OV and anor v QZ and anor (No.2)
[2008] NSWADT 115
•1 April 2008
Set aside by Appeal:
CITATION: OV and anor v QZ and anor (No.2) [2008] NSWADT 115 DIVISION: Equal Opportunity Division PARTIES: APPLICANTS
OV and OWFIRST RESPONDENT
SECOND RESPONDENT
QZ
Uniting Church in Australia Property Trust (NSW)FILE NUMBER: 041154 HEARING DATES: 30 May - 1 June 2007, 13 August 2007 SUBMISSIONS CLOSED: 13 August 2007
DATE OF DECISION:
1 April 2008BEFORE: Britton A - Deputy President; Nemeth de Bikal L - Non Judicial Member; Schneeweiss J - Non Judicial Member CATCHWORDS: Complaints of discrimination on the grounds of homosexuality and marital status in the area of services MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Adoption Regulation 2003
Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004
Children and Young Persons (Care and Protection) Act 1998
Income Tax Assessment Act 1997
Interpretation Act 1987
Uniting Church in Australia Act 1977 (NSW)CASES CITED: Adelaide Company of Jehovah’s Witnesses Inc v The Commonwealth (1943) 67 CLR 120
Alexander v Home Office [1998] 2 All En 118
Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120
Director-General, Department of Community Services v MM and Another [2003] NSWSC 1241
Dixon v Anti-Discrimination Commissioner of Qld [2004] QSC 58; (2004) 1 Qd R 33
Hall v Sheiban (1985) ALR 503
Hazan v Victorian Jewish Board of Deputies [1990] EOC 92-98
Hozack v The Church of Jesus Christ of Latter Day Saints (1997) 79 FCR 441
OV v OW v QZ [2006] NSW ADT, 27 September 2006 (unpublished)
Purvis v New South Wales (2003) 217 CLR 92
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 260REPRESENTATION: APPLICANTS
RESPONDENTS
C Ronalds SC and R Pepper, barristers
K Eastman, barristerORDERS: 1. The complaint of discrimination on the ground of marital status is dismissed
2. The complaint of discrimination on the ground of homosexuality is substantiated
3. Within 21 days the first respondent is to pay each applicant, the sum of $5,000
4. 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
5. Order Number 4 is to come into effect three months after the date of these orders
6. The parties are to advise the Tribunal within 14 days of the date of these orders if they object to the publication of these reasons in their current form. If any party wishes to provide further submissions on the issue of ongoing suppression orders they may do so, providing they are filed and served within 28 days of the date of these reasons. The parties are also invited to comment on whether they consider the matter can be determined ‘on the papers’
7. Any party wishing to apply for costs must do so within 14 days of the date of these reasons and provide to the Tribunal and the other party/s brief written submissions in support. Any submissions in reply are to be filed and served within 14 days of receipt of any application for costs and submissions in support.
Note: On 15 April 2008 the following Orders were made by consent:
1. Under Section 75(2) of the Administrative Decisions Tribunal Act 1997 (NSW), it is prohibited, in or in connection with these proceedings or the allegations made in these proceedings:(i) to disclose the name, address, picture or any other material that identifies or may lead to the identification of and(ii) to do any other thing that identifies or may lead to the identification of any of, the Applicants and any children who at any time have been, or who are now, or who were during the course of these proceedings, in the care and control of the Applicants and any other children mentioned during the course of these proceedings
2. The reasons for decision be published in the form provided to the parties on 1 April 2008.
REASONS FOR DECISION
1 In mid 2002, a same-sex couple, OV and OW, contacted Wesley Dalmar Child and Family Care to make enquiries about becoming foster carers. They were told that an application from a same-sex status couple would not be accepted. They lodged a complaint with the Anti-Discrimination Board alleging discrimination on the ground of homosexuality in the area of services.
2 That complaint was referred to the Tribunal and on the application of the applicants amended to include a complaint of discrimination on the ground of marital status: OV v OW v QZ [2006] NSW ADT, 27 September 2006 (unpublished).
3 Sections 47 and 49ZP of the Anti-Discrimination Act 1977 (‘the Act’) prohibit unlawful discrimination in the provision of services on the grounds of marital status and homosexuality.
4 The respondents concede that the applicants were told that they would not be permitted to apply to become foster carers because they were homosexual. However, they argue that this does not constitute unlawful discrimination as they are entitled to rely on section 56 of the Act which exempts from the strictures of the Act ‘appointments by a body established to propagate religion’ and ‘any act or practice of that body that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion’. In addition, the respondents raise a number of technical points and contend that the Tribunal is without jurisdiction to determine the applicants’ complaints.
5 The respondents contend that the complaint of marital status discrimination is misconceived.
Identity of the first respondent
6 The first respondent is identified as ‘Wesley Dalmar Child and Family Care operated by Wesley Mission acting through the Mission Council’. Wesley Dalmar Child and Family Care (‘Wesley Dalmar’) is a welfare agency, which, among other things, provides foster care to children. To do so, it seeks to recruit foster carers from the community. It is part of the unincorporated Community Services Division of the Wesley Mission, which, in turn, is an unincorporated arm of the Uniting Church. The Uniting Church itself is an unincorporated association formed under statute – the Uniting Church in Australia Act 1977 (NSW) (‘the Uniting Church Act’).
7 The second respondent, ‘The Uniting Church in Australia Property Trust (NSW)’ (the Property Trust), is a corporation constituted under the Uniting Church Act. Under the Church’s Constitution, beneficial ownership of all Church property is vested in the Uniting Church and legal title is vested in the Trust. The Trust provides a legal vehicle for the Church and its constituent bodies to enter into contracts with third parties.
8 A contested issue throughout these proceedings has been the identity of the service provider or ‘person’ who allegedly refused to provide the applicants with the requested services. The applicants contend that it was ‘Wesley Dalmar’ or in the alternative, the Property Trust. The respondents on the other hand argue that it was the first respondent, Wesley Dalmar Child and Family Care, operated by Wesley Mission acting through the Mission Council. The applicants say that this description is ‘peculiar’ and they are unclear what entity is identified by that name.
9 We will return to consider this issue in some detail. For present purposes we will refer to the entity, which dealt with the applicants as ‘Wesley Dalmar’.
The issues for determination
10 Although many points have been raised and argued by both parties in the course of these proceedings, the main questions that seem to us to emerge for resolution are:
11 To determine these questions a very large volume of documentary evidence and lengthy written submissions were tendered to us. We have also heard a large amount of oral evidence. We have taken all evidence and all submissions into account but in the interests of reasonable economy and because we think that not all the material and arguments bear directly on the questions, we propose to refer only to those matters we regard as salient features of the case.
First, is the applicants’ complaint out of time?
Second, were the applicants refused a service?
Third, if so, by whom?
Fourth, does that refusal constitute discrimination on the grounds of homosexuality (section 49ZP) and/or marital status (section 47)?
Fifth, if there is discrimination, do the exceptions provided under section 56(c) and /or section 56(d) apply?
Sixth, if not, what relief should be awarded?
Seventh, have either of the respondents ‘aided or abetted’ any act of unlawful discrimination?
Is the complaint out of time?
12 It is not in issue that the receipt and processing of applications from aspirant foster carers constitutes a ‘service’ for the purpose of section 4 of the Act (Director-General, Department of Community Services v MM and Another [2003] NSWSC 1241). Nor is it in issue that Wesley Dalmar refused to provide the applicants with the services necessary to enable them to submit an application to be assessed as foster carers. What is in issue is when those services were refused. This is relevant because the complaint referred to the Tribunal was lodged with the Anti-Discrimination Board (‘the Board’) on 10 June 2003. By the operation of the (then) section 88(4) of the Act, the temporal scope of any complaint is restricted to the six month period before it was lodged with the Board, that is 10 December 2002 to 10 June 2003. (The applicants withdrew an earlier complaint lodged in April 2003.) If, as the respondents contend, the only refusal of services occurred in August 2002, the complaint would be out of time and the Tribunal would have no jurisdiction to entertain it.
13 The applicants dispute that the complaints are time barred.
14 Factual background In July 2002, OW made an inquiry with Wesley Dalmar about the possibility of his becoming, with his partner OV, foster carers. He alleges he was told being ‘gay’ was not an impediment. Later that month the couple received an information kit, ‘Could you be a Dalmar Carer?’ None of the information contained in the kit suggested that homosexuality was a bar to becoming a foster carer with Wesley Dalmar.
15 In August 2002, OW was told by the officer with whom he originally dealt, that Wesley Dalmar would not accept same-sex couples as foster carers and therefore he and OV would not be provided with application forms, nor, if submitted, would a completed form be assessed. That advice was based on what the officer recalled being told five years earlier by a former manager of Wesley Dalmar. The officer completed a pro forma complaint form recording that the applicants were ‘disappointed’ with the decision. In light of what he saw as the ‘conceptual’ nature of the policy, the officer advised the applicants to make a complaint to the manager of Wesley Dalmar’s Out of Home Care Services, Ms Sue Sarlos.
16 Acting on that advice on 19 August 2002, the applicants wrote to Ms Sarlos seeking a review of the original decision and repeating their interest in becoming foster carers. They advised they had undertaken a three-day training course run by the Department of Community Services (‘DoCS’) and were willing to undertake any further training Wesley Dalmar cared to suggest. Ms Sarlos, who was then new to her role, sent a memo to the General Manager of Wesley Mission Community Services seeking a review of the policy on homosexual foster carers.
17 On 19 March 2003, Ms Sarlos wrote to the Board of Wesley Mission seeking clarification about the Board’s policy. She pointed out the apparent inconsistency between it and Wesley Dalmar’s agreement with DoCS, which required it not to discriminate on the grounds of homosexuality. She did not receive a reply from the Board of Wesley Mission.
18 By letter dated 7 April 2003, Ms Sarlos notified the applicants that following review she had decided to confirm Wesley Dalmar’s original decision. She wrote, ‘As part of Wesley Mission our policies must align with the ethos and values of that church, which does not support same-sex couples’.
19 Our findings and conclusions It is argued for the respondents that all services requested by the applicants throughout the period of the complaint were provided. They characterise the applicants’ letter to Ms Sarlos in August 2002 as a complaint and contend that all services in relation to it, namely, the provision of information and processing and determination of the complaint, were provided. They argue that casting Ms Sarlos’s letter of April 2003 as the ‘act of discrimination’ independent and separate to the August 2002 decision, is no more than a ‘contrived attempt’ to bring the applicants’ complaint within time.
20 The applicants argue that that submission fails to acknowledge the multi-stepped process involved in becoming a foster carer.
21 It is uncontroversial that within Wesley Dalmar, Ms Sarlos was the final arbiter and at all times it was open to her to overturn the decision communicated to the applicants in August 2002. It is also clear that when she received the applicants’ letter she did not see the Mission’s ‘policy’ as unambiguous and for that reason sought further clarification. It was only then that it became clear that the policy was ‘reserved’ to the Board of Wesley Mission. Her memo to the Board in March 2003 provides further evidence that in August 2002 she did not consider the decision to be ‘set in stone’.
22 While it is plain that some services — the processing and determination of their complaint — were provided to the applicants throughout the period December 2002 to June 2003, it does not follow that all services were provided. The applicants’ letter to Ms Sarlos of August 2002 does not, as the respondents imply, indicate that by that time they had effectively given up hope of becoming carers through Wesley Dalmar and were merely registering a complaint. At all relevant times they were actively seeking to become foster carers and seeking the services necessary to get to that point. While the August 2002 decision might constitute an alleged act of discrimination it does not preclude the later and separate decision made by Ms Sarlos from also being considered as an act of discrimination.
23 We find that the decision made by Ms Sarlos constitutes the refusal of a service(s) and that the applicants’ complaints are not time barred by the operation of section 88(4).
A. Discrimination on the ground of homosexuality
24 The applicants contend that the decision made by Ms Sarlos constitutes unlawful discrimination on the ground of homosexuality in the area of services: section 49ZP(a). Their complaints are cast as direct discrimination: section 49ZG(1)(a).
25 It falls to each applicant to establish:
26 It is not in issue that Wesley Dalmar refused to accept an application from the applicants and provide them with the necessary services so they could make an application because they were homosexual. The evidence makes it clear that a heterosexual person in the same position as each applicant would have been provided with the services necessary to allow an application to become a foster carer be processed and assessed on its merits. We find that the refusal to provide those services constitutes ‘less favourable treatment’.
That he was treated less favourably than a heterosexual person was or would have been treated in the same or similar circumstances; and
One of the reasons for that treatment was his sexuality.
27 There can be no argument in our view that the offending conduct constitutes unlawful discrimination on the ground of homosexuality.
Who is the service provider?
28 Interlocutory decision Before examining this contentious issue, it is necessary to make brief mention of an interlocutory decision that concerned the issue of the proper respondent(s) to these proceedings: OV v OW v QZ [2006] NSW ADT, 27 September 2006 (unpublished). In that decision the Tribunal decided first, not to join ‘Wesley Dalmar Child and Family Care’; second, to remove as a party to the proceedings the first respondent, ‘Wesley Dalmar Child and Family Care operated by Wesley Mission acting through the Mission Council’; and third, to join the ‘Uniting Church in Australia Property Trust (NSW)’.
29 The Tribunal took the view that neither ‘Wesley Dalmar Child and Family Care’ nor ‘Wesley Mission’ was a proper respondent as neither could properly be said to constitute a ‘person’. (Section 49 ZP makes it unlawful for a person who provides … services to discriminate against another person on the ground of homosexuality’.) In short, the Tribunal concluded that neither entity met the definition of ‘person’, in the Interpretation Act 1987 namely, ‘an individual, a corporation and a body corporate or politic’.
30 The respondents appealed the decision, or more correctly the decision to remove the first respondent as a party. In February 2007, an Appeal Panel entered consent orders setting aside that order. The decision to join the Trust and not join ‘Wesley Dalmar Child and Family Care’ went undisturbed.
31 At the close of submissions in the substantive proceedings, the parties were invited to comment on the identity of the first respondent in light of the orders made by the Appeal Panel. They agreed that the Panel made no findings on whether the Tribunal was correct in finding that Wesley Mission was not a ‘person’. They also agreed that the consent orders did not indicate that they were at one on that issue. Counsel for the respondents, Ms Eastman, asserted that the first respondent was a ‘person’. Ms Ronalds SC, for the applicants, advised that the applicants agreed with the Tribunal’s view that the first respondent had no legal personality of its own. (See paragraph [12] of OV v OW v QZ [2006] NSW ADT, 27 September 2006 (unpublished.))
32 What the parties say The applicants contend that the ‘person’ who refused to provide them the requested services was Wesley Dalmar or, in the alternative, the Trust. They say the description of the first respondent, ‘Wesley Mission acting through Wesley Dalmar Child and Family Services’, is ‘peculiar’ and contend that it is nothing more than a contrivance designed to bring Wesley Dalmar within the operation of the exceptions available to religious bodies under the Act.
33 The respondents identify the first respondent as the ‘person’ who is alleged to have refused to provide services to the applicants. They say that Wesley Dalmar is merely one of the community services provided by Wesley Mission and has neither legal personality nor status independent of the Mission. They argue that it is unreasonable for the applicants to now claim that they do not know what entity is described by the name of the first respondent given that they had agreed to it being named as a respondent over three years ago.
34 To put these submissions in context it is necessary to look in some detail at the relationship between Wesley Dalmar, Wesley Mission, the Uniting Church and the Property Trust and the statutory environment in which foster care services are provided.
Relationship between Wesley Dalmar, Wesley Mission and the Uniting Church
35 The Uniting Church Act commenced in June 1977 and authorised the Methodist Church and parts of the Presbyterian and Congregational Churches to unite in accordance with their ‘Basis of Union’ (schedule 2 of the Uniting Church Act). Among other things, it established an Inaugurating Assembly (section 8), empowered the Uniting Church to adopt its own constitution consistent with the Basis of Union (section 9) and, by virtue of the provisions of section 12, created a corporation entitled ‘The Uniting Church in Australia Property Trust (NSW)’.
36 Within the Uniting Church are the following major constituent bodies: the Congregation (local); the Presbytery (district); the Synod (regional); and the Assembly (national).
37 Clause 38 of the Uniting Church in Australia Constitution (‘the Constitution’) gives the Assembly ‘determining responsibility, in matters of doctrine, worship, government and discipline, including the promotion of the Church’s mission’.
38 Clause 32 of the Constitution provides: ‘Subject to the direction of the Assembly, the Synod shall have general oversight, direction and administration of the Church’s worship, witness and service within its bounds. It ... shall establish and maintain such boards, institutions, committees and agencies as are appropriate to the furtherance of its responsibilities’.
39 Pursuant to clause 62 of the Constitution, the Assembly has issued regulations — Uniting Church in Australia Regulation (‘the Regulations’) — which flesh out the role of the constituent bodies and their relationship with each other and the Church.
40 A Congregation is described by the Regulations in the following terms (r 3.1.1):
41 A Synod, after consultation with the Presbytery may designate a Congregation or related Congregations within its bounds as a Parish Mission if in the opinion of the Synod, such Congregation is responsible for ‘approved ministries of such special character’ (r 3.1.28 of the Regulations). The Regulations also provide that if the Synod is of the opinion that the special ministries no longer justify the designation of Parish Mission, after consultation with the Presbytery it may withdraw the designation: r. 3.1.31.
(a) Congregation, as the embodiment in one place of the one holy catholic and apostolic church, means those people (members and adherents) who worship, witness and serve as a fellowship of the Spirit in Christ, meeting regularly to hear God's Word, to celebrate the sacraments, to build one another up in love, to share the wider responsibilities of the Church, and to serve the world, and who are recognised as a Congregation by the Presbytery.
(b) In fulfilling its purpose a Congregation shall:
(i) bear witness to that unity that is both Christ’s gift and his will;
(ii) build up the members and adherents in faith and love;
(iii) sustain the members and adherents in hope;
(iv) nurture the members and adherents in their growth in grace;
(v) equip the members and adherents for engagement in worship, witness and service in the world as they participate in the mission of Christ;
(vi) discipline its members in love;
(vii) maintain pastoral oversight;
(viii) encourage each member and adherent to participate in the life of the Congregation and endeavour to provide opportunity for that participation; and
(ix) provide means whereby the members and adherents may be sustained in fellowship, in prayer and in confession, in baptism and in the Lord’s Supper, in mutual reception of and mutual exertion in the Gospel Proclamation and service.
42 It is common ground that within this structure Wesley Mission is a ‘Parish Mission’ comprising 10 related congregations of the Church that appoint representatives to a Mission Council. The Mission Council has delegated its powers of management and administration to the Wesley Mission Board and to the Wesley Mission Management Committee. The instrument of delegation was not tendered but uncontradicted evidence to that effect was given by the corporate solicitor for Wesley Mission, Mr Bryce Bridges.
43 The administration of the Mission is subject to the provisions of the Uniting Church Act, and to the Constitution, Regulations and By-Laws of the Uniting Church as is any other congregation or group of related congregations.
44 Wesley Mission, as noted, is an unincorporated association and does not have a separate legal status. It does have a separate Australian Business Number (ABN)– 5799 6964406 – and under this ABN is endorsed as a ‘Tax Concession Charity’ and also as a Deductible Gift Recipient under the Income Tax Assessment Act 1997. Under subdivision 30-B of that Act, the Mission is endorsed under ‘Item 4.1.1 - Public Benevolent Institution’.
45 The respondents tendered in evidence an organisational flow chart showing the relationship between the constituent parts of the Uniting Church insofar as they relate to the Wesley Mission:
46 This chart does not show Wesley Dalmar but further evidence was given that Wesley Dalmar is one of a number of community services provided by the Wesley Mission. The Wesley Mission Annual Report for 2002/03 was tendered and lists a number of community services provided by Wesley Mission: Wesley Uniting Employment (an employment service); Disability Services (providing accommodation support, respite care, life skills training and community living programs); Wesley Business Services (providing employment for disabled people); Newcastle City Mission (providing a range of charitable services including youth services, emergency relief, gambling counselling, accommodation for homeless people and community housing); Wesley Homeless Persons Service; LifeForce Suicide Prevention; Out of Home Care Services; Family and Youth Services; and Wesley Dalmar.
47 The respondents tendered documents in which Wesley Dalmar described itself as ‘a non-government welfare organisation providing services to families, children and young people in need across Sydney and in other parts of New South Wales’. (See ‘Introducing Wesley Dalmar’ (Exhibit R1, Tab A1). They state that the services are intended to prevent family breakdown; to support families during breakdown; to support children and young people at risk in their families and that the services ‘educate and build communities to ensure improvement in community responses to social need’.
48 Among the various services provided in its ‘Out of Home Care’ program is the foster care program.
49 According to the document, ‘Introducing Wesley Dalmar’, about 75 per cent of its funding comes from government grants, especially from DoCS and the Commonwealth Department of Family and Children’s Services.
50 Contractual arrangements with DoCS In July 2002, the Minister for Community Services entered into an agreement with ‘The Uniting Church in Australia Property Trust (NSW) – Wesley Dalmar Child and Family Care Service’. In summary, that agreement provided that DoCS would pay the Trust funds for projects set out in a schedule to that agreement. These projects included the ‘Family Finders Program’, an out-of-home-care service and various other projects.
51 Six months later DoCS entered into a further agreement with ‘The Uniting Church in Australia Property Trust (NSW) – for Wesley Mission and Wesley Dalmar Child and Family Care Service’ (‘the Header Agreement’). In essence, that agreement set up a global structure, and laid down ground rules for the purchase of services by DoCS from the Trust on behalf of children in the care of the Director-General. It was a term of the agreement that the Trust would require approval as a private fostering agency or to be a licensed residential care placement provider.
52 Both agreements were executed under seal of the Trust.
53 Legislative Framework Passing reference is made in both agreements to the Children and Young Persons (Care and Protection) Act 1998 (‘Care and Protection Act’) but it is in that legislative context in which they were made. Chapter 8 of the Care and Protection Act deals with what it calls ‘out-of-home care’. In the context of this case, for all practical purposes ‘out-of-home care’ and ‘foster care’ are synonyms: see section 135 and the statutory definition of ‘out-of-home care’. For convenience, we propose to use the term foster care.
54 Section 139 defines a ‘designated agency’ as ‘an organisation that arranges the provision of out-of-home care, if the … organisation is accredited … in accordance with the regulations’. Section 140 makes the designated agency that places a child or young person in the out-of-home care of an authorised carer (foster carer) responsible for supervising that placement.
55 Section 136 prohibits the provision of foster care except by authorised carers. Section 137 then defines authorised carers to include persons authorised as authorised carers by a designated agency. (Somewhat confusingly an ‘authorised carer’ is also defined to mean the principal officer of a designated agency.) Arrangements for the provision of foster care can only be made by designated agencies and the Children’s Guardian.
56 Our decision It is common ground that throughout the relevant period, Wesley Dalmar was a designated agency and had power to authorise ‘authorised carers’. Likewise, Wesley Dalmar was the entity charged with the power to place children referred to it by the Director-General with authorised carers and was responsible for supervising those placements.
57 This begs the question: what is Wesley Dalmar? Whatever the DoCS officers responsible for accrediting and entering into service agreements with designated agencies might have believed, the above analysis reveals that Wesley Dalmar is not a separate entity to Wesley Mission. They are part of the same organisation. Wesley Dalmar does not have its own board of management and its staff are employed by Wesley Mission. That it might present to the public and the NSW government (through the use of a different name, separate letterhead etc.,) as an organisation that is separate, albeit related, to Wesley Mission does not convert it into one. To use a corporate analogy, Wesley Dalmar appears to us to be nothing more than a trading name used by Wesley Mission.
58 This does not cure the problem that, like Wesley Dalmar, Wesley Mission has no legal personality. Nor does it address the point raised by the applicants that on its face, ‘Wesley Dalmar Child and Family Care operated by Wesley Mission acting through the Mission Council’ also has no legal personality.
59 In closing submissions, the respondents were asked to clarify their understanding of the status of the first respondent. Counsel for the respondents contended that the position of the first respondent was analogous to a partnership, where in legal proceedings individual partners are named as the parties. As we understand those submissions, the legal person/s described by the name given to the first respondent are the members of the Board of the Mission Council, from time to time throughout the relevant period. (T 13/08/07, p 8, L 43 & p 9, L 29; T 13/08/07 p 40, L 42-55; T 22/06/05, pp 5-10-L 5 (see Exhibit R 9, BB-1)).
60 Ms Sarlos was the ‘person’ who refused to provide the requested services and was authorised to do so by her employer, the Wesley Mission. Wesley Mission as stated is not a ‘person’. We proceed on the basis that the ‘person/s’ who refused to provide the services were the members of the Board of the Mission Council and, based on the explanation provided by the respondents, that they are so described by the name given to the first respondent.
Section 56: the religious exemption
61 As a consequence of our findings set out at paragraph 27 of these reasons, the first respondent will be found to have unlawfully discriminated against the applicants unless it is established that one of the exemptions contained in section 56 of the Act applies. The respondents rely on paragraphs (c) and (d) which read:
62 The respondents must prove:
Nothing in this Act affects:
(c) the appointment of any other person in any capacity by a body established to propagate religion, or
(d) any … 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.
63 The parties agree that there is little case law to guide the Tribunal in interpreting or applying section 56.
First, that the offending conduct was done on behalf of a ‘body established to propagate religion’;
Second, that the offending conduct concerned ‘the appointment of any other person in any capacity’; and/or
Third, that the offending conduct was either:
(i) an act or practice that conformed with the doctrine of the relevant body’s religion or,
(ii) necessary to avoid injury to the religious susceptibilities of the adherents of the religion the body was established to propagate.
What is the relevant ‘body’?
64 The applicants argue that the relevant ‘body’ for the purpose of section 56 is either Wesley Dalmar or, in the alternative, the Property Trust. The respondents say it is Wesley Mission.
65 The term ‘body’ is not defined in either the Act or the Interpretation Act. The parties agree it should be given its ordinary meaning and not read as limited to entities/associations that have legal personality.
66 While the Property Trust entered into contracts with DoCS to provide foster care services, the evidence makes clear that it played no role in the delivery of those services. Nor is there any evidence that it played any role in supervising or overseeing Wesley Mission (or Wesley Dalmar). Accordingly in our view the offending conduct does not constitute an ‘act or practice’ of the Trust.
67 Given our finding that Wesley Dalmar is nothing more than a division of Wesley Mission, and has no status independent of it, in our view Wesley Mission is the relevant ‘body’ for the purpose of section 56. In reaching that conclusion we note that Wesley Dalmar’s accreditation as a designated agency indicates that the body that accredited it apparently believed it to be an entity or body of some type. (See also clause 58 of the Adoption Regulation 2003 which lists as ‘institutions, bodies and persons’ prescribed as ‘information sources’ under the Adoption Act 2000, ‘Wesley Dalmar Child and Family Care’.)
Is Wesley Mission ‘a body established to propagate religion’?
68 The respondents contend that Wesley Mission is a body ‘established for the propagation of religion’. The applicants disagree and argue that sub-section 56(c) and (d) require that ‘the body’ be established for the particular purpose of spreading the religion to which it subscribes and to be more than ephemeral in nature. They argue that the legislature’s use of the past tense of ‘establish’ (‘established’) and the preposition ‘to propagate’ suggest that, in order to rely on section 56(c) and (d), the ‘propagation of religion’ must be the body’s original and sole purpose.
69 We cannot agree with that proposition. There is no warrant to read into either paragraph any suggestion that the ‘propagation of religion’ must be a body’s sole purpose. A body may have a fundamental purpose of propagating its religion or faith as well as subsidiary purposes intended to complement and bring about the propagation of the religion. The faithful of any particular religion may seek to propagate their religion and to seek converts directly or indirectly; by directly proselytising or less directly by demonstration of the beneficence of their faith.
70 The narrow concept of ‘propagation of religion’ argued by the applicants fails to recognise the indirect approach to the propagation of religion practised, not only by Christian churches but also other religions through their charitable institutions. The evidence tendered by the respondents amply demonstrates the linkage between evangelism and charitable works. A large amount of material to that effect was adduced in evidence. It is only necessary to cite a couple of examples of the many available to make the point.
71 The Wesley Mission in its Mission Statement declares that it is ‘a strategic city church, committed to the proclamation of the Gospel of Jesus Christ and ministry of the word and deed throughout Australia, ministering to human need, utilising the media and providing personal and family care’. In relation to its values, Wesley Mission states, ‘Christ is central to all our values. We are committed to a balanced ministry of the Word, action and Spirit’ (Exhibit R1, Tab A5).
72 Wesley Dalmar states its mission to be:
73 The special character of the Methodist evangelical tradition of combining preaching and charitable works was maintained and continued in the Uniting Church through the Wesley Mission. On the face of it, a body that sets out to be ‘a living example of Christ’s love in action’ is one that is established to propagate the Christian religion.
As a living example of Christ’s love in action, our mission is to enhance and promote the quality of life of individuals and families through the provision of an integrated range of welfare services by professional, caring staff.
Our aim as a leading organisation is to continually strive for excellence in the delivery of care services for children/youth and families and to innovatively respond to their needs. (Exhibit R1, Tab A5)
74 The applicants rely on the decision of the Queensland Supreme Court in Dixon v Anti-Discrimination Commissioner of Qld [2004] QSC 58; (2004) 1 Qd R 33 for the proposition that courts have held that community service organisations such as Wesley Dalmar ‘do not invoke the ministry of the Church as such’. That argument in our view misstates what Douglas J said in Dixon. The relevant passage, which was the opening paragraph of His Honour’s judgment reads as follows:
75 It is obvious from a reading of the decision that this paragraph, rather than stating a general principle, as is implied in the submission made for the applicants, merely states the uncontentious background to the case at hand. Whether the BFSS was an exempt body was not in issue and so formed no part of the ratio decidendi of the case. It was not even offered as some form of obiter opinion to be used as guidance in other cases. Dixon has no bearing on the facts of this case.
The applicant, Mrs Dixon, was employed in about April 2000 by the Burpengary Baptist Community Church (“the Church”) for the Burpengary Family Support Service (“BFSS”). The BFSS was a community organisation under the auspices of the Baptist Union of Queensland but not invoking the ministry of the Church as such. It was not exempt from the provisions of the Anti-Discrimination Act 1991. It was funded by the Department of Families, Youth and Community Care (“the Department”) under child and family protection government funding arrangements.
76 Counsel for the applicants also claim to find support for their contention that Wesley Dalmar is not a body established to propagate religion in the views of the South Australian Attorney-General. They assert that ‘the South Australian Attorney-General … has recently found that ‘bodies established for religious purposes’ do not include ‘welfare organisations’.
77 We disagree. The document relied on for that submission, the Review of South Australian Equal Opportunity Legislation Framework Paper, [at pp 24-25] puts two arguments, one consonant with the position advanced by the applicants, the other against the position taken by the applicants and states ‘the Government has formed no view on this issue as yet, but invites comment’.
78 Even if the SA Attorney-General held the view attributed to him by counsel for the applicants, that could have no bearing on these proceedings for three reasons: Attorneys-General do not make judicial ‘findings’ as the submission implies; second, such an opinion would not, of itself, without its basis being made plain, carry any weight; and, third, the NSW Parliament, had it chosen to do so, could have made it explicit that all Church-run welfare organisations are not exempt. It did not do so.
79 We are satisfied by the evidence that, on the balance of probabilities, Wesley Mission is a body established to propagate the Christian faith among other purposes.
Does s 56(c) apply?
80 The respondents argue that, once it is established that Wesley Mission is a body ‘established to propagate religion’ the exemption available under section 56(c) applies. They argue the provision is wide enough to catch the ‘appointment’ of persons as foster carers.
81 The applicants contend, however, that Wesley Mission/Dalmar does not ‘appoint’ foster carers but ‘approves’ them and that the distinction is significant.
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’.
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’.
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.
Does s 56(d) apply?
86 Section 56(d) provides that nothing in the Act affects ‘[a]ny other act or practice of a body established to propagate religion’ if it:
87 Central to the operation of both limbs of section 56(d) is the identification of the religion that the subject body, in this case Wesley Mission, was established to propagate.
(i) conforms to the doctrine of the religion; and/or
(ii) is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.
What is the relevant religion?
88 Throughout these proceedings the respondents have used different names to identify the religion of Wesley Mission: ‘Methodism as practiced by Wesley Mission’ (letter to applicants’ solicitor, 27 January 2006); ‘Wesley Mission’ (respondents’ outline of submissions, 25 May 2007 and paragraph 132 of the respondents’ submissions 7 August 2007); and ‘the religion of the Uniting Church as practised by Wesley Mission’ (paragraph 140 of the respondents’ submissions, 7 August 2007). We proceed on the basis that the religion nominated by the respondents is ‘the religion of the Uniting Church as practised by Wesley Mission’.
89 The applicants propose that the Tribunal find that the religion in question in this case is Christianity. The respondents contend that, in the context of this case, a more nuanced finding ought to be made, namely, that the religion propagated by Wesley Mission is ‘the religion of the Uniting Church as practised by Wesley Mission’. We think that this draws a distinction without a difference because it begs the question, what is the religion of the Uniting Church?
90 The answer to that question, in our view, is simple: Christianity.
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.
92 The respondents argue that if the applicants are correct and the relevant religion is Christianity it would render the exception in section 56(d) useless insofar as it tries to protect acts and practices done to conform with ‘the doctrines of that religion’ – because of the multiplicity and plurality of beliefs within Christianity that one could never properly identify ‘the doctrines of Christianity’. They argue that Parliament must have intended that people should be allowed to conform to the doctrines of a wide range of genuine religious positions – in other words, different streams of Christianity must be recognised as just that: different.
93 In our view, the second proposition does not follow from the first and is therefore false logic. But even if it is taken to be correct for argument’s sake, that does not assist us in establishing the religion that is being propagated. That argument confuses the argument on doctrine, with the question of what religion is practised or propagated by Wesley Mission.
94 The Reverend Paul Swadling’s oral evidence on this issue is revealing. 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.
95 Reverend Swadling, rightly in our view, in that comment, drew careful theological, ecclesiastical and semantic distinctions. He, unlike many lay people in the community, understands well, because of his training and experience, the distinction between a religion and a church or a denomination.
96 That distinction is important in this case.
97 The term ‘religion’ is not defined in the Act.
98 The Oxford Companion to the Bible (B.M. Metzger & M.D. Coogan eds., New York, 1993) states (at page 645) that ‘narrowly understood, religion means actions, usually cultic or ceremonial, that express reverence for the gods … More broadly, religion involves a complex of faith and conduct.’
99 The Macquarie Dictionary (supra) provides a number of relevant definitions:
100 The Collins Australian Dictionary (6th edition, Sydney, 2004) offers similar definitions:
1. the quest for the values of the ideal life, involving three phases, the ideal, the practices for attaining the values of the ideal, and the theology or world view relating the quest to the environing universe; 2. a particular system in which the quest for the ideal life has been embodied: [example] the Christian religion; …
101 The Oxford English Dictionary (supra) proposes these definitions:
1. belief in, worship of, or obedience to a supernatural power or powers considered to be divine or to have control of human destiny; 2. any formal institutionalised expression of such belief: [eg] the Christian religion.
102 As the terms ‘religion’ and ‘denomination’ are commonly confused it is useful to also look at definitions of the latter. The Macquarie Dictionary (supra) defines the latter to mean: ‘a religious group, especially an established church’.
3. Action or conduct indicating a belief in, reverence for, and desire to please, a divine ruling power; the exercise or practice of rites or observances implying this; … 4. A particular system of faith and worship.
103 The Oxford English Dictionary (supra) offers this definition:
104 Applying those definitions it is evident that a religion is not a church or a denomination itself, much less one of a number of churches which espouses and propagates the same fundamental belief system, but the ‘complex of faith and conduct’ to which adherents of the religion subscribe and commit themselves to practise.
5. A collection of individuals classed together under the same name; now almost always spec. a religious sect or body having a common faith and organization, and designated by a distinctive name.
105 A ‘denomination’, on the other hand, is defined by the Collins Australian Dictionary (supra) as ‘a group having a distinctive interpretation of a religious faith and usually its own organisation’. This usefully demonstrates the distinction between a religion, which is the overall belief system, and the sub-divisions within religions, which are called ‘denominations’.
106 No superior court has considered the meaning of the term ‘religion’ in the context of section 56 of the Act.
107 In those cases where the meaning of the term has been considered in other legislative contexts the courts have acknowledged the difficulty in formulating a suitable definition. To date no single and exhaustive legal definition of the term has been developed. As Latham C.J. in Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 120, commented (at page 133) ‘There is probably no subject in the world about which opinions differ so much as the nature of religion, and to frame a definition of it which would satisfy everyone must obviously be impossible’. Endorsing that view, Mason ACJ and Brennan J observed in Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120 (at page 132), that the endeavour to define religion for legal purposes gives rise to ‘peculiar difficulties’ in part because of the ‘absence of a universally satisfying definition of the term’.
108 In Church of the New Faith, the High Court held that the beliefs, practices and observances of the Church of New Faith more commonly known as the Church of Scientology, constituted a religion. The decision established a criterion test for determining what is a ‘religion’ but no leading view emerged. Mason ACJ and Brennan J (at page 137) held that, for the purposes of the law, the criteria of religion are twofold:
109 Wilson and Deane JJ took the view (at page 173) that ‘no single characteristic’ can be laid down as constituting ‘a formularized legal criterion, whether of inclusion or exclusion, of whether a particular system of ideas and practices constitutes a religion …’ They thought ‘the most that can be done’ is to formulate the ‘more important of the indicia’ or guidelines by reference to the question that falls to be answered. Their Honours considered the following indicia to be helpful but not determinative aids in determining whether a particular collection of ideas and/or practices should objectively be characterized as ‘a religion’:
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, … 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.
110 In those cases referred to by the parties where the definition of religion has been examined the question under consideration was whether the organisation in question was a religious body or whether the beliefs, practices and observances of its followers could properly be described as a religion. That the Wesley Mission is a religious body is not in question in this case. The issue is whether ‘Christianity’ is the relevant religion for our purposes or something else.
One of the more important indicia of “a religion” is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that reality extends beyond that which is capable of perception by the senses. If that be absent, it is unlikely that one has “a religion”. Another is that the ideas relate to man's nature and place in the universe and his relation to things supernatural. A third is that the 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. A fourth is that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups. A fifth, and perhaps more controversial, indicium (cf. Malnak v. Yogi (1979) 592 F (2d) 197 is that the adherents themselves see the collection of ideas and/or practices as constituting a religion.
111 We agree with the respondents that it is common knowledge that within Christianity there are a number of streams all springing from the same source. It is also a matter of common knowledge and history that the Christian church divided into Eastern and Western churches in its early centuries and that the Western or Roman church divided in the Reformation period into various streams. On the Protestant side of the Reformation divide there were also further divisions. These are the various denominations with which virtually all educated persons in the West are familiar at least by name: Anglicanism, Lutheranism, Quakers, Baptists and so on.
112 That there are various streams within Christianity does not, however, turn each into a separate religion. In this case, the Constitution of the Uniting Church in Australia makes that clear. Clause 4 of the Constitution sets out the purposes of the Church:
113 By its Constitution, the Uniting Church declares itself to be a Christian body, one dedicated to the proclamation of the Christian gospel, the promotion of Christian fellowship, and the nurturing of believers in the Christian faith.
to provide for the worship of God;
to proclaim the Gospel of the Lord Jesus Christ;
to promote Christian fellowship;
to nurture believers in the Christian faith;
to engage in mission;
to assist in human development and toward the improvement of human relationships;
to meet human need through charitable and other services; and
to do such other things as may be required in obedience to the Holy Spirit.
114 It is plain from this, and from the evidence of Reverend Swadling and others who gave evidence for the respondents, that to suggest that Wesley Mission was not a Christian body or was other than Christian in its beliefs and practice would be regarded not only as wrong but probably insulting. It could imply that Wesley Mission was either immoral (‘that’s not very Christian’) or heretical. Neither proposition is advanced by the respondents.
115 It is common ground that Wesley Mission forms part of the Uniting Church of Australia. The faith or religion of the Uniting Church is the Christian faith and none other. It seems to us that the respondents cannot argue around that fundamental point.
116 We accept that Parliament intended, by inserting section 56 in the Act, 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. Parliament no doubt had in mind the lessons of history and, in particular, sought to protect the community as a whole from the divisive effects of sectarianism, and minorities from persecution and harmful discrimination.
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.
118 Whether, in this case, there are unintended consequences is a different question from the definitional issue with which we have been dealing.
119 For these reasons we find that the relevant religion is Christianity.
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.
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.
First limb: doctrinal conformity
122 The first limb of section 56(d) requires the doctrine of the relevant religion to be identified. The respondents nominate the relevant doctrine as the belief that ‘monogamous heterosexual partnership within marriage is both the norm and ideal’ [of the family].
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:
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):
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.
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.
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.)
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.
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.
128 In our view the respondents have failed to establish that the nominated doctrine constitutes a doctrine of the Christian religion.
129 Is the purported doctrine a doctrine of the religion of the Uniting Church? It is common ground that the Uniting Church Assembly, the national governing council of the Uniting Church, has not made a formal pronouncement deciding the question of what stance to take doctrinally in relation to homosexuality and homosexuals within the Church. The question has been raised most acutely in relation to the ordination of clergy. In 2003, the Assembly passed a resolution, which affirmed that it was for local presbyteries to consider applicants for ordination and to take into account various criteria, include sexual orientation. It seems that some presbyteries take the view that Christian scriptures and theology prohibit the appointment of homosexuals to the clergy whereas other presbyteries think that there is no scriptural prohibition on homosexual clergy.
130 It is also agreed that only the Assembly can pronounce doctrine on behalf of the Uniting Church as a whole and that a constituent body of the Church, such as the Wesley Mission, does not have authority to declare doctrine on behalf of the Uniting Church. Where the Assembly does not pronounce or declare doctrine on a particular issue, the weight of evidence before us is to the effect that it is then for the congregation, as Reverend Swadling put it, ‘to wait upon God’s Word, and to obey God’s will in the matters allocated to its oversight.’
131 In our view even if accepted that the Wesley Mission has pronounced doctrine on the issue of homosexuality, a proposition not accepted by the applicants, it does not follow that that is a doctrine of the ‘religion of the Uniting Church’. The issue here is not whether the congregations of the Uniting Church have a degree of autonomy over matters concerning doctrine or more specifically whether Wesley Mission is entitled to declare doctrine on the issue of homosexuality. 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’.
132 For these reasons, applying the alternative definition, we are not persuaded that the nominated doctrine is a doctrine of the ‘religion of the Uniting Church’.
133 Conclusion The respondents have failed on balance to establish that the nominated doctrine is a doctrine of either ‘the religion of Christianity’ or ‘the religion of the Uniting Church’. Accordingly it is not necessary to determine whether the offending conduct was ‘done in conformity with the nominated doctrine’.
Second limb: necessary to avoid injury to the religious susceptibilities
134 The second limb of section 56(d) exempts from the operation of the Act:
135 It is common ground that ‘injury’ requires more than mere offence (see Hozack v The Church of Jesus Christ of Latter Day Saints (1997) 79 FCR 441) and ‘necessity’ connotes a higher test than merely convenience or reasonableness (see Hazan v Victorian Jewish Board of Deputies [1990] EOC 92-98).
[A]ny act or practice of a body established to propagate religion that … is necessary to avoid injury to the religious susceptibilities of the adherents of that religion … [emphasis added]
136 As a starting point, the second limb of section 56(d) requires the identification of ‘the adherents of that religion’, in this case Christianity.
137 The term ‘adherent’ is not defined in the Act. The Macquarie Dictionary (supra) provides this definition: ‘(sometimes followed by of) someone who follows or upholds a leader, cause, etc.; supporter; follower …’. The Oxford English Dictionary (supra) offers a similar definition: ‘One who adheres to a person, party, or system; a partizan, follower, or supporter’.
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.
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.
140 As noted, members of the Uniting Church hold a range of views on the issue of homosexuality. The position taken by Wesley Mission that homosexual people are not suitable to take on the role of foster carers is not universally shared throughout the Church. It is a matter of common knowledge that the Uniting Church is not the only Christian denomination where the issue of homosexuality is a contentious issue.
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.
142 Given the diversity of views among adherents of the Christian religion about homosexuality, the prohibition against homosexual foster carers applied by Wesley Mission cannot be said to be necessary to avoid injury to the religious susceptibilities of the adherents of the Christian religion.
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.
144 For these reasons the second limb of section 56(d) is not made out.
Discrimination on the ground of marital status
145 The applicants claim that the offending conduct constitutes unlawful discrimination on the ground of marital status: section 47 of the Act. They cast their complaint as one of ‘direct discrimination’: section 39(1)(a). Both applicants are single.
146 Marital status is defined in section 4 of the Act to mean the status or condition of being:
147 Each applicant must establish:
(a) single,
(b) married,
(c) married but living separately and apart from one’s spouse,
(d) divorced,
(e) widowed, or
(f) in cohabitation, otherwise than in marriage, with a person of the opposite sex.
148 Less favourable treatment The task of determining whether the applicants were afforded less favourable treatment requires the identification of the relevant circumstances in which to place the actual or hypothetical comparator. The majority in Purvis v New South Wales (2003) 217 CLR 92 (at pp 160, 161) described the approach to be taken, in this way:
First, that he was treated less favourably than a person who was not single, was or would have been treated in the same or similar circumstances;
And, that one of the reasons for that treatment was his marital status.
149 Here, the ‘objective features’ which surrounded the offending treatment include the applicants’ sexuality and the disclosure of their relationship as a same-sex couple. Importing those features into the assessment of ‘less favourable treatment’, the comparison must be drawn between the treatment the applicants were afforded, with that which would be afforded to an open homosexual person of a different marital status to them, for example married, divorced or separated. Applying that comparison we are not persuaded that the applicants were afforded less favourable treatment.
In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, section 5(1) [Disability Discrimination Act 1992 (Cth)] requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled …
The circumstances referred to in section 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. …
150 Causation The evidence reveals that while Wesley Mission espouses the view that the ‘norm and ideal’ of the family is ‘monogamous heterosexual partnership within marriage’, for pragmatic reasons applications are accepted from aspirant foster carers of any marital status. It is clear that the reason for the decision not to provide the applicants with the necessary services to allow them to apply to become foster carers was because of their sexuality, not their marital status.
151 For these reasons we conclude that the complaint of discrimination on the ground of marital status is not substantiated.
Aiding and abetting
152 Section 52 of the Act makes it unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of the Act. The applicants contend that the Property Trust breached section 52 of the Act. They claim it:
153 The above passage was the extent of the applicants’ submissions on this issue.
[A]ided and abetted by permitting Wesley Dalmar’s breach of the Act by failing to inquire as to whether the implementation of the [DoCS] Agreements would be consistent with the Act and is therefore liable for that breach pursuant to section 52 of the Act.
154 To understand this claim it is necessary to examine the role of the Trust in respect to the DoCS agreements.
155 As noted, in 2002 and 2003 the Trust entered into funding agreements with the Department under which the Trust agreed to provide various services including the out-of-home-care program operated by Wesley Dalmar. The Header agreement committed the ‘service provider’ to:
156 The Property Trust is constituted as a statutory corporation under section 12 of the Uniting Church Act. The members of the Trust are appointed by the Synod for New South Wales of the Uniting Church. Among other things it provides a legal vehicle for constituent bodies of the Church to enter into contracts with third parties.
Provide services to the target group [children in out-of-home care] regardless of, and in a way which does not discriminate on one or more of the following grounds of race, sex, age, pregnancy, marital status, disability, sexual preference …
157 Reverend Swadling and Mr Bridges gave evidence about the operation of the Trust. Reverend Swadling described it as a ‘bare trust’ and explained that by this he meant that when the Trust entered into a contract with a third party on behalf of a constituent body of the Church, it did so on the instruction of the relevant Church body and brought no ‘independent mind’ to the task. A constituent body wishing to enter into an agreement with a third party is required to submit the proposed agreement to the Trust together with a ‘certificate of correctness’. Under this certificate designated officers of the constituent body must certify that the agreement had been examined and ‘satisfies the interest and security of the Church by accurately giving effect to the particular transaction’ and approved by the constituent body. Reverend Swadling described it as the ‘hinge’ of the operation of the Trust.
158 Did the Trust ‘aid and abet’ the first respondent? The applicants assert that the Property Trust ‘permitted’ the first respondent to contravene the Act by failing to inquire whether the implementation of the DoCS Agreements would be consistent with the Act.
159 The evidence makes clear that the Property Trust played no role in the day-to-day operation of the first respondent. There is no evidence that, at the relevant time, Trust members knew of the offending prohibition or played any role in developing and implementing the Mission’s policy on the selection of foster carers.
160 On one view of the evidence ‘but for’ the agreements with DoCS and the receipt of funding necessary to operate the first respondent’s out-of-home care program, the contravention of the Act by the first respondent would not have occurred. However, it is not clear to us how, by failing to inquire into whether the implementation of the agreements was consistent with the Act, the Trust ‘permitted’ the primary contravention of the Act. Without some cogent evidence that the Trust, through its members had actual or ostensible knowledge of the first respondent’s policy on homosexual carers, we could not be satisfied that it permitted the offending conduct. Whether, as we understand the applicants to suggest, the Trust might have been in breach of its agreement with DoCS to provide services in a non-discriminatory manner is another matter and not one we are required to determine.
161 On the evidence before us we cannot be satisfied that the Trust permitted the first respondent to contravene the Act.
Relief
162 Having found that the applicants’ complaints of unlawful discrimination on the ground of homosexuality are substantiated, we must now determine what, if any, orders should be made. The applicants seek by way of relief: general damages, an apology and various orders that relate to the development of policy by the first respondent and training for its staff and members.
163 The applicants’ complaints were referred to the Tribunal prior to the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 came into effect. As a consequence the Tribunal’s remedial powers are contained in the now repealed section 113 of the Act: clause 15 of Schedule 1 to the Act.
164 The former section 113 of the Act provided as follows:
165 Damages The applicants seek an order for general damages. Under section 113(1)(b)(i) of the Act the Tribunal may order a respondent to pay damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of their conduct.
(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:
(i) 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 pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,
(ii) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,
(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,
(iiia) in respect of a vilification complaint …
(iiib) in respect of a vilification complaint …
(iv) make an order declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, or
(v) decline to take any further action in the matter.
166 Both applicants testified that they were hurt and embarrassed by the first respondents’ conduct. Each claimed that they were particularly hurt and angry with the manner their respective complaints were dealt with and in particular the eight month delay in receiving a response to their August 2002 letter. OZ said the delay made him feel that the first respondent saw the matter as trivial. OW testified that he felt awkward and embarrassed with professional colleagues following the offending decision.
167 The respondents argue that in the absence of evidence of any psychological or psychiatric injury or need for counselling or medical treatment it is not open to the Tribunal to make an order for non-economic loss. No authority was cited for that proposition.
168 While evidence of a psychological or psychiatric injury and/or any need for medical or other treatment are factors to be taken into account in the assessment of damages, they are not as we understand the respondents to suggest, a pre-condition to an award of damages under section 113.
169 The task of assessing damages for non-economic loss in a case of unlawful discrimination is notoriously difficult. The alleged ‘injury’ is often, as in this case, intangible and difficult to measure. Wilcox J commented in Hall v Sheiban (1985) ALR 503 (at 543) that merely because damages for matters such as injury to feelings, distress, and humiliation ‘are not susceptible to mathematical calculation’, this is not a basis to ignore these items. (See also Alexander v Home Office [1998] 2 All En 118 at 122.)
170 While the ‘injury’ suffered by each applicant is difficult to measure, it is apparent that each were deeply hurt, insulted and embarrassed. They were told, in effect, that they were unsuitable to take on the role of foster carers because of their sexuality. Their respective account of being hurt, insulted and embarrassed and in OW’s case, feeling awkward in his ongoing professional dealings with the first respondent, is entirely plausible and accepted by us.
171 Having regard to all relevant circumstances, we believe an award of $5,000 for each applicant to be appropriate.
172 Apology The applicants also seek an order requiring the first respondent to issue a public apology.
173 After careful consideration we have decided not to order the first respondent to issue an apology. In the circumstances of this case we believe a more appropriate order is as discussed below.
174 Training/policy review The applicants seek orders in the following terms:
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 all members of the first respondent undertake appropriate training and development to enable them to properly identify acts of unlawful discrimination;
That the first respondent develop and implement programs and policies aimed at eliminating unlawful discrimination in the facilitation and provision of foster care.
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:
Suppression orders
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.
177 Suppression orders made under section 75 of the Administrative Decisions Tribunal Act 1997 are currently in place. They prohibit among other things, the disclosure of the name of any party or any other material that might identify any party, employee or officer of either respondent, member or affiliate of the Uniting Church or any child. As a consequence these reasons have not been published on the Tribunal’s web site or Case Law NSW, as is the Tribunal’s usual practice (see Practice Note Number. 13 (PN13/03)). It is common ground that reasons in some form should be published once the issue of the appropriate form of ongoing suppression orders has been determined.
178 Both parties have provided the Tribunal with submissions on whether the suppression orders ought to remain in place. It was agreed that once these reasons were made available to the parties each should be given a further opportunity to comment on the appropriate form of any continuing suppression orders.
179 While not in issue that the orders prohibiting the disclosure of the identity of the applicants should continue, the parties do not agree on whether the identity of the respondents should also be suppressed.
180 Having had the benefit of considering the parties’ written submissions, our preliminary view is that these reasons should be published in their current form. As is apparent they disclose the identity of the respondents but not the applicants. The applicants are referred to by pseudonym and details that might identify them have been omitted.
181 The parties are to advise the Tribunal within 14 days of the date of these orders if they object to the publication of these reasons in their current form. If any party wishes to provide further submissions on the issue of ongoing suppression orders they may do so, providing they are filed and served within 28 days of the date of these reasons. The parties are also invited to comment on whether they consider the matter can be determined ‘on the papers’.
Costs
182 Both parties have requested the opportunity to be heard on the issue of costs.
183 Any party wishing to apply for costs must do so within 14 days of the date of these reasons and provide to the Tribunal and the other party/s brief written submissions in support. Any submissions in reply are to be filed and served within 14 days of receipt of any application for costs and submissions in support.
Orders
1. The complaint of discrimination on the ground of marital status is dismissed
2. The complaint of discrimination on the ground of homosexuality is substantiated
3. Within 21 days the first respondent is to pay each applicant, the sum of $5,000
4. 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
5. Order Number 4 is to come into effect three months after the date of these orders
6. The parties are to advise the Tribunal within 14 days of the date of these orders if they object to the publication of these reasons in their current form. If any party wishes to provide further submissions on the issue of ongoing suppression orders they may do so, providing they are filed and served within 28 days of the date of these reasons. The parties are also invited to comment on whether they consider the matter can be determined ‘on the papers’
7. Any party wishing to apply for costs must do so within 14 days of the date of these reasons and provide to the Tribunal and the other party/s brief written submissions in support. Any submissions in reply are to be filed and served within 14 days of receipt of any application for costs and submissions in support.
Note: On 15 April 2008 the following Orders were made by consent:
1. Under Section 75(2) of the Administrative Decisions Tribunal Act 1997 (NSW), it is prohibited, in or in connection with these proceedings or the allegations made in these proceedings:
(i) to disclose the name, address, picture or any other material that identifies or may lead to the identification of and
(ii) to do any other thing that identifies or may lead to the identification of any of,
the Applicants and any children who at any time have been, or who are now, or who were during the course of these proceedings, in the care and control of the Applicants and any other children mentioned during the course of these proceedings
2. The reasons for decision be published in the form provided to the parties on 1 April 2008.
4
8
7