What is ‘religion’?

This vital question has been the subject of considerable legal attention in New South Wales with the NSW Court of Appeal recently handing down an important decision that has potential ramifications for all Christian schools across the country.

Background

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..  The relevant provisions of the Act are as follows:

Nothing in this Act affects:

1. the ordination or appointment of priests, ministers of religion or members of any religious order,
2. the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order,
3. the appointment of any other person in any capacity by a body established to propagate religion, or
4. 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.

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 NSW Attorney-General intervened in these proceedings in support of the Wesley Mission Council.

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 homosexual couple further appealed to the NSW Court of Appeal which heard the matter earlier this year: OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155

Key Issue

The key issue at the heart of the legal arguments and appeals relates to the proper legal construction of the exemption in s56(d).  This form of wording, or similar, is found in the exemption provisions in many other pieces of legislation around the country and this is one of the first times that its interpretation has come before a court or tribunal as authoritative as the NSW Court of Appeal.  Consequently this decision has potential ramifications across the country.

In particular the Court considered the proper approach to determining what is the relevant ‘religion’ for the purposes of ascertaining the applicable doctrines and determining whether adherents would suffer injury to their ‘religious susceptibilities’.

At the first hearing the Equal Opportunity Division of the Administrative Decisions Tribunal determined that the relevant religion was the Christian religion.  In their defence the leadership of the Wesley Mission, sought to reply upon the “fundamental Biblical teaching that ‘monogamous heterosexual partnership within marriage’ is both the ‘norm and ideal’”.  However, the Tribunal found, given the diversity of views across Christendom on this issue that “it does not follow, and nor is it asserted, that that belief can properly be described as a doctrine of the Christian religion”.  Consequently the exemption was determined not to apply.  The Tribunal also considered, as an alternative and only for completeness, whether the same outcome would be reached by using the Uniting Church as the relevant religion, and reached the same conclusion.

On appeal the Appeal Panel of the Administrative Decisions Tribunal considered this issue at length looking at a number of aspects and processes in relation to legal interpretation.  It reached the view that the Tribunal was in error in the definition it reached and ordered that the matter be reconsidered on the basis that the Tribunal seek to ascertain whether ‘monogamous heterosexual partnership within marriage is both the norm and ideal’ a doctrine of ‘Wesleyanism’? The Appeals Panel used ‘Wesleyanism’ to describe the ‘Wesleyan (or Methodist) understanding of Christianity’.

Court of Appeal Decision

The Court of Appeal found that both the Tribunal and Appeal Panel were in error when interpreting this provision (which does raise questions about how a non-lawyer on the street can be expected to comply with the law in this area!).

After consideration and application of a more correct approach to construction of the relevant provision BASTEN JA and HANDLEY AJA (with ALLSOP P concurring) conclude that:

‘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.’

While the matter has been remitted back to the Tribunal, and is in that sense not yet concluded, this is likely to be the final consideration of this interpretation issue unless leave is sought to appeal to the High Court.

Implications for Christian schools

Given the standing of the NSW Court of Appeal in the Australian judicial world it is worthwhile to reflect on the precedent that this decision may have for Christian schools.

Translating this reasoning into a school context it would seem that the correct approach to interpreting such a provision in other legislation would entail ascertaining the ‘doctrines of the religion’ being propagated by the school at the time of the alleged discrimination.  While this is undoubtedly a better approach than seeking to determine the doctrines of Christianity as a whole it still provides challenges.  Schools would need to be able to clearly demonstrate that:

• They seek to propagate a religion;
• The doctrines of the religion that they propagate.

As always documentation is the critical starting point and the common form of Statement of Faith used in many school constitutions is unlikely to provide sufficient clarity around the circumstances that are likely to arise in a school.  Much more expansive and codified ‘doctrinal statements’ are likely to become the norm both as the result of this decision and both legislative changes in other states and the statements.

While CSA has a sample Equal Opportunity Policy that provides a starting point for schools it is obvious that the particular local understandings of potentially controversial issues are well understood and encapsulated in relevant documentation.  Further schools will need to develop processes to ensure that the policies are outworked within the school community.  It is essential that this be done consistently across all staff and with particular care in relation to the school leadership, including the school Board.

Any school with questions or concerns about this area should not hesitate to contact our office.