Alex Kohn
4 April 2011

Clarification of Discrimination Exemption for Religious Organisations

Alex Kohn

Partner And Chairman

Tel: 02 9233 9036

Mob : 0421 315 168


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New South Wales courts and tribunals have recently handed down decisions providing guidance to religious organisations in relation to exemptions from anti-discrimination laws.

In 2002, OV and 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).

The Wesley Mission sought to rely on the general exemption for religious bodies in section 56 of the Act.

In 2008, the Equal Opportunity Division of the Administrative Decisions Tribunal upheld the complaint on the ground of sexuality but not on the ground of marital status.  The Wesley Mission appealed from this decision to the Appeal Panel of the Administrative Decisions Tribunal.  The Appeal Panel set aside the decision and remitted a number of questions to be heard and decided again by the Equal Opportunity Division.

OV and OW appealed against the decision of the Appeal Panel.  In the course of its judgment, the Court of Appeal was called upon to clarify the circumstances under which a religious organisation such as Wesley Mission can rely on section 56 of the Act as a defence to a claim for unlawful discrimination.

In summary, section 56(d) provides that nothing in the Act affects any other act or Practice by 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.

Court of Appeal Decision

In the course of considering the operation of these exemptions, the Court of Appeal made the following observations:

  • Section 56(d) does not permit the doctrines of part of the relevant religion to be examined rather than the doctrine of that religion taken as a whole.
  • It is not necessary for a religious body to prove that all the adherents of that religion may have their religious susceptibilities infringed – although the Court stated that it is a mistake to try and identify quantity or number, beyond saying that the adherence must be a significant proportion of the group, such that the phrase as a matter of fact is satisfied.
  • The correct approach to the construction of section 56(d) is not to take individuals words in isolation and ask whether each is used in its ordinary meaning but to address the structure of the provision as a whole.
  • In the first limb of section 56(d) “established” is not used strictly in the past tense but is used to ascertain whether the acts or practices conformed to the doctrines being adhered to by their religious body at that time, even if those doctrines have evolved or changed since the body was first established.
  • There is no basis in section 56 for an inference that Parliament intended to exempt from the operation of the Act only those acts or practices which formed part of the religion common to all Christian churches, or all branches of a particular Christian church, to the exclusion of variance adopted by some elements within a particular church.
  • The correct approach is the identification of the religion that the subject body, in this case Wesley Mission, was established to propagate.  It is then necessary to ascertain whether the act of that religious body for which exemption is sought, conforms with the doctrines of that religion.  If that is the case, then the religious body must go on to establish that the religious susceptibilities of adherents of that religion might be infringed if the particular act called in to question (that is in this case to allow a homosexual couple to be approved as foster parents) might be infringed.
  • There was a lack of procedural fairness by the Equal Opportunity Division to Wesley Mission by relying on the definition of “doctrine” in the Pocket Catholic Dictionary which was of uncertain origin and reliability.

The Court of Appeal did not finally determine whether or not Wesley Mission was protected by the exemption in section 56(d).  The reason was that this was a factual matter which must be determined by the Equal Opportunity Division of the Administrative Decisions Tribunal. 

Accordingly, the matter was remitted back to that division for determination taking in to account the observations made by the Court of Appeal to guide the division in that process.

Administrative Decisions Tribunal

Following the guiding principles enunciated by the Court of Appeal, the matter was considered afresh by the Administrative Decisions Tribunal.

The Tribunal considered detailed evidence put forward by the Chief Executive Officer and in-house lawyer of Wesley Mission amongst others.

In summary, that evidence set out the history of Wesley Mission; the relationship between Wesley Mission and the Uniting Church; the way in which Wesley Mission theology was implemented in practice; Wesley Mission’s approach to homosexuality generally; and Wesley Mission’s approach to homosexual foster carers.

Having considered that evidence, the Tribunal was satisfied that the refusal to consider an application to authorise a same sex couple to foster a child conformed at that time to the doctrines of the religion which Wesley Mission was established to propagate.

Further, the Tribunal found that 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 faith.

That being the case, the defence set out in section 56(d) was satisfied and the complaint was dismissed.

The Tribunal made no order as to costs.  That meant that after seven years of litigation, the parties were put to enormous expense in seeking to justify their respective positions and having ultimately succeeded, Wesley Mission was not granted a costs order in its favour.

Implications for Religious Organisations

The decision of the Court of Appeal provides further clarification in relation to the proper interpretation of section 56 of the Act.

It is apparent that the proper construction of that section will vary from case to case depending on the particular circumstances.  It is also apparent that the section is not as straightforward as might appear at first blush in assisting religious organisations seeking exemption from discriminatory acts.

The Court of Appeal has made it clear in the Wesley Mission case that whether or not a religious organisation can avail itself of the exemption in section 56(d) is a complex factual question which must be thoroughly examined by the particular court or tribunal.

It is necessary in such proceedings for a religious organisation to lead evidence and establish the following:

  • That it propagates a particular religion. 
  • What its particular doctrines might be. 
  • What the religious susceptibilities of adherents of that religion might be. 
  • That the particular act in question which is otherwise discriminatory is exempt because it has satisfied the above elements. 
  • The history and structure of that religious organisation. 
  • The aims and objects of that religious organisation. 
  • The decision has wider ramifications for religious institutions than merely its arrangements in relation to foster carers.  In particular, the decision of the Court of Appeal is sufficiently wide as to provide guidance for all religious institutions seeking to utilise the exemption under section 56(d) of the Act.

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