Members of the Board of the Wesley Mission Council v OV and OW (No 2)
[2009] NSWADTAP 57
•1 October 2009
Set aside by Appeal:
Appeal Panel - Internal
CITATION: Members of the Board of the Wesley Mission Council v OV and OW (No 2) [2009] NSWADTAP 57 PARTIES: APPELLANT
Members of the Board of the Wesley Mission CouncilRESPONDENT
INTERVENOR
OV and OW
Attorney-GeneralFILE NUMBER: 089034 HEARING DATES: 20 April 2009 SUBMISSIONS CLOSED: 20 April 2009
DATE OF DECISION:
1 October 2009BEFORE: Hennessy N - Magistrate (Deputy President); Grotte E - Judicial Member; Schembri A - Non-Judicial Member CATCHWORDS: equal opportunity - discrimination on ground of homosexuality - homosexual couple refused permission to apply to become foster carers - religious exceptions - meaning of 'religion' - 'doctrines of religion' - 'adherents of that religion' - whether selection process prohibiting homosexual foster carers unlawful - Anti-Discrimination Act 1977, ss49ZP, 56(c) and (d) DECISION UNDER APPEAL: OV and anor v QZ and anor (No.2) [2008] NSWADT 115 FILE NUMBER UNDER APPEAL: 041154 DATE OF DECISION UNDER APPEAL: 10/01/2009 LEGISLATION CITED: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997
Interpretation Act 1987
Children and Young Persons (Care and Protection) Act 1998CASES CITED: B & L Linings Pty Limited and Anor v Chief Commissioner of State Revenue [2008] NSWCA 187
Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439
Health Care Complaints Commission v Karalasingham [2007] NSWCA 267
Ormwave Pty Ltd v Smith [2007] NSWCA 210; 5 DDCR 180
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 573
Australian Gas Light Co Valuer-General (1940) 40 SR (NSW) 126
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547
Collector of Customs v AGFA-Gevaert Ltd [1996] HCA 36; (1996) 141 ALR 59
An v Minister for Immigration and Citizenship (2007) 160 FCR 480
Attorney-General (Vic); Ex Rel Black v Commonwealth (DOGS case) [1981] HCA 2; (1981) 146 CLR 559
Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
Australian and Overseas Telecommunications Corporation Ltd v McAuslan (1993) 47 FCR
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
Shorten v David Hurst Constructions Pty Ltd [2008] NSWCA 134
S.W.M Broeks v the Netherlands CCPR/C/OP/2 p 197-201 (9/4/1987)
Regina v Secretary of State for Education and Employment and others (Respondents) ex parte Williamson (Appellant) and others [2005] 2 AC 246
Hozack v Church of Jesus Christ of Latter Day Saints (1997) 79 FCR 441
Fordham v Brideson [1986] VR 587
Icm Agriculture Pty Ltd v Perry [2002] NSWCA 257
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
Sydney University Postgraduate Representative Assn v Minister for Transport & Ors (No 2)
Nuevo v Minister for Transport & Ors (No 2)
Neira v Minister for Transport and ors (No 2) [2006] NSWADT 260
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Absolon v NSW TAFE [1999] NSWCA 311
House of Peace Pty Ltd and Anor v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498REPRESENTATION: APPELLANT
RESPONDENT
K Eastman, counsel
C Ronalds, senior counselORDERS: 1. The decision of the Tribunal is set aside
2. The following matters are remitted to be heard and decided again by the Tribunal in accordance with these reasons:a) Is the belief that a monogamous heterosexual partnership within marriage is both the norm and ideal a doctrine of ‘Wesleyanism’? b) If so, was the conduct of the Appellants in refusing the services necessary for OV and OW to apply to become foster carers and for that application to be processed and assessed on its merits, conduct which was done in conformity with that doctrine? c) Is the conduct of the Appellants in refusing the services necessary for OV and OW to apply to become foster carers and for that application to be processed and assessed on its merits, conduct which is necessary to avoid injury to the religious susceptibilities of the adherents of ‘Wesleyanism’? d) If the complaint is substantiated, any appropriate relief.
Introduction
1 A same sex couple, OV and OW (‘the Respondents’) wanted to apply to Wesley Dalmar Child and Family Care to become foster carers. They were told that they would not be permitted to apply because they were homosexual. The Members of the Board of the Wesley Mission Council (‘WMC’ or ‘the Appellants’) agreed that that conduct constituted discrimination on the ground of homosexuality. The issue was whether the conduct was lawful as a result of one or more of the exceptions relating to religious bodies in s 56(c) and (d) of the Anti-Discrimination Act 1977 (AD Act). The exceptions relied on were that the conduct:
- a) related to the appointment of a person in any capacity by a body established to propagate religion; or
- b) conformed to the doctrines of WMC’s religion; or
- c) was necessary to avoid injury to the religious susceptibilities of the adherents of that religion.
2 The Tribunal concluded that none of the exceptions had been established and found OV’s and OW’s complaint of discrimination on the ground of homosexuality substantiated. The Tribunal ordered WMC to pay each of them $5,000. The Tribunal also ordered WMC to ‘review its policy on homosexual foster carers and take all necessary steps to eliminate unlawful discrimination on the ground of homosexuality in the facilitation and provision of its foster care services.’ WMC appealed to the Appeal Panel against the Tribunal’s decision. The Attorney-General intervened: Administrative Decisions Tribunal Act 1997 (ADT Act), s 69.
Nature of appeal and Appeal Panel’s task
3 Appeals to the Appeal Panel are governed by s 113 of the ADT Act:
(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
(2) An appeal under this Part:
(a) may be made on any question of law, and
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.
4 WMC appealed only on questions of law. They did not seek leave for the appeal to be extended to a review of the merits of the Tribunal’s decision. The Tribunal’s powers in relation to appeals on questions of law are set out at s 114:
(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.
(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:
(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),
(b) an order remitting the whole or any part of the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,
(c) an order made in substitution for an order made by the Tribunal.
5 The Supreme Court’s power to hear an appeal on a question of law from a decision of the Tribunal is set out at s 119(1) and s 120 of the ADT Act. Those provisions are to the same effect as those applying to the Appeal Panel on internal review: ADT Act, s 113(1), s 113(2)(a) and s 114. Consequently, the following summary of the nature of the Court of Appeal’s jurisdiction also applies to appeals on a question of law to the Appeal Panel:
The nature of this Court’s jurisdiction must therefore be addressed on the basis that the appellants had identified one or more questions of law. The potential scope of the Court’s jurisdiction may, in abstract terms, be described as follows:
(a) to determine whether the question of law has been erroneously answered;
(b) if so, to determine the correct answers to the questions of law;
(c) to make such orders disposing of the proceedings before the Tribunal as are necessary, based on the findings of fact made and inferences drawn by the Tribunal and where no other conclusion is open: B & L Linings Pty Limited and Anor v Chief Commissioner of State Revenue [2008] NSWCA 187 at [126] per Basten JA.
6 The Tribunal decided that WMC’s conduct breached s 49ZP of the AD Act. That provision states that:
(a) by refusing to provide the person with those goods or services, orIt is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of homosexuality:
(b) in the terms on which he or she provides the person with those goods or services.
7 The services that WMC refused to provide to OV and OW were the services necessary to allow them to apply to become foster carers and for that application to be processed and assessed on its merits. WMC relied on the exemptions in s 56(c) and (d) of the AD Act. Those provisions exempt various kinds of conduct regardless of the ground of discrimination or the area of public life to which it relates. Section 56 provides:
- Nothing in this Act affects:
(a) the ordination or appointment of priests, ministers of religion or members of any religious order,
(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order,
(c) the appointment of any other person in any capacity by a body established to propagate religion, or
(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.
8 When applying s 56, the Tribunal decided that WMC was a body ‘established to propagate religion’. The Tribunal understood WMC’s submission to be that its religion was ‘the religion of the Uniting Church as practised by Wesley Mission’. The Uniting Church was formed in 1977 when the Congregational Union of Australia, the Methodist Church of Australasia and the Presbyterian Church of Australia united. The Tribunal found that the relevant religion was Christianity or, if that was not correct, the religion was the religion of the Uniting Church. When applying s 56(c), the Tribunal concluded that the act of authorising a person to be a foster carer does not constitute the ‘appointment’ of a person in any capacity. Consequently the exemption in that provision did not apply. In relation to the exemptions in s 56(d), WMC nominated the relevant doctrine as the belief that ‘monogamous heterosexual partnership within marriage is both the norm and ideal’ of the family. The Tribunal concluded that WMC had failed to establish that that doctrine is a doctrine of either Christianity or the religion of the Uniting Church. Accordingly it was not necessary for the Tribunal to determine whether the conduct was done in conformity with the nominated doctrine.
9 The Tribunal then considered the second limb of section 56(d) that is whether the conduct was necessary to avoid injury to the religious susceptibilities of the adherents of that religion. The Tribunal concluded that given the diversity of views among adherents of Christianity about homosexuality, the prohibition on homosexual foster carers could not be said to be necessary to avoid injury to their religious susceptibilities. Similarly, even if the religion was that of the Uniting Church, it could not be said that the prohibition on homosexual foster carers is necessary to avoid injury to the religious susceptibilities of the adherents of that religion. The Tribunal concluded that as none of the exemptions in s 56 applied, WMC’s conduct was unlawful.
Grounds of Appeal
10 The questions identified by WMC were as follows:
1. On the proper construction of sub-section 56(c) of the AD Act, did the Appellants’ selection process for foster carers involve the appointment of a person in any capacity by the Appellant?
2. On the proper construction of sub-section 56(d) of the AD Act , is the relevant ‘religion’ the tenets, beliefs and the practices of the Wesleyan (or Methodist) evangelical tradition?
3. On the proper construction of sub-section 56(d) of the AD Act , is the biblical teaching that a monogamous heterosexual partnership within marriage is both the norm and ideal a doctrine of the religion in question?
4. On the proper construction of sub-section 56(d) of the AD Act , would the requirement that Wesley Mission place children with same-sex foster carers injure the religious susceptibilities of the adherents of the relevant religion?
6. On the proper construction of the now repealed section 113 of the AD Act , is the Tribunal empowered to order the Appellants to review its policy on homosexual foster carers and take all necessary steps to eliminate unlawful discrimination on the ground of homosexuality in the facilitation and provision of its foster care services?5. Did the Tribunal deny the Appellants procedural fairness by taking into account material which was not provided to the parties?
11 The Appellants listed several further grounds under each of these purported questions of law. The Attorney-General’s submissions related to questions 1 to 4 and only to certain grounds within those questions.
Issues
12 The issues on appeal can be resolved by asking the following questions in relation to each ground of appeal:
a) have the Appellants identified one or more questions of law?
b) if so, has the Tribunal answered that question erroneously?
d) what orders disposing of the proceedings are necessary based on the findings of fact made and inferences drawn by the Tribunal if no other conclusion is open.c) if so, what is the correct answer to the question of law?
13 The Respondents submitted that neither the Appellants nor the Attorney-General is entitled to rely on new submissions and authorities that could have been put before the Tribunal at first instance. We agree that any submissions or authorities relating to questions of fact, or to the merits of the Tribunal’s decision, should not be taken into account as the appeal is restricted to a consideration of questions of law. In particular, both the Appellants and the Attorney-General introduced new submissions and authorities relating to the meaning of the word ‘appointment’, (arguing that it should be construed by analogy to the general law relationships of employee and agent) the meaning of the word ‘religion’, the distinction between a ‘qualifying body’ and the provision of a service, the use of dictionaries to define religion in other jurisdictions and the separation of doctrine from the religion from which it is derived. To the extent that these submissions and authorities do not relate to an issue on appeal, we have not taken them into account: Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481 at 483.
Principles for determining whether question is a question of law
14 Legal principles. The primary focus of the Appellants’ and the Attorney-General’s submissions was that the Tribunal had misconstrued the following words and phrases in s 56(c) and (d): ‘appointment of any other person in any capacity’, ‘religion’, ‘doctrines of the religion’ and ‘adherents of the religion.’ The legal principles applicable when determining whether a particular question is a question of law have been expounded most recently and authoritatively by the High Court in Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 and by the Court of Appeal in several decisions including Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, B & L Linings Pty Ltd v Chief Cmr of State Revenue [2008] NSWCA 187 and Ormwave Pty Ltd v Smith [2007] NSWCA 210; 5 DDCR 180. The following relevant principles can be extracted from these and other decisions:
a) An appeal on a question of law does not authorise the appellate body to engage in fact finding on the merits of the decision: B & L Linings at [78] per Allsop P, with whom Giles JA and Basten JA agreed.
b) Even a perverse finding of fact does not give rise to an error of law, but a decision maker who acts without any evidence or without probative evidence makes an error of law: Ormwave at [14] per Beazley JA, with whom Santow and Ipp JJA agreed.
c) If the words in legislation are to be construed according to their ordinary meaning or common understanding, a finding as to whether facts as found fall within the words in the legislation is a question of fact unless there is only one finding or order open to the appellate body in which case a contrary decision is wrong in law: Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 573 at [35] per McHugh J; B & L Linings at [139] per Basten JA and Australian Gas Light Co Valuer-General (1940) 40 SR (NSW) 126 at 138 quoted in B & L Linings at [98]. The corollary to that proposition is that if it is open to the appellate body to arrive at different conclusions, the question being largely one of degree on which minds may differ, the appellate body will not have made an error: Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557 per Mason JA; Vetter at [26].
d) If the words in legislation are not to be construed according to their ordinary meaning, but according to some special or technical meaning, then the question of whether the facts as found fall within the words in the legislation is a question of law: Collector of Customs v AGFA-Gevaert Ltd [1996] HCA 36; (1996) 141 ALR 59 at 59.
f) It is not necessary that the answer to a question of law constitutes the ultimate decision of the Tribunal as long as it is a question material to the decision: Karalasingham at [14] to [16] and B & L Linings at [125].e) Even if a word or phrase does not bear some special or technical meaning, a ‘misapplication on the part of the Tribunal as to the scope and operation’ of such a word or phrase ‘will involve an error in point of law’: Karalasingham at [46] per Basten JA (Bergin J agreeing, Giles JA not deciding). Put another way, if the meaning of a word or phrase depends on the statutory context (the surrounding text, the legislation as a whole and its purpose or object) the Tribunal will err if it does not interpret the word or phrase according to that context: An v Minister for Immigration and Citizenship (2007) 160 FCR 480 per Lindgren at [4].
15 Discussion. We do not accept the Appellants’ proposition that the expressions ‘appointment in any capacity’, ‘religion’ ‘doctrines of the religion’ and ‘adherents of the religion’ have no ordinary meaning in context. The term ‘ordinary meaning’ is used in contrast to a special or technical meaning. As the words and phrases under consideration do not have a special or technical meaning, it follows that they have an ordinary meaning or common understanding.
16 Alternatively, the Appellants submitted that, in accordance with the principles set out at (d) at [14] above, the Tribunal erred by not making the only possible findings open to it, namely:
b) that the religion WMC was established to propagate was ‘the tenets beliefs and practices of the Wesleyan (or Methodist) evangelical tradition’;a) that the Appellants’ selection process for foster carers involved the appointment of a person in any capacity;
- c) that the doctrine of the religion is the biblical teaching that a monogamous heterosexual partnership within marriage is both the norm and ideal;
- d) that the requirement that WMC place children with same-sex foster carers would injure the religious susceptibilities of the adherents of the relevant religion.
17 Even if more than one finding is open, the question is a question of law if it comes within the principle set out at (e) at [14] above. In our view, in accordance with that principle, the questions as to whether the Tribunal misconstrued the meaning of ‘appointment’ ‘religion’, ‘doctrines of that religion’ and ‘the adherents of that religion’ having regard to the purposes of the AD Act and the context in which the exceptions applies, are questions of law.
Meaning of religion
18 Nominated religion. The Tribunal correctly identified the issue it needed to resolve, as ‘what religion was WMC established to propagate?’ WMC rejected the Tribunal’s finding at [88], that it had nominated the relevant religion as ‘the religion of the Uniting Church as practised by Wesley Mission.’ We accept that in its final submissions to the Tribunal, WMC nominated the relevant religion as adherence to the tenets and beliefs of the ‘Wesleyan (or Methodist) understanding of Christianity’. For convenience, we refer to that description as ‘Wesleyanism’. The Respondents submitted that it was open to the Tribunal to rely on any of the formulations put forward by the Appellants at first instance. We do not consider that approach to have been open to the Tribunal. We accept WMC’s submission that the Tribunal did not identify the nominated religion in accordance with their final written submissions and that it should have done so. In the Appeal Panel proceedings, the Appellants nominated WMC’s religion as ‘the tenets, beliefs and the practices of the Wesleyan (or Methodist) evangelical tradition.’ In our view, the Appellants’ are bound by the characterisation they put to the Tribunal in their final submissions. It is not open to them to re-characterise the relevant religion on appeal: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ.
19 Tribunal’s reasoning. The Tribunal noted that the term religion is not defined in the AD Act and went on to set out several dictionary definitions. It concluded on the basis of those definitions that a religion is not the same as a church or a denomination. Contrary to the Appellants’ submission the Tribunal did not define religion as being based on institutional structures or the way in which the church was organised. In fact, the Tribunal described the alternative religion as the ‘the religion of the Uniting Church’, not as the church itself. The Tribunal examined relevant authorities and noted that no single, exhaustive legal definition of religion has been developed. Although the Tribunal acknowledged that there were numerous ‘streams’ within Christianity, including Anglicanism, Lutheranism, Quakers and Baptists, it did not regard those streams as religions in their own right.
20 Consequences of a particular interpretation. Based on the Constitution of the Uniting Church in Australia and other matters, the Tribunal identified the purpose of the exemption in s 56 as ‘to protect religious practice, to preserve freedom of religion and to promote tolerance and acceptance within the broader community of those with particular religious views’. The consequences of the Tribunal’s finding were addressed at [91] and [117] to [121]:
91 The fundamental flaw in the respondents’ contentions is that it bases the argument concerning the definitional question on what they perceive to be the consequences of a finding that Christianity is the relevant religion in this context. But it is the consequences that flow from the definition and not the reverse.
. . .
118 Whether, in this case, there are unintended consequences is a different question from the definitional issue with which we have been dealing.117 Nevertheless, in our view that does not lend support to the respondents’ argument, which would require a warping of the plain language of the statute where it uses the word ‘religion’. We understand their argument concerning consequences and that they contend that Parliament cannot have intended those consequences. It is, unfortunately, sometimes the case that legislation has unintended consequences.
. . .
121 Applying that meaning the relevant religion would be ‘the religion of the Uniting Church’. Wesley Mission is not a denomination of the Christian religion and nor has this been argued. (Emphasis added.)120 Alternative definition In case our understanding of the meaning of the word religion in the context of section 56 is wrong, in the interests of completeness, we will proceed to determine what is the religion of Wesley Mission, if the ordinary meaning of the word religion is accepted to include a denomination, and this is what Parliament meant by its use of the term.
21 Error of law? We have based our examination of this issue on the Tribunal’s finding that ‘religion’ in s 56 includes both what it understood as a religion in a narrow sense as well as denominations of religions, but not belief systems which would not meet its definition of a denomination. It follows that the Appellants’ characterisation of the Tribunal’s finding (that any stream or denomination of Christianity is not a religion for the purposes of s 56(d)) is not correct. To the extent that the Appellants’ submissions are based on that characterisation we have not addressed them. Whether or not the Tribunal made an error of law in the way it construed the word ‘religion’ depends initially on whether there is more than one ordinary meaning of that word. If more than one meaning is open, then which of those meanings applies depends on the purpose of s 56(d).
22 More than one ordinary meaning? The word ‘religion’ has more than one ordinary meaning. The meaning will vary depending on the legislative context. For example, in Attorney-General (Vic); Ex Rel Black v Commonwealth (DOGS case) [1981] HCA 2; (1981) 146 CLR 559 at 580 Barwick CJ expressed doubts as to whether, in the context of s 116 of the Constitution, it was correct to regard the different Christian churches as separate and distinct religions. In Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120, on the question of whether a particular body of beliefs constituted a religion, Mason ACJ and Brennan J said, at 136, that variations in emphasis in relation to the beliefs and canons of conduct may distinguish one religion from another.
23 Church of the New Faith decision. Both the Appellants and the Attorney-General made detailed submissions about the significance of the High Court’s decision in Church of the New Faith. In particular, the following passage from Mason ACJ and Brennan J’s reasons at 136, was highlighted:
- We would therefore hold that, for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion. Those criteria may vary in their comparative importance, and there may be a different intensity of belief or of acceptance of canons of conduct among religions or among the adherents to a religion. The tenets of a religion may give primacy to one particular belief or to one particular canon of conduct. Variations in emphasis may distinguish one religion from other religions, but they are irrelevant to the determination of an individual's or a group's freedom to profess and exercise the religion of his, or their, choice.
24 The Appellant also focused on the joint judgement of Wilson and Deane JJ at 173 where their Honours said that one of the relevant indicia is that ‘ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance.’
25 While Church of the New Faith supports the proposition that the word ‘religion’ is capable of being construed broadly, it does not answer the question as to how it should be construed in this case. We accept the Respondents’ submission that Church of the New Faith formulates a set of criteria for ascertaining whether a religion exists in the context of revenue legislation. Although having a beneficial object, that statutory context is different from the context in the present case. The most that can be said is that there is nothing in that decision which would have prevented the Tribunal from identifying WMC’s religion in the way put forward by the Appellants. That decision did not require it to come to that view as matter of law.
26 Dictionary definitions. It follows that since the word ‘religion’ has more than one ordinary meaning dictionary definitions, while useful, will not necessarily be determinative of the meaning in context. The Appellants said that the Tribunal placed too much emphasis on dictionaries and, in particular, the difference between the definition of a ‘denomination’ and a ‘religion’. Instead, the Tribunal should have focused on the belief systems or tenets of the religion in question. The first objection in relation to the use of dictionaries was that the Tribunal relied on texts and dictionaries which were not part of the evidence and to which neither party had the opportunity to respond. The second objection was that the Tribunal’s focus on dictionaries means that it failed to construe ‘religion’ with the purpose of s 56(d) in mind.
27 Procedural fairness objection. When defining ‘religion’ and contrasting that term with the word ‘denomination’, the Tribunal referred at [97] to [105], to four dictionaries. Only one, the Oxford Companion to the Bible (1993), was not brought to the parties’ attention. The general rule is that, “The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice”: ADT Act s73(2). As Deane J said in Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 63, “[T]he precise content of the rules of those rules will vary according to the statutory framework of the particular proceedings and the particular circumstances of the individual case.” It is significant in the context of these proceedings that the Tribunal is specifically authorised to inform itself as it sees fit.
28 It will generally not be a breach of procedural fairness for the Tribunal to access uncontroversial material from reference books including dictionaries: Australian and Overseas Telecommunications Corporation Ltd v McAuslan (1993) 47 FCR 492 per Burchett J at 496. In a similar legislative context to the present case, the Full Federal Court held in Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 at 42 that it could not be doubted that the Administrative Appeals Tribunal was entitled to consult ‘a standard medical dictionary in order better to understand medical evidence in which technical words were employed by the witnesses.’ While the significance of the definition was arguably greater in this case, the Tribunal’s use of what can be regarded as a standard dictionary or text, The Oxford Companion to the Bible (1993), in conjunction with three other dictionaries, does not constitute a breach of procedural fairness.
29 Significance of the purpose of s 56(d). When more than one construction is open, which of those constructions is to be preferred depends on the purpose of the provision. Section 33 of the Interpretation Act 1987, states that:
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
30 As DC Pearce and RS Geddes point out in Statutory Interpretation in Australia 6th ed, (2006) LexisNexis Butterworths at [2.8], ‘When the purpose or object is brought into account, an alternative interpretation of the words may become apparent. And if one interpretation does not promote the purpose or object of an Act and another interpretation does so, the latter interpretation must be adopted.’ The Tribunal identified the purpose of s 56, as ‘to protect religious practice, to preserve freedom of religion and to promote tolerance and acceptance within the broader community of those with particular religious views.’ The Tribunal’s focus on dictionaries did not mean that it failed to identify the purpose of s 56(d). However, those definitions did lead the Tribunal to apply what it regarded as the only ‘plain’ meaning of that word and to regard it as ‘unfortunate’ that legislation sometimes has unintended consequences. It is apparent from this comment that it considered that the plain meaning did not necessarily accord with the purpose of the provision.
31 Identification of purpose of s 56. The long title to the AD Act, ‘An Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons’ does not help to identify the purpose of the legislation. Section 56 is a general ‘carve out’ provision, that is, it applies to all grounds of discrimination (including race, age and disability) and to each of the areas of activity covered by the legislation. Reading s 56(d) in the context of the provision as a whole, it is apparent that its purpose is to prevent certain kinds of acts or practices of bodies established to propagate religion from being unlawful. The acts and practices fall into two categories: those that conform to the doctrines of the religion and those that are necessary to avoid injury to the religious susceptibilities of the adherents of that religion. The first category is narrower than the second. The existence of both categories means that acts or practices that do not conform to the doctrines of the religion are nevertheless protected in the circumstances where the second part of the exception applies.
32 Extrinsic material. Extrinsic material may be used in certain circumstances to ascertain the meaning of statutory provisions: Interpretation Act 1987 s 34. As Basten JA said in Shorten v David Hurst Constructions Pty Ltd [2008] NSWCA 134 at [20], s 33 and s 34, taken together, ‘avoid semantic distinctions between the mischief or the purpose or the intention of the legislature and the meaning of the language used.’
33 Legislative history. Section 56 was part of the AD Act when it was enacted in 1977. Section 56(3) was amended in 1994 to add the words ‘act or’ before the word ‘practice’ so that the exemption ‘applies to practices of a religious nature . . . [and] acts of a religious nature’ (Anti-Discrimination Bill 1994 Explanatory Memorandum p 4, [m]). The Second Reading Speech stated that this change is to ‘include one-off acts’ which are not clearly included in the language of the exemption: New South Wales Legislative Council, Parliamentary Debates (Hansard), at 1831 and New South Wales Legislative Assembly, Parliamentary Debates (Hansard), at 2468. When introducing amendments to the AD Act to add ‘ethno religious’ origin to the definition of ‘race’ in the Anti-Discrimination (Amendment) Bill 1994, Hannaford MP said, in the Second Reading Speech:
. . .this amendment is not intended in any way to interfere with religious freedoms, and . . the extension of the Anti-Discrimination Act to ethno-religious groups will not extend to discrimination on the ground of religion. At present, section 56 of the Act specifically exempts religious practices, in accordance with the Government’s policy that anti-discrimination laws should not interfere with religious freedom: New South Wales Legislative Council, Parliamentary Debates (Hansard) at 1828 (4 May 1994).
34 This description is not entirely accurate. Section 56(d) does not exempt ‘religious practices’ in general, rather it exempts certain kinds of acts or practices of bodies established to propagate religion. While the exemption is broad, it does not protect every kind of religious practice.
35 Conclusion. Having reviewed the material provided by the parties, there is nothing in the legislative history, the parliamentary debates or other extrinsic material to which our attention was drawn which allows us to be more specific about the meaning of s 56.
36 Relevance of international law. While the right to religious freedom is recognised in international law, (eg Article 18 of the International Covenant on Civil and Political Rights (ICCPR)) as well as in the domestic law of Australia, so too is the right to be free from discrimination (eg Article 26 of the ICCPR). All human rights may be limited so that a balance between competing human rights is required: See Article 18(3) of the ICCPR and S.W.M Broeks v the Netherlands CCPR/C/OP/2 p 197-201 (9/4/1987). Section 56 reflects the approach taken in international law by striking a balance between two important human rights. The issue is not whether one right trumps the other, but how both rights may be appropriately recognised and enjoyed. We agree with the Appellants that the following principles apply:
- a) there is a presumption that Parliament intended to legislate in accordance with Australia’s international obligations: Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 305;
- b) a statute should be interpreted and applied, as far as its language admits, to be consistent with established rules of international law: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at 492; and
- c) where there is ambiguity, the preferred construction is one which is consistent with and advances Australia’s international treaty obligations: Chu Keheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 38.
37 While these principles are theoretically applicable, they do not have any practical application to the interpretation of s 56 in this case.
38 Consequences of a particular construction. The consequences of a particular interpretation is ‘essentially a shorthand version of the purposive approach to interpretation’: Pearce DC and Geddes RS, Statutory Interpretation in Australia (6th ed, 2006) at [2.35]. It follows that the purpose of s 56(d) is illuminated when we examine the consequences of particular constructions. Once it is accepted that the word ‘religion’ can be defined narrowly, as the Tribunal did, or broadly to include any discrete belief system that has the indicia recognised by the High Court in Church of the New Faith, the effect of each of those constructions in context can be examined. The Tribunal’s interpretation has the effect of making acts or practices which conform to the doctrines of Christianity (or the religion of the Uniting Church) lawful and making acts or practices which conform to the doctrines of discrete belief systems within Christianity or the religion of the Uniting Church unlawful. Similarly, that interpretation has the effect of making acts or practices which are necessary to avoid injury to the religious susceptibilities of the adherents of Christianity (or the religion of the Uniting Church) at large, lawful and making acts or practices which are necessary to avoid injury to the religious susceptibilities of the adherents of discrete belief systems within Christianity or the religion of the Uniting Church unlawful.
39 Regardless of precisely where parliament intended to strike the balance between freedom from discrimination and freedom of religion, it cannot have intended to strike it in a way which has such an anomalous outcome. The effect of a broad definition is that the doctrines and adherents of all belief systems, whether defined in narrow or broad terms, which have the indicia of religion recognised by the High Court, are protected. It follows that the Tribunal made an error of law in the manner in which it interpreted the word ‘religion’ in s 56(d). In our view, the correct approach would have been to prefer a construction of the word ‘religion’ that promotes the purpose of s 56.
40 What findings or orders should be made? We can make orders disposing of the proceedings based on the findings of fact made and inferences drawn by the Tribunal if no other conclusion is open. The Appeal Panel cannot redetermine the factual questions before the Tribunal merely because a question of law has been identified: B & L Linings at [55] per Allsop P. The Tribunal found, by implication, that Wesleyanism was not a religion for the purpose of s 56. The question is whether, based on the error of law we have identified, the only finding now open is that Wesleyanism is a religion for the purposes of s 56. The Tribunal did not find that Wesleyanism was not a religion for any reason other than that it did not fall within its understanding of the plain meaning of that word. It did not suggest, for example, that it did not have the indicia of a religion discussed in Church of the New Faith. Because the Tribunal’s only reason for not classifying Wesleyanism as a religion has been found to have been made in error, the only finding now open is that Wesleyanism is a religion for the purposes of s 56.
41 Remaining issues raised by s 56(d). The remaining issue in relation to s 56(d) is whether the decision to prevent OV and OW from applying to become foster carers was an act or practice that conforms to the doctrines of that religion or was necessary to avoid injury to the religious susceptibilities of the adherents of that religion. The Tribunal made no findings on those issues. However, the Tribunal did interpret the words ‘doctrine of that religion’ and ‘the adherents of that religion’. We consider the grounds of appeal relating to the way the Tribunal construed those words and phrases below.
Meaning of doctrines of the religion
42 Tribunal’s reasoning. Having identified the relevant religion, the next question for the Tribunal was whether its decision to prevent OV and OW from applying to become foster carers was an act or practice of WMC that conforms to the doctrines of that religion: s 56(d). The doctrine to which the Appellants’ said it conformed was the belief that ‘monogamous heterosexual partnership within marriage is both the norm and ideal’ [of the family]. Evidence was adduced before the Tribunal that the leadership of the Wesley Mission believe that doctrine to be fundamental Biblical teaching. The Tribunal discussed the meaning of ‘doctrine’ at [123] to [125]:
[123] The word ‘doctrine’ is not defined in the Act. It is necessary therefore to find an appropriate definition in the context of section 56. The Collins Australian Dictionary (supra) defines it to mean:
1. a creed or body of teachings of a religious, political or philosophical group presented for acceptance or belief; dogma; 2. a principle or body of principles that is taught or advocated’. It defines ‘dogma’ as ‘a religious doctrine or system of doctrines proclaimed by ecclesiastical authorities as true’. The Macquarie Dictionary (supra) offers the definition: ‘1.a particular principle taught or advocated; 2. that which is taught; teachings collectively; 3. a body or system of teachings relating to a particular subject.
124 A more complex definition from a religious source is the definition offered by the online Pocket Catholic Dictionary (John A. Hardon, S.J. ed. viewed 28 December 2007):
Any truth taught by the Church as necessary for acceptance by the faithful. The truth may be either formally revealed (as the Real Presence), or a theological conclusion (as the canonization of a saint), or part of the natural law (as the sinfulness of contraception). In any case, what makes it doctrine is that the Church authority teaches that it is to be believed. This teaching may be done either solemnly in ex cathedra pronouncements or ordinarily in the perennial exercise of the Church's magisterium or teaching authority. Dogmas are those doctrines, which the Church proposes for belief as formally revealed by God. (Etym. Latin doctrina, teaching.)
125 It is apparent from these definitions that the essence of the concept of a religious doctrine is that it is a principle or set of principles taught by the religion in question, in relation to some issue of real significance to the faithful. Implied by the fact that it must be a teaching of the religion, is that it must have a source in some religious text or oral tradition regarded as authoritative within the religion itself, or come from a person or group recognised as having authority within the religion to interpret the religious text or tradition in the light of new circumstances. Hence, many, if not most, religions have developed specialised roles for theologians, clergy and holy men and women who apply themselves to the tasks of studying, teaching and interpreting the sacred texts and traditions of the particular religion.
43 The Tribunal went on to find that WMC had failed to establish that the nominated doctrine constitutes a doctrine of the Christian religion. Evidence that the leadership of the Wesley Mission believe it to be a fundamental Biblical teaching that monogamous heterosexual partnership within marriage’ is both the ‘norm and ideal’ did not satisfy the Tribunal that that belief can properly be described as a doctrine of the Christian religion. The Tribunal said that it was common ground that there is a diversity of views and beliefs within the Christian religion on homosexuality.
44 The Tribunal also concluded that WMC had failed to establish that the nominated doctrine was a doctrine of the Uniting Church. Again, the Tribunal said that even if it was accepted that WMC had pronounced doctrine on the issue homosexuality, it does not follow that it is a doctrine of the religion of the Uniting Church. The Tribunal said at [131]:
- That Wesley Mission, as with any congregation or group of congregations within the Uniting Church, is free to pronounce doctrine on matters where the Assembly has not done so, does not elevate any doctrine it might pronounce to a doctrine of the ‘religion of the Uniting Church’.
45 Error of law? The Appellants submitted that the Tribunal should have construed the expression ‘doctrine’ to mean the body of teachings and beliefs which direct the lives and beliefs of the religion’s adherents, and the way they practice their religion in the Wesley Mission, regardless of whether the religion was Wesleyan, the religion of the Uniting Church or Christianity. One basis on which the Appellants said that this definition should be preferred was that doctrine does not have to reflect uniformity of belief. The Respondents say that this misstates the Tribunal’s reasons as requiring an absence of diversity in order to ascertain the existence of the purported doctrine. According to the Respondents, the reason the Tribunal did not find the existence of the purported doctrine was that there was no evidence of it other than the views of several adherents.
46 Contrary to the Appellants’ understanding, we do not interpret the Tribunal’s reasons as suggesting that a doctrine must represent uniformity of belief. The Tribunal’s reasoning was that even if the purported doctrine was a doctrine within the meaning of s 56(d), it was not a doctrine of Christianity or the Uniting Church. The Appellants also relied on the House of Lords decision in Regina v Secretary of State for Education and Employment and others (Respondents) ex parte Williamson (Appellant) and others [2005] 2 AC 246 at [22]. That decision related to the identification of a religious belief, not a religious doctrine, so is not relevant.
47 The Attorney-General’s submission was that the Tribunal misconstrued the word ‘doctrine’ by requiring that it be derived from an authoritative text or declared by the relevant decision making organ. It was said that this interpretation overlooks the fact that religious traditions are subject to differing interpretations and that there may be competing or inconsistent doctrines within a particular religion. According to the Attorney-General, s 56 does not require that the doctrine be authoritatively stated by a particular decision making organ within the religious body concerned. The question must be approached as one of substance, not merely of form and considered by reference to the beliefs in fact held and applied by the adherents: Church of the New Faith at 144.5 and 147-8 per Mason ACJ and Brennan J and Hozack v Church of Jesus Christ of Latter Day Saints (1997) 79 FCR 441 at 451E-G per Madgwick J.
48 While the Attorney-General’s submission is correct if the word ‘religion’ is interpreted narrowly, there are unlikely to be inconsistent doctrines if the word ‘religion’ is broadly interpreted. The Tribunal did not say that the doctrine must be authoritatively stated by a particular decision making organ within the religious body concerned. The Tribunal decided that because a doctrine is a teaching of the religion, it must have its origins either in a religious text, an oral tradition or come from a person recognised as having authority to interpret the text or tradition. We can find no error of law in the way the Tribunal interpreted the word ‘doctrine’ except, in relation to the procedural fairness issue discussed below.
49 Procedural fairness. Another basis on which the Appellants said that the Tribunal should have adopted its definition of ‘doctrine’ was that one of the dictionaries relied on, the online Pocket Catholic Dictionary, was of ‘uncertain origin and reliability’. The website referred to at [124] relates to a body described as ‘Real Presence Eucharistic Education and Adoration Association’. On that website, the dictionary is described as the ‘Modern Catholic Dictionary’ not the ‘Pocket Catholic Dictionary’, but we have assumed that that was the dictionary to which the Tribunal referred. The Appellants submitted that before the Tribunal gave weight to material of that kind and from such a source, it should have provided the parties with an opportunity to comment on the veracity of the source and the reliability of the material. Our observations at [26] to [28] above also apply to this ground of appeal. This online dictionary is not a standard dictionary or text. The Real Presence Eucharistic Education and Adoration Association is not an organisation which is commonly known or regarded as authoritative. In our view, the Tribunal should not have relied on a definition of doctrine in that text without giving the parties an opportunity to comment on its veracity and reliability. This part of the case should be remitted to allow the Tribunal to determine, without reference to the definition in the Pocket or Modern Catholic Dictionary whether the evidence supports a finding that the first part of the exception in s 56(d) has been made out.
Meaning of “the adherents of that religion”
50 Tribunal’s reasons. The aspects of the Tribunal’s reasons to which the Appellants and the Attorney-General objected are at [138-139], [141] and [143]:
139 The Respondents are correct that adherents of a religion do not necessarily agree on all matters. However the proper construction of the provision does not in our view support it being read to mean ‘some’ or ‘an unknown proportion’ of the adherents of the [relevant] religion. The use of the definite article, ‘the’, makes this clear.138 The applicants contend that this provision should be read as meaning that the exemption will only apply where the ‘act or practice’ is necessary to avoid injuring the religious susceptibilities of all (or at least a significant majority) of the adherents at once’. The Respondents say that this argument fails to recognise that to be an adherent of a religion it is not necessary that the doctrines or practices to which that person adheres be universally accepted by the members of that religion.
. . .
141 Even if established that the prohibition against homosexual foster carers was necessary to avoid injuring the religious susceptibilities of the members of the ten congregations that make up the Wesley Mission (a point not conceded by the applicants), this would not satisfy the second limb of section 56 as it would only establish that it was necessary to avoid injury to ‘some’ or ‘an unknown proportion’ of the adherents of Christianity.
. . .
143 Similarly if the alternative definition were to be applied it could not be said that the prohibition against homosexual foster carers is necessary to avoid injury to the religious susceptibilities of the adherents of the religion of the Uniting Church. In reaching that conclusion we note the range of views within the Church on the issue of homosexuality. We also note the evidence that a designated agency operated by the Uniting Church (not Wesley Mission) has authorised as ‘authorised carers’ persons who are openly homosexual and placed children in their care. There is no evidence that this has caused injury to the religious susceptibilities of the members of the Uniting Church.
51 We understand this conclusion to be an acceptance of the Respondents’ submission at first instance that ‘the adherents’ means all, or at least a significant majority of the adherents and not ‘some’ or ‘an unknown proportion’ of adherents. We do not accept the Appellants’ submission that the Tribunal required the susceptibilities of all adherents to be injured.
52 Error of law? According to the Attorney-General, because ‘the adherents’ is expressed in the plural form it includes a reference to that word in the singular form: Interpretation Act 1987, s 8. This rule applies unless a contrary intention appears in the Act concerned: s 5(2). A contrary intention does appear in the AD Act because it cannot be the purpose of s 56(d) to prevent injury to the religious susceptibilities of a single person who believes something that no other adherent of that religion believes. As Brooking J said in Fordham v Brideson [1986] VR 587, ‘Some words may readily be used in the plural in a way which shows that the speaker contemplates not a single instance of the object named but only a plurality.’ This case applies to people rather than objects but the same conclusion can be drawn.
53 Ordinary meaning. The natural meaning of ‘the adherents’ in context and having regard to the purpose of s 56(d) is that more than one but not necessarily all the adherents must be affected. To that extent we agree with the Tribunal’s construction of the words. However, we consider that the Tribunal made an error when it concluded that the use of the definite article (‘the’) means that the exception does not apply when the susceptibilities of ‘some’ or ‘an unknown proportion’ of adherents would be injured. The consequences of interpreting the provision in that way would be that the genuine beliefs of adherents of a particular religion would not be protected unless they could establish that all or a significant proportion of adherents shared that belief. In our view, that cannot have been the purpose of s 56(d).
54 Answer to the question of law. Taking into account the context and the purpose of the provision, at least ‘some’ or ‘a proportion’ of adherents must be affected. Whether the evidence is sufficient to satisfy the exemption will depend on the number affected and the percentage of all adherents affected if that evidence is available. Ultimately it will be a question of fact in each case as to whether the evidence supports a finding that the act or practice concerned would injure the religious susceptibilities of the adherents of the religion concerned.
55 What orders should be made? When an error of law affects the ultimate decision, remitter will normally follow: Icm Agriculture Pty Ltd v Perry [2002] NSWCA 257 per Mason P (with whom Meagher JA and Handley JA agreed) at [19]. This part of the case should be remitted to allow the Tribunal to determine whether the evidence supports a finding that the second part of the exception in s 56(d) has been made out: ADT Act, s 114(2)(b).
Remaining grounds of appeal in relation to s 56(d)
56 The remaining grounds of appeal in relation to s 56(d), either do not raise a question of law or do not reveal an error of law.
57 Irrelevant considerations. The irrelevant consideration that the Tribunal was said to have taken into account was doctrines in relation to homosexuality generally. According to the Appellants, the relevant doctrine was concerned only with the placement of children with carers in a same-sex relationship. While taking into account irrelevant considerations raises a question of law if a Tribunal is exercising discretionary powers, that was not the case here: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 Mason J. There is no discretionary power in s 56 so this ground of appeal does not identify a question of law that arises from the Tribunal’s decision.
58 Failure to consider evidence. The Appellants submitted that the Tribunal failed to consider the evidence of Reverend Garner on the nature and character of the religion practised by WMC. Failing to consider evidence does not raise a question of law. (See [14] above). While the question whether there is any evidence of a particular fact is a question of law, the Appellants have not submitted that there was no evidence or no probative evidence to support the Tribunal’s finding. Alternatively, the Tribunal did not fail to consider Reverend Garner’s evidence, it merely decided at [11] that it was not relevant. Having found that the religion was ‘Christianity’, Reverend Garner’s evidence on the nature and character of the religion practised by Wesley Mission was not relevant to any fact in issue.
59 Findings with no evidence. The Appellants submitted that while the Tribunal was correct in finding that WMC is a body established to propagate religion, it erred in finding that the relevant religion was Christianity. The reason for that error was that the only evidence was that WMC was a body established to carry out the Wesleyan (or Methodist) evangelical tradition. Contrary to the Appellants’ submission, that was not the only evidence on this point. There was evidence, referred to by the Tribunal at [94], from Reverend Paul Swadling. The Tribunal said that he testified that:
. . .if in the context of the conduct of the national census or hospital admission, he was asked what was his religion he would reply, ‘the Uniting Church’. He went on to clarify, ‘My religion in fact is Christianity but that’s not normally what people mean when they ask [that] question’. Reverend Swadling was ordained in the Methodist Church the year before the establishment of the Uniting Church.
60 The Appellants did not submit that this evidence was not given by Reverend Swadling or that it was not probative. No question of law has been identified.
61 In addition, the Appellants submitted that even if the Tribunal had been correct when it identified Christianity as the ‘religion’, there was no evidence about the doctrines of Christianity generally which could have supported or informed the Tribunal’s conclusion that a fundamental Biblical teaching that ‘monogamous heterosexual partnership within marriage’ is both the ‘norm and ideal’ was not a doctrine of the Christian religion. The Tribunal set out its findings on this issue at [126] to [128]:
126 Is the purported doctrine a doctrine of the religion of Christianity? Evidence was adduced in these proceedings that the leadership of the Wesley Mission believe it to be a fundamental Biblical teaching that ‘monogamous heterosexual partnership within marriage’ is both the ‘norm and ideal’. However, it does not follow, and nor is it asserted, that that belief can properly be described as a doctrine of the Christian religion.
128 In our view the respondents have failed to establish that the nominated doctrine constitutes a doctrine of the Christian religion.127 It is common ground that there is a diversity of views and beliefs within the Christian religion on the issue of homosexuality. The debate within the Uniting Church, about which much evidence was given in these proceedings, is but one of many examples that can be cited to illustrate this point.
62 The Appellants interpreted these passages as the Tribunal making a finding without evidence. In fact, the Tribunal found that the Appellants had not discharged their onus of establishing that the nominated doctrine constitutes the doctrine of a particular religion. That finding cannot be characterised as making a finding with no evidence. This ground of appeal does not raise a question of law. Alternatively, having expressly denied at the hearing that the relevant religion was Christianity, the Appellants cannot now raise arguments which rely on Christianity as the relevant religion.
63 The Appellants also submitted that the Tribunal’s findings were made without any evidence that there was a diversity of views and beliefs within the Christian religion on the issue of homosexuality, where the evidence was concerned only with WMC and the Uniting Church. Whether or not there was evidence that there is a diversity of views and beliefs within the Christian religion is not the point. The Tribunal came to its conclusion on the basis that the Appellants had not adduced evidence that the nominated doctrine was a doctrine of the Christian religion. The appellants have not identified a question of law in relation to that conclusion.
Meaning of ‘appointment of a person in any other capacity’
64 Tribunal’s reasoning. Section 56(c) exempts ‘the appointment of any other person in any capacity by a body established to propagate religion’. The Tribunal’s reasoning on this point appears at [82] to [85]:
82 The Care and Protection Act makes it clear that the role of a designated agency is to authorise ‘authorised carers’. The language of Chapter 8 is that of ‘placing’ children in need of foster care with persons ‘authorised’ to provide that care. Nowhere does the Act adopt the language of ‘appointment’.
83 ‘Appointment’ is not defined by the Act and therefore the ordinary English meaning should be applied. The Macquarie Dictionary (Fourth edition, 2005) offers the following definition of the word: ‘the act of appointing, designating, or placing in office’. The Oxford English Dictionary, (Second edition, 1989) has a similar definition: ‘the action of nominating to, or placing in, an office’.
85 It follows from these considerations that the act of authorising a person to be an ‘authorised carer’ does not constitute an appointment within the meaning of paragraph (c) and therefore, the respondents’ argument under this head fails.84 ‘Authorise’, on the other hand, is defined by the Macquarie Dictionary (supra) to mean ‘to give authority or legal power to; empower’ and by the Oxford English Dictionary (supra) as ‘To endow with authority, place in authority; to commission; to accredit’.
65 Error of law? The Appellants submitted that the Tribunal erred by finding that s 56(c) of the AD Act did not apply because the words ‘authorising’ and ‘appointing’ were defined differently in the dictionary. According to the Appellants, the Tribunal’s interpretation of the expression ‘appointment’ was narrow, literal and not construed in accordance with the intention of parliament. Further, the Tribunal construed the word ‘appointment’ in isolation rather than in conjunction with the phrase ‘in any capacity’.
66 Dictionary definitions. The limits of dictionary definitions were highlighted by Mason P in House of Peace Pty Ltd and Anor v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [28]:
A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose. I agree with the following remarks of Judge Randolph of the United States Court of Appeals for the District of Columbia Circuit: “Dictionaries, Plain Meaning and Context in Statutory Interpretation” (1994) 17 Harvard Journal of Law and Public Policy 71 at 72:
Citing dictionaries can ‘create a sort of optical illusion, conveying the existence of certainty – or ‘plainness’ – which appearance may be all there is.
67 While we agree that care must be taken when relying on dictionary definitions, the definitions in this case assisted the Tribunal to identify the meaning of ordinary words in context. As there is only one ordinary meaning of the words “appointment” and “authorise”, the use of dictionaries was legitimate. Those meanings were taken from authoritative sources - the Macquarie Dictionary and the Oxford English Dictionary.
68 The words ‘in any capacity’ do not broaden the meaning of the word ‘appointment’ they merely qualify it. They are used to distinguish appointments under s 56(c) from the specific appointments referred to in s 56(a).
69 Purpose of s 56(c). The purpose of s 56(c) is to exempt the appointment of any person in any capacity (other than priests, ministers of religion or members of any religious order) from constituting a breach of the AD Act. As with the meaning of ‘religion’, nothing in the legislative history or extrinsic materials to which our attention was drawn, identifies precisely where the balance between religious freedom and freedom from discrimination was intended to be struck. Neither do the consequences of interpreting the provision in a particular way assist. If ‘appointment’ is interpreted to include authorising foster carers then the number of protected appointments is larger than it would otherwise have been. That conclusion does not help to ascertain the purpose of the provision. The way the Tribunal approached the interpretation of s 56(c) was not at odds with the purposive approach mandated by s 33 of the Interpretation Act 1987.
70 Relevance of Care and Protection Act. It was also submitted that the Tribunal’s reliance on the Children and Young Persons (Care and Protection) Act 1998 was not raised with the parties and that the Tribunal misconceived the relevance of that legislation to the question which had to be determined. The Appellants say that there was no evidence about the operation of that Act and neither party made submissions about its relevance to any issue in the proceedings. If it was proper for the Tribunal to consider that legislation, then the Tribunal should also have considered other relevant legislation relating to the status of foster carers and their relationship with the fostering agency.
71 In our view, the Tribunal’s reference to the Children and Young Persons (Care and Protection) Act 1998 involves no error. It was appropriate for the Tribunal to consider and refer to that Act when construing the meaning of the word ‘appointment’. The Appellants referred to that legislation in the list of authorities it submitted to the Tribunal. The Tribunal found, at [53] to [56] as an undisputed question of fact, that the service provided by the Appellants was the exercise of its statutory power as a designated agency to authorise carers pursuant to the Children and Young Persons (Care and Protection) Act 1998.
72 Submission relating to merits. The Attorney-General’s submission was that, on the basis of the statutory scheme in the Children and Young Persons (Care and Protection) Act 1998 and various authorities which were not before the Tribunal, it is sufficient to meet the statutory requirement for an ‘appointment’ even where a particular person is only appointed in an informal sense. The Attorney-General’s submissions seek to re-open the merits of the Tribunal’s decision rather than identify a question of law.
Remaining grounds of appeal relating to s 56(c)
73 The remaining grounds of appeal in relation to s 56(c) either do not raise a question of law or do not reveal an error of law.
74 Failing to consider evidence. For the same reasons given at [14] above, failing to consider evidence does not raise a question of law. Alternatively, the Tribunal did not fail to consider the evidence about the Appellants’ authorisation of foster carers. The Tribunal noted at [12] that the Appellants’ ‘receipt and processing of applications from aspirant foster carers’ was ‘not in issue’, nevertheless the Tribunal referred to that evidence in some detail at [14-18], [21-22] and [50-55].
75 Reasons are inadequate and fail to comply with s 89(5). The Appellants submitted that the reasons for rejecting the application of s 56(c) are manifestly inadequate and fail to comply with the requirements of s 89(5) of the ADT Act. Section 89(2) of the ADT Act imposes a duty on the Tribunal to give reasons, either orally or in writing. Section 89(5) provides that written reasons are to set out:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal’s understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.
76 Apart from the situation where a party requests written reasons for an oral decision, the Tribunal is not obliged by the ADT Act to give ‘adequate’ reasons. Even though there is no statutory requirement governing the adequacy of reasons given under s 89(2), common law principles are relevant. There is a judicial duty to give adequate reasons: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70. That duty applies to apply to tribunals as well as courts. In Absolon v NSW TAFE [1999] NSWCA 311, the Court of Appeal considered whether appropriate reasons had been given for a decision of the Equal Opportunity Division of the Tribunal. Powell JA at [67] and [68] explained that it will be sufficient if a judge ‘apprises the parties of the broad outline and constituent facts of the reasoning’ on which he or she has acted. His Honour went on to say that the giving of inadequate reasons does not necessarily vitiate the decision. It will only be where the absence or inadequacy of the reasons discloses that the Tribunal has failed to exercise its powers according to law that the decision will be set aside.
77 Conclusion. In this case, the Tribunal provided adequate reasons for its decision. The Tribunal set out its reasoning process explaining why the Appellants’ submissions were not accepted. Even if the reasons were not adequate, they do not disclose that the Tribunal failed to exercise its powers according to law.
78 What orders should be made? As we have found no error of law in relation to these grounds of appeal, there is no need for any consequential findings or orders.
No power to make the order
79 The Appellants said that the Tribunal had no power to make the following orders:
Order Number 4 is to come into effect three months after the date of these ordersThe first respondent is to review its policy on homosexual foster carers and take all necessary steps to eliminate unlawful discrimination on the ground of homosexuality in the facilitation and provision of its foster care services
80 In making those orders, the Tribunal relied on the now repealed s 113(1)(b) of the AD Act which, so far as is relevant, stated that:
- (1) After holding an inquiry, the Tribunal may:
(a) dismiss the complaint the subject of that inquiry, or
- (b) find the complaint substantiated and do any one or more of the following:
- . . .
(iii) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant(ii) make an order enjoining the Respondents from continuing or repeating any conduct rendered unlawful by this Act or the regulations,
81 Tribunal’s reasoning and conclusion. The Tribunal’s reasoning and conclusion appear at [175] to [176]:
176 In our view in this matter the preferred course would be to make orders in the nature of a declaration. In the absence of the power to do so, we have decided to make orders along the lines of the second order proposed by the applicants:175 The respondent contends the Tribunal is without power to make orders in these terms. While we agree that it is not within our power to make the first of these orders, it is not clear to us on what basis the second is outside our power. Section 113(1)(b)(iii) gives the Tribunal broad powers, and provides that it may ‘order the Respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant’. The scope of this provision was discussed in Sydney University Postgraduate Representative Assn v Minister for Transport & ors (No 2); Nuevo v Minister for Transport & ors (No 2); Neira v Minister for Transport & ors (No 2) [2006] NSWADT 260. In that matter, the Tribunal (differently constituted) examined the operation of section 113(1)(b) and concluded that it did not restrict the Tribunal to making orders only for the benefit of the complainants. We agree with that analysis.
That the first respondent review its policy on homosexual foster carers and take all necessary steps to eliminate unlawful discrimination on the ground of homosexuality in the facilitation and provision of its foster care services.
This order is to come into effect three months after the date of these orders.
82 Question of law? The Appellants submitted that the Tribunal had no power to order it to review its policy on homosexual foster carers and take all necessary steps to eliminate unlawful discrimination on the ground of homosexuality in the facilitation of provision of its foster care services. That submission raises a question of law. Both s 113(1)(b)(ii) and (iii) allow the Tribunal to order injunctive style relief. The former permits the Tribunal to make orders in the nature of prohibitory injunctions that a Respondent cease unlawful conduct. That kind of order is appropriate where a Respondent is continuing to engage in unlawful conduct and that conduct can be clearly identified. Had the Tribunal decided to make an order pursuant to that provision in this case, it could have prohibited the Appellants from refusing to allow a person to apply to become a foster carer on the ground of that person’s homosexuality. An appropriate order for the Tribunal to have made under the now repealed s 113(1)(b)(iii) would have been to require the Appellants to provide OV and OW with the service that had been refused. Rather than making an order in either of those terms, the Tribunal made an order under s 113(1)(b)(iii) requiring WMC review its policy on homosexual foster carers and take all necessary steps to eliminate unlawful discrimination on the ground of homosexuality in the facilitation and provision of its foster care services
83 Error of law? Contrary to the Tribunal’s understanding, an order under s 113(1)(b)(iii) must be made for the personal benefit of the applicant or complainant to redress any loss or damage he or she may have suffered. The Tribunal apparently misunderstood the decision in Sydney University Postgraduate Representative Assn when it held that that case was authority for the proposition that section 113(1)(b) did not restrict the Tribunal to making orders only for the benefit of the complainants. While s 113(1)(b)(ii) allows such orders to be made, s 113(1)(b)(iii) expressly limits the orders to those which redress any loss or damage suffered by the complainant: Sydney University Postgraduate Representative Assn v Minister for Transport & Ors (No 2); Nuevo v Minister for Transport & Ors (No 2); Neira v Minister for Transport and ors(No 2) [2006] NSWADT 260 at [30]. As the order in this case was made for the benefit of other prospective applicants it was beyond power. We note that s 108(3) now gives the Tribunal power to make orders extending to conduct of the Respondent that affects persons other than the complainants. The precise scope of this provision remains to be determined.
Summary
84 The issue before the Tribunal was whether Wesley Mission breached the AD Act by preventing a same sex couple from applying to be foster carers. The Tribunal found that conduct to be unlawful as none of the exceptions for religious bodies applied. In summary, on appeal, the Appeal Panel has found that the Tribunal made the following errors of law in reaching that conclusion:
1. interpreting the word ‘religion’ in s 56 of the AD Act narrowly and without regard to the consequences of its preferred construction;
2. relying on a dictionary which was not a standard dictionary to interpret the word ‘doctrine’ without giving the parties an adequate opportunity to comment on its veracity or reliability;
3. interpreting the words ‘the adherents’ to mean all, or at least a significant majority of the adherents and not ‘some’ or ‘an unknown proportion’ of adherents without regard to the consequences of its preferred construction;
4. making an order that:
The first respondent is to review its policy on homosexual foster carers and take all necessary steps to eliminate unlawful discrimination on the ground of homosexuality in the facilitation and provision of its foster care services which was beyond power to make because it was not restricted to redress any loss or damage suffered by the complainant.
2. The following matters are remitted to be heard and decided again by the Tribunal in accordance with these reasons:1. The decision of the Tribunal is set aside.
a) Is the belief that a monogamous heterosexual partnership within marriage is both the norm and ideal a doctrine of ‘Wesleyanism’?
b) If so, was the conduct of the Appellants in refusing the services necessary for OV and OW to apply to become foster carers and for that application to be processed and assessed on its merits, conduct which was done in conformity with that doctrine?
d) If the complaint is substantiated, any appropriate relief.c) Is the conduct of the Appellants in refusing the services necessary for OV and OW to apply to become foster carers and for that application to be processed and assessed on its merits, conduct which is necessary to avoid injury to the religious susceptibilities of the adherents of ‘Wesleyanism’?
5
33
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