We represented a same-sex couple challenging discrimination by foster care agency Wesley Mission, part of the Uniting Church. The discrimination was held to be lawful, because of an exception in the NSW Anti-Discrimination Act that gives religious organisations broad scope to discriminate on the basis of sexuality – an exception we continue to challenge.

In 2002, Christian community services organisation Wesley Mission refused to accept an application for foster-parenting from a male couple (known as OV & OW) because of their sexuality.

The JEC (as PIAC) took their case to the NSW Administrative Decisions Tribunal (ADT) in 2008. We argued the refusal was discriminatory and a breach of the NSW Anti-Discrimination Act, which prohibits discrimination on the grounds of homosexuality when providing a service.

While Wesley Mission agreed its actions were discriminatory, it argued the actions were lawful because of an exception in the Act that gave religious bodies broad scope to discriminate where it conformed with the doctrine of the religion.

The ADT upheld the couple’s complaint in an initial decision that found Wesley Mission could not rely on the exception. 

Following appeals by both sides, the matter was sent back to the ADT from the NSW Court of Appeal to be reheard in December 2010.

At that hearing, the ADT found in favour of Wesley Mission. It held the organisation could rely on the exception in the Act, as the organisation’s actions conformed with a Christian doctrine that held ‘monogamous heterosexual partnership within marriage is both the norm and ideal of the family’. As such, Wesley Mission could lawfully discriminate on the basis of homosexuality in providing this service.

In its judgement, the ADT said:

‘[35] As we have tried to make clear and now emphasise it is not our task to decide whether the doctrine we have identified was appropriate to be applied as Wesley Mission applied it in 2003. Nor has it been our task to decide whether it was appropriate in 2003 for Wesley Mission to accept public funds for providing a service which it provided in a discriminatory fashion contrary to the terms of its contractual obligations to the relevant State instrumentality.’

Media coverage at the time reported that the Uniting Church, which Wesley Mission is part of, ‘face[d] a split’ over the decision. 

The NSW Anti-Discrimination Act still contains the broad exception giving religious bodies exceptional powers to discriminate. Removing the exception remains a priority for the Justice and Equity Centre. 

Counsel representing OV & OW were Chris Ronalds SC, Rachel Pepper (now Justice Pepper) and Anna Perigo.

Media coverage

The SMH: Religious charities putting doctrine above children’s interests, 30 December 2010
The SMH: Gay foster care ban divides Uniting Church, 27 December 2010
Star Observer: ADT rules against ay foster parents, 10 November 2009

ADT and NSW Court of Appeal decisions

OV & anor v QZ & anor (No. 2) [2008] NSWADT 115
Members of the Board of the Wesley Mission Council v OW and OV [2009] NSWADTAP 5 (27 January 2009)
Members of the Board of the Wesley Mission Council v OV & OW (No. 2) [2009] NSWADTAP 57
 (1 October 2009)
OV & OW v Members of the Board of the Wesley Council [2010] NSWCA 155 (6 July 2010)
OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010)