OW & OV v Members of the Board of the Wesley Mission Council

[2010] NSWADT 293

CITATION:

OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293

DIVISION:

Equal Opportunity Division

PARTIES:

Applicants:
OW & OV

Respondent:
Members of the Board of the Wesley Mission Council

Intervenor:
Attorney General

FILE NUMBER:

091111

HEARING DATES:

22 September 2010

SUBMISSIONS CLOSED:

22 September 2010

 
DATE OF DECISION: 

10 December 2010

BEFORE:

Patten D - Deputy President; Hayes E - Non-Judicial Member; Schneeweiss J - Non-Judicial Member

CATCHWORDS:

Equal Opportunity – discrimination on ground of homosexuality – religious exception

LEGISLATION CITED:

Anti-Discrimination Act 1977
Children and Young Persons (Care and Protection) Act 1998

CASES CITED:

OV & anor v QZ & anor (No. 2) [2008] NSWADT 115
Members of the Board of the Wesley Mission Council v OV & OW (No. 2) [2009] NSWADTAP 57
OV & OW v Members of the Board of the Wesley Council [2010] NSWCA 155
Cobaw Community Health Services v Christian Youth Camps Ltd [2010] VCAT 1613

REPRESENTATION:

Applicant Representative:
Ms C Ronalds SC and Ms A Perigo

Respondent Representative:
Ms K Eastman

Intervenor Representative:
Mr C Lenehan

ORDERS:

1. Complaint dismissed
2. No order as to costs

REASONS FOR DECISION

1 This matter has a lengthy history and it is necessary to review that history in order to understand the issues which this Tribunal needs to decide. It commenced as long ago as 1 April 2003 when the applicants lodged a complaint with the Anti-Discrimination Board alleging an act of discrimination on 2 August 2002. The complaint was amended, withdrawn, revised and subjected to much procedural argument concerning inter alia the suppression of the names of the applicants and the proper identity of the respondent.

2 Ultimately in May 2007 a hearing commenced before a differently constituted Tribunal in relation to complaints of discrimination on the grounds of marital status and homosexuality against two respondents “Wesley Dalmar Child and Family Care operated by Wesley Mission acting through the Mission Council” and the “Uniting Church in Australia Property Trust”.

3 The claim of discrimination on the ground of marital status was dismissed but the claim of discrimination on the ground of homosexuality was substantiated against the first respondent only.

4 The underlying facts which gave rise to this dispute are simply that the applicants a same-sex couple living in a homosexual relationship contacted Wesley Dalmar Child and Family Care (Wesley Dalmar) and enquired about becoming foster carers of children, the service of providing foster care to children being a service provided by Wesley Dalmar. The applicants were told that they would not be permitted to apply to Wesley Dalmar because of their homosexuality. That they were so told was not disputed but Wesley Dalmar sought to rely on s56 of the Anti Discrimination Act (the Act) in the following terms:

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.

5 At para 61 of its reasons, OV and anor v QZ and anor (No.2) [2008] NSWADT 115, that Tribunal found that the first respondent unlawfully discriminated against the applicants in the absence of it being established that one of the exemptions in s56 applied.

6 After holding that s56(c) did not apply to the case the Tribunal addressed in some detail the requirements of s56 (d). In doing so it held in effect that the relevant religion was “ Christianity” and that the nominated doctrine viz “ monogamous heterosexual partnership within marriage is both the norm and ideal of the family” had not been established as a doctrine of the Christian religion. It also held that the nominated doctrine was not a doctrine of the religion of the Uniting Church pointing out that there is a diversity of views and beliefs within the Christian religion on the issue of homosexuality including within the Uniting Church itself.

7 Having thus disposed of the first limb of s56 (d) for similar reasons the Tribunal held that the second limb of s56 (d) was not established.

8 Relevantly the Tribunal made the following 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

9 The first respondent under the name Members of the Board of Wesley Mission appealed to an Appeal Panel which delivered its decision upon the appeal on 1 October 2009 in Members of the Board of the Wesley Mission Council v OV & OW (No. 2) [2009] NSWADTAP 57. The Appeal Panel summarised its conclusions at paragraph 84 of its reasons as follows:

84 The issue before the Tribunal was whether Wesley Mission breached the AD Act by preventing a same sex couple from applying to be foster carers. The Tribunal found that conduct to be unlawful as none of the exceptions for religious bodies applied. In summary, on appeal, the Appeal Panel has found that the Tribunal made the following errors of law in reaching that conclusion:

1. interpreting the word ‘religion’ in s 56 of the AD Act narrowly and without regard to the consequences of its preferred construction;

2. relying on a dictionary which was not a standard dictionary to interpret the word ‘doctrine’ without giving the parties an adequate opportunity to comment on its veracity or reliability;

3. interpreting the words ‘the adherents’ to mean all, or at least a significant majority of the adherents and not ‘some’ or ‘an unknown proportion’ of adherents without regard to the consequences of its preferred construction;

4. making an order that:
The first respondent is to review its policy on homosexual foster carers and take all necessary steps to eliminate unlawful discrimination on the ground of homosexuality in the facilitation and provision of its foster care services which was beyond power to make because it was not restricted to redress any loss or damage suffered by the complainant.

10 In light of those conclusions that Appeal Panel set aside the Tribunal's orders and remitted the case to the Tribunal for further consideration as follows:

2. The following matters are remitted to be heard and decided again by the Tribunal in accordance with these reasons:
a) Is the belief that a monogamous heterosexual partnership within marriage is both the norm and ideal a doctrine of ‘Wesleyanism’?
b) If so, was the conduct of the Appellants in refusing the services necessary for OV and OW to apply to become foster carers and for that application to be processed and assessed on its merits, conduct which was done in conformity with that doctrine?

11 The applicants appealed to the Court of Appeal (Allsop P, Basten JA and Handley AJA [2010 NSWCA 155]). The leading judgment was given by Basten JA and Handley AJA. Allsop P agreed with their reasons and conclusions subject to comments of his own principally related to the approach required to be adopted in interpreting s56.

12 In expressing their conclusions the majority said as relevant to the task before this Tribunal:

83 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.

84 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.

13 In the result we accept that the issues before this Tribunal as stated in the applicants written submissions are:

1. Whether a refusal in 2003 to consider an application to authorise a same-sex couple to foster child conformed at that time to the doctrines of the religion which Wesley Mission was, as at 2003, established to propagate.

2. Whether the act of not providing an application to become foster carers by Wesley Mission was necessary to avoid injury to the religious susceptibilities of the adherents of the religion Wesley Mission was established to propagate as at 2003.

14 At the hearing before us on 2 September 2010 Ms Ronalds SC with Ms Perigo appeared for the applicants and Ms Eastman for the respondent. Mr Lenehan appeared for the Attorney General but his submissions were limited to a discrete issue namely whether s56 (1)(d) of the act permitted or required a distinction to be made between the pastoral and non-pastoral activities of a religious body.

15 The parties agreed that no evidence beyond the evidence before the previous Tribunal should be adduced and that subject to relevance that evidence would be treated as before us. Helpfully they confined their submissions to the relevant parts of that evidence. As the respondent bears the onus of establishing the entitlement to rely on s56 Ms Eastman addressed first.

16 Before dealing with counsel’s submissions it is necessary to make some reference to the evidence upon which they were based. It was common ground that in July 2002 one of the applicants made an enquiry of the respondent as to whether he and his partner could make an application to become foster parents accredited by the respondent. He was informed that an application by the applicants would not be accepted because of their relationship as a homosexual couple. An application to review this decision was ultimately met with a letter written on behalf the respondent:

“Dear Tom and Brett,

You requested a review of Wesley Dalmar's decision not to accept an application from you to become foster carers. This has now been undertaken and I write to confirm the original decision. As part of Wesley Mission, our policies must align with the ethos and values of that church, which does not support same sex relationships.

As I'm sure you're aware caring for children from disrupted homes is a challenge, and foster carers need the full support of the foster care agency that authorises them. I therefore encourage you to pursue your interest in fostering through an agency that can fully support you.”

17 It was accepted that the letter was both an “ act” and evidence of “ a practice” within s56(d). It was also accepted that the respondent was “ a body established to propagate religion”.

18 As to the doctrines of that religion as at 2003 the respondent relied principally on the evidence of Dr Keith Garner and Mr Bryce Bridges. Dr Garner the Superintendent and Chief Executive Officer of the respondent since 1 January 2006 sworn an affidavit of 10 May 2007 which contained these paragraphs:

Background to the history of Wesley Mission
24 l have gained my knowledge of the history of Wesley Mission in Australia from a variety of sources, including:

a) my personal relationship with Rev Dr Sir Alan Walker, a former Superintendent of Wesley Mission, and Lady Winifred Walker

b) a book entitled The Mantle of Christ by Dr Don Wright about the history of the Mission

c) my reading of historical reports from the Mission's archives, and

d) my conversations with retired ministers and current staff of both Wesley Mission and the Uniting Church.

25 The Methodist Church in Australia was established in 1812, and in 1815 the first Methodist minister arrived.

26 In 1884, the Methodist Church changed its name to the Central Methodist Mission

27 In 1977 the Central Methodist Mission became part of the Uniting Church in Australia and changed its name to Wesley Mission.

28 Since 1977, Wesley Mission has been a Parish Mission of the Uniting Church in Australia.

29 Wesley Mission comprises of 10 related congregations, each of which appoints representatives to a Mission Council. The administration of Wesley Mission is subject to the provisions of the Uniting Church in Australia Act 1977, and to the Constitution, Regulations and By-Laws of the Uniting Church. Because of the complexity and nature of its work, Wesley Mission needs a unique pattern of leadership, including a Superintendent who combines the pastoral skills of an ordained minister with the managerial skills of a Chief Executive Officer, and who has the capacity to operate in collaborative leadership with and alongside senior staff managing Wesley Mission's huge social and community services program. We are the strongest church numerically within the Uniting Church, and operate through an extensive network of programmes of mission and social compassion.

Relationship between Wesley Mission and Uniting Church
30 1 have gained my knowledge about the relationship between Wesley Mission and the Uniting Church from my:
a) personal relationship with Rev Dr Sir Alan Walker, a former Superintendent of Wesley Mission, and Lady Winifred Walker
b) conversations with ministers and retired ministers of Wesley Mission and the Uniting Church
c) relationships with Wesley Mission staff, and
d) attending meetings of 'old Dalmar people', adults who were once children in the care of Dalmar.


31 Wesley Mission is neither Episcopal (that is, it has no bishops) nor hierarchical. As a Parish Mission of the Uniting Church, it is able to act independently from other congregations.

32 Paragraph 15 of the Basis of Union states 'The Uniting Church is governed by a series of inter-related councils, each of which has its tasks and responsibilities in relation both to the Church and the world.'

33 The National Council and Assembly of the Uniting Church has 'determining responsibilities in matters of doctrine, worship, government and discipline, including the promotion of mission, the establishment of standards of theological training and reception of ministers from other communions, and the taking of further measures towards the wider union of the Church'

34 The Uniting Church is not a rigorist Church in terms of the interpretation and practice of its doctrines, but rather encourages each Congregation and Parish Mission to explore how it understands its own mission and ministry, and to develop its own style and qualities -including in matters such as the selection of its leaders, the nature of its activities, and the administration of its facilities. Each local church, including Wesley Mission, carries out its mission on this basis and according to the guidance of God as it perceives it. This is not just tolerated by the Uniting Church but is celebrated and affirmed in paragraph f 5 of the Basis of Union. Accordingly, within our own Synod, and the Sydney Presbytery in particular, it is well known that there exists a great deal of diversity on many issues.

35 Wesley Mission follows a path of Evangelical beliefs which are shared by others in the Uniting Church within the total diversity of the fellowship which is the Uniting Church. Wesley Mission joins with the Uniting Church in celebrating diversity as an expression of a God who calls us to mission and in recognition that we all have only a partial grasp on the fullness of God.

36 One of the significant outcomes of the 2003 Assembly of the Uniting Church in Australia was the recognition that leaders could not be imposed on Congregations, and that Congregations were able to set their own standards, provided they did not contravene acknowledged Uniting Church determinations. For example, the Uniting Church ordains women and accepts women with the requisite gifts and graces into any leadership position in the Church; which means that a Congregation is not entitled to refuse to accept a woman in a leadership position because she is a woman. By contrast, because the Uniting Church has decided not to make a doctrinal determination on the issue of homosexuality and leadership, whether to appoint a homosexual leader is an issue that local congregations can determine on the basis of their own conscience and guidance.

37 Wesley Mission and the Uniting Church seek to work out their relationship within the given understandings of church life to which 1 have referred. For me, this means being an active minister within the Uniting Church and encouraging our Parish Mission Council, our Wesley Mission Board, our Management Committee and all areas of the Mission to develop close and meaningful relationships with the wider Church. For example, I led the formal Bible studies at the NSW Synod over three days at Canterbury Racecourse in October 2006.

38 1 have also actively engaged in conversations and partnerships with leadership throughout the Uniting Church to promote understanding and acceptance of Wesley Mission's own unique expression of Christian mission.

Wesley Mission theology implemented in practice
39 Wesley Mission exercises its day-to-day mission and ministry with an underlying ethos that is based on human relationships rather than a structured written belief system.

40 The theology of Wesley Mission originates with the teachings of John Wesley, a Christian clergyman, during the eighteenth century. It is based mainly on two books that were written by John Wesley: Forty-Four Sermons and Notes on the New Testament.

41 Albert Outler's John Wesley also provides a helpful historical background and Ralph Waller's Personal Portrait of John Wesley, published by the Society for the Propagation of Christian Knowledge in 2003, gives a concise picture of how some of this theology has developed. Thomas A Langford in Methodist Theology published by Epworth Press in 1998 drew attention to the fact that Methodists can easily be thought of as being warm-hearted activists of ecumenism with not very much distinct theology. Langford argued that it was Wesley's 'practical theology that made him especially sensitive to human need in its many contexts.' Langford went on to argue: 'Or, perhaps, his sensitivity to particular situations helped shape his practical theology. Either way, he was deeply convinced of Christian responsibility to serve the poor, to oppose slavery and smuggling, to establish educational institutions, to provide modestly-priced books, to aid spiritual growth, to undertake mission activity and to identify with the needs of working people. Practical theology, for Wesley, was a means of being open to those in need and serving them in faithfulness to the gospel mandate'.

42 In my opinion, this literature demonstrates that John Wesley perceived three sources of religious authority:
(a) Scripture and Tradition
(b) Reason, and
(c) Experience,

but it is Scripture that John Wesley believed was the final authority.

43 Wesley Mission has adopted the Wesleyan theology of combining pragmatism with discipline, evangelism and a commitment to one another whilst always operating within the parameters of the scripture. That is, our ministry is a 'word and deed' ministry.

44 'Word and deed' is an expression first found in Luke's Gospel, and also in the book of James, when the disciples reflected on the ministry of Jesus, in terms of both what he said (the Word) and what he did (the Deed). Today the expression defines the ministry of Wesley Mission, which seeks to emulate Jesus in combining teaching his word and doing those deeds that bring about his kingdom. To Wesley Mission, the two components -word and deed -are interdependent and must both be present for our ministry to be complete.

45 In accordance with our commitment to word and deed ministry from the earliest days, Wesley Mission has always held to a twin emphasis on the concepts of evangelism and social action as an integrated philosophy:


a) evangelism is the heart beat of Wesley Mission and we believe the Church is only the Church when it is the Church in mission. The Mission lives by evangelism, and worship is the focal point of the Mission's life. We seek to reach the people who are beyond the fringe of the Church, and

b) Wesley Mission is also engaged in substantial welfare and community services. Wesley Mission has built up a strong program of service wherever there is need.


46 The emphasis on mutual care is basic to the theological principle of fellowship within the Wesleyan doctrine, which holds that the worship of God must be complemented by the service of human need -that a Church which only worships, dies. We therefore provide welfare services, and we do it for Christ. In other words, we are caring for people and deliver our welfare services because we believe that this is what Jesus Christ calls us to do.

47 My opinion is that if Wesley Mission ceased to operate within its own evangelical and theological tradition it would:

a) lose its authenticity within the community of Sydney, New South Wales and beyond, and

b) put at risk significant areas of our work that receive financial and volunteer assistance from members of our congregation who support the spiritual basis of Wesley Mission.


Wesley Mission's approach to homosexuality generally
48 The leadership that I exercise is very much within the tradition of Wesleyan theology, that is, to maintain what we understand to be a basic biblical and missional perspective with the generosity of spirit that sees all people as uniquely made in God's image.

49 Jesus did not instruct us to judge or condemn people with different views or different values. We seek to treat all individuals with respect and dignity, irrespective of sexuality.

50 As Superintendent, I have responsibility for the Sunday evening congregation which has a number of members who are homosexual. I want our Mission to be a safe place for people to come and share and receive the friendship of God in Jesus Christ.

51 We welcome and accept homosexual people into our Church. Anyone who comes to Christ must be welcomed by His Church. 'Coming to Christ' (being a disciple of Jesus Christ) and being accepted into the church as a confirmed member means becoming a 'new person' in Christ. We readily provide the counselling and support systems necessary to adequately give pastoral care and guidance to all who struggle through this spiritual process.

52 Wesley Mission understands the need to strike a balance between protecting the rights of individuals from discrimination on the basis of sexuality (and other grounds set out in the law) and protecting their right to practise their religion in accordance with their beliefs. In my particular role as Superintendent, I seek to ensure that Wesley Mission exemplifies an inclusive and generous approach to this issue, within our given evangelical perspective.

53 At the same time, we must be witnesses to the truth of the Christian faith as we have come to understand it, because it is Scripture that provides the basis for our day to day living and relationships and for our work.

54 The biblical teaching on human sexuality makes it clear that monogamous heterosexual partnership within marriage is both the norm and ideal. To discount such a fundamental Biblical teaching would be to abdicate the fundamental responsibility of Wesley Mission to declare to society a clear word from God.

Wesley Mission's approach to homosexual foster carers
55 As I have set out above, Wesley Mission's values are the basic reason why it provides its services, including through Wesley Dalmar. Evangelical doctrine as lived by Wesley Mission puts enormous value on the concept of family as the basic unit of society. Our beliefs about human sexuality play an important part in our understanding of that concept, and have important implications for Wesley Mission's work.

56 Consistent with what I say in paragraph 54 above, Wesley Mission's tradition views a monogamous heterosexual partnership in marriage as the ideal family role model for the vulnerable and sometimes damaged children we foster. Other understandings fall short of that norm. In foster care, we believe that the needs of the children in care are more important than the needs of foster carers. This belief is supported by the United Nations Convention on the Rights of the Child.

57 We also recognise that pragmatically our ideal cannot always be achieved, and accordingly at times we appoint single parents as foster carers. We can do this even though the concept of single parenthood is not our ideal, because at the same time it is not in conflict with our fundamental belief about family role models.

58 However, our religious convictions prohibit the fostering of children to same sex partnerships. This would constitute a fundamental conflict for us, because it would involve setting up a situation in conflict with the ideal and norm as we understand it. The proposition that we should provide a framework for children to be cared for and nurtured within the context of a homosexual lifestyle is fundamentally unacceptable to our evangelical teaching and practice.

59 We acknowledge that our position with regard to homosexual foster carers differs from the position of others. We recognise the dilemma in communicating our faith with compassion and concern for all involved. However, our position is one from which we cannot move. It is driven by our religious convictions about both the ideal of the human family and the care we must provide for vulnerable and potentially damaged children.

60 We have received support from members of the Uniting Church concerning the issue of human sexuality when it became a matter of public debate following the Assembly of the Uniting Church in Australia in 2003. This confirms that we are not alone in holding to our particular views on homosexuality in the context of the family unit.

61 We are committed to a ministry of the whole people of God and yet, at one and the same time, we need to take very seriously the view of those who support us and enable us to maintain our mission of compassion to some of the most vulnerable people in New South Wales. If we were to deny our religious convictions about the ideal of both a male and female role model in family life, the implications would be enormous in terms of the people who support us and, ultimately, the people for whom we care and support.

62 If Wesley Mission was required to appoint homosexual foster carers, this would make our provision of foster care services unacceptable to those who support the ethos of Wesley Mission.

19 Dr Garner gave oral evidence and there was this exchange with Ms Ronalds in cross examination:

Q. It’s monogamous, heterosexual and a man and a woman and married, that’s what you consider to be the norm and the ideal. Is that correct?
A. Yes, they’re – they’re words, that in themselves, norm and ideal which carry a whole weight of other things to it. I mean, I’d want to be generous in the way that I talk about this kind of thing, let me say that. But, I think that that’s a fair description that definitely I suspect some components – when I talk about them being norm and ideal the way that scripture clearly speaks about family, it doesn’t speak about other relationships except in a way that maybe is not positive at certain parts.

But on the whole it just takes us the norm the family, so much weight is given in scripture to ordering of family, relationships within the family. Not by putting a weight on one verse but the – the general drift and weight of teaching scripture is that family would be the normative.

………………

Q. In terms of your view as expressed in paragraph 54 as to what is the norm and ideal of a family, that’s not consistently accepted across “The Church?”
A. The issue there isn’t that it’s the issue of – of the place of scripture and the fact that there are different perspective on that within the one church and we live in a creative tension of people seeing these major issues through different prisms and different understandings and I quite respect the views of others to hold a different view.

Q. Through interpretation, different interpretations of the Bible, is that correct?
A. Not so much different interpretations of the Bible but different developments from what’s there because it’s very difficult to argue any other model of family other than family from scripture. Very difficult to argue that, what – what it is possible to do is hold a different view on building from the basis that you have.

Q. So, you’re aware, are you not, that at “QZ” in the foster care programme couples living in de facto relationship applications are accepted from them and they are assessed and can be approved as foster carers?
A. I’m aware that there are relationships that would not be the ideal relationship, this is where I talk about the interplay between ideal and normative maybe. I’m aware that not every relationship would be what one might be the best model. We have single – single parents for example that – that I know that doesn’t directly answer your question but there are single parents that I know of that do actually foster children. But we don’t believe that that brings us into the fundamental – the fundamental clash with what we’re dealing with here which is that issue of—

………………

Q. In assessing and approving foster carers, I’m looking at the foster carers, they’re not required to be members of the Wesley Mission?
A. No, they’re not.

Q. And they’re not required to be members of “The Church?”
A. No, they’re not.

Q. Not required to be Christian?
A. No, they’re not but everybody who comes to us – this is the provider – everybody who comes to us knows we are a Christian provider. So they would know that the – the ethos of the Mission which is not just the – these are the things we don’t do but I – I hope and this is why we – we in every part of our mission the spiritual values permeate every part of the Mission. It’s not a – a take-away it’s all the plus factors that come from that religious tradition of caring for people.

Q. But an atheist can be approved, assessed and approved as a foster carer?
A. As you said yourself we don’t ask religious questions and an atheist is a very committed religious position of non religion so I don’t know that we would ever really ever say, are you a – anymore, “Are you an atheist,” than “Are you a Christian?”

Q. If it was a single person they maybe gay and wouldn’t know?
A. And we wouldn’t dream of asking either. Wouldn’t dream of asking.

Q. So, you could, at this stage, have single gay people fostering within the programme and you wouldn’t know it.
A. We may well have.

Q. Why wouldn’t you ask?
A. It – it isn’t something that one would ask. I mean, we don’t actually go around asking sexual questions of – of people anyway for the whole—

Q. So, it’s only homosexual couples then that the policy applies to, is it?
A. The question of – of homosexual couple fostering would probably arise in the sense that two people of the same sex were presenting themselves. A single person or a person of ..(not transcribable).. that kind of question wouldn’t arise.

20 Mr Bridges a corporate solicitor employed by the respondent for over 20 years in an affidavit sworn on 9 September 2005 included paragraphs:

Wesley Dalmar
8. Wesley Dalmar Child and Family Care ('Wesley Dalmar') is part of Wesley Mission's Community Services Division, which is one of four Divisions of Wesley Mission (the other three being Pastoral Services, Care Services and Corporate Services). The Community Services Division provides a range of community services throughout NSW including services relating to employment, persons with disabilities, homeless persons, Lifeforce (suicide prevention) and child and family care. Wesley Dalmar provides a range of services for child and family care including five Out-of-Home Care facilities managing foster care programs, residential homes for young people and supervised contact programs for children who are unable to live with their birth families.

….

11 The community welfare services of Wesley Mission, including its work in child and family care had been developing for a period of 165 years prior to the amalgamation of the Uniting Church in 1977.

12 Wesley Mission has its origins in the first Methodist Church formed in Sydney in 1812. The Sydney Methodist Church was restructured in about 1882. From about that time it became known as the Central Methodist Mission (Sydney). The Superintendent of that time, Rev. W. G. Taylor, and his successors developed a "word and deed ministry" based on Methodist tradition -that is, the Mission's community welfare services were an integral and inseparable part of the Central Methodist Mission's Christian Ministry and its strongly evangelistic Methodist interpretation of the Scriptures,

……………

18 Wesley Mission's religious doctrines implemented in practice.
The values of Wesley Mission are evidenced in its Mission Statement: 'Wesley Mission Sydney is a dynamic church committed to the Gospel of Jesus Christ through a global Word and deed ministry'. Wesley Mission seeks to do all things, including the provision of its services to the needy, in accordance with the Gospel and, in particular due to its origins, as understood and interpreted through Methodism. The Wesley Mission ethos is that scripture and Methodist doctrine provide the basis and parameters for how its members conduct their lives, and for the way in which the Mission carries out its activities as an organisation. Wesley Mission regards Methodist doctrine as binding and, as such, accepts that such doctrine imposes both direction and boundaries on its organisational acts and practices.

19 The reference to the Mission's 'Word and deed ministry in the Mission Statement reflects Methodism's emphasis on ‘method’, or the 'methodical' way in which members observe symbols of the Church. For Wesley Mission, this means (amongst other things) putting into practice the word of God in the provision of caring services to the needy and disadvantaged (rather than purely being involved in worship).

20 The provision of services for children has always been an essential part of the 'Word and deed ministry of Wesley Mission. The Mission seeks to provide services for needy and disadvantaged children in Sydney and other regions in New South Wales, in accordance with Methodist doctrines, and without discrimination on the basis of race, creed, sex, age or disability.

………….

22 In this context, Wesley Mission has maintained a consistent stance with regard to homosexuality. Methodist doctrine includes the belief that homosexual practices go against gospel values, as expressed in Romans 1:26-7; Corinthians 6:9-10; Leviticus 18:22;Leviticus 20:13 and Genesis 19:1-13.Wesley Mission has articulated its stance in various contexts -see in particular A response to the Assembly Task Group's Interim Report on Sexuality, 24 September 1996.

23 A fundamental principle of Methodism is that all who are in need should be accepted into care. In accordance with this stance, Wesley Mission provides services to persons (including children) of a homosexual orientation who are in need of care.

24 In accordance with the Methodist stance on homosexuality, Wesley Mission does not accept homosexual couples as foster carers as their way of life would be in fundamental conflict with its mission. Foster carers need not be committed Christians, but:

a) are required to respect the Mission's ethos; and

b) they must be people who are appropriate role models within the Methodist ethos, who can provide an environment which will satisfy the best interests of the child in care as those interests are understood by Methodist doctrine. Wesley Mission believes that appropriate role models are particularly important, because children in care have usually experienced confusion, disruption and breakdown.

25 The Methodist doctrine is based on the belief that God's pattern for family relationships includes a union between a man and a woman. For Wesley Mission to appoint homosexual couples as foster carers, would be fundamentally unacceptable to the Methodist doctrine and would be viewed as an abdication of its responsibility to uphold the word of God as understood by Methodism. Consistent with this position, Wesley Dalmar foster care staff have been directed that Wesley Dalmar will not assess homosexual couples as applicants to be foster carers

21 Mr Bridges was challenged in cross examination as to the asserted illogicality of his view that a single foster carer is to be regarded as preferable to two foster parents living in a homosexual relationship. It is fair to say that he maintained his opinion but in the event we do not think he should be accepted as an expert in the theology of Weslyanism despite his many years of working as a lawyer for the respondent. However the expertise of Dr Garner was unchallenged and we accept his evidence.

22 In particular we accept the statements made in paragraphs 54, 58 and 62 of Dr Garner’s affidavit quoted above and we are satisfied that those statements were applicable to the religion the respondent was seeking to propagate in 2003.

23 Ms Eastman submitted that it would follow from acceptance of Dr Garner’s evidence that the refusal to accept the applicants’ application to be credited as foster carers was an act in conformity with the doctrinal position of Wesley Mission.

24 Counsel for the applicants referral to the statute under which the respondent provided its foster care responsibilities viz Children and Young Person's (Care and Protection) Act 1998 and to agreements between the Department of Community Services and the respondent respectively called the “Header Agreement” and the “Service Agreement”. Both agreements prohibit discrimination in performance on the ground of sexual preference. However as it seems to us the terms of the agreements cannot override the provisions of the statute under consideration nor in any event do they address the question whether the act of the respondent complained of conformed with the doctrines of the respondent at the time.

25 It was also submitted on behalf of the respondent that s56 (d) of the Act requires a distinction to be made between pastoral and non-pastoral activities of the relevant religious body, it being contended that the accreditation of foster parents fell within the latter classification, particularly having regard to the fact that the respondent received public funds to enable it to carry out its responsibilities. Reference was made to the statement in the joint judgment at para 72:

“Where a religious body exercises functions under a general law of the state there is no reason to read s56 (d) as freeing it from its obligations imposed on others who exercise such functions”.

26 With great respect it is not entirely clear to us what Basten JA and Handley AJA had in mind as the sentence quoted immediately follows the sentence:

“…. 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 s56 (d).”

27 Allsop P addressed the subject at para 14:

14 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).

28 Counsel for the respondent submitted that the applicants had misconstrued what Basten JA and Handley AJA were saying in para 72 of their reasons. It was suggested that their Honours were merely drawing attention to the way in which different exceptions apply.

29 Mr Lenehan on behalf of the Attorney General supported the respondent's submission that there is no warrant in s56 for differentiating between pastoral and non-pastoral activities. He submitted that not only was the matter the subject of dicta by Allsop P but was also referred to in paragraphs 61 and 62 of the joint reasons:

Alternative construction of s 56 (d)
61 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.

62 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.

30 We agree that the applicant's contention as to an alternative interpretation of s56 should be rejected for reasons given by Allsop P and in the joint reasons. Apart from the practical difficulties mentioned in the joint judgment the generality of s 56(d) seems to preclude any writing down of its terms. In our opinion the intention of Parliament was to provide the exception upon proof of the criteria that the discriminatory act or practice in question was that of a body established to propagate religion and either conformed to the doctrines of that religion or was necessary to avoid injury etc. There is no reason to place any further limitation upon the operation of the provision.

31 It was also submitted on behalf of the respondent that in a formal sense what was said by Dr Garner did not amount to a “doctrine” within s 56. There was reference to the evidence of the Reverend Paul Swadling the General Secretary of the Uniting Church in Australia (the Church) whose affidavit sworn 10 May 2007 contained these paragraphs:

Structure of the Church
8 The Church as an entity was created by the enactment of the Uniting Church in Australia Act 1977 (NSW) (UCA Act). The UCA Act grew out of and includes as a Schedule the Church's
Basis of Union, and, the Assembly adopted the Church's Constitution. The UCA Act brought together the Methodist Church and large parts of the Congregational and Presbyterian Churches. Negotiations towards union among the Australian bodies of these three denominations began very early in the 20 ^th Century, were delayed twice, in 1967and 1976, and were finally consummated on 22 June 1977.

9 Under the terms of the Basis of Union and the Church's Constitution, the UCA Act and the Regulations and By-Laws made under that Act, the Church is governed through its Assembly, Synods, Presbyteries, Church Councils and Congregations.

………..

13 The Basis of Union (Paragraph 15) makes it dear that "It is the task of every council to wait upon God's Word, and to obey God's will in the matters allocated to its oversight." Exactly how this happens in Congregations and Parish Missions will vary from place to place according to local customs and leadership styles. But this process will usually include such elements as prayer (both corporate and individual), reading the scriptures, preaching, congregational meetings, Church Council meetings, strategic planning weekends and seminars organised by the wider church, as well as spontaneous individual and or corporate inspiration.

14 Congregations and Parish Missions are required to adhere to the doctrines of the Uniting Church. Paragraph 38(a) of the Constitution states, "The Assembly shall have determining responsibility in matters of doctrine". When doctrinal determinations are made by the Assembly these apply to all the Church's constituent parts and each Congregation and Parish Mission must conduct its worship, witness and service accordingly. However, in areas where the Assembly has not made a doctrinal determination, each Congregation must faithfully wait upon God's Word and obey God's will in matters allocated to its oversight. An example of an issue on which the Assembly has specifically chosen not to make a doctrinal determination is that of homosexuality and leadership in the Church.

……………..

24 As noted in paragraph 13 above, the Church's Assembly is responsible for doctrine, but does not always make determinative decisions. In both 2003 and 2006 the Assembly chose not to make any determinative decision on the question of homosexuality and leadership in the Church. This was in recognition of the diversity of theological views and positions which exists within the Church regarding this issue.

32 The first meaning ascribed to the word “ doctrine” in the Macquarie Dictionary Third Edition is “ particular moral or religious principles taught or advocated”.

33 Accepting that definition the relevance of Reverend Swadling’s testimony is that while there is no relevant doctrine of the Uniting Church which would bind the Wesley Mission the Mission itself is entitled to propagate its own doctrines on the subject of homosexuality and may do so by teaching or other means not necessarily amounting to the formal pronouncement of a “doctrine”.

34 In our opinion the statements made by Dr Garner quoted above encapsulated in paragraphs 54 and 58 of his affidavit constitute a “doctrine” within the meaning of s56 of the religion which the Welsey Mission was established to propagate in 2003. It seems to us to follow from that finding that the first limb of s56 (d) is satisfied and it would also follow from our acceptance of Dr Garner’s evidence particularly paragraph 62 of his affidavit that the second limb was made out. The defence provided by s56 having been proved the complaint must be dismissed.

35 As we have tried to make clear and now emphasise it is not our task to decide whether the doctrine we have identified was appropriate to be applied as Wesley Mission applied it in 2003. Nor has it been our task to decide whether it was appropriate in 2003 for Wesley Mission to accept public funds for providing a service which it provided in a discriminatory fashion contrary to the terms of its contractual obligations to the relevant State instrumentality. Our sole role as we understand the reasons of the Court of Appeal and the submissions of the parties is to decide whether Wesley Mission has on the balance of probabilities brought itself within either or both of the limbs of s56 (d) of the Act. In relation to the first limb we observe that the test is singularly undemanding in that it merely requires us to find that the discriminatory act was “in conformity” with the doctrine not affirmatively that it breached it. This may be a matter which calls for the attention of Parliament.

36 After we reserved our decision in this matter our attention was drawn to the decision of Judge Hampel in Cobaw Community Health Services v Christian Youth Camps Ltd [2010] VCAT 1613. In view of the fact that the decision is subject to appeal and that in any event it deals with issues somewhat different from those before us we do not think we should either have regard to it or give the parties leave to make submissions based upon it.

37 We make these orders:

1. Complaint dismissed

2. No order as to costs