HORDYK and WANSLEA FAMILY SERVICES INC
[2019] WASAT 146
•20 DECEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: HORDYK and WANSLEA FAMILY SERVICES INC [2019] WASAT 146
MEMBER: JUSTICE PRITCHARD, PRESIDENT
HEARD: 20 DECEMBER 2019
DELIVERED : 20 DECEMBER 2019
PUBLISHED : 4 FEBRUARY 2020
FILE NO/S: EOA 12 of 2019
BETWEEN: BYRON HORDYK
First Applicant
KEIRA HORDYK
Second Applicant
AND
WANSLEA FAMILY SERVICES INC
Respondent
Catchwords:
Practice and procedure - Application to dismiss proceedings under s 47 of the State Administrative Tribunal Act 2004 (WA) - Where allegation of discrimination based on religious conviction in contravention of Equal Opportunity Act 1984 (WA) - Where refusal of foster care assessment on ground of alleged inability to provide safe living environment for child - Whether proceedings frivolous, vexatious or an abuse of process
Legislation:
Adoption Act 1994 (WA)
Children and Community Services Regulations (WA), reg 4(1)(a)
Children and Community Services Act 2004 (WA)
Equal Opportunity Act 1984 (WA), s 4(1), s 53(2), s 62
State Administrative Tribunal Act 2004 (WA), s 47(1), s 47(2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| First Applicant | : | Ms S Jamnadass |
| Second Applicant | : | Ms S Jamnadass |
| Respondent | : | Mr V K Atchamah |
Solicitors:
| First Applicant | : | Human Rights Law Alliance |
| Second Applicant | : | Human Rights Law Alliance |
| Respondent | : | Minter Ellison |
Case(s) referred to in decision(s):
Ambrus and Churches of Christ Homes & Community Services [2006] WASAT 141
Director-General, Department of Community Services v MM [2003] NSWSC 1241
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
Laurent and the Commissioner of Police [2009] WASAT 254
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons have been taken from the transcript of the hearing and have been edited to make necessary corrections or annotations for the purpose of grammar or syntax.)
Introduction
In these proceedings Mr and Mrs Hordyk (the Hordyks) contend that Wanslea Family Services Inc (Wanslea) discriminated against them on the ground of their religious conviction by refusing to provide them with services (being services in the nature of foster care assessment) or in the terms and conditions on which Wanslea provided such services to them, or in the manner in which they provided them with such services, and that in doing so Wanslea breached s 62 of the Equal Opportunity Act 1984 (WA) (EO Act), read together with s 53(2) of the EO Act.
Wanslea has applied to the Tribunal pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), to dismiss the proceedings pursuant to s 47(2) of the SAT Act on the basis that they are frivolous, vexatious, misconceived or lacking in substance (s 47 application).
For the reasons which follow, the s 47 application will be dismissed.
Factual background
The Hordyks are a young married couple with two children. They decided that they would like to offer respite foster care for young children. In January 2017, they applied to be assessed as candidates for that role. Wanslea undertook that assessment. Wanslea made a positive initial report on the Hordyks' suitability as prospective foster carers.
A formal assessment process then began in May to June 2017. The Hordyks attended meetings and filled out questionnaires, work sheets and case studies.
In the course of that formal assessment process the Hordyks spoke openly about their devout Christian beliefs and provided responses on case studies which questioned how they would respond to a foster child who identified as homosexual or who identified as LGBTQI. In their responses to the questionnaires the Hordyks indicated that they would love and care for any foster child in the way that they loved and cared for their own children; that they believe identification as LGBTQI is a sin; that they believe that people can resist such a sin; and that they would try to help the child overcome what they perceived to be a sin. The Hordyks also indicated that they did not think their beliefs would be an issue with respect to their suitability for providing respite foster care for young children. While they would not reject a long-term foster child who identified as LGBTQI, the placement of a child with them for foster care, when that child was homosexual or identified as LGBTQI, would be unsuitable, as homosexuality and identifying as LGBTQI is incompatible with their beliefs, and they would decline the placement.
The Hordyks allege that by August 2017 Wanslea had formed a view that the Hordyks would not seek the placement of an older child who identified as LGBTQI because of their religious beliefs, and that should a younger child who was placed with them identify as LGBTQI, they would not cease caring for that child, but would inform the child that that identity (identifying as LGBTQI) was against their religious beliefs and that the Hordyks would dislike the sin they perceived, but would not dislike the child. The Hordyks contend that their views on LGBTQI issues do not align with Wanslea's views.
On 20 September 2017, the Hordyks received a letter from Wanslea which confirmed that Wanslea had decided not to progress their application because the Hordyks' beliefs about LGBTQI issues meant that they had been assessed as not meeting one of the five competencies specified by the Department of Communities for foster carers, namely providing a safe living environment. (The Children and Community Services Regulations 2006 (WA) (Regulations) set out five competency standards that an applicant to be a foster carer must satisfy (standards).[1] These standards include that the individual carer is able to provide a safe living environment for a child.)
[1] Children and Community Services Regulations 2006 (WA) reg 4(1)(a).
The Hordyks acknowledge that in determining what is in the best interests of the child, which is the paramount consideration under the Children and Community Services Act 2004 (WA) (CCS Act), the child's sexuality is one of the factors which must be taken into account. However, the Hordyks contend that Wanslea had assessed them as suitable for providing foster care other than for their beliefs, but that because of their beliefs Wanslea decided that their application for foster care should not be progressed.
The Hordyks' allegation of discrimination contrary to the EO Act
The case advanced by the Hordyks is that they have been indirectly discriminated against on the basis of their religious convictions, contrary to s 53(2) of the EO Act, in that Wanslea required them to comply with a requirement or condition with which a substantially higher proportion of persons of a different religious conviction were able to comply, which was not reasonable having regard to the circumstances, and with which they were not able to comply.
Section 62 of the EO Act provides, in summary, that 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 in any of a variety of ways, namely by refusing to provide the other person with those goods or services or make those facilities available to the other person; or in the terms or conditions on which the provider provides those goods or services or makes those facilities available; or in the manner in which the provider provides the other person with those goods or services or makes those facilities available.
Section 53(2) of the EO Act provides that for the purposes of the EO Act a person referred to as the 'discriminator' discriminates against another person (the 'aggrieved person') on the ground of religious conviction if the discriminator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are of a different religious or political conviction comply, or are able to comply, and which is not reasonable having regard to the circumstances of the case, and with which the aggrieved person does not, or is not able to, comply.
The Hordyks contend that their religious convictions include their beliefs about LGBTQI issues; that it is only necessary that they show that those convictions involve a belief in a supernatural being; and that they establish their beliefs were held in good faith and were not capricious.
The Hordyks also contend that Wanslea had required them to comply with a requirement or condition with which a substantially higher proportion of persons of a different religious conviction were able to comply, in that Wanslea would only progress applications from foster carers who expressed views on LGBTQI issues that were consistent with Wanslea's views and standards on those issues.
The Hordyks contend that the number of foster carer applicants of different religious convictions who can comply with Wanslea's views as to LGBTQI issues substantially outnumbers the number of persons who cannot comply and who hold the same religious convictions as the Hordyks.
The Hordyks contend that the requirement or condition imposed by Wanslea was not reasonable in the circumstances. They say that, within the legislative framework for foster care placements, sexuality issues are just one of the many considerations that Wanslea must take into account in assessing foster care applications. The Hordyks contend that Wanslea made no reasonable attempt to accommodate the Hordyks' convictions as part of its consideration of their application. The Hordyks contend that Wanslea could have assessed their application on the basis that their religious convictions would not disqualify them as foster carers for all children, but only for those who identified as LGBTQI. On this point, the Hordyks submit that to do so would have been less discriminatory than applying, as an absolute requirement, that the Hordyks must share Wanslea's views on LGBTQI issues before their application could be progressed.
Initially, the Hordyks brought proceedings before the Equal Opportunity Commissioner (Commissioner). The Commissioner dismissed the complaint of discrimination on the basis of religious conviction as lacking in substance and the Hordyks requested that their complaint be referred to the Tribunal.
Applicable principles in relation to an application under s 47 of the SAT Act
The principles in relation to applications under s 47 of the SAT Act have been dealt with in a number of cases, in particular Laurent and the Commissioner of Police,[2] a decision of mine, and the decision of his Honour Judge Chaney in Ambrus and Churches of Christ Homes & Community Services.[3]
[2] Laurent and the Commissioner of Police [2009] WASAT 254.
[3] Ambrus and Churches of Christ Homes & Community Services [2006] WASAT 141.
In Laurent I set out a summary of the relevant principles which apply to s 47 applications.[4] It is not necessary to set out that summary here. I bear in mind, in particular, that on a s 47 application it is appropriate to assume that all of the factual claims made by an applicant will be made out and from that perspective to consider whether the proceeding is frivolous, vexatious, misconceived or lacking in substance. To succeed, a respondent must demonstrate that an applicant's case is so obviously untenable that it cannot possibly succeed, or is manifestly groundless, or that it otherwise discloses a case which cannot succeed.[5]
[4] Laurent and the Commissioner of Police [2009] WASAT 254 at [17] - [28].
[5] Ambrus and Churches of Christ Homes & Community Services [2006] WASAT 141 at [8]; Laurent and the Commissioner of Police [2009] WASAT 254 at [21].
The Hordyks submit that Wanslea's submissions set out arguments which might be raised at a final hearing, some of which will depend on the Tribunal's findings in respect of the evidence led at that final hearing. Consequently, the Hordyks contend that Wanslea cannot establish that the proceedings are frivolous, vexatious, misconceived or lacking in substance at this stage. I accept the Hordyks' submission.
I turn now to consider each of the planks of the s 47 application. For the reasons that follow, the s 47 application is not made out on any of the bases advanced by Wanslea.
The s 47 application
Wanslea advanced several arguments in support of the s 47 application. These were that:
(a)Wanslea was not providing a 'service' within the definition of that term in the EO Act;
(b)the evidence cannot establish that Wanslea imposed the requirement or condition for which the Hordyks contend; nor can the evidence as to the comparator establish that that requirement or condition was imposed;
(c)the Hordyks cannot establish that Wanslea acted unreasonably because it acted in compliance with legislative requirements; and
(d)The Hordyks have failed to provide any evidence that they were unable to comply with the alleged requirement or condition said to have been imposed by Wanslea.
(a) the 'services' argument
Wanslea contends that it was not providing a 'service' within the definition of that term in the EO Act.
I note that in its Statement of Issues, Facts and Contentions, Wanslea appeared to accept that it was providing services to the Hordyks. In light of that apparent acceptance, its present claim is somewhat incongruous. Nevertheless, it is unnecessary to deal with any consequences of that apparent incongruity because, in so far as the s 47 application is based on contentions about the meaning of 'service', the application cannot succeed.
Wanslea's first argument in relation to its case that it was not providing a 'service' is that the performance of a duty under State legislation cannot constitute providing a 'service', as defined in s 4 of the EO Act. The argument advanced by Wanslea was that the only definition of 'services' which could apply would be the definition in par (e) of the definition of 'services' in s 4(1) of the EO Act, which relevantly provides that 'services' include:
[S]ervices 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[.]
I would dismiss this aspect of the s 47 application for four reasons.
First, it appears to involve a misreading of the definition of 'services', which refers to services of the kind provided by a government rather than to services that are, in fact, provided by a government.
Secondly, the argument advanced by Wanslea involves a construction of the term 'services' in s 4(1) of the EO Act which is rather narrow in scope. That term has received a broader construction in other contexts: see for example, IW v City of Perth.[6]
[6] IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1.
Thirdly, there is some authority from other jurisdictions to the effect that the task of assessing applicants for foster care amounts to the provision of services.[7] Of course, that authority pertains to legislation other than the EO Act and is not, therefore, determinative of the construction of the provisions of the EO Act. The point, however, is that the approach to the construction of the term 'services' elsewhere, in not dissimilar contexts, supports the conclusion that it cannot be said, at this stage, that the Hordyks' case is so untenable as to be liable to be struck out.
[7] See, eg, Director-General, Department of Community Services v MM [2003] NSWSC 1241 at [40] - [44].
Fourthly, determining the meaning of the term 'services', for the purpose of assessing whether Wanslea was providing a 'service', cannot be done in a factual vacuum. In my view, it is undesirable to resolve the question of the meaning of the term 'services' on a s 47 application for that reason. This is a case where it is important to be mindful not to stifle the development of the law by shutting parties out of a case prior to giving them the opportunity to adduce evidence and to develop submissions about statutory construction within a proper factual context.
The second argument that Wanslea advanced in relation to the 'services' point is that the Hordyks' case, taken at its highest, provided no evidence that Wanslea's assessment of the Hordyks' suitability for foster care consituted the provision of a 'service'. This contention relies on the construction of the term 'services' advanced by Wanslea which, for the reasons already set out, I am not persuaded should properly be resolved at this point.
In so far as Wanslea contends that the proceedings should be dismissed for lack of evidence, the s 47 application is premature. The s 47 application must be judged on the basis that the factual contentions in the Statement of Issues, Facts and Contentions will be proved. No evidence has been adduced as yet.
Wanslea's third argument in relation to the 'services' point is that the definition of 'services' in s 4(1) of the EO Act expressly excludes adoption. Wanslea contends that this manifests an intention to exclude s 62 of the EO Act in its application to services related to assessing the suitability of parties for adoptive parenthood, and placement of a child with foster carers, or with a view to adoption.
At least at this stage, the provision of services (if that is what they are) namely to assess applicants for foster care, is not so obviously the same as assessing applicants for adoption, as to permit the conclusion that foster care assessment is excluded from the definition of 'services' in par (e) s 4(1) of the EO Act. Speaking at a very high level of generality, there would seem to be some important and obvious differences. Furthermore, what is excluded under the definition of 'services' in s 4(1) of the EO Act is 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 (WA)'. While the exclusion of adoption services appears to be relevant to the construction of the term 'services' it cannot be said at this stage that the Hordyks' case is so untenable as to be liable to be struck out on this basis at this stage.
(b) The requirement or condition allegedly imposed
This plank of Wanslea's argument to dismiss the proceedings is concerned with the question of the requirement or condition allegedly imposed. Wanslea contends that the evidence, taken at its highest, does not establish that it is a requirement or condition that in order to be accepted as a foster carer an individual must not hold the belief that identifying as LGBTQI is a sin. Wanslea says that the highest the evidence goes is that it is a requirement of the standards that a foster carer must conduct themselves towards a child who identifies as LGBTQI in a manner consistent with those standards. Wanslea says that regardless of an individual's religious beliefs, if their responses to the questions demonstrate that they are unlikely to meet the standards, then that individual will be regarded as unsuitable for foster care arrangements. I would dismiss this plank of the s 47 application for the following reasons.
Two issues arise from this aspect of Wanslea's contentions. The first is the question of construction as to what is the meaning of a 'requirement' or 'condition' under the EO Act and the second is the question of what the 'requirement' or 'condition' was in the present case. As to the former, I am not persuaded that the Hordyks' case, that a requirement or condition was imposed, is so obviously untenable that it cannot succeed. Furthermore, in so far as the criticism is that no evidence has been led, that is not a basis for dismissal at this interlocutory stage. The proper course, in respect of this aspect of the case, is to await the evidence adduced at the final hearing and to assess the question of the meaning of 'requirement' or 'condition' in the context of that evidence.
The next aspect of this plank of the s 47 application is that Wanslea says that it cannot be said that a substantially higher number of persons with different religious convictions would comply with the requirement or condition. Wanslea says that it receives applications from prospective foster carers of Christian and other faiths, and that they all undertake the same assessment and their suitability is assessed against the same standards and carer competencies.
I would dismiss this basis for the s 47 application because it is directed to a matter which is clearly dependent upon the evidence which will be led at trial and, in my view, it is not a basis for dismissing the proceedings at an interlocutory stage. Again, bearing in mind the way in which evidence can develop at a trial, it is proper to await the determination of this issue until all of the evidence is led.
(c) Whether the Hordyks can establish that Wanslea acted unreasonably
The third plank of the s 47 application is that Wanslea says that the requirements with which the Hordyks were required to comply were consistent with those in the CCS Act, the Regulations, the standards, the carer competencies and a manual. Wanslea says that its compliance with these legislative requirements was entirely reasonable and that its approach was consistent with the relevant legislation and consistent with the EO Act itself, which prohibits discrimination on the grounds of sexual orientation. Wanslea also says that its conduct was reasonable on the basis that a person or persons cannot be approved as foster carers only for children of a particular age and, in any event, children may be fostered with foster parents for several years.
In my view, what is reasonable requires factual findings as to what was done and what the surrounding circumstances were, and then an objective assessment of the reasonableness of the conduct in all of those circumstances.
Even assuming, for the purposes of a s 47 application, that the facts in the Statement of Issues, Facts and Contentions are proved, it is not appropriate, in my view, to dismiss a claim at an interlocutory stage on the ground that the conduct of a respondent was reasonable, in advance of any factual findings having been made. Too much will depend on how the evidence plays out.
(d) Whether the Hordyks have evidence to establish that they were unable to comply with the requirement or condition
The final plank of the s 47 application is that Wanslea says that the Hordyks have failed to provide any evidence that they were unable to comply with the requirement or condition said to have been imposed by Wanslea. I would dismiss this basis for the s 47 application for the following reasons.
First, as I have said, at this interlocutory stage the failure to produce evidence cannot be a basis for dismissing the proceedings.
Secondly, and in any event, if it is the case that the Hordyks' religious convictions mean that they are unable to comply with the alleged requirement or condition, then it is not entirely clear what other evidence could be identified or produced by them, over and above the evidence that they, in fact, hold the religious conviction claimed. For the purposes of a s 47 application, facts alleged in the Statement of Facts, Issues and Contentions must be assumed to be proved. The Hordyks contend that they are unable to comply with the alleged requirement or condition because of their deeplyheld convictions. Assuming that that is proved, that would constitute an arguable basis for why they were unable to comply with the requirement or condition. (Of course, that assumes that the Hordyks establish that the requirement or condition is, in fact, what they say it is.)
For these reasons, the s 47 application should be dismissed.
Orders
1.The application by the respondent pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) is dismissed.
2.The matter is listed for a directions hearing on Tuesday 4 February 2020 to consider what programming orders are required to prepare the matter for hearing.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
EH
Associate to the Honourable Justice Pritchard4 FEBRUARY 2020
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