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

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

[20]

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?

[89]

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.

[91]

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".

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