details of completed annual carer reviews will be reported to the Custodian as per the Protocols for the Foster Carer Directory of Western Australia. 

   2.1SERVICE SPECIFIC OUTCOMES

   The service will achieve the following outcomes:

   •Children and young people receive a safe, secure and stable placement.

   •Carers are recruited and appropriately trained, assessed and supported to provide quality placements.

   •Children and young people have improved outcomes against Dimensions of Wellbeing.

   3.SPECIFICATIONS

   3.1PURCHASING CONTEXT

   The service contributes to the achievement of the Department's desired outcome that children and young people in the CEO's care receive a high quality of care and have much improved life chances and falls within the service delivery area of supporting children and young people in the CEO's care.  This service is part of the Placement service group. 

   3.2SERVICE MODEL

   General Foster Care service will ensure children and young people are cared for in a stable, secure home environment where their social, and emotional and psychological, physical and developmental needs are met in accordance with the Service Standards (refer to Schedule B1 Quality Standards).

   General Foster Care services will have the capacity to meet the needs of children and young people in their care and will deliver services that encompass:

   Routine daily care, supervision and guidance provided by live-in foster carers using professionally designed interventions with support from specialist staff to address the child's emotional or behavioural needs;

   …

   provision and/or arrangement of education, life skills, health, cultural and spiritual, and recreational needs of children in accordance with the child's age, development needs and interests as per the Care Plan;

   …

   provision of training, support and respite care for live -in foster carers. 

5. Under the heading '3.3 Key Elements' are the following relevant matters:[53]

   [53] Exhibit 3.6, pages 31–32.

   Activities/Strategies:

   …

   •ensure services are provided or arranged for the education, health, cultural and spiritual and recreational needs of children and young people in accordance with their age, developmental needs and interests. 

   Referral to Foster Care Services:

   Referral to Foster Care service is made via the Department for Child Protection Central Referral Team.  The Service Provider will undertake an assessment and a process of matching the child or young person to an appropriate carer.

   As part of the entry and matching process, the Department's Child Information Form (CIF) referral document is forwarded to the Service Provider.  The form provides information on the reasons for referral and significant others' contact details, Department contacts and information relating to the child or young person's specific needs as per the Care Plan.  The Service Provider can seek additional information to assist with the assessment and matching process.

   The Service Provider will provide an outline of the carers, the type of care environment and any other relevant information to the child or young person, depending on their age and understanding, to assist in preparing them for entry to the placement.'

6. Clause 4 of the Service Agreement is headed 'Outcome Indicator Reporting'.[54] Clause 4.1 is headed 'Outcome/Indicator Measures'.[55]  Service Outcomes include that '[c]arers are recruited and appropriately trained, assessed and supported to provide quality placements'.[56]  Against that outcome, the indicators or measures of success include the following:

   •Number of carers recruited and trained

   •Number of carers assessed/reassessed.

   [54] Exhibit 3.6, page 34.

   [55] Exhibit 3.6, page 34.

   [56] Exhibit 3.6, page 34.

7. Clause 4.2 of the Service Agreement sets out the tools which will be used to report the extent to which service outcomes have been met.  It provides that the Service Provider is required to participate in/provide the following:[57]

   •Department's Progress Report;

   •Individual Child Therapeutic Plans;

   •Dimensions of Wellbeing Reviews; and

   •Better Care Better Service Reporting (Self-Assessment Packages, Recording Templates and Questionnaires from young people).

   [57] Exhibit 3.6, page 34. 

8. The Service Agreement also sets out what Wanslea is expected to do vis a vis the children and young people who are to be placed in foster homes with foster carers following referral by the State Party to Wanslea under the Service Agreement.  Those obligations include providing foster children with information about the foster family with whom they are to be placed in advance of placement with the family.

9. The Service Agreement also refers to Wanslea having established a recruitment committee to focus on the recruitment and retention of foster carers.[58]  Under the heading, 'Foster Carer Assessment and Review', it refers to potential foster carers being assessed and approved and then inducted by a Social Worker and visited by a Family Support Worker who becomes the primary support person for the foster family. It also refers to the foster carer being contacted weekly and visited fortnightly, whether or not they have a foster child placed with them, for the purpose of building a trusting relationship between Wanslea and the foster family and to allow Wanslea to monitor the foster family's progress and the progress of any child placed in the foster family's care.[59]  The Service Agreement also provides that when a child or young person is placed in the care of an approved foster carer, a Social Worker is allocated to the case.  The Social Worker is then responsible for all of the planning and case work, including regular visits to the foster family and the child in care.[60]

   [58] Exhibit 3.6, pages 40–41.

   [59] Exhibit 3.6, page 40.

   [60] Exhibit 3.6, page 40.

10. In providing general foster care services, Wanslea is responsible for the recruitment and assessment of foster carers, providing ongoing support and training for foster carers and identifying foster carers who best meet the needs of children and young people referred to Wanslea by the Department. 

11. All foster carers' details must be placed in the Department's Foster Carer Directory.[61]  Any changes to foster carer details or approval and details of completed annual carer reviews must be reported to the Department in accordance with the rules set out in a document entitled the Protocols for the Foster Carer Directory of Western Australia, June 2011 (Protocols for the Foster Carer Directory).[62]

    [61] Exhibit 3.6, page 133.

    [62] Exhibit 3.6, pages 128–144.

12. Under the heading, 'How the service will provide appropriate Out of Home Care placements for … some children and young people with diverse sexuality' in the Service Agreement, the following statement is made:[63]

    The foster carer pool within Wanslea Foster Care currently includes foster carers who identify as gay and lesbian as do members of the staff group.  Wanslea has a range of staff who have experience in working with children and young people who are questioning their sexuality or have identified themselves as gay, lesbian, bisexual, transgender or with other diverse sexuality.  The service is sensitive to young people regardless of their sexuality and staff are able to access in-house expert advice in this area or seek advice from external agencies such as the Freedom Centre, the Gay and Lesbian Counselling Service and other agencies that assist children and young people with issues around their sexuality.  Part of the foster care assessment process prepares foster carers for fostering children from diverse sexual backgrounds and assessors will continue to be critical in the education process for those foster carers with little or no knowledge in this area.  A range of literature is available at Wanslea's offices to assist staff to deal with this area of placement support.

    [63] Exhibit 3.6, page 45.

13. Under the Service Agreement, Wanslea is required to provide general foster care services in accordance with the 2007 Better Care, Better Services: Standards for Children and Young People in Protection and Care (the 2007 Standards),[64] the DCP and Non-Government Placement Agencies – Protocol for Abuse in Care June 2009 (the Abuse in Care Protocol),[65] the Charter of Rights of Children and Young People in CEO's Care (Charter of Rights)[66] and the Protocols for the Foster Carer Directory[67].[68]  These documents are known collectively as the Service Standards.

    [64] Exhibit 3.6, pages 101–116.

    [65] Exhibit 3.6, pages 117–126.

    [66] Exhibit 3.6, page 127.

    [67] Exhibit 3.6, page 128–144.

    [68] The requirement is set out at page 14 of the Service Agreement. See Exhibit 3.6, page 27.

14. Wanslea submitted that at the time it was dealing with the Hordyks' application, it was also obliged to have regard to the Better Care, Better Service, Standards for Children and Young People in Protection and Care 2017 (2017 Standards), which ultimately replaced the 2007 Standards.  Ms Cain's evidence which we accept is that the 2017 Standards were developed to reflect changing practices since the 2007 Standards were issued, as well as the demographic changes of children and young people in the Department's care.[69]  They replaced the 2007 Standards on 31 December 2017.[70]  We were told by Wanslea's counsel that Wanslea had started working to the standards by the time the Hordyks applied to become foster carers.[71]  Wanslea submitted that it would have been irresponsible for it not to consider itself bound by the 2017 Standards at the time it dealt with the Hordyks' application because they knew at that time that they were to come into effect on 1 January 2018.[72]  Irrespective of Wanslea's view, given that the 2017 Standards were not in effect at the time Wanslea was dealing with the Hordyks' application, we find that there was no legal requirement for the 2017 Standards to be applied and it is irrelevant to our determination of the proceeding.

    [69] Witness Statement of Charlotte Cain (Exhibit 3.4), para 46.

    [70] Exhibit 3.4, para 47.

    [71] Statement of Ms Giles at ts 402, 7 December 2020.

    [72] Respondent's Closing Submissions, para 8.26

15. In any event, the 2007 Standards required Wanslea to, among other things:

    1.ensure that children and young people in care have safe relationships and living arrangements by:

    (a)assessing foster care applications to ensure their competency prior to commencing care of children and young people;

    (b)reviewing the registration of foster carers every 12 months;

    (c)providing a safe environment for children and young people, including emotional, psychological, physical and environmental safety, taking into consideration the age and specific needs of children;

    2.effectively responding to the needs of children and young people in Wanslea's care by ensuring the bests interests of the child or young person is the paramount consideration;

    3.ensuring that children, young people and their families participate in the planning and decisions on matters that impact their lives and future;

    4.ensuring that children are raised in stable and secure environments where their emotional, psychological, and developmental needs are met;

    5.being accountable; and

    6.recruiting carers that are appropriate for their role and have skills consistent with the competencies in the Regulations.

16. Wanslea submitted that it did not have the ultimate authority in relation to who is approved as a foster carer because a foster care applicant must also obtain an assessment notice from the CEO under the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC (CRC) Act), a matter in respect of which Wanslea has no role. While a person cannot foster children in the absence of an assessment notice issued under the WWC (CRC) Act, the assessment by Wanslea of an application made to it is a separate process. If the assessment by Wanslea is a service (a matter which we will come to later in these reasons), in our view, it is no less so because a separate assessment must also be undertaken by the CEO under the WWC(CRC) Act before the individual can foster a child in the CEO's care.

17. Having reviewed the Service Agreement, we conclude, consistently with the submissions of the Intervenor on the point, that it is an agreement for the provision of placement services which encompasses the approval of foster carers.  In our view, the recruitment and assessment of potential carers falls to Wanslea under the terms of the Service Agreement, albeit that Wanslea is contractually bound to assess suitability by reference to the Carer Competencies. This can be seen from the  fact that the Service Agreement states that it is Wanslea's obligation to recruit and assess foster carers, from the fact that the Service Agreement provides that foster carer's details will be placed in the Department's Foster Carer Directory and makes no mention of Wanslea making a recommendation to the CEO to approve a potential foster carer, or reserving any right to the CEO to refuse to place the details of a person assessed by Wanslea on the Department's Foster Carer Directory.  The CEO retains only a right not to place any child with a carer approved by Wanslea and placed on the Department's Foster Carer Directory but has no discretion in respect of persons who Wanslea does approve.

18. That interpretation of the Service Agreement is also consistent with s 79(2)(a) of the CCS Act. The CEO makes an arrangement with Wanslea to place a child with a carer approved by Wanslea in accordance with the Service Agreement entered into between the CEO and Wanslea under s 15(1) of the CCS Act for the provision of placement services.

The Department's Foster Carer Directory and the Protocols for the Foster Carer Directory

1. The Department's Foster Carer Directory is maintained by the Department. [73]Wanslea's evidence is that the purpose of the Department's Foster Carer Directory is to be to allow tracking of a person's history as a foster carer.[74]  Although maintained by the Department, service providers (including Wanslea) are entitled to access the Foster Carer Directory, which was also said by Wanslea's witnesses to inform 'the assessment and screening of foster care applicants in Western Australia'.[75]  Precisely how it does so was not explained in the evidence.

   [73] Exhibit 3.6, pages 130–131.

   [74] Exhibit 3.6, page 131.

   [75] Exhibit 3.6, page 131.

2. The Protocols for the Foster Carer Directory was one of the Service Standards with which Wanslea was required to comply under the Service Agreement.[76]  The Protocols for the Foster Carer Directory specified the obligations of both the Department and Wanslea in respect of the information maintained in the Department's Foster Carer Directory.[77]

   [76] Exhibit 3.6, page 27.

   [77] Exhibit 3.6, pages 128–144.

3. The Protocols for the Foster Carer Directory provide that a service provider may not make a placement arrangement with a person who is not listed in the Department's Foster Carer Directory as having been assessed and approved to care for children in the CEO's care.[78]  That is, service providers such as Wanslea could only place a foster child in foster care with a person whose name appeared in the Department's Foster Carer Directory as an approved foster carer.

   [78] Exhibit 3.6, page 133.

4. The Protocols for the Foster Carer Directory required Wanslea to provide to the Department, the personal details of foster care applicants and assessment outcomes.[79] 

   [79] Exhibit 3.6, page 133.

5. In the Protocols for the Foster Carer Directory, under the heading, 'Information Recorded on the Directory' is the following statement:[80]

   The Directory[81] records the identifying approval details of foster care applicants, the outcome of their assessment and the categories of children for whom they are approved to care (our underlining).

   [80] Exhibit 2.6, page 133.

   [81] Being Exhibits 4.1 and 4.2.

6. Under the heading, 'Information to be notified to the Directory' is the following:[82]

   [82] Exhibit 3.6, page 134. 

   1.Assessment and approval

   Stage One - Applicant information

   Stage Two - Assessment outcome and information

   Stage Three - Approval details

   •Carer Type – general or specialised

   •Type of Care – emergency, short term, long term and/or respite

   •Capacity – how many children can be placed with the foster carer

   •Age range of children to be placed with the foster carer

   •Gender – female, male or both

   •Disability – skills to care for children with complex behavioural, medical or mobility needs.

   2.Change of details

   Change of personal or household details

   …

   Change of approval details

   •Any change in stage three approval details

   •Change in the foster carer relationship, for example the approved couple separate or a single foster carer has new partner in the home

   •Working with Children check screening renewal.

7. The Protocols for the Foster Carer Directory provided that, notwithstanding the approval of a foster carer by a service provider, the CEO retained the right not to place children with that carer.[83]

Other organisations also provide foster care services

[83] Exhibit 3.6, page 131.

1. Wanslea is not the only organisation that provides foster care services to the CEO under contract.  The extract of the Department's Foster Carer Directory[84] identifies, under the heading 'Agency', Wanslea, AccordWest, Foundations Care Ltd, Key Assets WA, Lifestyle Solutions, Life Without Barriers, MacKillop Family Services, MercyCare, Parkerville Children and Youth Care Inc and Yorganop Associations Inc as organisations providing general foster care services. In addition to foster care being arranged with the assistance of organisations such as Wanslea, individuals seeking to be approved as foster carers may apply directly to the Department and foster care placements can be, and are, arranged directly by the CEO or his delegates at the Department of Communities under the CCS Act.[85]

1. Finally, the conclusion that persons carrying out activities under contract, being activities could be performed by government in the exercise of statutory powers, are not themselves considered to be performing statutory functions or exercising statutory powers, is not novel.  Courts in Australia have consistently held that a consequence of governments contracting with third parties to perform governmental functions is that decisions made by those third parties are not amenable to judicial review, whereas had the same decision been made in the exercise of a statutory power they would be amenable to judicial review.[378] A conclusion that Wanslea did not perform functions under the CCS Act when assessing the Hordyks' foster care application, and was not legislatively bound by ss 7 – 9 of the CCS Act, is consistent with the well-established principles in the Australian administrative law context.[379]

   [378] See generally N Sneddon, Government Contracts Federal, State and Local (Federation Press, 6^th ed, 2018) Ch 8.

   [379] NEAT Domestic Trading Pty Ltd v AWB Ltd and Another [2003] HCA 35, (2003) 216 CLR 277.

2. That conclusion does not deny that Wanslea is obliged to have regard to the best interest of the child when assessing foster care applicants and placing a child with an approved foster carer.  However, in our view, that is solely a contractual obligation.  Wanslea is contractually bound to make decisions that have, as the paramount consideration, regard to the best interests of the child. That this is the case can be seen from the Service Standards and the Service Agreement itself.  Outcomes to be achieved under the Service Agreement include:

   1.that children and young people receive safe, secure and stable placements and that carers are recruited and appropriately trained, assessed and supported to provide quality placements; and

   2.ensuring that children and young people are cared for in a stable, secure home environment where their social, emotional, psychological, physical and developmental needs are met in accordance with the Service Standards.  

3. Under the Service Agreement, Wanslea is responsible for the recruitment and assessment of foster carers that best meet the needs of children and young people who are referred to it by the Department and for their ongoing support and training.  It is also required to work collaboratively with the Department to ensure the best interests of children and young people.  The services it provides are required to be provided in accordance with the Quality Standards specified in Schedule B1, which include:

   1.the 2007 Standards;

   2.the Charter of Rights for Children and Young People in the CEO's care; and

   3.the Protocols for the Foster Carer Directory.

4. As we have already noted, the 2007 Standards include:

   1.Standard 3.7, which required that foster carers have been assessed to determine their competency prior to placement of a child in the CEO's care;

   2.Standard 3.9, that services provide a safe environment for children and young people, which includes emotional, psychological, physical, and environmental safety and take into consideration their age and any specific needs of a child; and

   3.Standard 4, which requires, among other things, that services ensure that the best interest of the child or young person is the paramount consideration.

5. There is nothing in the CCS Act that dictates the terms which are to be included in an agreement made under s 15(1) of the CCS Act. The CCS Act does not require that the same principles be applied by a person performing social services pursuant to an agreement under s 15(1) as are applied when a person is performing functions under the CCS Act. In short, while Wanslea is obliged to apply the Quality Standards, including that the best interest of the child is the paramount obligation, we find that the obligation lies solely in contract, and Wanslea is not exercising functions under the CCS Act.

Implied repeal and operational inconsistencies

1. Initially, the Intervenor and Wanslea both submitted that the CCS Act impliedly repealed the EO Act. In its submissions dated 4 December 2020, the Intervenor eschewed the notion that the CCS Act was repugnant to the EO Act in its entirety. Instead, it submitted that there was an operational inconsistency between the two Acts. Wanslea however continues to maintain that s 8 of the CCS Act impliedly repeals s 62 of the EO Act and advances the operational inconsistency point in the alternative.

2. Wanslea submitted that because it was performing a function or exercising powers under the CCS Act when determining an application, then:

   1.the legislative requirements in s 7 of the CCS Act to give primacy to the best interests of the child applies; and

   2.the requirement that a person exercising a function under the CCS Act is to be guided by its objects and to observe the principles in Pt 2 of the CCS Act,

   such that the relevant provisions of the EO Act do not apply. It is said that they do not apply because operational inconsistency between the Acts arises when Wanslea finds that the best interest of the child requires it to act in a manner that would otherwise be regarded as unlawful under the provisions of the EO Act.

3. The Hordyks submit that the CCS Act does not impliedly repeal s 62 of the EO Act and that there is no operational inconsistency between the EO Act and the CCS Act that would result in an implied repeal of the EO Act to the extent of the inconsistency.

Implied repeal

1. The CCS Act, which was enacted in 2004, was enacted after the EO Act. As we understood Wanslea's case, it was that ss 7 – 9 of the CCS Act, with the clear command that the best interests of a child must be the paramount consideration in the performance of functions under that Act, necessarily and by implication repealed any inconsistent provisions in the EO Act. It is well-established that in cases where a later Act of a Parliament dealing with a particular subject matter is wholly inconsistent with the provisions of an earlier Act of that Parliament dealing with that same subject matter, the earlier Act is repealed as a matter of necessary implication.[380]  Furthermore, particular provisions, rather than the entirety of an Act, may be repealed by reason of inconsistency with a provision or provisions of a later Act.  The more detailed the later Act, or the relevant provision of the later Act, the more likely it is to be found to be wholly inconsistent with a less detailed earlier Act or the relevant provisions of such an Act.[381]

   [380] Goodwin v Phillips (1908) 7 CLR 1 at 7 (Griffiths CJ).

   [381] Jennings Industries Ltd v Commonwealth of Australia(1984) 57 ACTR 5; 69 FLR 189 at 204 (Kelly J).

2. However, it was not contended that the CCS Act impliedly repealed the EO Act in its entirety, but rather that it did so only in circumstances where in the operation of the EO Act, its provisions may be in conflict with the provisions of the CCS Act. In our view, Wanslea's argument, properly understood, is one of operational inconsistency only.

3. That that is so is also illustrated by the fact that the two pieces of legislation can comfortably co-exist in circumstances where no decision or conduct affects children. Even in cases involving children, the two Acts may comfortably co-exist. Counsel for the Intervenor gave the example that if Wanslea had refused to approve an applicant as a foster carer simply because of that applicant's race, the EO Act would apply, and the refusal would be unlawful by virtue of s 62 of the EO Act because the best interests of the child would have no part to play in that decision-making process.

4. We find that there was no implied repeal of the EO Act or of s 62 of the EO Act by operation of ss 7 - 9 of the CCS Act.

Operational inconsistency

1. Where two State laws operate in relation to the same matter, there is a presumption that the Parliament did not intend to contradict itself and statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict.[382] Where provisions of two State Acts are not wholly inconsistent but may become inconsistent in their application to particular cases, then to that extent, the provisions of the earlier in time of the two Acts are excepted, or their operation is excluded with respect to cases falling within the provisions of the later in time Act.[383] 

   [382] Butler v Attorney-General(Vic) (1961) 106 CLR 268.

   [383] Goodwin v Phillips (1908) 7 CLR 1 at 8 (Griffiths CJ).

2. Strictly speaking, because we have found that Wanslea is bound only in contract to apply the Quality Standards, and to ensure that the best interests of the child is the paramount consideration, this is not a case where any operational inconsistency between the CCS Act and the EO Act, in their application to Wanslea can arise for decision. Nevertheless, for the sake of completeness we will deal with the argument.

3. Like Wanslea, the Intervenor's primary submission is that the assessment of the Hordyks' foster care application by Wanslea does not constitute the provision of a service to the Hordyks. They also submit that in the event that we find that the relevant interaction with the Hordyks does constitute the provision of a service, then discriminating in the provision of that service was not unlawful because of an operational inconsistency between s 62 of the EO Act and ss 7 - 9 of the CCS Act in the Hordyks' case. That is said to be so because the CCS Act requires the best interests of a child to be the paramount consideration. If, to avoid discrimination in breach of the EO Act would need Wanslea to make a decision which did not give paramount consideration to the best interests of the child, then the two Acts would be operationally inconsistent, and the EO Act provision would give way to the requirements of the CCS Act in that circumstance.

4. The Intervenor submits that we should find that the Hordyks' application was assessed and, in effect, refused, on the basis that Wanslea, through its officers, were not satisfied that the Hordyks met all of the Carer Competencies, and in particular, Carer Competency 2 (which is the requirement that they can provide an emotionally and psychologically safe environment for potential foster children) and therefore that it would not be in the best interests of the child to approve the Hordyks' application even if doing so would amount to discrimination on the grounds of their religious conviction.

5. Even if we had found that Wanslea is performing functions under the CCS Act, we do not consider that an operational inconsistency would arise. That is because we have found that Wanslea acted unreasonably in failing to accommodate the Hordyks' suitability for providing foster care for children under two years of age. Nothing in the evidence or submissions suggested that to do so would have been inconsistent with the best interests of any foster child.

6. Accordingly we do not accept that there would have been any basis for an operational inconsistency in the circumstances of this case.

Conclusion in relation to the Hordyks' complaint of discrimination

1. For the reasons set out above we have concluded that:

   1.in assessing and determining their application for approval to be foster carers, Wanslea was providing a service to the Hordyks; and

   2.that Wanslea indirectly discriminated against the Hordyks in the provision of that service on the ground of their religious conviction; and

   3.that there was no implied repeal of the provisions of the EO Act by virtue of the operation of the CCS Act in the circumstances of this case

2. We therefore find the Hordyks' complaint to be substantiated.  

Remedies

1. We turn next to consider what orders we should make consequent upon our finding that the Hordyks' complaint is substantiated.   

2. Section 127 of the EO Act provides as follows:

   After holding an inquiry, the Tribunal may:

   (a)dismiss the complaint that is the subject of the inquiry; or

   (b)find the complaint substantiated and do any one or more of the following —

   (i)except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 107(1), order the respondent to pay the complainant damages not exceeding $40 000 by way of compensation for any loss or damage suffered by reasons of the respondent's conduct; or

   (ii)make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act; or

   (iii)except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 107(1), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant; or

   (iv)make an order declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act; or

   (v)decline to take any further action in the matter.

3. We have set out the relief sought by the Hordyks.  They seek damages in addition to orders which will properly reflect the outcome of their application and which they say will redress loss or damage they have suffered as a result of that discrimination.  We deal next with each of those matters in turn.

Damages

1. Mr and Mrs Hordyk submit that they should each be awarded the sum of $3 000 as damages for the loss and damage they suffered as a result of Wanslea's discrimination.  The loss and damage was described in their submissions as being in the nature of hurt feelings and humiliation. 

2. The Hordyks must prove on the balance of probabilities that the unlawful discrimination materially contributed to their loss and damage and that they actually sustained the loss and damage claimed.

3. Section 127(b)(i) of the EO Act permits the Tribunal to award damaged up to $40 000 by way of compensation for loss or damage suffered by a complainant. The $40 000 is a cap on damages which, in some cases could be assessed as exceeding $40 000.

4. Damages for non-economic loss are awarded to compensate for the injury (including hurt, humiliation and other injury to feelings) suffered as a result of the contravening conduct.  They are, by their nature incapable of mathematical calculation.[384]  The amount of damages depends on the nature and degree of the loss that is established on the evidence as well as the general standards prevailing in the community.  In considering an award for general damages, regard may be had to compensatory awards made in other jurisdictions.[385]

   [384] Paff v Speed (1961) 105 CLR 549 at 558–559 (Fullager J).

   [385] Richardson v Oracle Corporation Australia Pty Ltd and Another (2014) 223 FCR 334.

5. In Airflite Pty Ltd v Goyal,[386] Pullin J made the following statement about the assessment of damages under the EO Act:

   … In awarding damages, the character and conduct of the respondent as well as the appellant should be taken into account in determining the quantum of damages.  Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the anti-discrimination legislation gave effect.  Compensable loss would include injury to feelings or humiliation[.] 

   [386] Airflite Pty Ltd v Goyal [2003] WASCA 45 at [44].

6. In that case, Pullin J quashed the award of $10 000 originally made on the grounds that it was manifestly excessive and outside the limits of sound discretionary judgment and substituted an award of $2 000 as compensation for the complainant's injured feelings and period of depression suffered as a result of the discrimination in the area of employment.

7. The Hordyks submit that the amount sought for their hurt feelings and humiliation is modest and consistent with awards made in other cases. No other cases in relation to religious discrimination were drawn to our attention in submissions.  Having said that, the quantum of damages inevitably depends on the facts relating to the discrimination and its impact on the individual complainant.

8. We accept the evidence Mrs Hordyk gave about the impact that Wanslea's decision to terminate the application to foster children had upon her.  She said that she was devastated that her religious beliefs had been viewed as dangerous.  She also gave evidence that she and her husband had put a lot of time and effort into the application process and had genuinely wanted to help those who needed it most by providing a home and that she was very distressed that she and her husband were considered unfit to become foster carers.[387] 

   [387] Exhibit 2.2, para 88.

9. Mr Hordyk said he felt deflated and hurt when told he and his wife would not be approved as foster carers.[388]  He regarded it has having been 'rejected'.[389]

   [388] Exhibit 2.3, para 22.

   [389] Exhibit 2.3, para 22.

10. There was no evidence that Wanslea's conduct has caused either of the Hordyks acute distress or psychological issues that required any treatment.

11. We have reached the view that the $3 000 sought by each of the Hordyks is an appropriate sum to award as general damages to each of Mr and Mrs Hordyk for the hurt and embarrassment they suffered as a result of the discrimination Wanslea engaged in. 

Order amending Wanslea's Notification to the Department's Foster Carer Directory - redress

1. The Hordyks also seek an order that Wanslea be required to correct its notification to the Foster Carer Directory by deleting the words 'assessed not to meet competencies' and replacing them with the words 'application discontinued'. 

2. Section 127(b)(iii) of the EO Act permits us to make an order that the respondent perform any reasonable act to redress any loss or damage suffered by the complainant. Orders under this section must be made for the purposes of redressing the loss or damage and not to punish or discipline the people who committed the unlawful discriminatory acts.[390]

   [390] Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745 at [46]-[53].

3. In our view, an amendment to the Foster Carer Directory's entry in relation to the Hordyks’ application will serve to redress, in part, the hurt suffered by the Hordyks as it will mean that the record no longer shows that they were not able to meet the Carer Competencies.  It was that which has caused them to suffer the hurt feelings they each identified in their evidence and was the result of Wanslea's decision to terminate the assessment of their application. 

4. We do not have any power to direct the Department to amend the Department's Foster Carer Directory because it is not a respondent to the proceedings.  However, we have no doubt that the Department, acting in accordance with the Protocols for the Foster Carer Directory, would act on a further Notification from Wanslea, correcting the information it provided in relation to the Hordyks' application, were one provided to it.

5. The Hordyks have not actually discontinued their application. However, we accept that the application to have the Department's Foster Carer Directory entry amended in that way indicates that that is what the Hordyks would do now if they could.  There does not appear to be any more appropriate way in the context of entries in the Department's Foster Carer Directory, to provide redress in relation the entry in that Directory.  In those circumstances, we consider the order sought ought to be made. 

Proposed Orders

1. We propose to make the following orders:

   1.The complaint made by the applicants of discrimination in the respondent's provision of services, on the ground of their religious convictions is substantiated.

   2.The respondent is to pay to the first applicant damages in the sum of $3,000 within 28 days or such time period as may be agreed.

   3.The respondent is to pay to the second applicant damages in the sum of $3,000 within 28 days or such time period as may be agreed.

   4.The respondent is to provide to the Department an amended Notice Form in respect of the applicants' foster care application which deletes the words 'assessed not to meet competencies' and replaces them with the words 'application discontinued'.

   5.Any application for costs is to be made within 28 days.

1. The parties should confer about the precise terms of the orders.  If necessary, we will convene a short hearing to hear any submissions on that issue. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MA

Associate to Deputy President Judge Glancy

23 DECEMBER 2022

'1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.  
2.  Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.'