OV & OW v Members of the Board of the Wesley Mission Council - [2010] NSWCA 155

NEW SOUTH WALES COURT OF APPEAL

CITATION:
OV & OW v MEMBERS OF THE BOARD OF THE WESLEY MISSION COUNCIL [2010] NSWCA 155

FILE NUMBER(S):
2009/298503

HEARING DATE(S):
28 April 2010

JUDGMENT DATE:
6 July 2010

PARTIES:
OV (First Appellant/First Cross-Respondent)
OW (Second Appellant/Second Cross-Respondent)
Members of the Board of the Wesley Mission Council (Respondent/Cross-Appellant)
Attorney General of New South Wales (Intervenor)

JUDGMENT OF:
Allsop P Basten JA Handley AJA

LOWER COURT JURISDICTION:
Administrative Decisions Tribunal Appeal Panel

LOWER COURT FILE NUMBER(S):
ADT 089034/2009

LOWER COURT JUDICIAL OFFICER:
N Hennessy, Magistrate, Deputy President; Judicial Member E Grotte; Non-Judicial Member A Schembri

LOWER COURT DATE OF DECISION:
1 October 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
[Members of the Board of the Wesley Mission Council v OV and OW (No 2]) [2009] NSWADTAP 57

COUNSEL:
C Ronalds SC/A Perigo (Appellants/Cross-Respondents)
K Eastman (Respondent/Cross-Appellant)
C Lenehan (Intervenor)

SOLICITORS:
Public Interest Advocacy Centre Ltd (Appellants/Cross-Respondents)
Thomson Playford Cutlers (Respondent/Cross-Appellant)
Crown Solicitor’s Office (Intervenor)

CATCHWORDS:
APPEAL – civil – question of law – construction of statute – [Administrative Decisions Tribunal Act 1997] (NSW), s 119
HUMAN RIGHTS – discrimination on ground of homosexuality – defences – religious bodies – [Anti-Discrimination Act 1977] (NSW), s 56
PROCEDURE – civil –non-publication order – protection of identity of children
STATUTORY INTERPRETATION – whether words used in ordinary meaning – reading individual words in structure of provision
WORDS AND PHRASES – "act or practice" – "adherents of that religion" – "appointment" – "doctrines" – "in any capacity" – "religion" – "religious susceptibilities"

LEGISLATION CITED:
[Administrative Decisions Tribunal Act 1997] (NSW), ss 67, 69, 73, 75, 108, 113, 119
[Anti-Discrimination Act 1977] (NSW), ss 49ZG, 54, 56, 79ZP, 89A, Pt 9, Div 2
[Children and Young Persons (Care and Protection) Act 1998] (NSW), 22, 105, 135, 136, 137, 139, 178, 179, Ch 8
[Children (Criminal Proceedings) Act 1987] (NSW), Pt 2, Div 3A
[Civil Procedure Act 2005] (NSW), s 72
[Judiciary Act 1903] (Cth), s 69
[Trade Practices Act 1974] (Cth), s 66B

CATEGORY:
Principal judgment

CASES CITED:
[Aktiebolaget Hassle v Alphapharm Pty Ltd] [2002] HCA 59; 212 CLR 411
[Collector of Customs v Agfa-Gevaert Ltd] [1996] HCA 36; 186 CLR 389
[Collector of Customs v Pozzolanic Enterprises Pty Ltd] [1993] FCA 322; 43 FCR 280
[Church of the New Faith v The Commissioner of Pay-Roll Tax (Victoria)] [1983] HCA 40; 154 CLR 120
[Farah Constructions Pty Ltd v Say-Dee Pty Ltd] [2007] HCA 22; 230 CLR 89
[Federal Commissioner of Taxation v Broken Hill South Ltd] [1941] HCA 33; 65 CLR 150
[Gollin & Co Ltd v Karenlee Nominees Pty Ltd] [1983] HCA 38; 153 CLR 455
[Health Care Complaints Commission v Karalasingham] [2007] NSWCA 267
[Hope v Bathurst City Council] [1980] HCA 16; 144 CLR 1
[Hume v The Council of The Kings School] [2010] NSWSC 186
[IW v The City of Perth] [1997] HCA 30; 191 CLR 1
[John Fairfax & Sons Ltd v Police Tribunal of New South Wales] (1986) 5 NSWLR 465
[Life Insurance Co of Australia Ltd v Phillips] [1925] HCA 18; 36 CLR 60
[Mikasa (NSW) Pty Ltd v Festival Stores] [1972] HCA 69; 127 CLR 617
[Neal v Secretary, Department of Transport] (1980) 3 ALD 97
[NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation] [1956] HCA 80; 94 CLR 509
[OV v QZ (No 2)] [2008] NSWADT 115
[R v Brown] [1996] AC 543
[The Australian Gas Light Co v Valuer General] (1940) 40 SR (NSW) 126
[Vetter v Lake Macquarie City Council] [2001] HCA 12; 202 CLR 439
[Williams v Bill Williams Pty Ltd] [1971] 1 NSWLR 547
[Zatorski v South Australian Railways Commissioner] [1982] FCA 39; 68 FLR 450

TEXTS CITED:
Aronson, Dyer and Groves, [Judicial Review of Administrative Action] (4th ed, 2009), Ch 4

DECISION:
(1) Amend the interim order made on 28 April 2010 pursuant to the [Civil Procedure Act 2005] (NSW), s 72, in relation to the identification of the appellants so as to remove the words “until delivery of judgment” and so that the order now reads:
(a) Prohibit the publication and disclosure of any information tending to reveal the identity of the appellants;
(b) In this Court the appellants be referred to by the pseudonyms OV and OW.
(2) Allow the appeal in part and set aside order 2 made by the Appeal Panel on 1 October 2009.
(3) Dismiss the cross-appeal.
(4) Order that the complaint lodged under the Anti-Discrimination Act be further considered by the Equal Opportunity Division, in accordance with the reasons of this Court.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 2009/00298503
ADT 089034/2009
ALLSOP P
BASTEN JA
HANDLEY AJA
6 July 2010

OV & OW v MEMBERS OF THE BOARD OF THE WESLEY MISSION COUNCIL

Headnote

In 2002, OV & OW, partners in a same-sex relationship, sought to be authorised as foster carers by an agency of the Wesley Mission. They were informed that an application from them would not be accepted because of their relationship as a homosexual couple. The claimants sought to challenge that refusal claiming that it contravened the prohibition against discrimination on the grounds of homosexuality and marital status under the Anti-Discrimination Act 1977 (NSW) ("the Act"). Wesley Mission sought to rely on the general exception for “religious bodies” within the terms of s 56 of the Anti-Discrimination Act.

On 1 April 2008 the Equal Opportunity Division of the Administrative Decisions Tribunal upheld the complaint on the ground of homosexuality, but not on the ground of marital status: OV v QZ (No 2) [2008] NSWADT 115. On 28 April 2008 the Members of the Board of the Wesley Mission Council appealed from the decision of the Equal Opportunity Division to the Appeal Panel of the Administrative Decisions Tribunal. The Appeal Panel set aside the decision of the Equal Opportunity Division and remitted a number of questions to be heard and decided again by the Equal Opportunity Division: Member of the Board of the Wesley Mission Council v OV and OW (No 2) [2009] NSWADTAP 57.

The questions for determination on appeal were:

whether the Equal Opportunity Division and Appeal Panel properly construed the general exception found in s 56(d);
whether the defence relied upon by the Wesley Mission under s 56(c) was properly rejected in law;
whether the suppression order granted by the Equal Opportunity Division and Appeal Panel should be extended to these proceedings.

The Court held, allowing the appeal in part:

In relation to (i)
(per Allsop P):

Section 56(d) does not permit the doctrines of part of the relevant religion to be examined, rather than the doctrine of that religion taken as a whole: [9].

The meaning of "the" in "religious susceptibilities of the adherents of that religion" does not mean every single adherent of the religion such that if one person's "susceptibilities" were not likely to be injured" the provision could not be satisfied. It is a mistake to identify quantity or number, beyond saying that "the adherents" must be a significant proportion of the group, such that the phrase as a matter of fact is satisfied: [12].

(per curiam):

The correct approach to the construction of s 56(d) is not to take individual words in isolation and ask whether each is used in its ordinary meaning, but to address the structure of the provision. Section 56(d) refers to an “act or practice”, of a particular kind of body, which has one of two characteristics or effects. Under the first limb, the act or practice must be judged against “the doctrines of that religion” to determine conformity or otherwise. Under the second limb, the act or practice must be judged against “the religious susceptibilities of the adherents of that religion” to assess the likelihood of injury absent such a practice: [32] – [33].

Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389; R v Brown [1996] 2 WLR 203; applied.
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280 at 287; referred to.
Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, applied.
Aronson, Dyer and Groves, Judicial Review of Administrative Action (4^th ed, 2009) Ch 4, cited.

In the first limb of s 56(d), "established" is not used strictly in the past tense, but is used to ascertain whether the acts or practices conformed to the doctrines being adhered to by the religious body at that time, even if those doctrines have evolved or changed since the body was first established: [35]-[36].

Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69; 127 CLR 617 referred to.

There is no basis in s 56 to infer that Parliament intended to exempt from the operation of the Anti-Discrimination Act only those acts or practices, relevantly in this case, which formed part of a religion, common to all branches of the Christian Church, to the exclusion of variants adopted by some elements within a particular denomination. In approaching the matter on that basis, the Equal Opportunity Division erred in law: [41].

The Equal Opportunity Division's identification of doctrines was infected by the original error of an incorrect understanding of the statutory provision. The question to be addressed was whether a refusal in 2003 to consider an application to authorise a same-sex couple to foster a child conformed with the relevant doctrines of the religion which the Wesley Mission was, at 2003, established to propagate: [44]-[45].

In relation to (ii)
(per curiam):

Wesley Mission's argument, that “appointment” should not be used in some narrow sense involving an identifiable statutory office, nor limited to functions or capacities relating to religion, should be accepted. However, appointment is to a particular position or in order to exercise a particular function rather than a general clothing with authority to act when called upon: [69].

Gollin & Co Ltd v Karenlee Nominees Pty Ltd [1983] HCA 38; 153 CLR 455; Zatorski v South Australian Railways Commissioner [1982] FCA 39; 68 FLR 450; Judiciary Act 1903 (Cth), s 69(3); referred to.

Subsection 56(c) must be read in the context of the section. The words “in any capacity” indicate that such appointments may extend beyond functions having a religious character of the kind identified in subsections (a) and (b). However, the phrase “in any capacity” does not provide a basis for some extended meaning of the term “appointment”. The concept of ‘capacity’ is readily referrable to appointment to an ‘office’, in the sense of a position that exists independently of the person who holds the position at a given point in time: [70].

Where a religious body exercises functions under a general law of the State, as in this case, there is no reason to read s 56(d) as freeing it from legal obligations imposed on others who exercise such functions. The Equal Opportunity Division and Appeal Panel were not in error in concluding that the Wesley Mission could not rely upon s 56(c): [72] – [73].

In relation to (iii)
(per curiam):

The use of a pseudonym is an interference with the unqualified right to report proceedings, as part of the open administration of justice. However, the identity of the individual claimants was of no relevance to the issues of law in this appeal. The non-disclosure of the identities of the claimants was justified to protect the children they are fostering: [79] – [82].

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465; Hume v The Council of The Kings School [2010] NSWSC 186; cited.
IW v The City of Perth [1997] HCA 30; 191 CLR 1; referred to.
Civil Procedure Act 2005 (NSW), s 72
Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105
Children (Criminal Proceedings) Act 1987 (NSW), Part 2, Div 3A

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 2009/00298503
ADT 089034/2009
ALLSOP P
BASTEN JA
HANDLEY AJA
6 July 2010

OV & OW v MEMBERS OF THE BOARD OF THE WESLEY MISSION COUNCIL

Judgment

ALLSOP P: I have read the reasons of Basten JA and Handley AJA, with which I agree, subject to my comments below. I agree with the orders proposed by their Honours. Their reasons and their Honours’ setting out of the background to the controversy enable me to express my views shortly.
The submissions of the parties at times made more complex than is necessary the distinction between a question of law and a question of fact in connection with the construction and interpretation of statutes. This is not the occasion to deal with this issue otherwise than by a reference to authoritative expression of principle by the High Court: Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at 450-452 [24]-[28]; Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1 at 7-9; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 394-398; and by reference to statements of principle approved in Vetter: The Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126 at 138; Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557.
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280 is an often cited judgment (Neaves, French and Cooper JJ). As the Court in Agfa-Gevaert (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) made clear (at 395-396), one distinction drawn by the Court in Pozzolanic is productive of difficulty. In Pozzolanic, the Court had attempted to distil the numerous authorities on the distinction between fact and law in the context of meaning and construction as follows:
"1.The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.
2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact.
3.The meaning of a technical legal term is a question of law.
4. The effect or construction of a term whose meaning or interpretation is established is a question of law.
5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.”
(citations omitted)
The Court in Agfa-Gevaert described “such general expositions of the law” as “helpful in many circumstances”, though with some qualifications. One qualification was as to the legitimacy of the distinction between the second and fourth propositions to which I have already referred as being productive of difficulty. It is this distinction that led to the over-complexity and confusion in some of the submissions in the present appeal.
The second proposition from Pozzolanic had its source in what was said by Isaacs J in Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; 36 CLR 60 at 78 and by Kitto J (sitting at first instance) in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; 94 CLR 509 at 512, who drew on what Starke J had said in Federal Commissioner of Taxation v Broken Hill South Ltd [1941] HCA 33; 65 CLR 150 at 155 (and see also Williams J at 160). (For a helpful discussion of what Isaacs J said in Phillips see also Neal v Secretary, Department of Transport (1980) 3 ALD 97 at 107-108 (per Sheppard J).) The Court in Agfa-Gevaert noted the distinction between meaning and construction drawn by Isaacs J in Phillips that is reflected in the second and fourth propositions in Pozzolanic. In Agfa-Gevaert, the Court said at 396-397:
“With respect this distinction seems artificial, if not illusory. The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown, a recent House of Lords decision, Lord Hoffmann said:
‘The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence ... This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.’
If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law.”
(citations omitted)
The failure to appreciate the importance of this passage in Agfa-Gevaert led to confused and at times incorrect submissions being put to the Court in this appeal. These passages in Agfa-Gevaert cast a significant qualification upon the utility of the distinction in many cases between meaning or interpretation as a question of fact (on the one hand) and construction as a question of law (on the other hand), at least for the purposes of the distinction between a question of law and a question of fact. The appellant submitted that this Court should not follow this important passage from Agfa-Gevaert because it was obiter dicta. This was an untenable proposition for two reasons: first, it was plainly seriously considered obiter dicta of a unanimous High Court and should be followed: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at 159 [158]; and, secondly, the passage was cited with approval by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411 at 428.
The notions of meaning and construction will often, as here, be interdependent. The task of the Tribunal and the Appeal Panel was to construe and give content to a provision of an Act of Parliament. The ascription of meaning to s 56 of the Anti-Discrimination Act 1977 (NSW) was a legal question.
The above should not be taken as denying the conceptual distinction between the ascertainment of semantic meaning (interpretation) and determining legal effect or legal content (construction) of a legal text. The processes can be seen to be distinct in terms of legal theory and function. What the High Court stated was that their inter-relationship in the process of ascription of meaning to a legal text meant that for the purpose, at least, of distinguishing between questions of law and fact, the distinction was illusory.
The error made by the Tribunal in respect of s 56(d) was to ascribe a meaning to the paragraph as other than requiring an investigation of the doctrines of the religion that the body was established to propagate (using the word “established” in the sense used in the reasons of Basten JA and Handley AJA). It will be the present form of “the doctrines of that religion” that is the subject of enquiry in order to ascertain whether the act or practice of the body “conforms to” them. The section does not provide for some of the doctrines of that religion, or the doctrines of part of that religion, to be examined (such as, for instance, those doctrines held in common with other Christian denominations). Rather, it provides for the examination of the doctrines (meaning all relevant doctrines) of the religion (meaning the whole of the religion) that the body was established to propagate.
The failure of the Tribunal to address the whole question required by s 56(d) was the primary legal error of the Tribunal and was not adequately recognised by the Appeal Panel. For this reason, the matter should go back to the Tribunal.
The Appeal Panel referred to the decision of the High Court in Church of the New Faith v The Commissioner of Pay-Roll Tax (Victoria) (The Scientology Case) [1983] HCA 40; 154 CLR 120 and said that it did no more than formulate a set of criteria for ascertaining whether a religion exists in the context of revenue legislation: see Members of the Board of the Wesley Mission Council v OV and OW (No 2) [2009] NSWADTAP 57 at [25]. That limited perspective on the authority of The Scientology Case is more than doubtful: The Scientology Case at 130-133, 136 and 173-174. The issue does not directly arise here and so it is unnecessary to say any more.

As to the meaning of the phrase “the religious susceptibilities of the adherents of that religion” (emphasis added), it is unnecessary to express a final view on that issue. However, I doubt that it is correct to read the word “the” which I have emphasised as meaning every single adherent of the religion such that if the “susceptibilities” of one adherent were not likely to be “injured” the provision could not be satisfied. The question will be a factual one and likely be answered in an objective sense – the avoidance of injury to the religious susceptibilities of people who are adherents of that religion. It is a mistake to identify quantity or number, beyond saying that “the adherents” must be a significant proportion of the group, such that the phrase as a matter of fact is satisfied: that it was necessary to avoid injury to the religious susceptibilities of the adherents of that religion.
It is unnecessary to say anything about the procedural fairness ground, other than the following. Whilst it is generally uncontroversial for a tribunal or court to examine dictionaries to assist in the ascription of meaning to words, care should always be taken if the very issue at hand may be decisively influenced by any one source. Here, there was a debate about the meaning of “religion”. It might be thought to raise an important point to be addressed by the parties to use handbooks or dictionaries of a particular religion. Procedural fairness is always, at root, a question of fairness. What is, or is not, fair in any given context, is often highly fact-specific. In a case such as the present, some caution would need to be exercised by a tribunal before it drew heavily on a specialised work not known to, and not proffered by, the parties in an adversarial (as opposed to inquisitorial) proceeding.
There was a construction of s 56(d), which was put in the alternative by the appellants, that the act or practice of the body must be one that has the character of propagating religion, that is, as it was submitted, the act or practice must relate to a “pastoral” function. This point was not raised below. To the extent that this is a question of construction of the Act it is a pure question of law. I leave to one side for the moment whether the fact that it was not raised below would prevent this Court dealing with it under the Administrative Decisions Tribunal Act 1997 (NSW), s 119(1). I need not decide that question. I should say however that I do not immediately accept that proposition. As to the merits of argument, I would only wish to point out that there appears to be no textual foundation for the argument and it would appear to produce a curious construction of the first limb of s 56(d).
As to the suppression order, I agree generally with the reasons of Basten JA and Handley AJA. Whether the interference with the principle of open justice is rightly called “symbolic” is an open question. In some circumstances, the anonymisation of a name of the litigant may be important. In the ordinary case, it remains important to understand who are the litigants in order to allow, and indeed encourage, public scrutiny and understanding of the legal process. It is also important to demonstrate to the public that individuals are both free and capable of using the legal system to vindicate their rights. The practice of giving people pseudonyms may encourage a view in litigants or in the public that people before the courts can hide from view. Nothing should be done that could encourage that view, without the clearest legitimate basis. Here, the protection of children may be seen to be such a basis. Whilst the evidence was not cogent, I consider that proper solicitude for the identity of those children and the recognition of their potentially fragile position in foster care together provide a proper basis for the continuation of the orders in the form their Honours suggest.
BASTEN JA and HANDLEY AJA: In mid-2002 the appellants sought to be authorised by an agency of the Wesley Mission (an unincorporated body) to take foster children into their home. However, they were informed that an application from them would not be accepted because they were partners in a same-sex relationship. They sought to challenge that refusal on the grounds that it contravened the prohibition against discrimination on the ground of homosexuality under the Anti-Discrimination Act 1977 (NSW).
The Wesley Mission did not dispute that the conduct fell within the definition of discrimination on the ground of homosexuality within s 49ZG of the Anti-Discrimination Act. They also accepted that the conduct fell within a specified area within which the prohibition operated, namely the provision of goods and services: s 79ZP. The sole issue between the parties, by the time the matter reached this Court, was whether the conduct fell within a general exception for “religious bodies” within the terms of s 56 of the Anti-Discrimination Act, which reads:
“56 Religious bodies
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.”
To avoid confusion, this being the second appeal, it will usually be convenient to refer to the appellants, who brought the original proceedings in the Tribunal, as “the claimants”. As will be noted below, there is a prohibition on the publication of information tending to reveal their identities. It will also usually be convenient to refer to the respondents (who were the appellants before the Appeal Panel) as “the Wesley Mission”. Where it is necessary to distinguish between the hearings in the Tribunal the first hearing will be identified as that conducted by “the Equal Opportunity Division” and the second as that conducted by “the Appeal Panel”.

Nature of proceedings

A complaint of unlawful discrimination is initially made to the President of the Anti-Discrimination Board: Anti-Discrimination Act, s 89A. Where a complaint is not resolved by conciliation it is referred to the Administrative Decisions Tribunal pursuant to Pt 9, Div 2, sub-Div 6 of the Anti-Discrimination Act. On 1 April 2008 the Equal Opportunity Division of the Tribunal (“the Equal Opportunity Division”) handed down a decision upholding the complaint and making various orders, including an order that the Wesley Mission “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”: OV v QZ (No 2) [2008] NSWADT 115.
On 28 April 2008 the Members of the Board of the Wesley Mission Council appealed from that decision to the Appeal Panel of the Tribunal, pursuant to s 113 of the Administrative Decisions Tribunal Act 1997 (NSW) (“the Tribunal Act”). An appeal under that provision may be made “on any question of law” and, with the leave of the Appeal Panel, “may extend to a review of the merits of the appealable decision”: s 113(2). There was no application to extend the scope of the appeal, which was accordingly restricted to identified questions of law. Those questions were set out by the Appeal Panel in its reasons - see Members of the Board of the Wesley Mission Council v OV and OW (No 2) [2009] NSWADTAP 57 – at [10]:
“1.On the proper construction of sub-section 56(c) of the AD Act, did the [Wesley Mission’s] selection process for foster carers involve the appointment of a person in any capacity by the [Wesley Mission]?
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?
5.Did the Tribunal deny the [Wesley Mission] procedural fairness by taking into account material which was not provided to the parties?
6.On the proper construction of the now repealed section 113 of the AD Act, is the Tribunal empowered to order the [Wesley Mission] 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?”
The formulation of these questions tended to obscure the questions of law sought to be raised. Apart from question 5, the Wesley Mission sought to raise questions as to the proper construction of the identified provisions of the Anti-Discrimination Act. Not only did the questions not identify the alleged error in the construction adopted by the Equal Opportunity Division, but sought answers which, particularly in relation to questions 1, 3 and 4, involved disputed issues of fact.
The Appeal Panel was conscious of the difficulty, but did not require the Wesley Mission (who have at all relevant times been represented by counsel) to reformulate the questions. It noted that the Wesley Mission had argued that relevant terms in s 56 of the Anti-Discrimination Act either had no “ordinary meanings” (so as to avoid the conclusion that their interpretation was a question of fact) or that the Equal Opportunity Division had erred by not making certain findings, being the only possible findings open to it, set out by the Appeal Panel at [16].
“Alternatively, [the claimants] 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:
a)that [the claimants’] selection process for foster carers involved the appointment of a person in any capacity;
b)that the religion WMC was established to propagate was ‘the tenets beliefs and practices of the Wesleyan (or Methodist) evangelical tradition’;
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.”
The Appeal Panel held that “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 [Anti-Discrimination] Act and the context in which the exceptions applies [sic], are questions of law”: at [17]. Adopting that approach, the Appeal Panel set aside the decision of the Equal Opportunity Division and remitted a number of identified questions to be heard and decided again by the Equal Opportunity Division, namely:
“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 [Wesley Mission] 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 [Wesley Mission] 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.”
The claimants seek in this Court to challenge the identification by the Appeal Panel of questions of law. Broadly speaking, they also challenged the conclusions of the Appeal Panel in respect of the meaning of “religion” in s 56, the identification of the relevant religion as “Wesleyanism” and the test applied to determine how many adherents of a religion must be affected for the purposes of the second limb of s 56(d). They challenged the finding of the Appeal Panel with respect to procedural unfairness on the part of the Equal Opportunity Division in the manner in which it dealt with the meaning of the term “doctrine” in s 56(d).
The notice of appeal sought to have this Court set aside the decision of the Appeal Panel, make a finding as to the operation of s 56 (namely that it does not operate in relation to the complaint made by the claimants) and to find the complaint substantiated. In the alternative, it sought that the matter be remitted to the Appeal Panel. The claimants did not, however, challenge the conclusion of the Appeal Panel that the order identified at [19] above was beyond power and should not have been made by the Equal Opportunity Division. It would appear to follow that even if the claimants were entirely successful on the matters raised in their notice of appeal in this Court, at least the decision of the Appeal Panel setting aside the second order made by the Equal Opportunity Division should stand.
It may be also be said that “remitter” to the Appeal Panel would not in any event be appropriate. The jurisdiction of the Appeal Panel, like the jurisdiction of this Court, was limited to determining questions of law. Absent any suggestion that the scope of the Appeal Panel proceedings should now be expanded (by leave), this Court is able to dispose of the issues tendered to the Appeal Panel. The question is whether the matter should be sent back to the Equal Opportunity Division for further consideration of the merits of the case.

Proper construction of s 56

Before identifying the manner in which the Appeal Panel dealt with the questions before it, and the issues raised by the parties in this Court, it is desirable to identify, as a matter of principle, how the operation of s 56 of the Anti-Discrimination Act should be approached.
Identifying questions of law in matters involving the application of a statute is sometimes seen to be an esoteric and highly technical matter. Because the boundaries between questions of fact and questions of law are contestable in many situations, attempts to define those boundaries have given rise to confusion. The distinction, which is as important in judicial review as in statutory appeals, is discussed in detail by Aronson, Dyer and Groves, Judicial Review of Administrative Action (4^th ed, 2009), Ch 4.

In the area of statutory construction, the perceived difficulty arises from a distinction commonly drawn in the authorities between the propositions that, (a) the ordinary meaning of a word is a question of fact, but (b) the effect or construction of a term whose meaning or interpretation is established is a question of law: see Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280 at 287. This distinction encourages a three stage approach to identifying the construction of a statutory provision. Thus, the first question asked is whether a particular word is used in its ordinary meaning, rather than a technical meaning; if so, the second question is to identify the ordinary meaning and the third question is to place that meaning into the statutory context, in order to identify the proper construction of the provision.
That approach is misconceived; it involves the fallacy identified by Lord Hoffmann in R v Brown [1996] AC 543 at 561, being “one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence”. His Lordship continued:
“This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.”
As the High Court explained in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36, 186 CLR 389 at 397, accepting that the notions of meaning and construction are inter-dependent, “it is difficult to see how meaning is a question of fact while construction is a question of law”.
The proper construction of s 56(d) is not usefully approached by asking first whether the word “religion”, which no doubt has a central role to play in the provision, is used in its ordinary meaning and if so what that meaning is. Nor does it help to analyse decisions which discuss the meaning of “religion”, such as the Church of the New Faith v The Commissioner of Payroll Tax (Vic) [1983] HCA 40; 154 CLR 120. A better approach is to look at the structure of the provision. The primary concept is of an “act or practice”, of a particular kind of body, which has one of two characteristics or effects. The phrase “act or practice” was not the subject of any analysis, because it was common ground that the Wesley Mission acted in accordance with a settled practice. Nor was it ultimately in dispute that the Wesley Mission was “a body established to propagate religion”. Critical to resolution of the dispute was the proper identification of the relevant characteristic in each limb of the provision. For the purposes of the first limb, the act or practice had to be judged against “the doctrines of that religion” to determine conformity or otherwise. In respect of the second limb, the act or practice had to be judged against “the religious susceptibilities of the adherents of that religion” to assess the likelihood of injury absent such a practice.
For those purposes, it was appropriate to seek to identify the religion in issue in the present case. However, the answer to that question was not to be found in an abstract definition of the word. The structure of the provision required identification of a relevant body, responsible for the act or practice, which must be one “established to propagate religion”. That description invites the questions, ‘established by whom’ and ‘to propagate what religion’? Usually one would expect the body to be, or to be established by, a church, to propagate the system of religious beliefs to which members of that church adhere. The answers to those questions will, of course, be a matter of fact in the circumstances of the particular case. Relevantly for present purposes, the answers will allow the ready identification of the relevant doctrines and the basis for identifying the “religious susceptibilities” of the adherents.
For reasons explained below, it will be necessary for the complaint to be reconsidered by the Equal Opportunity Division. Given the limited scope of the appeal, it is no part of this Court’s function to determine the factual issues which arise from the approach outlined above. Nevertheless, it is convenient to illustrate the proper approach by reference to aspects of the evidence before the Equal Opportunity Division, while recognising that it will be for the Equal Opportunity Division to determine what evidence is to be accepted and what inferences should be drawn from the evidence then before it. Thus, by way of illustration, an affidavit read at the first hearing, by Keith Vincent Garner, the Superintendent and Chief Executive Officer of Wesley Mission in Australia (dated 10 May 2007), stated:
“25The Methodist Church in Australia was established in 1812, and in 1815 the first Methodist minister arrived.
26In 1884, the Methodist Church changed its name to the Central Methodist Mission.
27In 1977 the Central Methodist Mission became part of the Uniting Church in Australia and changed its name to Wesley Mission.
…
“40The theology of Wesley Mission originates with the teachings of John Wesley, a Christian clergyman, during the 18^th century.”

If this evidence were accepted, it would appear that the relevant doctrines and beliefs were those of the Methodist Church, derived from the teachings of John Wesley. Those doctrines constituted the religion which the Wesley Mission was originally established to propagate. However, the past participle “established”, in s 56(d), is not strictly used in the past tense. As Stephen J said in Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69; 127 CLR 617 at 661, of the word “supplied” in s 66B of the Trade Practices Act 1974 (Cth) as then in force:
“[it is] not the past tense but rather a common enough instance of the use of the past participle; it is neutral in temporal meaning and applies equally to the future as to the past.”
Thus, in the first limb of paragraph 56(d), the past participle “established” applies to the relevant present, so the question is whether it can properly be said of the body when the act occurred or the practice was followed that the acts or practices conformed to the doctrines being adhered to at that time, even if those doctrines have been changed or amplified or have evolved since the body was first established.

Approach of Equal Opportunity Division
(a) religion

It is clear from the reasons given by the Equal Opportunity Division that it did not approach the construction of s 56(d) in the way set out above, although it started by asking itself the right question, at [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.”
The Equal Opportunity Division then noted that the religion “nominated by the respondents” is “the religion of the Uniting Church as practised by Wesley Mission”: at [88]. However, it rejected that description and preferred the answer proposed by the claimants, namely that the religion was “Christianity”: at [90]. The Tribunal further stated at [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.”
As will be seen, the Equal Opportunity Division also considered the matter on an alternative basis, namely that the relevant religion was that of “the Uniting Church”, on the basis that the Uniting Church was a denomination within the Christian religion. It rejected the concept of the Wesley Mission as the relevant source of doctrine, on the basis that it was not a denomination of the Christian religion: at [120]-[121].
It is apparent that, having originally posed the correct question, the Equal Opportunity Division was distracted by its search for a definition of “religion” and in particular whether that term, as used in s 56, could be subdivided into denominations and further sub-categories. The significance of that approach was that it led to a search for a doctrine of “the Christian religion”, conformity with which required the rejection of applications to foster from same-sex couples. It found no such doctrine, because the evidence before it was directed specifically to the beliefs and teachings of Methodism or Wesleyanism, and not to some lowest common denominator of Christianity.
Accepting that both the Wesley Mission and the Uniting Church follow the Christian faith, there is no basis in s 56 to infer that Parliament intended to exempt from the operation of the Anti-Discrimination Act only those acts or practices which formed part (relevantly for present purposes) of the religion common to all Christian churches, or all branches of a particular Christian church (in the sense of denomination), to the exclusion of variants adopted by some elements within a particular Church, but not by others. In approaching the matter on an erroneous basis, the Equal Opportunity Division erred in law.

(b) doctrinal conformity

The Equal Opportunity Division identified the doctrine relied upon by the respondents at [122]:
“The first limb of section 56(d) requires the doctrine of the relevant religion to be identified. The [Wesley Mission] nominate the relevant doctrine as the belief that ‘monogamous heterosexual partnership within marriage is both the norm and ideal’ [of the family].”
For the reasons already explained, the Equal Opportunity Division, having adopted an erroneous approach to the question of the religion, was likely to reach an erroneous conclusion in respect of the relevant doctrines. That occurred at [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.”
A further error infected the reasoning, when the Equal Opportunity Division adopted its alternative approach and asked whether the doctrine formed part of the religion of the Uniting Church: at [129]. As in relation to the meaning of “religion”, it undertook a search by reference to dictionaries of various kinds, for the meaning of “doctrine”. Perhaps uncontroversially, it identified as a common dictionary definition, “a creed or body of teachings … proclaimed by ecclesiastical authorities as true”. It also referred (a matter which was the subject of the claim before the Appeal Panel of procedural unfairness) to the online Pocket Catholic Dictionary, which identified doctrine as that which “the Church authority teaches that it is to be believed”: at [124]. It then continued at [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.”
On its face, that approach involved questions of fact rather than law. However, it was infected by the original error of an incorrect understanding of the statutory provision. In asking whether the doctrine was indeed a doctrine of the Uniting Church, the Equal Opportunity Division identified, as an agreed fact, “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”: at [130]. This approach depended upon a further factual premise, which was neither accepted nor considered, namely that the Wesley Mission can only propagate teachings common to all branches of the Uniting Church. That the Equal Opportunity Division did not address that premise confirms the conclusion that it departed from the matters which it needed to consider in accordance with the proper construction of the statutory provision. The inference available from its initial correct identification of the relevant legal principle, that it was applying that principle in its reasoning, is shown to be false. Its conclusion was, accordingly, erroneous in a matter of law.

(c) religious susceptibilities

The Equal Opportunity Division’s approach to the second limb of s 56(d) was also infected by its construction of the provision. It appears to have accepted, though without specific discussion, that religious susceptibilities might be injured in relation to beliefs which did not constitute doctrines of the relevant religion. Further, it expressly accepted that the source of the susceptibility need not be a doctrine or practice to which members of the religion universally adhered. However, it concluded that it was not sufficient that the practice was necessary to avoid injury to “some” or “an unknown proportion of” the adherents of the religion: at [139]. It appears to have approached that question on the basis that there was evidence of “diversity of views” amongst adherents of both the Christian religion and, more specifically, of the Uniting Church, “on the issue of homosexuality”: at [140] and [142]. It is not necessary for present purposes to determine whether that approach involved an error of law, distinct from the error identified above. It is sufficient to note that the way in which the reasoning is expressed could itself give rise to an inference that there was such an error. The evidence of Mr Garner (referred to above) expressly stated that the Wesley Mission welcomed and accepted homosexual people into the Church: affidavit at paragraph 51. The distinction Mr Garner drew between membership of the Church and “religious convictions [which] prohibit the fostering of children to same-sex partnerships” (at paragraph 58) was not a distinction to which the Tribunal referred, no doubt because it was not concerned with the position of the Wesley Mission in isolation.

Proceedings before Appeal Panel
(a) error of law

As noted above, the questions relating to s 56(d), as identified by the Wesley Mission before the Appeal Panel, did not in terms specify any relevant error of law, but invited answers which required the application of the proper construction to the facts of the case. Whether the Appeal Panel fully appreciated the difficulty is unclear. In stating the legal principles to be applied in identifying an error of law, the Appeal Panel stated that a “misapplication on the part of the Tribunal as to the scope and operation” of a statutory phrase “will involve an error in point of law”: at [14(e)] referring to the judgment of this Court in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [46]. Generally speaking, the misapplication of a statute, properly construed, will not involve an error of law unless it can be inferred (as above) that the construction adopted was erroneous, or the facts found, were necessarily within or outside the statutory description and the Tribunal decided otherwise. The passage relied upon by the Appeal Panel from Karalasingham was wrongly transposed, the original referring not to a “misapplication” on the part of a tribunal, but to a “misapprehension” on its part.
In considering the challenge to the definition of “religion” the Appeal Panel correctly understood the Equal Opportunity Division to have accepted that religion should be identified primarily at a high level of generality (in this case the Christian religion), which it described as a “narrow” meaning, but in the alternative that it could be understood as including denominations of religions, “but not belief systems which would not meet its definition of a denomination”: at [21]. After considering numerous factors said to be relevant to the question of construction, the Appeal Panel stated at [38]:
“The [Equal Opportunity Division’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.”
The Appeal Panel concluded that such an approach could not have been intended by Parliament and demonstrated an error of law: at [39].
There are risks in working backwards from what are perceived to be anomalous consequences of a particular construction. In the abstract, Parliament could well have determined to except from the operation of the Act only those acts and practices which conformed to basic doctrines of a mainstream religion, to the exclusion of those variants found only in minority branches. The reason for rejecting that distinction, as noted above, is the language of the provision, read as a whole. If the relevant body had been established only to propagate the beliefs common throughout a major Church, the conclusion reached by the Equal Opportunity Division might have been correct. However, the Appeal Panel was correct in its conclusion, because the section encompassed any body established to propagate a system of beliefs, qualifying as a religion. There was no doubt that the teachings of John Wesley qualified as a religion. The factual question on this limb of the paragraph, not addressed by the Equal Opportunity Division, given that the Wesley Mission is established to propagate religion, was whether there is a doctrine of that religion to which the challenged act or practice conformed. (As a practical matter, that question did not require a comprehensive identification of all such beliefs, but only a conclusion as to whether the doctrine relied on by the respondents formed part of the relevant system.)
The claimants said that the Appeal Panel should not have identified the religion in question as “Wesleyanism” but should, in the event of finding error on the part of the Equal Opportunity Division, have permitted the Equal Opportunity Division to make further findings of fact.
Accepting that it should only determine factual questions where there was only one conclusion open, on a proper construction of the law, the Appeal Panel reasoned at [40]:
“The [Equal Opportunity Division] 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.”
The Appeal Panel used “Wesleyanism” in a defined sense to mean “adherence to the tenets and beliefs of the Wesleyan (or Methodist) understanding of Christianity”: at [18].
There are both legal and practical objections to the course it took in this regard. The question the Tribunal needed to address was whether a refusal in 2003 to consider an application to authorise a same-sex couple to foster a child conformed at that time with the doctrines of the religion which the Wesley Mission was as at 2003, established to propagate. The adoption of a broad label, such as the Wesleyan understanding of Christianity, may not have been necessary, or helpful, in answering that question. For example, the label suggests conformity to the teachings of John Wesley. As noted above, if the doctrines adhered to by the Wesley Mission have evolved over the years, or changed with the establishment of the Uniting Church in Australia, the relevant doctrine would be that adhered to when the act occurred or the practice was followed.
The practical effect of the finding was to allow the Appeal Panel to identify specific issues, which it “remitted” to the Equal Opportunity Division for determination. The order sought to constrain the Equal Opportunity division by a finding that the relevant religion was “Wesleyanism”. However, “Wesleyanism” was a label without a determined content, so that the Equal Opportunity Division was required to identify the relevant element of its content. What the Tribunal was required to make of the label itself was, in these circumstances, unclear. Indeed, the Appeal Panel stated, at [45]:
“The [Wesley Mission] 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.”
An approach which eschewed labels should have been accepted.

(b) procedural fairness

The foregoing discussion deals with grounds 2, 3 and 4, as identified before the Appeal Panel. Ground 5 concerned an alleged failure on the part of the Equal Opportunity Division to accord procedural fairness to the Wesley Mission, by relying upon the definition of “doctrine” in the Pocket Catholic Dictionary. The material was said to be of “uncertain origin and reliability”: at [49]. Before the Appeal Panel, the Wesley Mission submitted that they should have had an opportunity to comment “on the veracity of the source and the reliability of the material”.
In response, the Appeal Panel, referring to an earlier comment on dictionary definitions, accepted, correctly, that “the Tribunal should have focused on the belief systems or tenets of the religion in question”: at [26]. The error thus identified was in treating the statutory term “doctrine” as an abstract concept, rather than a concept given content and meaning in its context. Because, in one particular religion, doctrine is determined at a particular level in a hierarchical structure, it does not follow that other religions which do not have such hierarchical structures or definitions of authoritative statement, do not have doctrines. Had reference been made during the hearing before the Equal Opportunity Division to the Pocket Catholic Dictionary, it is possible that the Wesley Mission might have argued that the definition did not apply to it. However, that basis for lack of procedural fairness is not readily identified as referrable to the uncertain origin or unreliability of the source. Further, it would have been necessary to inquire whether the conclusion reached was referrable only to that source, or might have been a conclusion open to the Equal Opportunity Division based on other considerations.
None of this was addressed by the Appeal Panel. Further, they remitted that part of the case “to allow the Tribunal to determine, without reference to the definition in the Pocket or Modern Catholic Dictionary” whether the evidence supported a finding that the first limb of s 56(d) had been made out: at [49]. That distinction assumed a negative answer to an entirely different question, namely whether the Dictionary was a permissible source, assuming that the parties were given an opportunity to comment on its content. That in turn would have required consideration of s 73 of the Tribunal Act, which was not discussed by the Appeal Panel.

(c) nature of available relief

One order made by the Equal Opportunity Division was in the following terms:
“The [Wesley Mission] 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.”
The Equal Opportunity Division held that it was entitled to make that order under s 113(1)(b)(iii), which authorised orders “to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant”. (Section 113 has since been repealed and replaced by s 108, which has a paragraph in relevantly identical terms.) The Appeal Panel held that the provision did not authorise an order requiring a respondent to cease unlawful conduct of a similar kind in the future: at [83]. It noted that the Tribunal now had greater powers as a result of the enactment of s 108(3). It did not consider whether the order could have been justified under s 113(1)(b)(ii), which authorised orders enjoining “the respondents from continuing or repeating any conduct rendered unlawful” by the Act or the regulations. Whether the order could have been upheld under a power other than that nominated and whether that power authorised such an order need not be determined, as there is no challenge to the decision of the Appeal Panel setting aside that order.

Alternative construction of s 56(d)

Before leaving the issues raised on the appeal, it is appropriate to note a further argument presented by the claimants on the hearing of the appeal, which had received, at best, oblique reference in written submissions. It was that the act or practice in question must be one undertaken by the body in order to propagate its religion. That, it was submitted, is because for such an act to “conform to” the doctrines of that religion it must be an act involved in the propagation of the religion.
It is neither necessary nor appropriate to consider this argument. First, it was not a matter addressed by the Tribunal at either level. Secondly, it requires a construction of “act or practice of a body established to propagate religion” that must operate with respect to both the first and second limbs of the paragraph and the differences in grammatical structure in respect of each make the argument one of some complexity. Thirdly, it assumes that a distinction can be drawn between acts or practices of such a body which are involved in the propagation of religion and those which are not. This gives rise to large questions as to the point of distinction. For example, there might be a question, not relevant in the present case, as to whether paragraph (d) applies to conduct undertaken by a religious body in managing an investment property which includes residential lettings. That question is obviously in a different category to the attempted distinction between activities in the propagation of religion and the provision of welfare services. It would be difficult to address the new point without at least touching on the wider issues. Fourthly, the distinction raises factual issues. One body established to propagate religion may only seek to minister to its adherents and gain others, but another body may treat the provision of welfare services as an essential part of its religious functions. None of these matters was addressed by the Tribunal, and that precludes the Court from treating the new argument as purely a question of law.
Whether the claimants will wish or should be permitted to raise these matters before the Equal Opportunity Division in the future will be a matter for the Equal Opportunity Division.

Notice of contention

When the proceedings came before the Appeal Panel the Attorney-General intervened pursuant to s 69(1) of the Tribunal Act, and became a party to the proceedings before the Tribunal: s 67(1)(b). As a result, he was joined, no doubt properly, to the appeal in this Court. His submissions were almost entirely supportive of the Wesley Mission. There was no attempt in the lengthy written submissions to address different issues. In addition, the Attorney filed a notice of contention, seeking to uphold the decision of the Appeal Panel on three grounds not relied on by the Panel. The issues have been addressed above and do not require further consideration.

Cross-appeal: section 56(c)

The Wesley Mission cross-appealed, claiming to succeed under s 56(c) of the Anti-Discrimination Act, an argument which had been rejected by the Equal Opportunity Division and by the Appeal Panel. Because the matter must go back to the Equal Opportunity Division, it is necessary to determine whether the defence under s 56(c) was properly rejected. Paragraph (c) excepts from the operation of the Act, “the appointment of any other person in any capacity by a body established to propagate religion ”.
As with other questions arising under s 56, the Equal Opportunity Division approached its task by referring to dictionary definitions, in this instance of the term “appointment”. The Appeal Panel accepted the validity of that approach, but went on to consider whether the Tribunal had committed an error of law in its construction of s 56(c). That the construction of the provision involved a question of law should be accepted. The Equal Opportunity Division approached the matter, correctly, on the basis that the so-called appointment was the exercise of a statutory power conferred on the Wesley Mission, acting through the agency of an unincorporated body, within its organisation, identified as Wesley Dalmar Child and Family Care (“Wesley Dalmar”).
As discussed above, the claimants had sought authority to act as ‘foster parents’ to young persons in need of care. That is a colloquial expression for the regime under Chapter 8 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care and Protection Act”) designated “out-of-home care”. That expression is defined to mean the residential care and control of a child or young person at a place other than his or her usual home and by a person other than his or her parent: s 135(1). Such care may only be provided by “an authorised carer”: s 136(1). A person may be authorised as such by a “designated agency”: s 137(1)(b). A designated agency includes a department of the Public Service and an organisation accredited as such in accordance with the regulations: s 139. Wesley Dalmar was, on the evidence, a designated agency. It was to Wesley Dalmar that the claimants wished to apply to become authorised carers.
Arrangements for the provision of out-of-home care can only be made by a designated agency or by a person appointed by the Governor under s 178 as a “Children’s Guardian”. It is clear that there is an office of “Children’s Guardian” to which a person may be appointed, and from which a person may be removed: ss 178 and 179. (It is not presently relevant to identify other functions of a designated agency.) The present relevance of these provisions is that they illustrate a common use of the word “appoint” (in this particular sense) namely the act of nominating a person for, or placing a person in, an office. This is an ordinary meaning of the word “appointment”: the fact that appointment has numerous other meanings and usages which are clearly not relevant for present purposes may be put to one side. The question is whether the exercise by a designated agency of the power to “authorise” a person to be an authorised carer falls within the concept of “appointment” in s 56(c).
The Wesley Mission argued that “appointment” should not be used in some narrow sense involving an identifiable statutory office nor should it be limited to functions or capacities relating to religion. Broadly speaking, those submissions may be accepted. It is not uncommon to speak of a person being appointed, in the sense of a being nominated, to carry out a particular task or function. Contractual provisions providing for the appointment of valuers, or some other form of agent are commonplace: see, eg, Gollin & Co Ltd v Karenlee Nominees Pty Ltd [1983] HCA 38; 153 CLR 455 at 469-471. Further, although employees are usually engaged or employed, it is not uncommon to refer to an employee as being appointed to a particular position: Zatorski v South Australian Railways Commissioner [1982] FCA 39; 68 FLR 450 (Fisher, Sheppard and Fitzgerald JJ) albeit discussing a statutory scheme of appointment. Section 69(3) of the Judiciary Act 1903 (Cth) provides for an accused person to apply to a judge “for the appointment of counsel for his or her defence”. Nevertheless, these cases highlight a common though by no means universal usage, namely that appointment is to a particular position or to exercise a particular function in particular circumstances, rather than a general clothing with authority to act when called upon. Thus, it is in accordance with ordinary usage to speak of someone being appointed as counsel in a particular cause, but not to describe the admission of someone as a barrister as an appointment to the Bar.
Secondly, paragraph (c) must be read in the context in which it appears in s 56. It refers to the appointment of “any other person”, that is, other than the appointment of persons as priests, ministers of religion or members of a religious order, being the subject matter of paragraphs (a) and (b): see [17] above. To similar effect, the words “in any capacity” indicates that such appointments may extend beyond functions having a religious character of the kind identified in paragraphs (a) and (b). However, contrary to the submissions for the respondents, the phrase “in any capacity” does not provide a basis for some extended meaning of the term “appointment”, beyond its ordinary meaning. Indeed, the concept of ‘capacity’ is readily referrable to appointment to an ‘office’, in the sense of a position which exists independently of its current holder, and even if it is vacant.
Thirdly, read in context, paragraph (c) bears the connotation of an appointment as an officer of the relevant body, or to carry out activities on behalf of the body, rather than to exercise a function in respect of or on behalf of third persons. The appointment of a chief executive officer of Wesley Mission, or a principal officer of Wesley Dalmar would readily fall within the identified connotation. Exercising powers of accreditation or authorisation in respect of third parties carrying out independent functions does not conform to that meaning. If the language of s 56(c) in fact caught the statutory power now in question, it would be serendipitous, because the Care and Protection Act post-dated the Anti-Discrimination Act by some two decades and does not use the same terminology as s 56(c). No other examples of statutory functions which might constitute appointments for the purpose of s 56(c) were identified.
Finally, the role and function of s 56 must be understood in its context. The primary purpose of the Anti-Discrimination Act is to protect the human rights and fundamental freedoms of individuals. It does so in specified areas and by reference to specified grounds. There are both specific and general exceptions within the Act which must be given effect. However, the purpose of an exception, especially when it operates in relation to the whole Act, must be borne in mind. The purpose of s 56 is to protect both religious susceptibilities of adherents to a religion, the practice of a religion and the organisation of religious bodies. Paragraph (d) does not accept all acts and practices by bodies established to propagate religion. Thus, Commonwealth law aside, a religious body which discriminated on the grounds of race or gender, in providing education to members of the public, would need to justify its act within s 56(d). Where a religious body exercises functions under a general law of the State, there is no reason to read s 56(d) as freeing it from legal obligations imposed on others who exercise such functions. Conduct required by another Act will engage the exception in s 54 of the Anti-Discrimination Act. This statutory context and purpose militates against reading the term “appointment” as extending to any form of engagement, authorisation, conferral of power, or accreditation, particularly where the particular function is conferred by statute and does not adopt the language of appointment.
It follows that the Tribunal was not in error in its conclusion that the Wesley Mission could not rely upon s 56(c) in this context. The cross-appeal must be dismissed.

Non-disclosure of identity of appellants

In the Tribunal, an order was made preventing the identification of the appellants, pursuant to s 75(2)(b) of the Tribunal Act. That order does not operate with respect to proceedings in this Court.
The proceedings in this Court were accompanied by a notice of motion seeking an order under s 72 of the Civil Procedure Act 2005 (NSW), which provides:
“72 Court may prohibit disclosure of information
The court may, by order, prohibit the publication or disclosure of any information tending to reveal the identity of:
(a)any party to proceedings, or
(b)any witness in proceedings,
if it is of the opinion that it is necessary to do so to secure the proper administration of justice in the proceedings.”
A similar test has been applied under the general law, as a qualification on the principle of open justice: see, eg, John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-477 (McHugh JA). That approach has been followed in subsequent cases, many of which are identified by Latham J in Hume v The Council of The Kings School [2010] NSWSC 186. That case involved an application to identify a witness, rather than a party, by way of a pseudonym. The case law demonstrates the difficulty of applying the qualification, now contained in s 72, to the general principle demanding the open administration of justice. Latham J accepted that “the weight of authority is against the grant of a pseudonym order in these proceedings solely on the basis that the applicant will suffer shame, embarrassment or even damage to his reputation in the event of widespread publication”: at [28]. Even if that level of adverse publicity were sufficient, it would not be satisfied in the present case. However, it is not primarily the interests of the claimants in preserving their anonymity for themselves which is relied on to justify such an order. The affidavit of the claimant OV noted that they are now foster carers (authorised through a different agency) and are concerned that identification would render their foster children the target of unwanted media attention, adverse comment and even hostile conduct by some members of the public: affidavit, 5 November 2009, par 9.
The material in support of this concern was limited to an extract from “CathNews”, identified as an online publication of the Catholic Church. The article itself certainly did not constitute vilification of same-sex couples, but the comments posted by members of the public did include a vigorous debate, although the majority of the comments were either supportive of fostering by same-sex couples or sought to distance religion from bigotry. It appears from the article that there was other media coverage, including an article in The Daily Telegraph entitled “Church Welcomes Gay Bans”, but that material was not before the Court.
As OV noted in his affidavit, they have been fostering for several years and no longer need, or seek, authorisation from the Wesley Mission. They are, in a sense, seeking to pursue an issue of general legal importance in respect of the operation of the Anti-Discrimination Act at some personal and financial cost, but in the public interest.
It is true that the use of a pseudonym is an interference with the unqualified right to report proceedings, as part of the open administration of justice. On the other hand, the identity of the individual claimants is of no relevance to the issues of law now being debated in this Court. Accordingly, the intrusion on the open justice principle is more symbolic than real. It may be that the principle they seek to articulate is unpopular, at least amongst a minority of the community, and they, if identified, may be subject to unwanted attention. The extent and nature of that attention is not possible to assess on the material before this Court. Nevertheless, the possibility that it may impact on the troubled children whom they are fostering is a matter of concern. The law is generally solicitous of the interests of children and young persons who are involved in litigation and in many situations seeks to prevent publication of material which might identify them: see, eg, s 105 of the Care and Protection Act, not applicable to this case and Part 2, Div 3A of the Children (Criminal Proceedings) Act 1987 (NSW).
Finally, it may be a matter of marginal significance that they have had the benefit of non-publication orders, apparently throughout the course of the proceedings in the Tribunal, covering a period of more than six years. The effect of removing that protection at this late stage of the proceedings, and thus undermining the effect of the orders made so far, should be taken into account.
Similar, though not identical, issues must have arisen in the case of IW v The City of Perth [1997] HCA 30; 191 CLR 1, a case involving a complaint of unlawful discrimination by councillors of the City of Perth in declining an application for approval of premises as a “drop-in centre” for people with HIV. No doubt it might have been inferred that the applicant was HIV-positive, a factor distinguishing that case from the present. Further, the case arose some 15 years ago, when attitudes may have been different, at least to a degree. On the other hand, there was no suggested fear in that case of adverse effects for children. It appears that the High Court was content, without published reasons, to permit the case to go ahead using a pseudonym, although the fact is of limited precedential weight.
In the circumstances, the interim orders which were made at the hearing of the appeal, pending delivery of judgment, should be maintained. There are two primary factors in support of that conclusion. The first is the limited, arguably symbolic, interference with the principle of open justice. The second is the importance accorded, in the administration of justice, to protecting children from the adverse effects of publicity resulting from litigation.

Conclusions

The decision of the Appeal Panel to uphold the appeal and set aside the decision of the Tribunal was correct. However, the reasoning of this Court in support of that conclusion, though reflected in parts of the reasons of the Appeal Panel and the submissions before this Court, differs in terms of emphasis and approach. The attempts by the Appeal Panel to limit the matters for further consideration by the Equal Opportunity Division cannot be supported. Order 2 made by the Appeal Panel should be set aside.
Given that the decision has been set aside only on questions of law, arguably the Equal Opportunity Division should reconsider the matter without hearing further evidence. On the other hand, the Equal Opportunity Division will need to make findings in relation to some of the beliefs which the Wesley Mission is established to propagate; that will require consideration of evidence not so far the subject of findings, including not merely statements by witnesses, but their cross-examination. Oral evidence before the Equal Opportunity Division was given in May 2007, over three years ago. This Court is not in a position to know whether the Equal Opportunity Division as originally constituted could or should conduct the further hearing. Nor is it able to know, if the same Tribunal were to hear the matter further, whether the members would be able to make the necessary assessment on the basis of the transcript, the documentary record and their recollections of the oral testimony. It is, accordingly, inappropriate for this Court to give any directions as to the further hearing of the matter.
In relation to costs, the Attorney was an intervenor and did not seek any order for costs. Although the appellants were required to deal with two sets of written submissions, no special order was sought in respect of the costs incurred in that regard and none should be made.
As between the appellants and the respondents, each has been partly successful and partly unsuccessful. The appeal should be upheld in part, and the cross-appeal dismissed. In those circumstances there should be no order as to the costs of any party in this Court.
The Court should make the following orders:
(1)Amend the interim order made on 28 April 2010 pursuant to the Civil Procedure Act 2005 (NSW), s 72, in relation to the identification of the appellants so as to remove the words “until delivery of judgment” and so that the order now reads:
(a)Prohibit the publication and disclosure of any information tending to reveal the identity of the appellants;
(b)In this Court the appellants be referred to by the pseudonyms OV and OW.
(2)Allow the appeal in part and set aside order 2 made by the Appeal Panel on 1 October 2009.
(3) Dismiss the cross-appeal.
(4)Order that the complaint lodged under the Anti-Discrimination Act be further considered by the Equal Opportunity Division, in accordance with the reasons of this Court.
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LAST UPDATED:
6 July 2010