The New South Wales Court of Appeal has released its judgment in the OV & OW – Wesley Dalmar case. The decision is important in particular because of the court’s ruling on the statutory construction of s56 of the Anti-Discrimination Act 1977. Section 56 is the exclusion from the prohibition of discrimination under the Act of (c) ‘the appointment of any other person in any capacity by a body established to propagate religion’ and (d) ‘any act or practice of a body established to propagate religion that conforms to the doctrine of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion’.

The litigation was commenced by a homosexual couple seeking to be approved as foster parents by Wesley Dalmar, an agency of the Wesley Mission. The couple were informed that an application from them would not be accepted because they were partners in a same-sex relationship. They challenged the refusal, saying that it contravened the prohibition in the Act against discrimination on the grounds of homosexuality and marital status.

In the first proceedings the Equal Opportunity Division of the Administrative Appeals Tribunal upheld the complaint on the ground of homosexuality (but not marital status). The Tribunal asked Wesley Mission to review its policies on homosexual foster carers and eliminate discrimination in this area in the future provision of its services.

Wesley Mission then appealed this decision to the Appeals Panel, which overturned the Tribunal’s decision. OV and OW in turn appealed to the Court of Appeal which upheld the Appeals Panel’s decision but on a different basis to that of the Appeals Panel. In short, the couple were unsuccessful in relation to section 56(d) but successful in relation to s56(c).

The Court rejected the methodology of the Tribunal and the Appeals Panel (which was to ask whether a word has its ordinary meaning, determining what the ordinary meaning is and then placing that meaning into statutory context). The Court said that both the Tribunal and the Appeals Panel should have looked at the way section 56 works as a whole. The meaning of ‘religion’ in the section was not to be found in an abstract, dictionary definition of the word at the expense of the meaning of the section read as a whole – in particular a definition in a dictionary specific to one denomination.

Section 56(d)

This means that in applying section 56 you must look at the relevant religious acts or practices – that is, of Wesley Mission (Wesleyanism) and not look at the whole Christian religion. To do otherwise would be to expose section 56(d) to abuse and say that you only need to establish that not all Christians believed in the doctrine asserted to defeat the exemption. The Court also said that the Tribunal erred because it assumed that Wesley Mission can only propagate teachings common to all branches of the Uniting Church, when this was neither accepted nor considered.

The Tribunal erred in concluding that the “religion” concerned was the Christian faith of the Uniting Church:

“Accepting that both the Wesley Mission and the Uniting Church follow the Christian faith, there is no basis in section 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”.

The Court found that reliance by the Appeal Panel on the definition of “doctrine” in the Pocket Catholic Dictionary may have been procedurally unfair as its definition did not relate to the belief systems or tenets of the religion in question, which was Wesleyanism. In other words, it was a mistake to rely on a dictionary definition related to a religion with a different model of authority in matters of doctrine.

Section 56(c)

Wesley Mission also appealed the rejection by both the Tribunal and Appeal Panel of its argument that the defence in section 56(c) applied, however, the Court denied Wesley Mission’s claim on that basis. The Court said that the “appointment” referred to in this part meant appointing someone to operate a particular function in particular circumstances, indicates appointments the religious body to act on behalf of the body, rather than to exercise a statutory power conferred on it – in this case. Importantly it accepted that the provision should be interpreted broadly, not narrowly – so the appointment, for example, of a chief executive of a religious institution is an “appointment”. Nevertheless “the engagement, authorisation, conferral of power, or accreditation, particularly where the particular function is conferred by statute and does not adopt the language of appointment” goes too far, and is outside this broad application.

The decision has ramifications for religious institutions that undertake foster care and adoption services in New South Wales. It also has an impact on issues of statutory construction generally.

If you would like to discuss this decision and its relationship to your organisation’s current activities, do call This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it of our office for a confidential discussion.