Some (tentative) good news: pro-sodomite Administrative Decisions Tribunal ruling overturned, case to be re-examined

Today’s Sydney Daily Telegraph carried the following report (to which today’s CathNews also links), billed as an exclusive in the print edition:

Churches welcome gay bans

By Joe Hildebrand

The Daily Telegraph

November 02, 2009 12:01am

CHARITIES and religious groups could discriminate against gay people or anyone else who might offend their values after a landmark decision quashed a finding in favour of a gay couple who wanted to become foster parents.

[…] The couple were refused access to the Wesley Mission's foster care agency because they are homosexual.

They took their case to the Administrative Decisions Tribunal and were awarded $10,000 and the Wesley Mission told to change its practices so it didn't discriminate.

The charity appealed and a highly critical appeal panel overturned the decision and ordered the original tribunal to hear the case again.

The panel headed by Magistrate Nancy Hennessy even instructed the tribunal to this time take into consideration whether monogamous heterosexual couples are the norm for "Wesleyanism" and whether they might have had to reject the couple in order to preserve their beliefs and not offend people in their religion.
[…]
[http://www.news.com.au/story/0,27574,26292177-421,00.html]

I describe this as “tentative” good news in my headline because of course we must now await the new verdict of the Administrative Decisions Tribunal (A.D.T.), but given what a strong rebuff the appeal panel’s decision poses to the original judgment one can only expect that the A.D.T. will have to rule in favour of Wesley Mission this time. This is good of itself, but there are a couple of other connections which Mr. Hildebrand failed to make, and which I will consider here:

1. Earlier in the year I reported, in several posts, on the N.S.W. Upper House Inquiry into same-sex adoption, and the appeal panel decision might have implications for its findings. In its Final Report, the Inquiry Committee “determined that the Adoption Act 2000 should be amended to allow same-sex couples to adopt, but that an exemption from the application of the Anti-Discrimination Act 1977 be created for faith-based adoption agencies” (Final Report, p. 10). Unfortunately, some “inquiry participants, however, informed the Committee that a recent 2008 decision of the NSW Administrative Decisions Tribunal put the matter into doubt” (Final Report, p. 124). (The “recent 2008 decision” is the one which, as Mr. Hildebrand reports, the appeal panel has now overturned.) This uncertainty induced the Committee to recommend

That included in any legislative amendment to allow same-sex couples to adopt should be an exemption for faith-based adoption agencies from the application of the Anti-Discrimination Act 1977 in relation to providing same-sex couples with adoption services.
[This is Recommendation 3.
Final Report, p. 130]

(I note, however, that the Committee decided that “[t]he exemption should not extend, directly or indirectly, to matters outside the Committee’s terms of reference, such as foster care services”, ibid.) Now that the motive inducing the Committee to make this recommendation is likely to cease to exist, I wonder whether the latest developments will influence Parliament’s response to the Committee’s recommendations, and if so then how. (I should point out, though, that Recommendation 4 advises

That, if an exemption from the application of the Anti-Discrimination Act 1977 is created for faith-based accredited adoption agencies in the provision of services to same-sex couples, the exemption should be linked to a statutory requirement that the agencies refer any same-sex couples who seek their services to another accredited adoption agency that will assist them.
[ibid.]

which, as the Committee notes, arguably “totally compromises the position upon which [adoption agencies opposed to same-sex adoption] relied upon the exemption in the first place” (ibid.), so the Sodomites’ League may well still come out of this the winner.)

2. Mr. Hildebrand reported that

The panel headed by Magistrate Nancy Hennessy even instructed the tribunal to this time take into consideration whether monogamous heterosexual couples are the norm for "Wesleyanism" and whether they might have had to reject the couple in order to preserve their beliefs and not offend people in their religion.

This is highly significant because, according to the same-sex adoption Inquiry Final Report,

The [Administrative Decisions] Tribunal rejected the argument put by Wesley Mission that the exemption in section 56 of the Anti-Discrimination Act applied to this situation. In making its determination, the Tribunal considered (among other matters) the meaning of the terms ‘religion’ and ‘doctrine’ and concluded that the belief that ‘monogamous heterosexual partnership within marriage is both the norm and ideal’ was not a ‘doctrine’ of Christianity so as to attract the exemption in section 56(d).
[p. 124]

So in the original decision we had a State judicial authority ruling what are or are not to be regarded as a given religion’s doctrines of faith and morals! This quasi-Caesaropapism was also evident in the recent Victorian ‘options paper’ which examined ways to curtail the freedom of religious bodies to hire employees based on prospective employees’ compatibility with the religious bodies’ respective beliefs, and was evident in a recent proposed European Union (E.U.) directive against discrimination and harassment (for more on both the Victorian and E.U. anti-discrimination moves , see here). The appeal panel’s decision to rebuke, at least implicitly (but nonetheless strongly, it would seem), the A.D.T. for the reasoning—the notion that the secular(ist) State is a better judge of a religion’s doctrines than the religion itself—underpinning its original judgment is a welcome (though only temporary, I fear) set-back for the secularist agenda.

Reginaldvs Cantvar
All Souls Day, A.D. 2009