Members of the Board of the Wesley Mission Council v OV and OW (No 2)

In this case, OV and OW, a homosexual couple, brought a complaint to the Anti-Discrimination Tribunal regarding their refusal to be approved as foster carers by the Wesley Mission Council. They alleged that the refusal was discriminatory on the grounds of their sexuality. The Tribunal found in their favour, but the decision was challenged by the Wesley Mission Council in the Supreme Court of New South Wales. The court had to decide whether the Wesley Mission Council's refusal to process the couple's application was discriminatory and whether it fell under the religious exceptions provided in the Anti-Discrimination Act 1977.

The primary legal issue was whether the selection process that prohibited homosexual foster carers was unlawful under the Anti-Discrimination Act 1977. The court had to determine whether the refusal was based on the couple's sexual orientation and whether the religious exception provisions applied. The court also needed to interpret the terms 'doctrines of religion' and 'adherents of that religion' as they pertained to Wesleyanism. Specifically, it had to decide if the belief in monogamous heterosexual partnerships within marriage as the norm and ideal was a Wesleyan doctrine, and whether the refusal to process the couple's application was in conformity with that doctrine and necessary to avoid injury to the religious susceptibilities of Wesleyan adherents.

The court found that the Tribunal had not adequately considered the meaning of 'religion' and 'doctrines of religion' within Wesleyanism. It concluded that the Tribunal should have examined whether the belief in monogamous heterosexual partnerships within marriage as the norm and ideal was a Wesleyan doctrine. The court held that if such a belief was indeed a Wesleyan doctrine, the refusal to process the couple's application could be considered conduct in conformity with that doctrine. Additionally, the court held that the refusal might be necessary to avoid injury to the religious susceptibilities of Wesleyan adherents. Consequently, the court set aside the Tribunal's decision and remitted the matter for reconsideration, directing the Tribunal to address these specific issues.

The court ordered that the decision of the Tribunal be set aside and that the specified matters be heard and decided again by the Tribunal in accordance with the court's reasons. This included determining whether the belief in monogamous heterosexual partnerships within marriage as the norm and ideal was a Wesleyan doctrine, whether the refusal to process the couple's application was in conformity with that doctrine, whether the refusal was necessary to avoid injury to the religious susceptibilities of Wesleyan adherents, and if the complaint was substantiated, any appropriate relief.