Members of the Board of the Wesley Mission Council v OW and OV [2007] NSWCA 26 | Case summary

REASONS FOR DECISION Introduction 1 A same sex couple, OV and OW, wanted to apply to Wesley Dalmar Child and Family Care to become foster carers. They were told that they would not be permitted to apply because they were homosexual. The Tribunal found that their complaint of discrimination on the ground of homosexuality had been substantiated and ordered the respondents to pay each applicant $5,000. The Tribunal also ordered Wesley Dalmar 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 Members of the Board of the Wesley Mission Council has appealed to the Appeal Panel against the Tribunal's decision. The Attorney General intervened in these proceedings: Administrative Decisions Tribunal Act 1997, section 69 (Tribunal Act). Both the Council and the Attorney General requested that the Appeal Panel refer certain questions, which they regarded as questions of law, to the Supreme Court. OV and OW opposed the referral of any such question. Below are our reasons for refusing to refer any question of law to the Supreme Court. Power to refer a question of law 2 The Appeal Panel's power to refer a question of law to the Supreme Court is in section 118(1) of the Tribunal Act 1998: An Appeal Panel determining an appeal under this Part may, of its own motion or at the request of a party, refer a question of law arising in the appeal to the Supreme Court for the opinion of the Court. Issues 3 The issues are: (a) does a "question of law" arise in the appeal? (b) if so, should that question or those questions be referred to the Supreme Court? Parties 4 The first respondent in the Tribunal proceedings was identified with the initials QZ. There is no longer any prohibition on identifying that respondent as Wesley Dalmar Child and Family Care operated by the Wesley Mission acting through the Mission Council. The name of the legal entity is the Members of the Board of the Wesley Mission Council (WMC). That entity is the appellant in these proceedings. Tribunal's decision 5 The Tribunal decided that the WMC's conduct constituted unlawful discrimination on the ground of homosexuality contrary to section 49ZP of the Anti-Discrimination Act 1977 (AD Act). The WMC relied on the exemptions in section 56(c) and (d): Nothing in this Act affects: . . . (c) the appointment of any other person in any capacity by a body established to propagate religion, or (d) any 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. 6 The Tribunal decided that the WMC (as previously styled) was a body "established to propagate religion." The Tribunal found that the relevant religion was Christianity or, if that is not correct, the religion of the Uniting Church. However the Tribunal concluded that the act of authorising a person to be a foster carer does not constitute an appointment within the meaning of that term in section 56(c). Consequently the exemption in section 56(c) did not apply. In relation to the exemption in section 56(d) WMC nominated the relevant doctrine as the belief that "monogamous heterosexual partnership within marriage is both the norm and ideal" of the family. The Tribunal concluded that WMC had failed to establish that that doctrine is a doctrine of either "the religion of Christianity" or "the religion of the Uniting Church". Accordingly it was not necessary for the Tribunal to determine whether the conduct was "done in conformity with the nominated doctrine". The Tribunal then considered the second limb of section 56(d), that is whether the conduct was necessary to avoid injury to the religious susceptibilities of the adherents of that religion. The Tribunal concluded that given the diversity of views among adherents of Christianity about homosexuality, the prohibition against homosexual foster carers could not be said to be necessary to avoid injury to their religious susceptibilities. Proposed questions of law 7 Ms Eastman, representing WMC, proposed that the Appeal Panel refer certain questions of law to the Supreme Court. Following a directions hearing in which that proposal was discussed by Deputy President Hennessy and the parties, Ms Eastman put forward the following questions for the Appeal Panel's consideration: 1. On the assumption that the first respondent is "a body established to propagate religion" within the meaning of that term in s 56(c) of the AD Act , would any decision by the first respondent to: a. accept an application to become foster carers; and/or b. provide a person with the necessary services so that the person could make an application to become foster carers; come within the meaning of the words "the appointment of any other person in any capacity" in s 56(c)? 2. On the assumption that the first respondent is "a body established to propagate religion" within the meaning of that term in s 56(d) of the AD Act , is the relevant religion" the tenets, beliefs and practices of the Wesleyan (or Methodist) evangelical tradition"? 3. Is the belief that monogamous heterosexual partnerships within marriage is both the norm and ideal, a "doctrine" of the relevant religion, within s 56(d)? If so, does the act or practice of refusing to accept an application to become foster carers from homosexual couples conform to that doctrine? 4. Is the act or practice of refusing to accept an application to become foster carers from homosexual couples "necessary to avoid injury to the religious susceptibilities of the adherents of the relevant religion"? 5. Was the Tribunal's 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" an order that the Tribunal had power to make pursuant to the former s 113 of the AD Act? 8 Ms Eastman submitted that all five questions should be referred. Mr Lenehan, for the Attorney General, agreed that questions 1 to 4 should be referred but made no submissions on whether question 5 should be referred. Ms Pepper, for OV and OW, submitted that questions 2, 3 and 4 were questions of fact and that there was no point referring questions 1 and 5 by themselves because the answer to those questions would not resolve all the issues in dispute between the parties. We have assumed for the purpose of these proceedings, and in accordance with parties' submissions, that question 5 is a question of law. Are questions 1, 2, 3 and 4 "questions of law" that arise in the appeal? 9 Before referring a question of law we must be satisfied that each question is a question of law arising in the appeal. While it is notoriously difficult to decide whether a particular question is a question of law, the courts have provided some guidance on that question. The following principles are relevant to these proceedings: a. the meaning of an ordinary English word or phrase in a statutory context will be a finding of fact unless those words have a technical meaning or are used in a technical sense: Collector of Customs v AGFA-Gevaeret Ltd (1996) 141 ALR 59 at 59; b. the issue of whether a particular word in a statute has its ordinary meaning or some other meaning is a question of law: Industry Research and Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564 at 577; c. the construction of a statutory provision (in the sense of a consideration of the words of a statutory provision in their context, having regard to the object or purpose of the Act) will involve questions of law: The Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 per Basten JA (Bergin JA agreeing) at [46] and An v Minister for Immigration and Citizenship (2007) 160 FCR 480 per Lindgren J at [4]; and d. whether facts as found come within a statutory description will very frequently be exclusively a question of law: Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450 per Gleeson CJ, Gummow, Callinan JJ; (Their Honours also noted that when a statute uses ordinary words or where the question is largely one of degree then the question may simply be one of fact and involve no question of law.) 10 Ms Pepper's submission was that WMC did not contend before the Tribunal that any of the words in section 56 of the AD Act had a technical meaning. She said that the Tribunal applied the ordinary meaning to the words "appointment", "religion", "doctrine" and "necessary" and that that was the correct approach. 11 Ms Eastman submitted that the proper construction and application of section 56 is an important question and that the Tribunal's focus on the grammatical meaning of the word "religion" without any reference to the purpose of the exemption was a significant error. According to Ms Eastman, the "primary object of statutory construction" is to construe a provision so that "it is consistent with the language and purpose of all the provisions of the statute": Project Blue Sky v The Australian Broadcasting Authority (1998) 194 CLR 355 at [69]. Ms Eastman went on to submit that it is well accepted that the search for the proper purpose of a provision commences with its ordinary or grammatical meaning. If the grammatical meaning does not give effect to the purpose of the Act, then the grammatical meaning may not prevail. According to Ms Eastman for that reason the question of the proper construction of the various limbs of section 56 squarely involves a question of law. 12 Questions 1, 2, 3 and 4 involve the application of words and phrases in a statute to primary facts. In this case findings as to the primary facts are questions of fact. The words and phrases in section 56 are ordinary, non-technical words. While those words and phrases must be interpreted in accordance with accepted legal principles of statutory construction, the questions themselves are largely factual. They involve, for example, identifying the relevant religion and determining whether a particular belief is a doctrine of that religion. Another question is whether refusing an application to foster children from a homosexual couple conforms to a particular religious doctrine and is necessary to avoid injury to the susceptibilities of the adherents of the relevant religion. However, if we are wrong, and questions 1 to 4 are questions of law, we go on to consider the second issue, that is whether any of the questions should be referred. Should any questions be referred to the Supreme Court? 13 In QT v Legal Services Commissioner [2006] NSWADTAP 13 at [48] to [52] the Tribunal set out some of the relevant considerations when determining whether to refer a question to the Supreme Court: a. whether the question to be referred is one of 'general importance'; b. whether the question is comparable to other questions frequently decided by the Tribunal; c. whether the question would resolve the issues between the parties; (otherwise the referral would subject the parties to unnecessary expense and delay); and d. that if the Tribunal makes a decision on the question that is incorrect, it can be corrected through an appeal to the Supreme Court. 14 The Supreme Court emphasised the first factor, the importance of the particular question, in Director-General, Department of Commerce v Cianfrano & Anor [2007] NSWSC 849 per Hall J at [55]. The fourth consideration is not a discrete matter to be taken into account, rather it is part of the legislative context in which the Appeal Panel operates. A factor not mentioned by the Tribunal in QT v Legal Services Commissioner but raised by the parties in this case is whether referral will avoid the expense and delay of an extra hearing in circumstances where the losing party is likely to appeal from the Appeal Panel's decision. 15 Importance of the question. Ms Eastman, for WMC, submitted the proper construction of section 56 involves balancing competing rights and interests of the parties within the parameters defined by Parliament. While other exemption provisions such as section 54 of the AD Act have been the subject of many Tribunal decisions, section 56 has not and there is no clear authority as to the scope of the exemption. Mr Lenehan said questions 1 to 4 raised matters of significance to the public including: a. the rights and interests of other members of the public using services provided by bodies established to propagate religion; b. the rights and obligations of bodies providing such services; and c. the interests of the adherents of the religions which such bodies are established to propagate. 16 Mr Lenehan added that the answers to questions 1 to 4 may affect the interests of the State of New South Wales because it is conceivable that the State will have to provide services currently being provided by bodies such as WMC if they cease to provide such services as a result of the Tribunal's decision. Finally, Mr Lenehan submitted that there is an obvious public interest in questions of law that concern an exemption intended by Parliament to draw a balance between the right to freedom from discrimination and the right to freedom of religion. 17 Frequency of questions of that kind. In relation to the second factor, Ms Eastman submitted that the questions are not the kind of questions that the Appeal Panel is regularly called on to determine. She said the questions are novel and complex and focus on points of construction which are not regularly raised in appeals under the AD Act. Ms Eastman submitted that the questions involved issues of statutory construction which ought to be determined by the Appeal Panel which has specialist knowledge to match its specialist jurisdiction in discrimination matters: Tribunal Act section 3. 18 Disposal of the appeal. Thirdly Ms Eastman submitted that the answer to the question will resolve the issues between the parties. 19 Efficiency of referral. Finally Ms Eastman submitted that as the parties are legally represented it would be efficient for the questions to be answered by the Supreme Court rather than the parties incurring the cost of an appeal in the Appeal Panel and, if the appeal fails, a further appeal to the Supreme Court. Ms Pepper, for OV and OW, said that there may be significant cost implications for her clients if the questions were referred. That is because no decision has yet been made on whether her clients are eligible for a grant of legal aid, nor have the parties agreed on who would pay the costs, should the matter be referred to the Supreme Court. Conclusion 20 We agree that the questions are of general importance and raise some matters of public interest. The particular words and phrases in issue have not been subject to a great deal of consideration either by this Tribunal or the courts. However, the questions themselves do not raise complex issues of statutory construction. The meaning of ordinary words and phrases in a statute are matters with which the Appeal Panel routinely deals. 21 No party advocated referral of fewer than the five questions we have identified. Referral of all five questions may resolve the issues between the parties if WMC decides not to pursue the remainder of its grounds of appeal. 22 All parties have made valid submissions on the question of efficiency. On the one hand it is inefficient for the Appeal Panel not to refer the questions if the losing party intends to appeal regardless of the Appeal Panel's reasoning. On the other hand, it is prejudicial for OV and OW to be put in a position of potentially having to bear the costs of Supreme Court proceedings before a much lower cost avenue of appeal has been exhausted. 23 Our primary reason for refusing to refer the questions of law is that four out of the five questions are largely questions of fact. If that is not correct, then the questions of law involve applying principles of statutory construction which are not contentious. While there are valid reasons for and against referral, on balance we decline to refer any question to the Supreme Court pursuant to section 118(1) of the Tribunal Act.

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

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