HORDYK and WANSLEA FAMILY SERVICES INC [2022] WASAT 117 (23 December 2022)

Last Updated: 23 December 2022

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT : EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION : HORDYK and WANSLEA FAMILY SERVICES INC [2022] WASAT 117

MEMBER : PRESIDENT PRITCHARD

JUDGE K GLANCY, DEPUTY PRESIDENT

MS S GILLETT, SENIOR SESSIONAL MEMBER

HEARD : 1 DECEMBER 2020 TO 9 DECEMBER 2020

15 DECEMBER 2020 AND 16 DECEMBER 2020

8 MARCH 2021

27 APRIL 2021 AND 28 APRIL 2021

DELIVERED : 23 DECEMBER 2022

FILE NO/S : EOA 12 of 2019

BETWEEN : BYRON HORDYK

First Applicant

KEIRA HORDYK

Second Applicant

AND

WANSLEA FAMILY SERVICES INC

Respondent

CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF COMMUNITIES

Intervenor

Discrimination law - Claim of discrimination on the grounds of religious conviction in the provision of services - Discrimination prohibited by s 62 of the Equal Opportunity Act 1984 (WA) - Claim of indirect discrimination as defined in s 53(2) of the Equal Opportunity Act 1984 (WA) - Service alleged to be the assessment of an application for approval to foster children - Refusal to assess foster care application - Meaning of "services" in s 4(1) of Equal Opportunity Act 1984 (WA) - Whether refusal to progress application to assessment panel was a refusal to provide "services" - Whether applicant's views on sexual orientation and gender identity constitute a "religious conviction" - Whether refusal was "on the ground of" the applicants' religious conviction - Whether respondent imposed a requirement or condition on the applicants - Proper characterisation of the requirement or condition - Whether the applicants could comply with the imposed requirement or condition - Ascertainment of base group and comparator group - Whether the requirement and condition was not reasonable in the circumstances - Whether respondent could have made accommodations in light of the applicants' religious conviction – Whether employees of the respondent were officers of the Department or performing statutory functions - Whether Children and Community Services Act 2004 (WA) impliedly repeals relevant provisions of the Equal Opportunity Act 1984 (WA) - Whether there is an operational inconsistency between Children and Community Services Act 2004 (WA) and Equal Opportunity Act 1984 (WA) - Remedies to be awarded under s 127 of the Equal Opportunity Act 1984 (WA) - Damages - Orders to otherwise redress the discrimination

Legislation:

Act Amendment (Lesbian and Gay Law Reform) Act 2002 (WA)

Anti-Discrimination Act 1997 (NSW), s 4

Children and Community Services Act 2004 (WA), s 3, s 7, s 8, s 8(1)(a), s8(1)(g), s 8(2), s 9, s 15, s 15(1), s 15(1)(a), s 15(2), s 16, s 16(2), s 16(3), s16(4), s 16(6), s 18(4), s 18(5), s 19, s 21, s 21(1), s 21(1)(a), s 22(1), s 24(1), s 24(2), s 24(3), s 24(5), s 28(2), s 29, s 30, s 79(2)(a), s 79(2)(a)(ii), s 79(4), Pt 2, Pt 4, Div 3, Div 5

Children and Community Services Regulations 2006 (WA), reg 4, reg 4(1)(a)

Equal Opportunity Act 1984 (Vic)

Equal Opportunity Act 1984 (WA), s 3, s 4, s 4(1)(e), s 4(3), s 53, s 53(1), s 53(2), s 53(2)(a), s 62, s 83, s 89(1), s 89(2), s 90(1), s 90(2), s 107(3), s 123(b)(iii), s 127, s 127(b), s 127(b)(i)

Interpretation Act 1984 (WA), s 5, s 18, s 31

Public Sector Management Act 1994 (WA), s 3

State Administrative Tribunal Act 2004 (WA), s 32

Working with Children (Criminal Record Checking) Act 2004 (WA)

Result:

Complaint of discrimination in the provision of services substantiated

Damages of $3 000 awarded to each applicant

Order for amendment of notification to the Department's Foster Carer Directory made to provide redress for the discrimination

Category: B

Representation:

Counsel:

Solicitors:

Case(s) referred to in decision(s):

Adelaide Company of Jehovah's Witnesses Incorporated v Commonwealth [1943] HCA 12; (1943) 67 CLR 116

Airflite Pty Ltd v Goyal [2003] WASCA 45

Australian Iron & Steel Pty Ltd v Banovic & Ors [1989] HCA 56; (1989) 168 CLR

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268

Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120

Clarke v Catholic Education Office (2003) 76 ALD 84; 202 ALR 340; [2003] FCA 1085

Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745

Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78

Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Another (1995) 63 FCR 74 (Dopking No 2)

Director General, Department of Community Services v MM [2003] NSWSC 1241

Edoo and Minister for Health [2010] WASAT 74

Farah v Commissioner of Police of the Metropolis [1998] QB 65; [1997] 1 All ER 289

Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1

IW v The City of Perth and Ors [1997] HCA 30; (1997) 191 CLR 1

Jennings Industries Ltd v Commonwealth of Australia (1984) 57 ACTR 5; 69 FLR 189

Jordan v North Coast Area Health Service (No 2) [2005] NSWADT 258

Krysiak v Public Transport Authority [No 2] [2017] WASC 103

Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

NEAT Domestic Trading Pty Ltd v AWB Ltd and Another [2003] HCA 35, (2003) 216 CLR 277

Paff v Speed [1961] HCA 14; (1961) 105 CLR 549

Perth City and Ors v DL and Ors (1996) 90 LGERA 178

R (Williamson and Ors) v Secretary of State for Education and Employment and Ors [2005] UKHL 15

R v Turner [1975] QB 834

Rawcliffe v Northern Sydney Central Coast Area Health Service & Ors [2007] FMCA 931

Reserve Capital v Seascapes Supermarket WA Pty Ltd [2022] WASC 56

Richardson v Oracle Corporation Australia Pty Ltd and Another [2014] FCAFC 82; (2014) 223 FCR 334

Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770

Savjani v Inland Revenue Commissioners [1981] 1 QB 458

Secretary, Department of Foreign Affairs and Trade v Styles and Another [1989] FCA 342; (1989) 23 FCR 251

State of New South Wales v Amery (2003) 129 IR 300

Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1, 27

Waters and Ors v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

Table of Contents

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. The applicants, Mr and Mrs Hordyk, are members of the Free Reformed Church of Australia (FRCA), in its Baldivis congregation. In 2017, they decided they could assist the community by becoming foster parents. They wished to provide short­term, temporary or emergency foster care to children who were younger than five years of age, which was at that time the age of their eldest child.
2. The respondent, Wanslea Family Services Inc (Wanslea), is an incorporated, not-for-profit, association that contracts[1] with the State of Western Australia to arrange foster care for children who have been placed in the care of the Chief Executive Officer of the Department of Communities (CEO). Wanslea's role includes assessing and approving people who wish to provide foster care and finding foster care placements for children when asked to do so by the CEO. As Wanslea receives and assesses applications, it is required to provide information to the CEO who maintains a foster carer directory through the Department. Wanslea is contractually bound to approve only persons who meet certain competencies, which are known as the 'Carer Competencies'. Wanslea only approves foster carers it considers to be competent to provide a foster child with a physically and psychologically safe environment while in foster care.
3. The Hordyks applied to Wanslea for approval as foster carers. They were provided with access to information and training about fostering through Wanslea. Some of the training was in fact delivered by the Department for Child Protection and Family Support, which on 1 July 2017 was renamed the Department of Communities as part of an amalgamation between it and other government departments (the Department).
4. During the assessment process, the Hordyks revealed, in answer to specific questions asked of them, that they held the view that the Seventh Commandment in the Old Testament of the Bible requires sexual relationships to take place only between a man and woman who are married and that other expressions of human sexuality are sinful. The Hordyks believe that same-sex relationships are sinful and that people who feel same-sex attraction must fight the sin in order to live in conformity with the Commandments. They informed Wanslea that, as a result of their beliefs, in the event that a foster child who had been placed in their care was found kissing a child of the same sex at school, they would tell the child that they were loved but that the behaviour was sinful and needed to be resisted. The Hordyks said they would have to end the placement of a foster child who continued to behave in that way. They qualified that statement by saying that they would not terminate the placement immediately but could not foster that child in the long term.
5. Following the Hordyks' expression of those views, Wanslea's staff decided not to proceed to a final assessment of the Hordyks' application and instead terminated the assessment process (Wanslea's conduct). Wanslea notified the Department that the Hordyks 'withdrew prior to the Organisation Panel', which appears to be a reference to what was called the Assessment Panel by Wanslea throughout the proceeding. The reason given was 'assessed to not meet competencies'.[2]

The Parties' positions

The Hordyks' discrimination claim and remedies sought

6. The Hordyks have pursued this proceeding in the Tribunal under the Equal Opportunity Act 1984 (WA) (EO Act) in respect of Wanslea's conduct. The Hordyks complain that Wanslea indirectly discriminated against them on the grounds of their religious conviction by either refusing to provide them with services (in the nature of a foster care assessment), or in the terms and conditions on which Wanslea provided services to them, or in the manner in which they provided them with such services, and that in doing so, Wanslea was in breach of s 62 of EO Act.[3]
7. The Hordyks seek the following relief pursuant to s 127(b) of the EO Act:[4]
   1. an order that their complaint is substantiated;
   2. an order that Wanslea pay damages to each of them for hurt feelings and humiliation in an amount the Tribunal considers is appropriate to compensate them for those feelings. It was submitted that the sum of $3 000 each is both appropriate and consistent with analogous cases; and
   3. an order requiring Wanslea to correct its Notification Form within the Foster Carer Directory of Western Australia by deleting the words 'assessed to not meet competencies' and replacing them with the words 'application discontinued' as the notification of the outcome of the Hordyks' application.

Wanslea's position

8. Wanslea says that the Hordyks are not entitled to any relief. It submits:
   1. The EO Act does not apply to the assessment of foster care applicants because it has been repealed by the Children and Community Services Act 2004 (WA) (CCS Act), which regulates the provision of foster care in Western Australia.
   2. The assessment of a foster care applicant does not constitute a service for the purposes of the EO Act.
   3. If it does provide a service to a foster care applicant by assessing their application, the service is properly characterised as an assessment for competency. That service was provided to the Hordyks in a manner that was not discriminatory.
   4. It did not require the Hordyks to comply with any requirement or condition.
   5. If it did impose a requirement or condition, the requirement was a requirement that they demonstrate in respect of the care of children of all sexual orientations or gender identities.
   6. If it did impose a requirement or condition, the requirement or condition was reasonable having regard to the best interests of foster children, including children manifesting non-heterosexual sexual orientations and diverse gender identities.
   7. If it did impose a requirement or condition, it was not one with which the Hordyks could not comply because of their religious conviction. The rigidity they demonstrated in their proposed response to a child expressing homosexual attraction was not part of their religious conviction.

The Intervenor's position

9. On 17 November 2020, President Pritchard made an order granting the CEO leave to intervene in the proceeding for the purposes of making written and oral submissions in relation to the interpretation of s 62 of the EO Act, the precise construction of the alleged requirement or condition identified by the applicants for the purposes of s 53(2) of the EO Act, and the reasonableness of the requirement.
10. In summary, the Intervenor makes the following submissions:
    1. the assessment of foster care applications is not a service as that term is used in the EO Act; and
    2. the requirement of s 7 of the CCS Act, that the best interests of the child is the paramount consideration, is operationally inconsistent with s 62 of the EO Act, with the consequence that s 62 of the EO Act does not apply in this case.

Issues

11. Resolving the complaint requires us to determine the following issues:
    1. Was the assistance and training and the assessment of the Hordyks' application to be approved as foster carers the provision by Wanslea of a service to the Hordyks for the purposes of s 62 of the EO Act?
    2. What were the Hordyks' views with respect to sexual orientation and gender identity (SOGI) issues, and did those views constitute or reflect a religious conviction?
    3. Did Wanslea impose a requirement or condition on the Hordyks with which they would have to comply in order for their application to be approved? If so, what was the requirement or condition?
    4. Were the Hordyks able to comply with the requirement or condition? If not, was that because of their religious conviction?
    5. Were a substantially higher proportion of people who hold a different religious conviction from that of the Hordyks able to comply with the requirement or condition imposed by Wanslea?
    6. Was the condition or requirement imposed on the Hordyks by Wanslea reasonable or could Wanslea have made accommodations in light of the Hordyks' religious convictions?
    7. In so far as the EO Act prohibits conduct which discriminates against a person on the ground of their religious conviction in the provision of services, then, if that same conduct is in the best interests of a child, does the CCS Act impliedly repeal the EO Act to the extent of the inconsistency?
    8. Was there an operational inconsistency between the relevant provisions of the CCS Act and the EO Act in this case that result in the provisions of the EO Act being inoperative to the extent of that inconsistency?
    9. What relief (if any) should be ordered?

Outcome

12. For the reasons set out below, we have concluded that the Hordyks' complaint of discrimination in the provision of services on the grounds of their religious conviction has been substantiated. As a consequence of the loss and damage we find they suffered, we find that Wanslea should compensate the Hordyks with damages in the sum of $3 000 each. In order to redress the discrimination, we will also make an order that Wanslea provides an amended Notification Form to the Department's Foster Carer Directory reflecting that the Hordyks' application was discontinued.
13. Our conclusion that the Hordyks' complaint is substantiated depended on the specific facts of this case. Our findings are concerned with whether there was discrimination in the assessment process Wanslea adopted in relation to the Hordyks' application. They do not relate in any way to other parts of the process of arranging foster care placements for children.

Definitions of some terms used in the assessment process, in the hearing and in this decision

14. In the course of the assessment process and during the Tribunal's hearing, various expressions were used to refer to the Hordyks' beliefs, to refer to certain gender identities and sexual orientations and to describe what was said by the Hordyks to be the condition or requirement imposed upon them by Wanslea. We have set them out below because they have frequently been used throughout these reasons.
    • SOGI – sexual orientation and gender identity.
    • SOGI beliefs – the beliefs of an individual (in this case primarily the Hordyks) about issues related to sexual orientation and gender identity.
    • LGBTQ – lesbian, gay, bisexual, transgender and queer.
    • LBTQI – lesbian, gay, bisexual, transgender, queer and intersex.
    • LGBTQIA+ – lesbian, gay, transgender, queer, intersex, asexual and/or questioning. It is used as an umbrella term for all non-heteronormative identities.
    • Cisgender – a term for people whose gender identity generally matches the gender assigned for their physical sex.

Procedural history and jurisdiction of the Tribunal in relation to the complaint

15. Before turning to the facts we have found and the resolution of issues that arise in this case, it is appropriate to say something about the history of the proceedings and the nature of the Tribunal's jurisdiction in resolving it.
16. As required by the EO Act, the Hordyks originally brought their complaint before the Commissioner for Equal Opportunity (Commissioner) pursuant to s 83 of the EO Act. Their complaint was framed as both a complaint of discrimination on the grounds of religious conviction and political conviction. Pursuant to s 89(1) of the EO Act, the Commissioner dismissed the complaint of discrimination on the grounds of religious conviction on the basis that it was lacking in substance and dismissed the complaint of discrimination on the grounds of political conviction on the basis that it was both lacking in substance and misconceived.[5] The Commissioner notified the Hordyks of his reason for dismissing the complaint as required by s 89(2) of the EO Act and, in that notice, informed them of their right, under s 90(1) of the EO Act, to require the Commissioner to refer the complaint to the Tribunal.[6] The Hordyks gave the Commissioner notice that they required the complaint to be referred to the Tribunal and the Commissioner then referred the matter to the Tribunal in compliance with his obligation in s 90(2).[7]
17. When a complaint is referred to the Tribunal pursuant to s 90(2) of the EO Act, the Tribunal is then required by s 107(3) of the EO Act to 'hold an inquiry' into the complaint. As was said in Krysiak:[8]

The ordinary meaning of the word 'inquiry' is 'the action of seeking truth, knowledge, or information' concerning something; search, research, investigation, examination' and 'an investigation into a matter'. An 'inquiry' in this context thus does not involve a 'review' of any previous decision of a decision maker, but rather an examination of the allegation made in the complaint (namely, an allegation of discrimination contrary to the EO Act) (footnotes omitted).

18. In doing so, the Tribunal exercises its original jurisdiction in determining the complaint.[9] In conducting its inquiry, the Tribunal is not bound by the rules of evidence, may inform itself on any matter as it thinks fit and must act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms.[10]
19. In the proceeding in the Tribunal, the Hordyks did not persist with the allegation of discrimination on the basis of political conviction and the inquiry which we conducted concerned only an allegation of indirect discrimination in the provision of services on the grounds of the Hordyks' religious conviction.

Onus and standard of proof

20. The Hordyks bear the onus of proof of all matters necessary to establish their complaint. In determining the complaint, the standard which we must apply is the balance of probabilities but because allegations of discrimination are serious matters, bearing in mind the observations made by the High Court in Briginshaw,[11] we must feel an actual persuasion that the discrimination alleged in fact occurred in order to find the complaint substantiated.[12]

The legislative framework relevant to the complaint and Wanslea's conduct

21. We next set out the relevant portions of the EO Act and the CCS Act, which governed the assessment of individuals seeking to be foster carers and the placement of children in need of foster care with approved foster carers as they applied at the time the Hordyks' application was being considered by Wanslea.

The EO Act

22. The long title to the EO Act is:

An Act to promote equality of opportunity in Western Australia and to provide remedies in respect of discrimination on the grounds of sex, marital status, pregnancy, sexual orientation, family responsibility or family status, race, religious or political conviction, impairment, age or publication of details on the Fines Enforcement Registrar's website, or involving sexual or racial harassment or, in certain cases, on gender history grounds.

23. The objects of the EO Act are set out in s 3 of the EO Act. Importantly for present purposes, the objects include the following:
    1. to eliminate, so far as possible, discrimination against persons on the ground of sex, marital status or pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age, publication of relevant details on the Fines Enforcement Registrar's website or, in certain cases, gender history in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs (s 3 object (a)); and
    2. to promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages (s 3 object (d)).
24. As we have said, in this case, the Hordyks complain that they suffered discrimination on the basis of their religious conviction in the way in which Wanslea provided them with services.
25. The term 'service' is defined in s 4 of the EO Act as follows:

services includes —

(a) services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; and

(b) services relating to entertainment, recreation or refreshment; and

(c) services relating to transport or travel; and

(d) services of the kind provided by members of any profession or trade; and

(e) services of the kind provided by a government (other than the assessment of an application for suitability for adoptive parenthood, or the placement of a child for adoption or with a view to the child's adoption, under the Adoption Act 1994), a government or public authority or a local government body.

26. Discrimination in the provision of services on the grounds of religious conviction which is alleged by the Hordyks is made unlawful by s 62 of the EO Act. That section provides:

Goods, services and facilities

It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's religious or political conviction —

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

27. Section 53 of the EO Act sets out that which constitutes discrimination on the ground of religious conviction (and political conviction). That section provides as follows:

Discrimination on ground of religious or political conviction

(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of religious or political conviction if, on the ground of —

(a) the religious or political conviction of the aggrieved person; or

(b) a characteristic that appertains generally to persons of the religious or political conviction of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the religious or political conviction of the aggrieved person, the discriminator treats the aggrieved person less favourably than in the same circumstances or in circumstances that are not materially different, the discriminator treats or would treat a person of a different religious or political conviction.

(2) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of religious or political conviction if the discriminator requires the aggrieved person to comply with a requirement or condition —

(a) with which a substantially higher proportion of persons who are of a different religious or political conviction comply or are able to comply; and

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.

28. Discrimination of the kind referred to in s 53(1) is known as 'direct discrimination'. Discrimination of the kind referred to in s 53(2) is known as 'indirect discrimination'. The term 'person' as used in the EO Act includes an association or body of persons, whether corporate or unincorporate.[13] The term 'person' thus is capable of encompassing an incorporated association such as Wanslea.

The CCS Act

29. Foster care in this State is governed by the CCS Act.[14] There are several types of arrangements for the care of children needing care. In this case, we are concerned only with what is known as 'general foster care' and which we will call 'foster care' throughout our judgment. Foster care involves children in need of care being placed with an approved foster carer or carers to live in a family-like arrangement with the foster carer or carers.[15] Only children who are in 'provisional protection and care', or in respect of whom a protection order (time limited) or a protection order (until 18) has been made under Pt 4, Div 3 of the CCS Act can be placed in foster care. Protection orders can be made only for children who are found to be in need of protection. Where a child is in 'provisional care and protection' or is the subject of a protection order (time limited) or a protection order (until 18), the child is in the CEO's care.[16]
30. Definitions of terms used in the CCS Act are set out in s 3 of the CCS Act. Relevantly, they include the following:

child means a person who is under 18 years of age, and the absence of positive evidence as to age, means a person who is apparently under 18 years of age.

carer means a person who provides care for a child under a placement arrangement.

CEO means the chief executive officer of the Department.

Department means the department of the public service principally assisting the Minister in the administration of this Act.

harm, in relation to a child, includes harm to the child's physical, emotional or psychological development.

in the CEO's care has the meaning given to that term in section 30.

placement arrangement means an arrangement under section 79(2) for the placement of a child.

service provider means a person who-

(a) provides or promotes social services; or

(b) conducts research and development

under an agreement referred to in section 15(1).

social services means services provided to assist children, other individuals, families, and communities including, but not limited to, the following services —

(a) preventative services;

(b) protective services;

(c) placement services;

(d) child care services;

(e) information and advisory services;

(f) education and training services;

(g) counselling services;

(h) therapeutic services;

(i) advocacy services;

(j) mediation services;

(k) crisis services;

(l) family violence services;

(m) support services.

wellbeing, of a child, includes the following-

(a) the care of the child;

(b) the physical, emotional, psychological and educational development of the child;

(c) the physical, emotional and psychological health of the child;

(d) the safety of the child.

31. Section 7 of the CCS Act is of central importance in the legislative framework established by the CCS Act. It provides:

In performing a function or exercising a power under this Act in relation to a child, a person, the Court or the State Administrative Tribunal must regard the best interests of the child as the paramount consideration.

32. Section 8 then sets out the matters that must be taken into account in determining what is in a child's best interests for the purposes of the CCS Act. Those matters include, among other things, the following:
    1. the need to protect the child from harm;[17]
    2. the importance of continuity and stability in the child's living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from parents, siblings, carers and others who are significant in the child's life;[18]
    3. the need to maintain contact with the child's parents' siblings and other people who are significant in the child's life;[19]
    4. the child's age, maturity, sex, sexuality, background and language;[20]
    5. the child's cultural, ethnic or religious identity;[21]
    6. the child's physical, emotional, intellectual, spiritual and developmental needs.[22]
33. Section 8(2) of the CCS Act provides that the matters identified in s 8(1) do not limit the matters that may be taken into account in determining what is in the child's best interests.
34. Section 9 of the CCS Act provides:

In the administration of this Act, the following principles must be observed:

(a) the principle that the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing;

(b) the principle that the preferred way of safeguarding and promoting a child's wellbeing is to support the child's parents, family and community in the care of the child;

(c) the principle that every child should be cared for and protected from harm;

(d) the principle that every child should live in an environment free from violence;

(e) the principle that every child should have stable, secure and safe relationships and living arrangements;

(f) the principle that intervention action (as defined in section 32(2)) should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing;

(g) the principle that if a child is removed from the child's family then, so far as is consistent with the child's best interests, the child should be given encouragement and support in maintaining contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;

(ha) the principle that if a child is removed from the child's family then, so far as is consistent with the child's best interests, planning for the child's care should occur as soon as possible in order to ensure long-term stability for the child;

(h) the principle that decisions about a child should be made promptly having regard to the age, characteristics, circumstances and needs of the child;

(ia) the principle that decisions about a child with disability should be made giving special consideration to any difficulties or discrimination that may be encountered by the child because of the child's disability and should support the child's full and effective participation in society;

(i) the principle that decisions about a child should be consistent with cultural, ethnic and religious values and traditions relevant to the child;

(j) the principle that a child's parents and any other people who are significant in the child's life should be given an opportunity and assistance to participate in decision-making processes under this Act that are likely to have a significant impact on the child's life;

(k) the principle that a child's parents and any other people who are significant in the child's life should be given adequate information in a manner and language that they can understand, about —

(i) decision-making processes under this Act that are likely to have a significant impact on the child's life; and

(ii) the outcome of any decision about the child, including an explanation of the reasons for the decision; and

(iii) any relevant complaint or review procedures;

(l) the principle set out in section 10(1).

35. Section 15(1)(a) of the CCS Act provides that the Minister may, on behalf of the State, enter into an agreement with a person for the provision or promotion of social services by that person. Section 15(2) provides that an agreement made under s 15(1) may contain any provision that the Minister considers appropriate.
36. Section 16 provides that the Minister may delegate to the CEO, any power or duty of the Minister under the CCS Act. The delegation must be in writing and signed by the Minister.[23] The Minister's delegation may expressly authorise the CEO to further delegate the power or duty.[24] Section 16(6) provides that nothing in s 15 limits the ability of the Minister to perform a function through an officer or agent.
37. Section 16(2) provides that powers and duties that may be delegated include any power to be exercised or duty to be performed in the course of governing the affairs of the Children and Community Services Ministerial Body under s 18(4). The Children and Community Services Ministerial Body is a body corporate with perpetual succession,[25] is governed by the Minister,[26] and is an agent of the State with the status, immunities and privileges of the State.[27] Section 19 provides that the purpose of the Ministerial Body is to provide a body corporate though which the Minister can perform any of the Minister's functions under or for the purposes of the CCS Act that can be more conveniently performed by a body corporate than an individual.
38. The CEO's functions are set out in s 21 of the CCS Act. They include considering, initiating or assisting in the provision of social services to children, other individuals, families and communities.[28]
39. Section 22(1) provides that in performing functions under the CCS Act, the CEO must endeavour to work in cooperation with public authorities, non-government agencies and service providers.
40. Section 24(1) of the CCS Act provides that the CEO may delegate to an officer, a service provider, or another person any power or duty of the CEO under another provision of the CCS Act. Section 24(2) requires a delegation made under s 24(1) to be in writing. Section 24(3) empowers the CEO to permit the delegate to sub-delegate the power or duty. Section 24(5) provides that the power to delegate does not limit the ability of the CEO to perform a function through an officer or agent.
41. Part 4, Div 5, Subdivision 2 of the CCS Act deals with the making by the CEO of placement arrangements (other than in a secure care facility) for children in the CEO's care. Section 79(2)(a) of the CCS Act provides that the CEO may make an arrangement for the placement of a child:

(i) with an individual approved by the CEO in accordance with the regulations; or

(ii) with a person who has entered into an agreement under s 15(1) for the provision of placement services; or

(iii) in a residential facility operated or managed by the Department or another public authority.

42. Section 79(4) provides that the regulations may make provision for and in relation to the approval of individuals for the purposes of subsection (2)(a)(i).

The Children and Community Services Regulations 2006 (WA) and the Carer Competencies

43. The Children and Community Services Regulations 2006 (WA) (Regulations) were made under the CCS Act.
44. Regulation 4 provides as follows:

Approval of carers (Act s 79(2)(a)(i))

(1) The CEO may approve an individual for the purposes of section 79(2)(a)(i) if —

(a) the CEO is satisfied that the individual —

(i) is able to provide care for a child in a way that promotes the wellbeing of the child, promotes the child's family and interpersonal relationships, and protects the child from harm; and

(ii) is able to provide a safe living environment for a child; and

(iii) is able to work cooperatively with officers, a child's family and other people when providing care for a child; and

(iv) is able to take responsibility for the development of his or her competency and skills as a carer; and

(v) is a person of good character and repute;

and

(b) a negative notice or an interim negative notice has not been issued to the individual under the Working with Children (Criminal Record Checking) Act 2004.

(2) The CEO may, subject to subregulation (3), revoke an approval under subregulation (1) if —

(a) the CEO can no longer be satisfied as to a matter referred to in subregulation (1)(a) in relation to the individual; or

(b) a negative notice or interim negative notice has been issued to the individual under the Working with Children (Criminal Record Checking) Act 2004; or

(c) there are reasonable grounds for believing that the approval was obtained improperly.

(3) Before revoking the approval the CEO must —

(a) give a written notice to the individual —

(i) stating the reasons for the proposed revocation; and

(ii) informing the individual that the individual is entitled to make representations to the CEO in respect of the proposed revocation within 28 days after receipt of the notice;

and

(b) have regard to any representations made within the period referred to in paragraph (a)(ii).

45. The five matters in reg 4(1)(a)(i) to 4(1)(a)(v), of which the CEO must be satisfied in order to approve an individual as a foster carer, are commonly known as, were referred to by the parties and witnesses as, and are referred to in the remainder of the judgment as 'the Carer Competencies'.

Findings relating to witnesses' evidence

46. Before dealing with the facts, we make the following observations in relation to the lay witnesses who gave evidence.

The Hordyks

47. Mr and Mrs Hordyk gave evidence. We found both Mr and Mrs Hordyk to be honest witnesses. They answered questions asked of them thoughtfully and without exaggeration. In relation to matters concerning their interaction with Wanslea, their evidence, and in particular the evidence given by Mrs Hordyk, was consistent with Wanslea's records and with the evidence given by Wanslea's officers.

Wanslea's lay witnesses

48. The following current or former employees of Wanslea gave evidence in this proceeding. They were either directly involved in some aspect of the Hordyks' foster care application or had an administrative role at Wanslea:
    • Madeline McLeod. Ms McLeod holds a Bachelor of Social Work and a Bachelor of Arts from the University of Western Australia and a Certificate in Drug and Alcohol Counselling. She was employed by Wanslea between February 2013 and November 2019. During that time she held the roles of Social Worker, Senior Social Worker and Coordinator. She acted in the role of Operations Manager from time to time.
    • Charlotte Cain. Ms Cain holds a Masters in Social Work which she obtained in England. She also holds a Bachelor of Arts (Honours). She came to Australia in 2007 and worked at Wanslea from July 2007 to June 2020.
    • Stephen Lund. Dr Lund holds a Doctor of Philosophy in Social Work and Social Policy and a Bachelor of Social Work. In addition to some lecturing and research, since June 2019, he has run a private consultancy business through which he provides consultancy services to organisations within the community services sector including the assessment of foster care applications. Between July 2008 and July 2009, he worked as the Manager of the Out of Home Care and Specialist Services teams at Wanslea and between July 2009 and June 2019 he held the position of Executive Manager of Out of Home Care at Wanslea.
    • Christine Lindahl. Ms Lindahl holds a Bachelor of Social Work which she obtained in Norway. Between 2009 and 2010, she worked as a Social Worker for the Department for Child Protection in Norway. She moved to Australia in 2011. She began working for Wanslea in April 2017. In August 2002, she was promoted to Operations Manager. In 2020, she was also acting in the role of General Manager. While employed by Wanslea, before being appointed to the position of Operations Manager she worked in the roles of Social Worker, Senior Social Worker and Acting Coordinator for various periods of time.
    • Kay Symes. Ms Symes holds a Bachelor of Social Work and Social Work Bicultural Practice. She also holds Diplomas in Adult Education, Social Work and Community Work. Ms Symes moved from New Zealand to Australia in August 2013. She worked in various roles in the social work and welfare sector in Australia before joining Wanslea in April 2015. While there she held the roles of Social Worker and Senior Social Worker. She left employment at Wanslea in October 2019.
    • Patricia Murray. Ms Murray is the Chief Executive Officer of Wanslea. She was appointed to that position in 2004. She has worked in organisations involved in the provision of social services for over 40 years. She was awarded an Order of Australia in 2020 for her significant services to the community through social welfare organisations.[29]
49. We accept the evidence of the Wanslea witnesses about their respective roles, experience and qualifications, the concerns they have for children needing foster care and the process adopted by them in assessing foster carer applicants. However, we did have concerns about some aspects of the evidence given by Wanslea's lay witnesses. Where we had concerns about aspects of Wanslea's witnesses' evidence, and where it is relevant to determining a fact in issue in this proceeding, we have referred to it when we deal with the particular evidence in these reasons.
50. In particular, we were left with the impression that Ms Murray's evidence was avoidant, defensive and crafted to cast events and decisions in the most favourable light for Wanslea. For example, rather than agreeing in cross-examination with what we regard to be an obvious proposition that she could see a connection between the Hordyks' SOGI beliefs and their religion, she repeatedly stated that such a connection might be 'inferred'.[30] We found her refusal to accept that Wanslea was able to approve as a foster carer someone who could not care for children of every age between 0 - 18 years despite having done so in the case of foster carers who smoke, to be an example of disingenuous evidence which we found was given with the intention of painting Wanslea's decision in its most favourable light. We also found Ms Murray to have endeavoured to avoid answering questions asked in cross-examination the answers to which she appeared to anticipate would not assist Wanslea's case.[31] For those reasons we are cautious about accepting any of her evidence about Wanslea's views about LGBTQI+ issues, and their reasons for refusing to progress the Hordyks' application to the Assessment Panel and the way in which Wanslea assesses applicants.

The expert evidence and the weight to be given to it

51. The parties relied on expert evidence in relation to particular aspects of their cases, namely evidence from Dr Kenny, Dr Durie, Dr Bredenhof, Dr Hughes and Dr Moore.
52. Wanslea submitted that we should give either little or no weight to much of the evidence in the expert reports of the following witnesses which were received as evidence in this proceeding:
    • Dr Kenny – whose evidence the Hordyks rely upon to demonstrate that the requirement or condition was neither reasonable or necessary;[32]
    • Dr Durie – whose evidence the Hordyks rely on to establish that their religious convictions on SOGI matters are consistent with the teachings of the FRCA;[33]
    • Dr Bredenhof – who is relied upon by the Hordyks to establish that their religious convictions on SOGI matters are consistent with the teachings of the FRCA;[34] and
    • Dr Hughes – who is relied upon to establish that the requirement or condition imposed by Wanslea was one with which a substantially higher proportion of persons who do not hold the same religious conviction are able to comply.[35]
53. Wanslea submits that we should adopt the reasoning of Heydon JA in Makita (Australia) Pty Ltd v Sprowles[36] (Makita) on questions of weight and that no, or little, weight should be given to the evidence of those witnesses having regard to the principles articulated in that case.
54. In Makita, Heydon JA said that for expert evidence to be admissible or given full weight it must:[37]
    1. be demonstrated that there is a field of specialised knowledge;
    2. be an identified aspect of that field of knowledge in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert;
    3. be wholly or substantially based upon the witness' expert knowledge;
    4. so far as the opinion is based on facts 'observed' by the witness, be identified and admissibly proved by the expert;
    5. so far as the opinion is based on assumed or accepted facts, be identified and provided by some other means;
    6. be established that there is a proper factual foundation for the opinion; and
    7. involve a demonstration of examination of the scientific or other intellectual bases for the conclusion reached. That is, the expert's evidence must explain how the field of specialised knowledge in which the witness is an expert by reason of training, study or experience and upon which the opinion is wholly or substantially based applied to the facts observed or assumed so as to produce the opinion expressed.
55. In that case, his Honour concluded that to the extent that the evidence is not clear in these material respects, it should be given less or no weight and that where an expert has the underlying facts wrong or has taken into account irrelevant facts or failed to consider relevant facts, the opinion may be valueless.[38]
56. The Hordyks reject the application of the principles derived from Makita in these proceedings. They note that the Tribunal, by s 32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), is not bound by the rules of evidence, can inform itself in any way it sees fit and is to act in accordance with equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms and submit the Makita is therefore not apposite in Tribunal proceedings.
57. While s 32 of the SAT Act does allow the Tribunal to rely on evidence which would be inadmissible in proceedings where the rules of evidence apply, we consider that it is appropriate to adhere closely to the principles that would apply in courts in relation to the admissibility of expert opinion evidence.
58. We respectfully adopt the following summary of the principles concerning the admissibility of expert evidence recently set out by Smith J in Reserve Capital v Seascapes Supermarket WA Pty Ltd:[39]

The learned author of Cross on Evidence summarises the following conditions for the admissibility of expert opinion evidence. These are, first, it must be demonstrated that there is a field of specialised knowledge. Second, there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert. Third, it must be demonstrated that the opinion proffered is wholly or substantially based on the witness' expert knowledge. Fourth, the expert must identify the assumptions of primary fact on which the opinion is offered (assumption identification rule). Fifth, the opinion is not admissible unless evidence has been, or will be, admitted, whether from an expert or from some other source, which is capable of supporting the findings of primary fact (basis rule). Sixth, there must be a demonstration that the facts on which the opinion is based form a proper foundation for it (proof of assumption rule). Seventh, the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached (statement of reasoning rule).

As to the first, second and third conditions of admissibility, the Court of Appeal in Liyanage v The State of Western Australia summarised the circumstances in which expert opinion evidence will be admissible in a criminal trial:

...

An affirmative answer must be given to at least the following four questions before 'expert' opinion evidence on a scientific subject matter will be admissible:

1. Is the opinion relevant; ie could the evidence rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding?
2. Is a person of ordinary experience unable to form a sound judgement on the subject matter without the assistance of an 'expert' witness with special knowledge or experience in the area?
3. Is the subject matter part of a body of knowledge or experience that is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience?
4. Has the witness acquired, by study or experience, sufficient knowledge of the subject to render her opinion of value in resolving the issues before the Court?

The principles in Liyanage v The State of Western Australia also apply to the admissibility of expert opinion evidence in civil proceedings.

59. Unless those matters are satisfied, the evidence of an expert is not helpful to the Tribunal's determination of the complaint.
60. We explain our application of those tests in relation to the experts' reports as we discuss them below. In summary, we have found that each expert who gave evidence in this proceeding was qualified to express the opinions given in their evidence. They all indicated that they had read the Tribunal's Guide for Experts Giving Evidence Information Sheet 11 and understood their duties to the Tribunal in doing so. The weight we give the evidence of the experts called by the Hordyks was not diminished by any of the objections raised by Wanslea. Where we rely upon the evidence of a particular expert or experts we refer to that evidence in these reasons.

Factual findings

61. For the most part, the factual background to this matter was not in dispute. The findings of fact which we make were largely unchallenged. To the extent that there was a factual dispute we explain our reasons for particular findings as we make those findings below.

Wanslea

62. Wanslea is a not-for-profit incorporated association. It was established in 1943. It is a non-denominational organisation with a mission to 'promote community, family and individual development through partnerships and services'.[40] It operates in the Perth Metropolitan area, the Bindjareb, the Great Southern and the Goldfields regions of Western Australia, in the Northern Territory and Tasmania.[41] The services provided by Wanslea include family support, out of home care which includes foster care, community capacity building and childcare.[42]
63. Wanslea has provided services to the Department of Communities (or its predecessors) for over 20 years. It currently provides foster care services within Western Australia under service agreements that it has entered into with the CEO in whose care all foster children are placed under the CCS Act.[43]

The Service Agreement and the service standards

64. As we have set out above, s 15(1) of the CCS Act authorises the Minister to enter into agreements with persons for the provision or promotion of social services, which are defined in s 3 of the CCS Act to include 'placement services'.
65. At the relevant time, Wanslea was a party to a Service Agreement CPSFS 2012/30872 (Service Agreement).[44] Wanslea was known as the Service Provider under that Service Agreement. Because it governed Wanslea's obligations to the State and is relevant to the way in which Wanslea assessed the Hordyks' application, it is important that we set out in quite some detail the relevant parties to, and provisions of, the Service Agreement.
66. The letter, dated 26 August 2013 by which the Department accepted Wanslea's offer for the provision of foster care services and which enclosed the Service Agreement states that the Department for Child Protection and Family Support is the other contracting party, to be known in the Service Agreement as the 'State Party'.[45] In contrast, Part B of the Service Agreement itself refers to the 'State Party' as the 'Children and Community Services Ministerial Body through the Department for Child Protection'.[46] The letter by which the Department is said to have accepted Wanslea's offer to provide the services set out in the Service Agreement was executed by the Executive Director, Service Standards and Contracting Directorate.[47] We have no evidence of any delegation from the Minister to the CEO authorising a further delegation to the Executive Director, Service Standards and Contracting Directorate which applied at the relevant time. Nevertheless, the validity of the Service Agreement was not in issue in the proceeding. In the circumstances, we find that the Service Agreement, being an agreement of the kind provided for in s 15 of the CCS Act, is an agreement either with the Minister (via a delegate) or the Ministerial Body Corporate (via a delegate). We come to that conclusion because the Department, not being a legal entity, has no capacity to contract, whereas and the Minister either personally or via the Ministerial Body Corporate continued under s 18(1) of the CCS Act as the 'Children and Community Services Body Corporate' have the power to enter into agreement for the provision of social services, pursuant to s 15 and s 19 of the CCS Act (including by delegates authorised under s 16 or s 24 of the CCS Act).
67. The Service Agreement is expressed to be an agreement for the provision to the State Party of the Wanslea Foster Care Service for a period of two years and nine months from 1 October 2013 to 30 June 2016.[48] The Service Agreement incorporates the General Provisions for the Purchase of Community Services by Public Authorities - February 2012 Edition.[49]
68. The terms of the Service Agreement made provision for its extension beyond the specified term.[50] On 16 December 2016, the Department's Executive Director, Service Standards and Contracting Directorate wrote to Wanslea's Chairperson informing Wanslea that the Service Agreement was extended to 31 December 2017.[51]
69. Part C of the Service Agreement sets out the services which are to be provided by Wanslea pursuant to the Service Agreement.[52] They are variously referred to as 'foster care services' and 'general foster care services'.
70. Clauses 2 and 3 of Part C of the Service Agreement provide as follows:
    2. STATEMENT OF REQUIREMENTS

General Foster Care Services are a key element of a range of placement services available to meet the needs of children and young people in the care of the CEO. The services operate in a way that is complementary to and integrated with the provision of other out-of-home care services.

General Foster Care Services provide children and young people aged 0 to 17 years with accommodation, nurturing and support to meet their individual needs, including cultural and spiritual, in the homes of approved and registered foster families. Foster carers have met screening and selection criteria and attained minimum competencies. Where possible a foster carer will have a child or young person or sibling group from only one family placed with them at any one time.

General Foster Care Services are responsible for the recruitment and assessment of foster carers, ongoing support and training of foster carers and identifying foster carers that best meet the needs of the children and young people referred by the Department. All foster carers' details will be placed on the Department's Foster Carer Directory. Any changes to foster carer details or approval and details of completed annual carer reviews will be reported to the Custodian as per the Protocols for the Foster Carer Directory of Western Australia.

2.1 SERVICE SPECIFIC OUTCOMES

The service will achieve the following outcomes:

• Children and young people receive a safe, secure and stable placement.
• Carers are recruited and appropriately trained, assessed and supported to provide quality placements.
• Children and young people have improved outcomes against Dimensions of Wellbeing.

3. SPECIFICATIONS

3.1 PURCHASING CONTEXT

The service contributes to the achievement of the Department's desired outcome that children and young people in the CEO's care receive a high quality of care and have much improved life chances and falls within the service delivery area of supporting children and young people in the CEO's care. This service is part of the Placement service group.

3.2 SERVICE MODEL

General Foster Care service will ensure children and young people are cared for in a stable, secure home environment where their social, and emotional and psychological, physical and developmental needs are met in accordance with the Service Standards (refer to Schedule B1 Quality Standards).

General Foster Care services will have the capacity to meet the needs of children and young people in their care and will deliver services that encompass:

Routine daily care, supervision and guidance provided by live-in foster carers using professionally designed interventions with support from specialist staff to address the child's emotional or behavioural needs;

...

provision and/or arrangement of education, life skills, health, cultural and spiritual, and recreational needs of children in accordance with the child's age, development needs and interests as per the Care Plan;

...

provision of training, support and respite care for live -in foster carers.

71. Under the heading '3.3 Key Elements' are the following relevant matters:[53]

Activities/Strategies:

...

• ensure services are provided or arranged for the education, health, cultural and spiritual and recreational needs of children and young people in accordance with their age, developmental needs and interests.

Referral to Foster Care Services:

Referral to Foster Care service is made via the Department for Child Protection Central Referral Team. The Service Provider will undertake an assessment and a process of matching the child or young person to an appropriate carer.

As part of the entry and matching process, the Department's Child Information Form (CIF) referral document is forwarded to the Service Provider. The form provides information on the reasons for referral and significant others' contact details, Department contacts and information relating to the child or young person's specific needs as per the Care Plan. The Service Provider can seek additional information to assist with the assessment and matching process.

The Service Provider will provide an outline of the carers, the type of care environment and any other relevant information to the child or young person, depending on their age and understanding, to assist in preparing them for entry to the placement.'

72. Clause 4 of the Service Agreement is headed 'Outcome Indicator Reporting'.[54] Clause 4.1 is headed 'Outcome/Indicator Measures'.[55] Service Outcomes include that '[c]arers are recruited and appropriately trained, assessed and supported to provide quality placements'.[56] Against that outcome, the indicators or measures of success include the following:
    • Number of carers recruited and trained
    • Number of carers assessed/reassessed.
73. Clause 4.2 of the Service Agreement sets out the tools which will be used to report the extent to which service outcomes have been met. It provides that the Service Provider is required to participate in/provide the following:[57]
    • Department's Progress Report;
    • Individual Child Therapeutic Plans;
    • Dimensions of Wellbeing Reviews; and
    • Better Care Better Service Reporting (Self-Assessment Packages, Recording Templates and Questionnaires from young people).
74. The Service Agreement also sets out what Wanslea is expected to do vis a vis the children and young people who are to be placed in foster homes with foster carers following referral by the State Party to Wanslea under the Service Agreement. Those obligations include providing foster children with information about the foster family with whom they are to be placed in advance of placement with the family.
75. The Service Agreement also refers to Wanslea having established a recruitment committee to focus on the recruitment and retention of foster carers.[58] Under the heading, 'Foster Carer Assessment and Review', it refers to potential foster carers being assessed and approved and then inducted by a Social Worker and visited by a Family Support Worker who becomes the primary support person for the foster family. It also refers to the foster carer being contacted weekly and visited fortnightly, whether or not they have a foster child placed with them, for the purpose of building a trusting relationship between Wanslea and the foster family and to allow Wanslea to monitor the foster family's progress and the progress of any child placed in the foster family's care.[59] The Service Agreement also provides that when a child or young person is placed in the care of an approved foster carer, a Social Worker is allocated to the case. The Social Worker is then responsible for all of the planning and case work, including regular visits to the foster family and the child in care.[60]
76. In providing general foster care services, Wanslea is responsible for the recruitment and assessment of foster carers, providing ongoing support and training for foster carers and identifying foster carers who best meet the needs of children and young people referred to Wanslea by the Department.
77. All foster carers' details must be placed in the Department's Foster Carer Directory.[61] Any changes to foster carer details or approval and details of completed annual carer reviews must be reported to the Department in accordance with the rules set out in a document entitled the Protocols for the Foster Carer Directory of Western Australia, June 2011 (Protocols for the Foster Carer Directory).[62]
78. Under the heading, 'How the service will provide appropriate Out of Home Care placements for ... some children and young people with diverse sexuality' in the Service Agreement, the following statement is made:[63]

The foster carer pool within Wanslea Foster Care currently includes foster carers who identify as gay and lesbian as do members of the staff group. Wanslea has a range of staff who have experience in working with children and young people who are questioning their sexuality or have identified themselves as gay, lesbian, bisexual, transgender or with other diverse sexuality. The service is sensitive to young people regardless of their sexuality and staff are able to access in-house expert advice in this area or seek advice from external agencies such as the Freedom Centre, the Gay and Lesbian Counselling Service and other agencies that assist children and young people with issues around their sexuality. Part of the foster care assessment process prepares foster carers for fostering children from diverse sexual backgrounds and assessors will continue to be critical in the education process for those foster carers with little or no knowledge in this area. A range of literature is available at Wanslea's offices to assist staff to deal with this area of placement support.

79. Under the Service Agreement, Wanslea is required to provide general foster care services in accordance with the 2007 Better Care, Better Services: Standards for Children and Young People in Protection and Care (the 2007 Standards),[64] the DCP and Non-Government Placement Agencies – Protocol for Abuse in Care June 2009 (the Abuse in Care Protocol),[65] the Charter of Rights of Children and Young People in CEO's Care (Charter of Rights)[66] and the Protocols for the Foster Carer Directory[67].[68] These documents are known collectively as the Service Standards.
80. Wanslea submitted that at the time it was dealing with the Hordyks' application, it was also obliged to have regard to the Better Care, Better Service, Standards for Children and Young People in Protection and Care 2017 (2017 Standards), which ultimately replaced the 2007 Standards. Ms Cain's evidence which we accept is that the 2017 Standards were developed to reflect changing practices since the 2007 Standards were issued, as well as the demographic changes of children and young people in the Department's care.[69] They replaced the 2007 Standards on 31 December 2017.[70] We were told by Wanslea's counsel that Wanslea had started working to the standards by the time the Hordyks applied to become foster carers.[71] Wanslea submitted that it would have been irresponsible for it not to consider itself bound by the 2017 Standards at the time it dealt with the Hordyks' application because they knew at that time that they were to come into effect on 1 January 2018.[72] Irrespective of Wanslea's view, given that the 2017 Standards were not in effect at the time Wanslea was dealing with the Hordyks' application, we find that there was no legal requirement for the 2017 Standards to be applied and it is irrelevant to our determination of the proceeding.
81. In any event, the 2007 Standards required Wanslea to, among other things:
    1. ensure that children and young people in care have safe relationships and living arrangements by:

(a) assessing foster care applications to ensure their competency prior to commencing care of children and young people;

(b) reviewing the registration of foster carers every 12 months;

(c) providing a safe environment for children and young people, including emotional, psychological, physical and environmental safety, taking into consideration the age and specific needs of children;

2. effectively responding to the needs of children and young people in Wanslea's care by ensuring the bests interests of the child or young person is the paramount consideration;
3. ensuring that children, young people and their families participate in the planning and decisions on matters that impact their lives and future;
4. ensuring that children are raised in stable and secure environments where their emotional, psychological, and developmental needs are met;
5. being accountable; and
6. recruiting carers that are appropriate for their role and have skills consistent with the competencies in the Regulations.
82. Wanslea submitted that it did not have the ultimate authority in relation to who is approved as a foster carer because a foster care applicant must also obtain an assessment notice from the CEO under the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC (CRC) Act), a matter in respect of which Wanslea has no role. While a person cannot foster children in the absence of an assessment notice issued under the WWC (CRC) Act, the assessment by Wanslea of an application made to it is a separate process. If the assessment by Wanslea is a service (a matter which we will come to later in these reasons), in our view, it is no less so because a separate assessment must also be undertaken by the CEO under the WWC(CRC) Act before the individual can foster a child in the CEO's care.
83. Having reviewed the Service Agreement, we conclude, consistently with the submissions of the Intervenor on the point, that it is an agreement for the provision of placement services which encompasses the approval of foster carers. In our view, the recruitment and assessment of potential carers falls to Wanslea under the terms of the Service Agreement, albeit that Wanslea is contractually bound to assess suitability by reference to the Carer Competencies. This can be seen from the fact that the Service Agreement states that it is Wanslea's obligation to recruit and assess foster carers, from the fact that the Service Agreement provides that foster carer's details will be placed in the Department's Foster Carer Directory and makes no mention of Wanslea making a recommendation to the CEO to approve a potential foster carer, or reserving any right to the CEO to refuse to place the details of a person assessed by Wanslea on the Department's Foster Carer Directory. The CEO retains only a right not to place any child with a carer approved by Wanslea and placed on the Department's Foster Carer Directory but has no discretion in respect of persons who Wanslea does approve.
84. That interpretation of the Service Agreement is also consistent with s 79(2)(a) of the CCS Act. The CEO makes an arrangement with Wanslea to place a child with a carer approved by Wanslea in accordance with the Service Agreement entered into between the CEO and Wanslea under s 15(1) of the CCS Act for the provision of placement services.

The Department's Foster Carer Directory and the Protocols for the Foster Carer Directory

85. The Department's Foster Carer Directory is maintained by the Department. [73] Wanslea's evidence is that the purpose of the Department's Foster Carer Directory is to be to allow tracking of a person's history as a foster carer.[74] Although maintained by the Department, service providers (including Wanslea) are entitled to access the Foster Carer Directory, which was also said by Wanslea's witnesses to inform 'the assessment and screening of foster care applicants in Western Australia'.[75] Precisely how it does so was not explained in the evidence.
86. The Protocols for the Foster Carer Directory was one of the Service Standards with which Wanslea was required to comply under the Service Agreement.[76] The Protocols for the Foster Carer Directory specified the obligations of both the Department and Wanslea in respect of the information maintained in the Department's Foster Carer Directory.[77]
87. The Protocols for the Foster Carer Directory provide that a service provider may not make a placement arrangement with a person who is not listed in the Department's Foster Carer Directory as having been assessed and approved to care for children in the CEO's care.[78] That is, service providers such as Wanslea could only place a foster child in foster care with a person whose name appeared in the Department's Foster Carer Directory as an approved foster carer.
88. The Protocols for the Foster Carer Directory required Wanslea to provide to the Department, the personal details of foster care applicants and assessment outcomes.[79]
89. In the Protocols for the Foster Carer Directory, under the heading, 'Information Recorded on the Directory' is the following statement:[80]

The Directory[81] records the identifying approval details of foster care applicants, the outcome of their assessment and the categories of children for whom they are approved to care (our underlining).

90. Under the heading, 'Information to be notified to the Directory' is the following:[82]
    1. Assessment and approval

Stage One - Applicant information

Stage Two - Assessment outcome and information

Stage Three - Approval details

• Carer Type – general or specialised
• Type of Care – emergency, short term, long term and/or respite
• Capacity – how many children can be placed with the foster carer
• Age range of children to be placed with the foster carer
• Gender – female, male or both
• Disability – skills to care for children with complex behavioural, medical or mobility needs.

2. Change of details

Change of personal or household details

...

Change of approval details

• Any change in stage three approval details
• Change in the foster carer relationship, for example the approved couple separate or a single foster carer has new partner in the home
• Working with Children check screening renewal.

91. The Protocols for the Foster Carer Directory provided that, notwithstanding the approval of a foster carer by a service provider, the CEO retained the right not to place children with that carer.[83]

Other organisations also provide foster care services

92. Wanslea is not the only organisation that provides foster care services to the CEO under contract. The extract of the Department's Foster Carer Directory[84] identifies, under the heading 'Agency', Wanslea, AccordWest, Foundations Care Ltd, Key Assets WA, Lifestyle Solutions, Life Without Barriers, MacKillop Family Services, MercyCare, Parkerville Children and Youth Care Inc and Yorganop Associations Inc as organisations providing general foster care services. In addition to foster care being arranged with the assistance of organisations such as Wanslea, individuals seeking to be approved as foster carers may apply directly to the Department and foster care placements can be, and are, arranged directly by the CEO or his delegates at the Department of Communities under the CCS Act.[85]

Mrs Keira Hordyk

93. Mrs Hordyk was born on 24 March 1988. She married her husband, Byron, on 2 October 2010. At the time Mrs Hordyk gave evidence, she and Mr Hordyk had three children, although she was pregnant with her fourth child at the time. Mrs Hordyk is a stay­at­home mother.[86]
94. Mrs Hordyk is a member of the Free Reformed Church. She was raised in the Free Reformed Church. Her father has always been a member of the Free Reformed Church although her mother has not always been a member. Mrs Hordyk was baptised in the Free Reformed Church at two years of age. She was not entitled to be baptised earlier because the church does not permit the baptism of a child whose parent has not yet made their own profession of faith. Her father made his profession of faith when she was two-years-old and she was subsequently baptised.[87]
95. Mrs Hordyk made her own profession of faith at 18 years of age. In order to do so, she had first to complete instruction classes for five years.[88]
96. Mrs Hordyk has attended various Free Reformed Churches throughout her life. When she and her husband moved to Baldivis in 2015, they began attending the Free Reformed Church in Baldivis (the Church). Mrs Hordyk and her husband endeavour to attend church twice every Sunday, however, because her children are very young, she sometimes is only able to attend once per Sunday because from time to time she stays home to provide care for her children.[89]
97. Mrs Hordyk's life is very centred around the Church. In addition to the Sunday attendances, Mrs Hordyk's Mothers' Group is run through the Church, her exercise class is run through the Church, she attends prayer groups for women that are run through the Church and her social network is almost entirely comprised of members of the Church. She prays daily with her children.
98. Mrs Hordyk believes that the Free Reformed Church teaches that:[90]
    1. God created man and subsequently created woman to be a helper and companion for man;
    2. men and women are built differently and have different roles;
    3. women are uniquely made to love and care for children in ways that are different from men;
    4. God wants his people to live either as single people or in faithful relationships in marriage;
    5. homosexuality is wrong and sinful and against the word of God;
    6. 'a girl is a girl and a boy is a boy and that is how God has created us'.[91]
    7. being transgender is sinful;
    8. any sex outside of marriage is a sin and breaks God's Seventh Commandment which is the commandment not to commit adultery; and
    9. acting on feelings of homosexuality and transgenderism is a form of adultery.
99. Mrs Hordyk's evidence is that issues of homosexuality and other sexuality issues come up in preaching at the Church three or four times per year.[92]
100. Mrs Hordyk believes, in accordance with her understanding of the Free Reformed Church's teaching, that no matter what a person feels and desires, God calls on a person not to act on 'bad' desires because true happiness is found in serving God either as a single, celibate person or living faithfully in marriage.[93] Mrs Hordyk's belief is that a same-sex attraction is a real feeling but that a person experiencing those feelings must fight against them as they must with any other sinful feeling, must not act upon the same sex attraction and should pray to God for help to live a life free from the grip of such sin.[94]
101. Mrs Hordyk's evidence was that transgender issues are not preached about much at the Free Reformed Church. She believes this is because it is not really an issue confronted by members of the Free Reformed Church.[95]
102. Mrs Hordyk believes that she serves God from the moment she wakes until the moment she sleeps, and she tries to live her life in accordance with the Church's teaching. She doesn't believe that she can separate her religious views from her actions.[96]
103. Mrs Hordyk's evidence is that she felt 'gutted' and 'devastated' after Wanslea notified her 'of the fact that they were unsuccessful'.[97] She also gave evidence that she was devastated to have been rejected and 'deemed not fit to be foster carers because of their religious beliefs'.[98]

Mr Byron Hordyk

104. At the time of giving evidence, Mr Hordyk was 36 years of age. He is a self-employed carpenter.[99]
105. Mr Hordyk married Keira Hordyk in 2010.[100]
106. Like his wife, Mr Hordyk was raised in the Free Reformed Church. His parents had joined the Free Reformed Church after immigrating to Australia from Holland before he was born. He was baptised in and attended the Free Reformed Church in Kelmscott until 1998. In 1998, his family moved to Southern River and he attended the Free Reformed Church in Southern River with his parents until 2008. In 2008, he moved to Byford and began to attend the Free Reformed Church in Byford. From 2010 until 2015, Mr Hordyk and his wife attended the Free Reformed Church in Southern River. Since 2015 they have attended the church. He attends two services every Sunday, together with his two eldest children.[101]
107. Mr Hordyk made his profession of faith at 19 years of age. Upon making that profession, he became a professing member of the Free Reformed Church in Southern River.[102]
108. Mr and Mrs Hordyk have baptised their children in the Free Reformed Church, and their children attend the Church with them.[103]
109. Mr Hordyk's life is, and always has been, very tied to the Free Reformed Church. He was educated at schools associated with his faith. He attended the Kelmscott John Calvin Primary School from years 1-7 and then attended the John Calvin High School from years 8­12. His school friends were all members of the Church. His sporting teams, even after he had completed his schooling, were comprised of Church members and they competed against other Free Reformed Churches' sporting teams.[104]
110. Mr Hordyk was appointed as a Church Usher in 2018.[105] He is a member of the 'Little Lambs Children's Ministry'. That Ministry is responsible for providing religious instruction to children aged three to five years at Sunday School.[106]
111. Mr Hordyk's beliefs as to the FRCA's teachings regarding sexuality and marriage are the same as those expressed by Mrs Hordyk. He believes that God created humankind in male and female form, that anything that goes against God's command is a sin, that God commanded that sex is to be between one man and one woman within a marriage only and that some people battle some sins for their whole lives.[107]
112. In his witness statement, Mr Hordyk said:[108]

After we were deemed unsafe I felt deflated and hurt to be rejected like that. But my religious beliefs towards those issues take priority in my life. It feels unfair for me to have to throw away my beliefs on these issues just so I can be acceptable to Wanslea. My religious convictions take centre stage in all aspects of my life. I don't believe myself to be better or any less prone to sin and weakness than any other person. I pray every day for guidance and strength to make sure I do what is right and honourable in accordance with God's word.

The Hordyks' commitment to their religious beliefs

113. Mr and Mrs Hordyk became pregnant with their first child before they were married. Mrs Hordyk frankly acknowledged that the FRCA teaches that the Seventh Commandment (which refers, in its terms, to adultery) also precludes sex before marriage. She now regards their pre-marital sexual relationship as sinful.[109] Mrs Hordyk and Mr Hordyk repented of the sin of adultery and were welcomed by the Church and were married.[110]
114. Wanslea endeavoured to characterise this evidence as demonstrating that Mr and Mrs Hordyk do not adhere to the teachings of the FRCA in all situations and are willing to adapt their practices to suit their circumstances when it suits them. We reject that characterisation of the evidence. On the contrary, we accept Mrs Hordyk's explanation that she has been taught, and genuinely believes, that all people are inherently sinful and have sinful desires and must fight against sin and that she regards marital sexual relationship she had with her husband as sinful. She believes that she has repented of that sin and 'learned to move forward in a life that is pleasing to God'.[111]

Wanslea's process of approving foster carers and placing a child with a foster carer

115. Wanslea's witnesses generally gave consistent evidence to the following effect about their process of approving foster carers and placing children with foster carers at the relevant time.
116. Wanslea's assessment of foster care applicants is based on the knowledge of trauma-informed care and child development. It says its processes are built on evidence-based practices and involve screening, interviewing and training foster care applicants to ensure foster carers are both suitable and trained to care for vulnerable children.[112]
117. In the course of its recruitment and assessment process, staff members meet with potential foster carers and make an initial assessment of whether they are suitable for consideration. If an individual is viewed positively at that preliminary stage, they are then provided with information and assistance in understanding the role of a foster carer, the challenges that fostering presents and strategies to deal with those challenges. Wanslea's engagement with the proposed foster carer at this stage is undertaken by its 'case officers', who are usually social workers. The potential foster carer is also required to attend information sessions and training which is delivered by the Department in order to progress their application. A full assessment of a foster care applicant can involve three to five home visits.[113]
118. If, at the end of that process, the case officer considers that a person is suitable to be a foster carer, the individual's application is further considered by more senior employees who determine whether to recommend the applicant to its Assessment Panel.[114] The Assessment Panel ultimately assesses and determines the application. Where a decision is made by the Assessment Panel that an applicant meets the requirements for approval, Notification of Approval is given to the CEO and the approved carer's name is added to the Department's Foster Carer Directory by the case officer. Only applications from persons considered suitable for approval are presented to the Assessment Panel for consideration.[115]
119. Wanslea's staff believe that the terms of the Service Agreement mean that the Assessment Panel may only approve an applicant that the Assessment Panel finds to have met the Carer Competencies.
120. In assessing foster care applicants, Wanslea also considers itself bound to regard the best interests of the child as its primary consideration. Ms Murray's evidence was that she understood that obligation to be derived from:

(a) the CCS Act;

(b) the Service Agreement;

(c) the 2007 Standards;

(d) the Protocols for Abuse in Care; and

(e) the Charter of Rights.

121. Wanslea maintains its own list of individuals it has recruited and approved as foster carers (Wanslea's List).[116] Wanslea's List contains information in excess of what is included in the Department's Foster Carer Directory. It includes information about the approved foster carer's family, the details of the foster carer's preferences for children who could be placed with them (e.g., the age or gender preferred), the number of children they are prepared to foster at any one time and information of that kind which assists Wanslea to 'match' approved foster carers to children in respect of whom a referral has been made by the Department.[117] Where the CEO seeks Wanslea's assistance with placing a child needing foster care with an approved foster carer, the Department makes 'a referral' to Wanslea.[118] This involves providing Wanslea with certain information about the child and their unique needs. The extent of the information available will vary depending on how much information is known about the child and the circumstances at the time the referral is made. For example, the first time a child comes into the care of the CEO, the information might be quite scant. In contrast, where a child has been in foster care previously, much more information about that child might at the time of the referral.[119]
122. When a referral is made, Wanslea staff members then consider the child's circumstances and consult Wanslea's List in order to ascertain if a suitable foster carer might be available to provide foster care to the child.[120]
123. When potential foster carers are identified, that foster carer's Family Support Worker is consulted in order to seek information about their personal circumstances before they are contacted to see if they will agree to have the child fostered in their home.[121] Wanslea describes this process as 'matching'.[122] The evidence of Wanslea's witnesses was that it is in the matching process that the already approved foster carer's personal circumstances and preferences are taken into account.[123] For example, consideration is given to the foster carer's preference regarding the age of the child.
124. Wanslea contended that its current practice is to assess potential foster carers based on whether they could provide suitable care for any child who might come into the care of the CEO, irrespective of the potential foster carer's preference in terms of the age of the foster child and the type of care they may prefer to provide.[124]
125. Wanslea regards the assessment of potential foster carers in this way as necessary. Ms Cain's evidence was that to do otherwise would result in Wanslea having a pool of foster carers who would be inflexible and not representative of the fact that Wanslea receives referrals of children under 1 year old and up to 18 years of age.[125] It was also said by Dr Lund that not taking that approach would mean that if a placement was going well and a foster carer wished to continue to foster a child who was soon to exceed the maximum age of children for which the foster carer had been approved to provide care, a further assessment of that foster carer would need to be undertaken.[126] Ms Murray's evidence was that Wanslea also takes this approach because a child under 12 years who needs foster care often has siblings between the ages of 12 years to 17 years and, because Wanslea aims to keep siblings together, foster carers need to be capable of caring for children of all ages.[127] Additionally, Wanslea's witnesses believe assessing in a more limited way would limit Wanslea's ability to place children outside of the approved age range or gender with an approved foster carer because it would require Wanslea to undertake a further assessment of the carer before placing a child of a different age range or gender with the carer. Wanslea's evidence was that assessing in a more tailored way would be more time-consuming and costly and would significantly impact Wanslea's operations.[128]
126. Assessing a foster carer as suitable or unsuitable based on an assessment of their ability to care for any child of any age has not always been Wanslea's practice. Ms Murray said that it was her understanding that Wanslea moved to that method of assessment in 2016.[129]
127. The evidence was, and we find, that Wanslea's current approach to the assessment of foster care applications is not the practice of every other organisation that assesses potential foster carers and provides foster care services to the State pursuant to a service agreement.[130] For example, Part B of the Extract of the Department's Foster Carer Directory, which is Exhibit 4.2, shows foster carer approval details for service providers other than Wanslea. An examination of that document reveals that other service providers have approved carers with limits on the age range of children for whom they have been approved to care.[131]
128. We do not accept the evidence given by Wanslea's witnesses that they approve only foster care applicants who they consider are capable of providing both a physically and emotionally safe environment for children of any age, and for every type of care. That evidence is not borne out of an examination of Wanslea's List, the Department's Foster Carer Directory itself and other evidence given by Wanslea's staff.
129. An examination of the Department's Foster Carer Directory makes clear, and we find, that certain approved foster carers are identified as persons who are nevertheless regarded by Wanslea to be unsuitable to have children aged under two years of age placed with them.[132] Evidence given by Ms Murray,[133] Ms McLeod,[134] Ms Cain,[135] Ms Symes[136] and Dr Lund[137] is that in those cases many of those approved foster carers smoke and Wanslea accepts the medical evidence which says that children under two years of age should not be exposed to any smoke at all.[138] Therefore, while Wanslea assessed (or reassessed) those smokers as meeting the Carer Competencies and approved their inclusion (or continued inclusion) in the Department's Foster Carer Directory as approved foster carers, Wanslea accepted that they must not have any child under the age of two years placed with them. While Wanslea's witnesses were not prepared to concede the point, we find that it must necessarily follow from that evidence that while those foster carers who have identified that they smoke are otherwise considered suitable to provide an emotionally safe environment for children of any age, they are not regarded by Wanslea as being able to provide a physically safe home for every child from birth to 18 years. We do not accept Ms Murray's evidence that this was not a competency issue but a 'health issue'.
130. Apart from the approved foster carers who smoke, other foster carers who had been assessed and approved by Wanslea had been identified on Wanslea's List as being unsuitable to care for particular categories of children for particular reasons. They included, by way of example, the individual who, because of physical limitations, was considered unable to care for a child requiring lifting or physical intervention or restraint thus precluding the placement of children of particular ages who would require a more physically able carer.[139] An examination of Wanslea's List of persons approved as at 8 December 2020[140] also reveals that a particular carer was precluded from having children who could not swim placed in their care because the carer lived on a property with an unfenced dam.[141] As a result of that safety risk, the foster carer was approved as suitable only to care for immobile babies, and to undertake only emergency and short stay care.[142] Some other carers were listed as only 'available to care for newborn babies'.[143] Further, it is clear from the exhibited copy of Wanslea's List that some carers who Wanslea had approved were limited to caring for children of a particular gender.[144]
131. Additionally, Part A of the Extract of the Department's Foster Carer Directory, which is Exhibit 1, shows that Wanslea has approved foster carers who are identified on the Department's Foster Carer Directory as approved to provide particular kinds of foster care, for example, 'temporary', 'temporary-emergency', 'temporary-short break' and 'permanent'.[145]

The Assessment Manual

132. The Assessment Manual[146] is a document which has been developed by the Department. It sets out the principles for the assessment of potential foster carers.
133. The Assessment Manual contains 'Assessment Tools' which Wanslea's assessors use to collect evidence of a foster care applicant being able to meet the Carer Competencies such that Wanslea can be satisfied that the applicant will perform the role of foster carer competently.[147] The Assessment Manual deals with a number of issues that Wanslea's staff cover during their work with a foster care applicant. They include:

(a) ensuring that an applicant understands the nature of fostering;

(b) exploring the applicant's family history;

(c) the applicant's family relationships including with their own children;

(d) the applicant's parenting skills; and

(e) understanding the applicant's life stresses and coping strategies.

134. The Assessment Manual contains additional resources that can be used by Wanslea when assessing a foster care applicant. They include case studies and a child development chart. Nothing in the Service Agreement or any other materials governing Wanslea's obligations precludes them from using other tools (including other case studies) to assess foster care applicants.

Was Wanslea required to assess whether foster care applicants met the Carer Competencies in respect of all children aged under 18 years?

135. From an examination of the relevant legislation, the Service Agreement, the Protocols for the Foster Carer Directory, the extracts of the Department's Foster Carer Directory, Wanslea's List and the evidence given by Wanslea's own witnesses, we conclude that there was no legal requirement for Wanslea to assess whether an applicant met the Carer Competencies for every child who may be needing foster care.
136. There was no legal requirement for that approach to an assessment to be adopted in the Hordyks' case. It was not the way in which Wanslea conducted the assessment process prior to 2016. It was not the way in which other general foster care service providers undertook the assessment of potential foster carers.
137. It is apparent from the Protocols for the Foster Carer Directory and the Application Notification and Change of Details Form[148] that, irrespective of Wanslea's approach to the assessment of foster care applicants, potential foster carers could be approved to care for certain classes of children or to provide only certain types of care. Stage 3 of the Protocols for the Foster Carer Directory alone necessitates that conclusion. We have already identified that Stage 3 required that Wanslea provide, for inclusion in the Foster Carer Directory, details not only of the approval of a foster carer by Wanslea but the provision of information including the details of the age range of the children for whom the foster carer has been approved to provide care and the type of care that a foster carer has been approved to provide; for example, emergency or respite care. There was nothing that mandated Wanslea's professed approach of assessing every applicant against all competencies for all children and only approving those who could provide appropriate care for every child irrespective of their age or circumstances. The Department's Foster Carer Directory and the Protocols for the Foster Carer Directory make clear that individuals could be approved to provide more limited foster care.
138. The evidence also clearly established that Wanslea had on occasions, contrary to its stated position, approved as foster carers individuals who were not able to provide both a physically and emotionally safe environment for all children irrespective of age and gender but who were regarded as suitable to meet those requirements only for children with certain characteristics.
139. Wanslea submitted that the evidence of its approval of carers who have limitations on the characteristics of children for whom they may care conflated physical safety with emotional safety, and the assessment of foster care applicants with the accommodating the unique circumstances of a foster care applicant at the time of matching. We do not accept that submission. Both physical and emotional safety are matters to be assessed under the Carer Competencies. The evidence of Wanslea's witnesses was that, since 2016, Wanslea has required every foster carer to be competent to care for every child before their application would be approved. Their evidence was also that Wanslea reviews each approved carer annually against the Carer Competencies. We are unable to accept their evidence in that respect in view of the evidence which established that Wanslea did not, in fact, assess and review every applicant against each Carer Competency for competency to care for all children under 18 years of age.

Mr and Mrs Hordyk apply to become foster carers

140. Mrs and Mrs Hordyk had friends who were foster parents. After prayerful reflection, Mr and Mrs Hordyk decided they should offer themselves as foster parents to fill a deep need in the community. Their friends had fostered through Wanslea and had felt supported by its staff, and the Hordyks decided fostering through Wanslea would be a good choice for them.[149]
141. Together, the Hordyks decided that they wanted to provide emergency and short-term foster care for a child or children between the ages of zero to five years. They thought this would be best for their family as they wanted their own child always to remain the oldest child in the family. They also did not want to foster a child who was outside of the general age range of their own children.
142. In January 2017, the Hordyks completed Wanslea's application form. On the application form, they identified themselves as practising Christians and ticked boxes indicating they were interested in providing emergency care and short-term care.[150] The form did not ask them to specify an age range of children they wished to foster.

The assessment process

143. Ms Symes, who was, at the relevant time, employed by Wanslea, was allocated to deal with the Hordyks' application as the Case Manager. She made initial telephone contact with Mrs Hordyk on about 1 February 2017. In that telephone discussion, Mrs Hordyk informed Ms Symes that she and her husband were looking to care for one foster child between the age of zero and six years and not older than their six-year-old son.[151] Ms Symes completed a document entitled 'Wanslea Foster Care Enquiry', which recorded the Hordyks' desire to foster a child under the age of six years.[152]
144. Wanslea made an initial Notification to the Department's Foster Carer Directory about the Hordyks' application as required by the Protocols for the Foster Carer Directory.[153]
145. Ms Symes' description of the assessment process was generally confirmatory of that explained by Mrs Hordyk in her evidence.
146. On 15 February 2017, Mr and Mrs Hordyk met with Ms Symes for an initial home visit assessment interview. At that meeting, Ms Symes had a discussion with the Hordyks about modifications that might need to be made to their home to meet the required safety standards for foster parents. These included the need to put away certain items and bolt particular items of furniture to the walls.[154] At that meeting, Ms Symes asked the Hordyks questions about why they wanted to foster children, their social support networks and their parenting styles. The Hordyks again informed Ms Symes of their desire to foster children between the ages of one and six years of age on a temporary basis.[155]
147. At that same meeting, the Hordyks were told to obtain character references and reports from doctors and to submit those references and reports to Wanslea as part of the application process. They did so.[156]
148. On 17 February 2017, the Hordyks received an email from Wanslea informing them that Ms Symes had recommended they proceed to the formal assessment process because the initial screening assessment had resulted in a positive assessment.[157]
149. The Hordyks were then required to attend formal training. They did so. The training took place over four three-hour sessions, which were held on Wednesday evenings, and one full-day session, was held on a Saturday.[158] The training was delivered by the Department.
150. Mrs Hordyk's evidence was that a large component of the training was about how to say 'no' to particular placements and the importance of making one's own family a priority.[159] It also provided them with some information about the possibility that what started as short-term care for a particular child might lead to longer-term care arrangements.[160]
151. On 23 May 2017, the Hordyks met with Ms Symes and Ms Deverall for the first formal assessment meeting. It was held in their home. Mr and Mrs Hordyk were asked numerous very personal questions about their marriage, parenting and religious beliefs.[161] They had discussions about their parenting style, including how they discipline their own children and how they would care for children from different ethnic backgrounds, cultures, religions and/or sexualities.[162]
152. A second assessment home visit with Ms Symes took place on 8 June 2017. During the course of that visit, Ms Symes spent time exploring the content of section 4 of the Assessment Manual with the Hordyks.[163] That section is concerned with parenting styles, an applicant's knowledge of child development and, according to Ms Symes, the complex needs of children including those who might identify as LGBTQI+, and how to provide a safe environment for children with complex needs, and of different ethnic backgrounds, cultures, religions and/or sexuality.[164]
153. The Hordyks completed some case studies with Ms Symes. Those case studies came from the Assessment Manual. Some concerned cultural awareness, and others were designed to explore their understanding of children with complex needs.[165] Ms Symes gave evidence that she discussed with the Hordyks how they might feel about a child who might display sexualised behaviour, or who might identify as LGBTQI+ or who might be from a different ethnic background or religion.[166] The Hordyks indicated that they would be open to caring for a child from a different ethnic descent and/or religion, and that they could make arrangements to accommodate a child from a different religion who did not wish to attend church with their family but that they would have difficulties caring for a child who was LGBTQI+.[167] They explained to Ms Symes that an LGBTQI+ child's identity would not conform with their beliefs.[168]
154. Ms Symes' evidence was that she was concerned about the Hordyks' responses, including that they would experience difficulties accepting a child who was LGBTQI+ because it was against their beliefs, because it was outside the hetero norm, and because the child's identity would not align with their beliefs.
155. Ms Symes gave evidence that she did not discuss religion with Mr and Mrs Hordyk at all. Her evidence was that her focus was on their parenting skills and approach. She had concerns that they would be unable to provide an emotionally safe environment for a foster child who might be LGBTQI+ and that she formed the view that they might not satisfy Carer Competency 2.[169]
156. We do not accept Ms Symes' claim she did not discuss the Hordyks' religion with them. In cross-examination, Ms Symes initially gave evidence that she did not discuss the Hordyks' religious beliefs with them during the visit on 8 June 2017 and initially said that she did not understand the reference to their 'beliefs' to be a reference to their religious beliefs. Ms Symes said she was considering 'their belief system in its entirety'.[170] Subsequently, she grudgingly accepted that she understood the reference was to their religious beliefs saying 'I did understand that that's partially what they were talking about. Yes.'[171] In our view, there was no other way the comment about their beliefs could have been or was understood by Ms Symes. That conclusion is also borne out by Ms Symes' subsequent conduct to which we refer next.
157. Ms Symes' evidence that she did not discuss religion with the Hordyks at all and that her focus was on their approach to caring for LGBTQI+ foster children was directly contradicted by other evidence given by her. In her witness statement, Ms Symes said that when she spoke with Ms McLeod sometime after the second assessment visit on 8 June 2017, she discussed with Ms McLeod, 'Keira and Byron's involvement with their church community and the fact that this may take a lot of their time, and affect the care they provide to a foster child'.[172] Ms Symes' evidence was that she also spoke with Ms McLeod about her own view that the Hordyks would be able to care for a child who may be from any ethnic descent and/or religion, but expressed her concerns about the Hordyks' ability to care for a child who identified as LGBTQI+.[173] In order to have had a discussion with Ms McLeod about whether the Hordyks' religious commitments would impact their ability to provide foster care, some discussion about their religion and the extent of their involvement in their church must have been discussed with the Hordyks.
158. Ms McLeod gave evidence that she met with Ms Symes and Ms Deverell after the home visit on 8 June 2017 and spoke about the impact that the Hordyks religion may have on fostering. They discussed the fact that their involvement in their church community should not impact on the quality of care they provide to a foster child. Ms McLeod explained that she had said, by way of example, that the Hordyks would need to demonstrate flexibility around the foster child's wishes if they insisted on a foster child going to church with them every week and the child refused to go. She said they would need to demonstrate flexibility around the foster child's wishes and recognise the child's views. She also said that she explained to Ms Symes and Ms Deverell that if the Hordyks were caring for an Aboriginal foster child with cultural and spiritual needs they would need to ensure those needs were being met and that she informed them that if a foster care applicant provided her with written or verbal advice that they would refuse to teach an Aboriginal foster child about dreamtime that would be an issue she would need to explore with the foster care applicant to satisfy herself that the applicant meets Carer Competency 1 which requires a carer to provide care for a child in a way which meets a child's cultural needs.[174]
159. Ms McLeod's evidence was also that, based on answers which the Hordyks had given to Ms Symes, she had no concerns that the Hordyks' church engagements would preclude them from caring for a foster child and that her only concern was that they would find it difficult to care for a child who was LGBTQI. Her evidence was that she did not consider that difficulty to be an extension or expression of their religious conviction. She said:[175]

I did not consider this to be an extension or expression of their religion or religious conviction. In my assessment, this evidence from Mr and Mrs Hordyk i.e. their difficulty to care for a LGBTIQ foster child, suggested they might have some rigid views that would impact on their capacity to safely care for a LGBTIQ foster child.

160. Ms Symes' evidence was that the outcome of her discussion with Ms McLeod was that she was advised to explore the issue further with the Hordyks through a written case study about LGBTIQ+ children.[176]
161. On 15 June 2017, Ms Symes telephoned Mrs Hordyk and informed her that she and her husband were required to complete a further case study related to SOGI issues (the Case Study). The Hordyks received the Case Study by email on 16 June 2017. Mr and Mrs Hordyk completed the Case Study and returned it to Wanslea by emailing it to Ms Symes on 27 June 2017.[177]

The Case Study

162. It is important to set out in full the terms of the Case Study and the answers provided to it by Mr and Mrs Hordyk. The Hordyks' answers to the questions appear in italics in the quote below. The words that are struck through in the Hordyks' answer reproduced below are words that were written by them but crossed out by them in the process of drafting their answer.[178]

CASE STUDY: Lesbian Gay Transgender

You receive a call from a teacher at your foster child's school stating that the child has been found kissing a classmate in violation of school rules. The classmate was of the same gender as your foster child. When you tell the foster child that you have been informed of this by the teacher they become very emotional and run in to their room. When you approach the child you find them packing their belongings. You ask the child why they are doing this and they reply that "you're going to send me away because I'm gay, that's what happened before".

(Note: Many children are subject to abuse and neglect at the hand of their birth parents due to their LGBTQ identities. This abuse also occurs in schools. A 2012 study of Australian school students by La Trobe University found that 60% of Australian students identifying as LGBTQ received homophobic or transphobic abuse and 30% reported receiving physical abuse related to homophobia or transphobia in a school setting. It is important to note that many schools will not provide positive teaching on LGBTQ identities due to fears of complaints from parents or students. This makes positive teaching from parents or carers all the more important. As noted above, LGBTQ children and young people are moved on from foster care placements more frequently than non-LGBTQ identifying people, the Human Rights Campaign directly links this to a non-acceptance of LGBTQ identities. As such, it would be a reasonable fear that a parent or foster parent would reject or abuse a child for holding a homosexual, bisexual or transgender identity.)[179]

What feelings and emotions do you believe this child may be experiencing?

Having being already sent away from other foster homes due to being gay the child is obviously distraught and not feeling like they belong anywhere.

How would you approach this situation?

We would get the child to calm down and comfort them explaining that we are here for them. We certainly would not drop them off that day to another home. However, we are taught and do believe that all LGBTQ identities are wrong and sinful but there will be people who have to fight against this sin. We will therefore offer our help and try and do what we can to help this child, but if the child continues to live a li be gay and goes on to date etc. the placement will not work as this goes against our beliefs.[180]

Wanslea's response to the Case Study

163. The Hordyks' response to the Case Study confirmed in Ms Symes' mind that her concerns about their ability to provide a safe environment for an LGBTQ child were valid. This was because she considered that if an LGBTQ child was to be placed with the Hordyks, they would not be able to accept the child as a whole.[181]
164. On 29 June 2017, Ms Symes cancelled the next meeting scheduled with the Hordyks.[182] A further meeting scheduled for 12 July 2017 was also cancelled.[183]
165. On 1 August 2017, the Hordyks again met with Ms Symes.[184] Wanslea's purpose in having the meeting was to further discuss with the Hordyks, in light of their answer to the Case Study, their SOGI beliefs and the harm that might be done to a vulnerable child if the child could not come to the Hordyks, as their foster carers, with any issues and be made to feel safe when doing so.[185] At that meeting, Mr Hordyk made it clear to Ms Symes that he was not prepared to compromise his religious beliefs in order to accommodate what he regarded to be sinful behaviour.[186] Mr and Mrs Hordyk informed Ms Symes that while they understood that a long-term placement was a possibility, a long-term placement was not their intention.[187] The Hordyks explained that they would not 'kick out' a foster child for being gay but that a gay child would not be a good match for their family as they would not be able to affirm a child displaying SOGI issues.[188]
166. Ms Symes said that following that discussion she formed the view that the Hordyks' approach would mean that they could not maintain a physically and/or emotionally safe environment for a foster child who identified as LGBTQ.[189]
167. Ms Symes relayed her assessment to Ms McLeod. On 4 August 2017 Ms Symes received an email from Ms McLeod informing her that the Hordyks' application should not be progressed.[190]
168. On 7 August 2017, Ms Symes telephoned Mrs Hordyk and informed her that their application to become foster parents was not going to be progressed further because of their views about SOGI issues.[191]
169. On 14 September 2017, the Hordyks requested that Wanslea provide them with a formal letter of rejection and reasons for decision.[192]
170. Wanslea provided the Hordyks with a letter setting out its reasons for decision dated 20 September 2017.[193]
171. On 26 September 2017, the Hordyks requested that Wanslea review its decision on the basis of discrimination and expressed a desire to continue with the assessment process.[194]
172. On 29 September 2017, Wanslea wrote to the Hordyks upholding the decision and stating that there was no evidence of any discrimination.
173. On 2 November 2017, lawyers for Mr and Mrs Hordyk requested a formal review of Wanslea's decision.[195]
174. On 16 November 2017, Wanslea's CEO, Ms Murray, responded to that request advising that the decision not to proceed with the Hordyks' application had been based on the Hordyks' failure to satisfy Wanslea that they met Carer Competency 2.[196] Her letter stated:[197]

Wanslea is required, under its contract with the Department of Communities, to ensure that all foster carers meet the needs of all children who come, or may come, into care.

How was the Case Study prepared and used?

175. The Case Study and other case studies were prepared by a social work student named Jody, who was on placement at Wanslea for a period of time.[198]
176. Ms McLeod's evidence was that a student prepared some cases studies directed to LGBTQI+ issues and brought it to the attention of Ms McLeod and other senior people at Wanslea, identifying why the case studies were relevant 'and they started to be incorporated into assessments'.[199]
177. Dr Lund also gave evidence that the case studies and the accompanying notes were prepared by a social work student, who interned at Wanslea and who was supervised by him and other senior social workers while she was there.[200] Dr Lund's recollection, which he accepted may have been inaccurate, was that Jody interned at Wanslea for a period of 13 or 14 weeks on a full-time basis in approximately 2014.[201] His evidence was that prior to 2014, Wanslea had not prepared any of its own case studies addressing LGBTQI+ issues, although there were some case studies in the Assessment Manual that referred to LGBTQI+ issues.[202]
178. Ms Symes gave evidence that the Case Study was prepared by Wanslea and 'utilised by Social Workers during the assessment process for foster care applicants and/or as part of the annual review of foster carers'.[203]
179. Despite the evidence of Ms McLeod and Ms Symes that Wanslea's case studies addressing LGBTQI+ issues were incorporated into the assessment process, and Dr Lund's evidence that they were probably prepared in 2014, there is no evidence before us of the Case Study, or of any other case study directed to LGBTQI+ issues, being used in the assessment of any other foster carer applicants. Indeed, Ms McLeod's email to Dr Lund and Ms Cain dated 4 August 2017[204] expressly stated that she thought others had not been assessed in relation to their SOGI beliefs. That email included the following passage:

I appreciate the Hordyk's (sic) transparency in discussing their views and Kay mentioned that they are friends with existing carers who were not asked the same questions when they were assessed (I think they are friends with [xxx] and [xxx]. Kay and I discussed that this is an area that we have not always covered in assessments, however, following Jody's placement with us we have identified this as an important issue to discuss with prospective carers at the time of assessment. As an agency I think we have become clearer about our expectations. There is probably a broader discussion to be had at a senior level about this issue, particularly in relation to how we manage existing carers that hold negative views about LGBTQ people. Kay suggested that this could be raised during carer reviews, which I think is a good idea.

180. In light of the content of the email above and in the absence of evidence similar case studies addressing LGBTQI+ issues being used in foster carer assessments, we find that neither the Case Study, nor any other case study directed to LGBTQI+ issues, was used in the assessment by Wanslea of any other foster carer applicants.

Indirect discrimination

181. The discrimination prohibited under the EO Act encompasses direct and indirect forms. In this case the Hordyks only allege indirect discrimination.
182. As we have already noted, s 53(2) of the EO Act provides that a person (the discriminator) discriminates against another person on the ground of religious conviction if the discriminator requires that person to comply with a 'requirement or condition' with which a substantially higher proportion of persons who do not have the same religious conviction comply or are able to comply, and which is not reasonable having regard to all the circumstances, and with which the aggrieved person is not able to comply.
183. In Krysiak, Pritchard J held that the principles established by the High Court in Waters v Public Trust Corporation[205] in relation to the ascertainment of a 'requirement or condition' as that phrase was used in the definition of 'indirect discrimination' in the Equal Opportunity Act 1984 (Vic) were of direct application to the interpretation of the same phrase when used in the EO Act.[206] Her Honour summarised those principles as follows:[207]
     1. The words 'requirement or condition' are to be construed broadly so as to cover any form of qualification or prerequisite.
     2. The 'requirement or condition' need not be expressly or explicitly imposed. It is sufficient that the 'requirement or condition' is implicit in the conduct which is said to constitute the discrimination.
     3. The 'requirement or condition' which is imposed in relation to the provision of a service must be something that is separate from the provision of the service itself. Whether a requirement or condition is in fact separate from the matter to which it relates will clearly depend upon how the service is described and how the requirement or condition is characterised.
     4. The description of the service provided and the characterisation of the requirements or conditions on which the service is provided are questions of fact. Those factual findings must be made before it is possible to consider whether the discrimination prohibited by the legislation has in fact occurred.
     5. There is no particular formula or approach which should be used to identify either the service in question, or the requirement or conditions said to be imposed. For that reason, it is possible to identify a service with varying degrees of particularity. However, that means that care is needed to ensure that the service is not defined at too high a level of generality that a determination cannot be made as to whether an identified criterion is a 'requirement or condition' that is separate from the service itself. Furthermore, the actual requirement or condition in any particular case should be formulated with some precision.
     6. The clear identification, at not too high a level of generality so as to be meaningless, of both the service being provided and the requirement or condition said to have been imposed, is necessary so that there is no confusion as to whether those requirements are established by the facts.

The Hordyks' claim of discrimination

184. We turn now to consider the matters the Hordyks need to establish in order to prove their claim of indirect discrimination in the provision of services on the grounds of religious conviction. It is convenient to commence by considering whether Wanslea was providing a 'service'.

Was Wanslea providing services to the Hordyks?

185. Under the EO Act, discrimination is unlawful only in certain contexts. The Hordyks allege that Wanslea discriminated against them in the provision of services.
186. The Hordyks submit that both:

(a) the assistance provided to them by Wanslea, including the provision of information, training and assistance with the completion of relevant documents; and

(b) the assessment of their application to become approved foster carers

constitute services for the purpose of the EO Act.

187. Wanslea denied that either the assistance provided nor its assessment of the Hordyks' foster care application constituted a service.
188. The facts as set out above lead us to conclude that assistance was actually provided to the Hordyks in the same manner as it would have been to any other applicant. It was not refused or provided subject to conditions.
189. On the basis of that finding it follows that the only conduct which might have been discriminatory, and which we would have to find amounted to a service in order for the Hordyks' complaint to be substantiated is, therefore, the assessment of their foster care application. In this case, a decision was made not to progress the Hordyks' application to assessment by the Assessment Panel. In essence, a decision was made to terminate the application.
190. The word 'services' is defined in s 4 of the EO Act only by reference to various contexts in which services may be provided or by reference to certain kinds of services. The definition of the word 'services' includes in s 4(e) of the EO Act the following:

services of the kind provided by a government (other than the assessment of an application for suitability for adoptive parenthood, or the placement of a child for adoption or with a view to adoption under the The Adoption Act 1994), a government or public authority or a local government.

191. The Hordyks contended that the services Wanslea provided to them fall within this definition. Two things are notable about this definition. First, it uses the word it seeks to define in the definition. In order to determine what services are of a kind provided by a government, one must first decide what the word 'services' itself encompasses. Second, the fact that s 4(e) expressly excludes assessment of an applicant's suitability for adoptive parenthood tends to suggest that an assessment of that kind would otherwise be a service. That line of reasoning supports the conclusion that a process, being an assessment of suitability to provide foster care, would be a service. In any event, assessments of foster care applications are, and have typically been, performed by government. On its face, therefore, an assessment of a foster care application would be covered s 4(e) of the EO Act.

The ordinary definition of the word 'service'

192. The Macquarie Dictionary Online defines the word service as:
     1. an act or helpful activity.
     2. the supplying or supplier of articles, commodities, activities etc required or demanded.
     3. the providing, or a provider of a public need such as communications, transport, etc.

...

6. the performance of duties as a servant.

...

9. the duty or work of public servants[.]
193. Clearly, 'service' is a word of wide import. Some further assistance in discerning its meaning in s 4(e) can be found in cases concerned with the meaning of 'services' in a similar legislative and factual context.

194 The High Court's analysis of the meaning of the meaning 'services' in IW v The City of Perth and Ors[208] is the starting point for consideration of the meaning of 'services'.

195. In IW v Perth, the High Court was called upon to determine whether the City of Perth, through its Council, had unlawfully discriminated against an incorporated association by refusing planning approval for the association's proposed use of particular premises for people infected with human immunodeficiency virus. The Full Court of the Supreme Court of Western Australia had held that the Equal Opportunity Tribunal erred in finding that the City had unlawfully discriminated against the association.[209]
196. In IW v Perth, the application for planning approval had been refused and the service that was claimed to have been refused was characterised as 'the grant of planning approval'. Brennan CJ and McHugh J held that the City did not provide a service of granting planning approvals. It merely had a duty to consider applications and a discretionary power to refuse or approve such applications.[210]
197. In the High Court, Brennan CJ and McHugh J found that the Council had not refused to provide a service. Their reasoning to that conclusion was as follows. First, that the definition of services in s 4 of the EO Act is inclusive.[211] Second, that s 18 of the Interpretation Act 1984 (WA) required preference to be given to a construction of the EO Act that would promote the purpose or object of the Act to a construction that would not do so - requiring them to give as far as possible a construction that would eliminate discrimination on the grounds of impairment.[212] Third, that because the EO Act defines discrimination and the activities which cannot be the subject of discrimination in a rigid and often highly complex and artificial manner, conduct that might be discriminatory in its ordinary meaning might fall outside its ambit. Fourthly, that as beneficial or remedial legislation, the EO Act is to be given a liberal construction, subject to the caveat that such a construction cannot be unreasonable or unnatural.[213]
198. Their Honours recognised that councils provide services to ratepayers and residents. They observed that the collection of garbage was an example of such a service to a ratepayer. They also observed that the provision of intangibles, such as advice and information about planning matters, may also be a service provided by a council.[214]
199. Their Honours next observed that simply because a council acts as a deliberative body, making decisions in the exercise of statutory power or duty, it is not necessarily not providing a service when doing so.[215] Their Honours noted it was important to identify with precision the services that had been allegedly refused.[216] They also observed that when acting in a quasi-judicial role, it may be inappropriate to characterise the process as the provision of a service even when the product of the process is the provision of a benefit to an individual.[217]
200. However, their Honours concluded:[218]

But not every process or activity which results in a benefit or advantage to an individual is a service that is provided to that individual. When the deliberative or quasi-judicial nature of the application process is identified and analysed, it cannot sensibly be described as a "helpful activity" provided by the Council to applicants for planning approval. The Council is an adjudicator, not a servant of the applicant.

201. Dawson and Gaudron JJ also found the refusal of the planning approval did not constitute the refusal to provide a service. In coming to that view, they too referred to the need to interpret the Act having regard to the fact that it is beneficial legislation[219] and the requirement to give it a construction that promotes the object of the Act. They also found the word 'services' should bear its ordinary and broad meaning.[220]
202. Their Honours found that the 'service' that the City was providing was in fact the exercise of a discretion to grant or withhold planning approval which had in fact been provided to the applicant because the application has been considered and refused. Their Honours observed that a case might have been made that in refusing the applications, the City exercised its discretion in a discriminatory manner but did not need to deal with that issue because it was not the case advanced by the appellant.[221]
203. In contrast, Toohey J found the Council had discriminated against the appellant. He too began his analysis by observing that s 18 of the Interpretation Act 1984 (WA) required the court to construe the EO Act in a manner that promoted its object and that being beneficial legislation, the Court was required to give what he referred to as 'generous construction'.[222] His Honour held that in providing the service of determining the application for planning approval, the Council had discriminated in the manner in which it provided that service to the applicant.[223]
204. Gummow J also decided the case by beginning with the recognition of the fact that the EO Act, being beneficial legislation, was to be interpreted as broadly as possible and that s 18 of the Interpretation Act 1984 (WA) compelled him to construe the EO Act in a way that promoted its purpose or object.[224] On the meaning of 'services', his Honour observed that there was no dichotomy between the discharge of statutory functions and the provisions of services to those seeking the discharge of those functions.[225] His Honour found that, on the facts, having refused the application, the Council had not refused to provide a service but that they had discriminated in the manner which they had provided the service.[226]
205. On the issue of services, Kirby J too found that the expression 'services' in s 4 of the EO Act encompassed the provision of permits and licences to the users of the City's planning services. He found that taking the contrary view would withdraw the beneficial application of the EO Act from an important area of the local government body's activities and, doing so, would be contrary to Parliament's intention in s 4(e) of the EO Act where it extended the EO Act to services of a kind provided by local government bodies. His Honour concluded that the provision of permission to change a planning use was capable of being a service.[227] He observed it was undoubtably helpful and valuable to the recipients of approval. He considered that refusal on the grounds of the applicant's impairment would be contrary to the EO Act.[228]
206. In IW v Perth, many of the judgments referred to Farah v Commissioner of Police of the Metropolis[229] (Farah). In that case, the English Court of Appeal recognised that police officers perform duties when preventing and detecting crime and bringing offenders to justice. Hutchinson LJ concluded that in providing assistance or protection to members of the public, a police officer was providing services to the members of the public concerned but was not providing a service when performing their duty in, for example, pursuing or charging criminals.[230]
207. In Savjani v Inland Revenue Commissioners,[231] the Court was concerned with whether the Inland Revenue was providing services when dealing with relief from tax or repayment of tax. The Court observed that there was no reason why a person performing a public duty may not also be providing a service. In that case, the Court held that ensuring taxpayers only paid the tax required of them was a service to taxpayers.
208. In Richards and Commissioner of Police,[232] the Tribunal, for the same reasons as expressed in Farah, found that police officers when attending on altercations, would be providing services to the public and individuals in escorting members of the public out of danger, and in protecting people from injury or death and maintaining or restoring the peace. However, the Tribunal held that police officers would not be providing services when deciding to arrest or charge an individual.
209. A case of greater factual similarity to the present case is Director General, Department of Community Services v MM.[233] That case concerned the assessment of a couple for approval to be foster parents. The question for determination was whether the Department had provided a service to the respondents when it determined their application.
210. The Department had refused the couple's application because the husband suffered from bipolar disorder. The Department took what it considered was a cautious approach and refused their application rather than to approve a carer where unresolved difficulties already existed. The respondents alleged, inter alia, discrimination on the grounds of the husband's disability in the provision of services. The Department claimed that selecting persons to be departmental foster carers was not a service to prospective foster carers.[234]
211. In that case, s 4 of the Anti-Discrimination Act 1997 (NSW) defined 'service' to include ' services or any profession or trade'.
212. The CEO of the Department conceded he was a public authority for the purpose of the Act.[235]
213. Applying the considerations identified in IW v Perth, including the breadth of the word 'services' and the need to interpret beneficial legislation generously so as to give effect to its objects and purpose, Barr J then referred to numerous cases, including Farah,[236] Savjani v IRC,[237] Australian Education Union v Human Rights and Equal Opportunity Commission and State of Tasmania[238] and Tejani v Superintendent Registrar for the District of Peterborough,[239] in which courts had concluded that the fact that something was being done in the exercise of a public duty or function did not prevent it from being characterised as a service. His Honour subsequently concluded that when dealing with an application from a person who wishes to provide foster care, the Department provides a service in much the same way as the Local Government authority provides a service in dealing with development applications.[240]
214. His Honour stated:[241]

As part of its processes of selecting suitable persons to foster its children the Department conducts courses at which it disseminates information to those who would foster them. It uses other avenues of communication as well. It is well established by the cases I have reviewed that such an activity may amount to providing services. I think that the Department provided a service to the respondents when it gave them information at the "training weekend".

I think that when the Department receives and deals with applications from those who wish to be foster carers it provides a service to the applicants in much the same way as a Local Government authority provides a service in dealing with development applications. I think that in dealing with the respondents' application the Department provided a service to them.

215. Barr J then went on to consider whether the legislation should be read down so as to avoid undesirable consequences.[242] An example he gave of such a consequence would be to require the Department to approve as a foster carer a person who, because of a disability from which they suffered, would be unable to carry out the duties of a foster carer, if to refuse them would amount to discrimination on the grounds of disability. Barr J declined to read down the legislation. He noted that an exemption from discrimination might be sought under the EO Act. Further, he concluded that the Court must give effect to Parliament's intention, and it was not for the Court to construe a statute by reference to concerns that the legislation might operate harshly in particular respects.[243]
216. None of the cases to which we have referred are factually identical, and none are therefore determinative of the outcome here. The decision in MM is clearly very similar factually and provides considerable persuasive support for the conclusion that the activities undertaken by Wanslea here were 'services'.

The submissions of Wanslea and the Intervenor

217. Wanslea and the Intervenor contended that we should not find that Wanslea's assessment of the Hordyks' application was a service. They make the following submissions in support of that contention.
218. First, it was submitted that the CCS Act is concerned with the protection of children and their best interests and that in pursuit of that objective, conduct may need to be engaged in which would be unlawful if the EO Act applied.[244]
219. Second, it was submitted that the assessment of a potential foster carer is not undertaken for the purpose of conferring a benefit on an applicant but for the benefit of foster children and the community more broadly even if an applicant benefits indirectly by having their desire to foster considered. The potential benefit to an applicant is incidental rather than the focus of the process.[245]
220. Third, Wanslea submitted that the assessment is properly characterised as a deliberative/adjudicative function as to the competency of a person to perform the role of a foster carer.[246]
221. Fourthly, Wanslea submitted that the requirement that foster carers be approved and the related assessment and determination of an application to be approved are a fundamental integer of a 'mechanism of control' that is exercised over foster children and foster carers.[247] The Intervenor submits that those aspects of the activity do not also take on a different character so as to become services provided to the prospective foster carers. It is submitted that the deliberative process is inseparable from the mechanism of control.[248]
222. Fifthly, it was said that the performance of the assessment process by the CEO under reg 4(1) of the Regulations involves the performance of a function in compliance with statutory obligations restricting who may be approved and, therefore, would not be a service. That the respondent is not, by the terms of s 79 of the CCS Act or reg 4(1) of the Regulations, required to comply with the same requirements ought not result in its position being different. The respondent is still performing a function under the CCS Act and/or fulfilling analogous contractual obligations pursuant to the Service Agreement and the Quality Standards with which it must comply.[249]
223. Sixthly, Wanslea submitted the decision in MM is distinguishable, for reasons including the different legislative framework and ought not be followed in any event.[250]

Conclusion – Wanslea was providing a service

224. We commence by observing that many things done by Wanslea would constitute the provision the services to individuals. Examples include the advice, assistance and ongoing training provided to approved foster carers. However, that is not the issue for determination. Instead, the issue here is whether the particular activity alleged to constitute the service, namely the assessment of the Hordyks' foster carer application, in fact constitutes a service.
225. We have reached the view, albeit not without some reservations, that Wanslea's assessment of the Hordyks' application for approval to provide foster care did constitute a service to the Hordyks. We have reached that conclusion for the following reasons.
226. First, the EO Act is beneficial legislation and consequently the definition of 'services' should be interpreted broadly.
227. Second, s 18 of the Interpretation Act 1984 (WA) requires us to construe the definition of 'services' consistently with the purpose of the EO Act. A broad construction of the word 'service' would enable the widest reach for the EO Act's aim of eliminating discrimination.
228. Third, in our view, the consideration of an application for foster care can be regarded as a helpful activity. There are many people who desire to be foster parents. The attainment of that desire is assisted by the assessment of their application, irrespective of the outcome. In our view, the assessment does not cease to be a helpful activity because the outcome may be unfavourable to a particular applicant.
229. Fourthly, given the definition of 'service' is broad, it does not impermissibly strain its meaning to include the assessment of an application to be a foster carer as a 'service' being provided to the applicant.
230. Fifthly, that conclusion is consistent with the decisions in Farah, Savjani, Richards and MM.
231. Sixthly, in our view Wanslea is not performing a statutory function or duty or exercising a statutory power in considering applications for approval to provide foster care. That conclusion follows from the following reasoning.
232. It is certainly the case that pursuant to the terms of the Service Agreement, Wanslea undertakes activities which, absent such contracts, would otherwise be undertaken within the Department on behalf of the State. That includes carrying out activities that are identified as functions of the CEO in s 21(1) of the CCS Act. But the fact that Wanslea carries out activities under contract, which are statutory functions of the CEO, does not necessarily lead to the conclusion that Wanslea is performing statutory functions when it does so.
233. Further, in our view, the submission that Wanslea was exercising statutory power and discretion in considering an individual's suitability to be a foster carer is not supported by an analysis of the CCS Act, the Service Agreement or the facts. There is nothing in the CCS Act that expressly authorises Wanslea (or any person acting pursuant to a service agreement) to exercise any statutory powers under the CCS Act. While s 16 of the CCS Act allows the Minister to delegate their powers or duties under the Act to the CEO and permits the CEO to further delegate those powers or duties, s 16(3) of the CCS Act requires any such delegation to be in writing signed by the Minister. No such delegation of any power or duty from the Minister to the CEO, or the CEO to any officer of Wanslea, for the relevant time period was in evidence. In our view, the Service Agreement cannot be said to constitute a written delegation of functions or powers. At the very least, in order to delegate, the delegator must identify to whom the power is being delegated, either by reference to their name or position.[251] There is nothing of that kind provided in the Service Agreement. We note that in Wanslea's opening submissions, counsel acknowledged that Wanslea was not acting under the delegation provisions of the CCS Act in carrying out its obligations under the Service Agreement.[252]
234. Despite that concession, Wanslea attached to its submission copies of a delegation by the Minister to the CEO dated 17 November 2009[253] and a sub-delegation dated 6 April 2008 by the CEO to the Executive Director, Service Standards and Contracting of all powers and duties delegated by the Minister by instrument dated 31 March 2009.[254] In our view, those documents do not assist Wanslea's case. They are not evidence of any sub-delegation of any functions or power to Wanslea.
235. Seventhly, we do not accept Wanslea's submission that the exclusion of the assessment of adoptive parents from the definition of 'services' in s 4(e) of the EO Act confirms that the assessment of foster parents is within the definition. In our view the exclusion of the assessment of applications for approval to be adoptive parents is not determinative of whether the assessment of applications for approval to foster should be regarded as a service.
236. Paragraph (e) of s 4 of the EO Act was amended to exclude the assessment of adoptive parents by the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA) (the Amendment Act). While the Explanatory Memorandum for the Amendment Act does not refer to the reason for this amendment to the EO Act, the then Attorney General made the following observation about its purpose in the Consideration in Detail stage of Parliamentary debate about the Acts Amendment (Lesbian and Gay Law Reform) Bill 2002:[255]

The purpose of this amendment is to exclude from the purview of the Equal Opportunity Commission review of an allegation of discrimination in matters relating to the adoption of a child. The decisions that are spelt out in the amendment are the suitability of adoptive parenthood, or the placement of a child for adoption. It is intended that those matters not be challenged before the Equal opportunity Commission and this amendment places that matter beyond any doubt. In the course of drafting this legislation, I received advice on this matter because it was always the Government's intention to ensure that the interests of the child remain paramount. If discriminatory action had been taken to give effect to that important principle, we did not want that to be challenged in the Equal Opportunity Commission. The early advice we received was that those decisions could not be reviewed by the Equal Opportunity Commissioner. However, to place it beyond doubt, and some people suggested a contrary view, we thought it desirable to include an express provision that the interests of the child are paramount and that decisions made to place someone on – if I can call it loosely – the waiting list, or to place a child with a parent or parents, should not be the subject of challenge on the basis that an allegation of breach of the Equal Opportunity Act. This is the purpose of the Amendment.

237. In our view, it is not possible to draw anything from this amendment of s 4(e), other than the fact that Parliament took steps to ensure that it was beyond doubt that the specified activities related to adoption were not to be regarded as a service so that discrimination in carrying out those services was not rendered unlawful under the EO Act.
238. In our view, that amendment of s 4(e) does not compel a construction to the effect that other decisions, including those in relation to the assessment of foster carer applications, would constitute services. It is apparent from the Attorney General's observations at the Committee stage that the amendment was intended to operate only in relation to the limited activities set out and was not intended to have a broader application.
239. We find that the amendment of s 4(e) of the EO Act made by the Amendment Act served only to make clear that the EO Act does not apply in the case of assessment of suitability for adoptive parenthood and says nothing about whether an assessment of an application amounts to services to foster carers.
240. We find that Wanslea's assessment of the Hordyks' application to be foster carers constituted a 'service' for the purposes of s 4(e) of the EO Act. We turn next to consider whether the Hordyks' beliefs constituted a religious conviction.

What is a religious conviction?

241. In order to make out their complaint of discrimination on the grounds of religious conviction, the Hordyks must also prove that the discrimination alleged by them was occasioned as a result of their religious conviction or convictions and not for some other reason.
242. The term 'religious conviction', although used in the EO Act, is not defined in that Act (subsection 4(3) provides only that the expression 'religious or political conviction' is to be construed to include the absence of religious or political conviction).
243. The term 'religious' is defined, relevantly, in the Concise Macquarie Dictionary as follows:

Of, relating to, or concerned with religion.

244. The meaning of the term 'conviction' given in the Concise Macquarie Dictionary is, relevantly:

The state of being convinced.

245. There appears to be no universally accepted definition of the term 'religion'. As Latham CJ noted in Adelaide Company of Jehovah's Witnesses Incorporated v Commonwealth:[256]

It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all of the many and various religions which exist, or have existed, in the world.

246. The most comprehensive Australian judicial consideration of the features of a religion occurred in Church of the New Faith v Commission of Pay-Roll Tax (Vic),[257] also known as the 'Scientology case'. In that case, the issue being determined by the High Court was whether the appellant was obliged to pay certain taxes under the Pay-Roll Tax Act (Vic) or was exempt as a religious organisation. Although the members of the Court did not come to a unanimous view as to the definition of religion, they were ultimately unanimous in holding that Scientology is a religion.
247. Mason ACJ and Brennan J observed that more was required than an assertion that beliefs, practices and observances were religious. Their Honours considered that objective criteria were required to be met, those criteria being:[258]
     1. a belief in a supernatural Being, Thing or Principle; and
     2. the acceptance of canons of conduct in order to give effect to that belief, provided that they do not offend against ordinary laws.
248. Their Honours stated that for conduct to be characterised as religious, there had to be a real connection between an individual's belief in the supernatural and the conduct engaged in.
249. Wilson and Deane JJ identified five indicia of a religion, being:[259]
     1. the existence of a collection of ideas and/or practices involving belief in the supernatural;
     2. the inclusion of ideas that concern humanity's nature, place in the universe and relation to things supernatural;
     3. that the ideas (in (ii)) are accepted by adherents as requiring or encouraging them to observe particular standards of behaviour or codes of conduct or to participate in particular practices having supernatural significance;
     4. that the adherents constitute an identifiable group; and
     5. the adherents themselves view the collection of ideas as constituting a religion.
250. The question of proof of a religious conviction was discussed in R (Williamson and Ors) v Secretary of State for Education and Employment[260] (Williamson). In that case, consideration was given to the protection afforded by Article 9 of the European Convention on Human Rights.[261]
251. In that case, Lord Nicholls of Birkenhead made the following relevant observations.[262] First, the genuineness of a claimant's professed belief is a question of fact. A claim of a religious conviction must be made in good faith and not be capricious or fictitious. Second, it is not the role of the court to judge the 'validity' of an asserted belief against the orthodox teachings of the religion in question or the extent to which it conforms with others who share the religion. Third, religious beliefs are intensely personal and can vary between individuals. Finally, objective factors, such as source material, can be used, at most, to assist in determining whether a professed belief is genuinely held.
252. We have not been able to identify any relevant binding Australian authority on the issue of determining whether a person holds a religious conviction. However, we regard the observations made by Lord Nicholls as applicable to the resolution of the question of whether the Hordyks hold a religious conviction which dictated or guided their response to the hypothetical foster child in the Case Study.
253. In our view then, the term 'religious conviction', in the EO Act should be understood to describe a strongly held belief of religious individuals that they are directed by a supernatural being (God in Christian religions, or other deities in other religions) to take specific actions to give effect to their conviction.
254. Accordingly, the question of the existence of a religious conviction is a question of fact to be determined by assessing:
     1. whether the belief is religious in that it has a real connexion to a belief in a supernatural being, thing or principle;
     2. whether it is a genuine belief.

What does the FRCA teach about sexuality and gender?

Dr Durie's evidence

255. In support of their claim that their beliefs constitute a religious conviction, the Hordyks relied on expert evidence namely the evidence of Dr Mark Durie.[263] His evidence covered the history of religion and denominations of various religions in Australia. Dr Durie gave evidence about the various Christian Churches, how they are governed, the nature of their beliefs and the membership of the various Churches in Australia. He also gave evidence about the history of, organisation, and doctrinal bases of the FRCA. He also provided statistical data about the Australian population and the population's identification with certain religions.
256. Dr Durie is an ordained Anglican Minister. He served as an Anglican pastor for 21 years.[264]
257. Dr Durie holds what he described as 'orthodox Christian views'.[265] His evidence was that he has been an attendee of a wide variety of churches, including Anglican churches, Episcopalian churches, independent Evangelical, Lutheran, Methodist, Pentecostal, Reformed, Baptist and Vineyard congregations.[266] In cross-examination, his evidence was that his own religious conviction does not include a view that homosexuality is sinful or that being transgender or having the desire to change one's gender is a sin.[267] We did not find any basis to conclude that Dr Durie was not an impartial or independent witness.
258. Dr Durie holds a Diploma of Theology, a Bachelor of Theology (Hons 1) and a Doctorate of Theology, all from the Australian College of Theology. He holds a BA (Hons 1) and a PhD in linguistics from the ANU. Before transitioning to a career in Christian ministry, he held visiting appointments at the University of Leiden, MIT, UCLA, and Stanford and a variety of full-time academic positions during the 1980's and 1990's at Melbourne University. He has been a member of the Australian Academy of Humanities (Linguistics Section and Religion Section) for almost 30 years. Since stepping down from parish ministry in January 2020, he accepted a part-time position with the Melbourne School of Theology as a Senior Research Fellow.[268]
259. A large part of Dr Durie's evidence was factual evidence about the history of the formation of, and structure of, and source of authority within various Christian denominations and the teachings of various Christian denominations in respect of homosexuality. His report also addressed the question of whether the Hordyks' views on homosexuality and gender conformed with traditional or orthodox teachings of the FRCA and other Christian churches. To that extent, Dr Durie's evidence was evidence compiled by an expert in those matters rather than strictly opinion evidence.
260. Wanslea submits that we should not place any, or much, weight on Dr Durie's evidence because:
     1. he gave oral evidence that he had little understanding of the case, assuming it to be about access to adoption or fostering;
     2. he had not worshipped at or attended any Free Reformed Church in Australia and had based his evidence on what he had read about the FRCA's position on homosexual relations;
     3. he did not deal with the religious convictions of people of faiths other than the Christian faith;
     4. he had not considered any information which would show the actual religious affiliation of the foster carers whose applications Wanslea had approved;
     5. he held no expertise in statistics and yet purported to give evidence of a statistical nature and analysis;
     6. while he may have some expertise in the Christian faith, his evidence does not arise from his area of expertise and is properly to be regarded as lay opinion and therefore should be given little weight; and
     7. his evidence proceeded on the basis of facts not established on the evidence.
261. The Tribunal is not bound by the rules of evidence and may inform itself as it thinks fit. However, as we have already stated, we consider that the reasoning underpinning the admissibility of expert opinion in courts is relevant when considering whether we should rely on an expert opinion and the weight to be given to it. Our response to Wanslea's criticisms of Dr Durie's evidence is as follows.
262. First, Dr Durie did not need to understand the specific facts of this case to provide a history of Christian religions in Australia, including the FRCA. While that evidence might not be regarded as opinion evidence as much as a useful historical account which might have been established from other sources, it is a very useful summary for us which was not contested by Wanslea. In order to give that evidence it was not necessary for Dr Durie to have worshipped at a FRCA or at the FRCA in Baldivis to provide an overview of the teachings of the FRCA in relation to sexuality. In any event, his evidence in relation to that matter closely accords with that given by Dr Bredenhof who is a Minister in the FRCA and with the evidence of the Hordyks about the teaching of the FRCA and specifically the FRC in Baldivis in relation to the issue of homosexuality. We therefore find his evidence reliable on that issue which is relevant to the resolution of this proceeding.
263. Second, the fact that his report did not address the beliefs of persons other than those belonging to Christian religions does not detract from its value (if any) in relation to the issues it did address.
264. Third, his evidence about the attitudes of Churchgoers to various issues concerning human sexuality certainly did not address the views of the actual foster carers approved by Wanslea. But, again, in our view, that does not of itself diminish the value of the evidence he gave about the attitudes of the people it did address.
265. Fourthly, while Dr Durie did not identify in his qualifications and experience any formal qualifications in statistics, his evidence about the views of people of particular religious faiths who responded to the 2014 Church Life Survey and the 2011 Congregational Survey did not appear to have been derived from his own statistical analysis of answers given by participants in those surveys. Rather they appeared to be a summary of the findings made by those who undertook the relevant surveys. He was not cross-examined on the issue.
266. For all of those reasons, we do not accept the submission that Dr Durie's evidence should be given little weight. Having said that, some of Dr Durie's evidence was not relevant to a fact in issue. For example, his evidence regarding compliance with religious teachings by people who identify as belonging to a particular religion is not relevant because, for the reasons set out below, whether other people of a particular faith can disregard a traditional conviction or teaching of the faith is not how the Hordyks' ability to comply with the Wanslea SOGI condition is to be assessed. Religious convictions are personal to the individual.
267. Dr Durie's evidence was that the FRCA is a denomination of a Protestant Church in the Dutch Reformed tradition. It has a Presbyterian polity; meaning an assembly is the source of authority. Its General Assembly, termed a 'synod', meets every three years and is attended by 'delegates' who include an equal number of ordained ministers and lay elders who are all male. In Australia, the FRCA has three presbyteries, which it calls 'classis'; the Classis North, Classis Central, and Classis South West. The congregational-level assembly is called a 'consistory'. The synod has jurisdiction over the classis, and the classis has jurisdiction over the consistory.
268. Dr Durie's evidence was that the FRCA is on the conservative end of Reformed churches. Examples of its conservatism, which Dr Durie identified, are the fact that it does not admit women to the leadership roles of deacon, elder and minister and that all hymns sung in churches have to be approved by the national Synod.
269. Dr Durie's evidence was that at its doctrinal base, the FRCA adheres to the Apostle's Creed, the Nicene Creed and the Athanasian Creed. It also adheres to the 'Three Forms of Unity', which is a collective term for three doctrinal statements: 'the Canons of Dort', 'the Belgic Confessions' and 'the Heidelberg Catechism'. Dr Durie described these Three Forms of Unity as 'foundational for the Dutch Reformed tradition'.[269] The Heidelberg Catechism defines faith as 'a sure knowledge whereby I accept as true all that God has revealed to us in His Word'. Article 7 of the Belgic Confession contains a statement to the effect that the Holy Scripture contains the compete will of God and that everything that one needs to believe to be saved is sufficiently taught in the Bible.[270]
270. Consistent with the evidence given by the Hordyks, Dr Durie said that the Seventh Commandment ('Do not commit adultery') is understood by members of the FRCA as prohibiting any form of sexual relationship that takes place outside of a marriage between a man and a woman. Adultery is a sin that encompasses any form of sexual impurity, including entertaining lustful thoughts and desires which do not conform to a Biblical standard of chastity.[271]
271. At paras 60 and 61 of his report, Dr Durie expressed the following opinion:

In my opinion, the FRCA upholds a conservative position on human sexuality, and a conservative Biblical hermeneutic which regards homosexual sexual relations as sinful. Its synod, which is its highest doctrinal authority apart from the Bible, has rejected sisterly relations with overseas denominations for teaching a Biblical hermeneutic in which cultural trends can guide interpretation, specifically citing a changing attitude to homosexuality. FRCA's Church Order stipulates that relations with other denominations should not be rejected on 'non­essential' points, so one could conclude that the FRCA must consider a change away from a conservative Christian understanding of sexual ethics to be an 'essential point' of doctrine. The synod papers make clear that what is at stake for the FRCA is the authority of the Bible (citing the Belgic Confession Article 7). That is, it is not simply sexual ethics per se that is at issue, but the authority of the Bible to regulate sexual ethics, which, for the FRCA, is a foundational doctrinal principle. It is therefore clear, both from the statements of doctrine of the FRCA, and recent Acts of their Synods, that FRCA doctrine rejects homosexual acts as sinful.

In its rejection of homosexual sexual relations, the FRCA is on the more conservative end of the spectrum. In contrast to some other Protestant churches, it has a particularly clear-cut position against homosexual acts. However, similar doctrinal positions on homosexuality are held by other Australian denominations in the Reformed tradition, namely The Christian Reformed Churches of Australia, and the Presbyterian Church of Australia. (footnotes omitted)

272. Wanslea did not lead any evidence that would contradict Dr Durie's evidence about the FRCA's views as to the Seventh Commandment or the views held by the FRCA more generally. While Wanslea was not obliged to adduce any expert evidence, in the absence of any contrary evidence, and as we are satisfied as to Dr Durie's expertise, we accept his evidence.

Dr Bredenhof's evidence

273. The Hordyks also relied on the expert evidence of Dr Wesley Bredenhof in support of their assertion that their beliefs constitute a religious conviction and that that conviction accord with the teachings of FRCA.
274. Wanslea submits that Dr Bredenhof's report should be treated with caution because there is real doubt about his impartiality and independence. It submits that because he is a Minister of the FRCA in Launceston, a Church affiliated with that to which the Hordyks belong, he has a vested interest in the outcome of this matter. Further, it submits that his friendship with one of the Hordyk's legal representatives, Mr Steenhof, raises questions as to the nature of his engagement.
275. Dr Bredenhof gave evidence on oath that when he met Mr Steenhof at the Tribunal on 2 December 2020, he did not think they had ever met before, but that Mr Steenhof had corrected him and told him that they had met a couple of years earlier when Dr Bredenhof had preached at a Church in Western Australia.[272] Dr Bredenhof also gave evidence that he had never given evidence in matters involving Mr Steenhof in the past.[273] We have no reason to doubt the honesty of that evidence and we reject any suggestion that there was an association between Dr Bredenhof and Mr Steenhof that would call Dr Bredenhof's evidence as an expert into question.
276. As to the issue of his impartiality, Dr Bredenhof was not cross­examined about whether he had a vested interest in the outcome of the proceeding. In his report, he indicated that he was aware of the proceeding in the Tribunal. The mere fact that both the Hordyks and Dr Bredenhof belong to affiliated Churches does not establish that he has an interest in the outcome such that we could not rely upon his evidence if we otherwise considered he was an expert in the matters upon which he gave an opinion, that his opinion was relevant and founded on facts established by the evidence and relevant to the determination of the Hordyks' complaint. We reject Wanslea's submission that Dr Bredenhof was not impartial and independent.
277. Dr Bredenhof's Curriculum Vitae was attached to his report.[274] He holds a Bachelor of Arts from the University of Alberta, a Masters of Divinity and a Diploma of Missiology[275] from the Canadian Reformed Theological Seminary and a Doctor of Theology from the Reformation International Theological Seminary. It is apparent, therefore, that his post graduate qualifications are all from institutions associated with the Reformed Church. He is also a Minister of the FRCA of Launceston, Tasmania. On that basis we consider that Dr Bredenhof is qualified as an expert to give evidence as to the beliefs of the FRCA and their Biblical underpinnings.
278. Dr Bredenhof's evidence explained the background and history of the FRCA as a Protestant, Reformed denomination originally founded by Dutch immigrants to Australia in the early 1950s. In addition, his report outlined what he regarded as the key beliefs of the FRCA and how those beliefs are derived from the Bible.
279. In the summary of his report Dr Bredenhof says that his report:[276]
     1. explains the background and history of the FRCA;
     2. outlines the key beliefs of the FRCA and how they are derived from the Bible;
     3. sets out what the FRCA believes from the Bible about marriage, sexuality, and gender; and
     4. demonstrates that the beliefs on the matters set out in 3 above are unanimously taught and preached in the FRCA and that members are expected to uphold those beliefs and live according to them.
280. Dr Bredenhof's evidence is that there are 16 FRCAs in Australia. Fourteen are located in Western Australia, and two in Tasmania. They are a federation of local self-governed congregations. Each Church is governed independently by a body of elders known as a consistory. They are elected by the congregation and serve for three­year terms. Churches from a region gather for a larger ecclesiastical body called a classis twice or three times every year. The individual church reviews decisions of the Classis to ensure they are consistent with the Bible. Classes (the plural of Classis) come together in a Synod every three years. Like decisions reached as a Classis, decisions made by the Synod are not binding on individual FRCs. If the individual consistory considers that the decision is not consistent with the teachings of the Bible, and an appeal to the Synod on the issue is not upheld, the FRC would need to leave the federation.[277]
281. Like Dr Durie, Dr Bredenhof described the FRCA as being:[278]

a conservative, confessional Reformed denomination from the Protestant side of Christianity.

282. His evidence is that the FRCA is distinguished from other churches by 'high regard for the Bible alone as [the] ultimate authoritative source for what we believe (doctrine) and how we live (ethics)'.[279]
283. In summary, Dr Bredenhof's evidence is that the beliefs of those belonging to the FRCA are derived from the Bible. He said that the members of the FRCA hold to the historic Christian understanding of marriage, sexuality and gender. This being that marriage is a life­long relationship between one man and one woman; all extra­marital sexuality is contrary to the Bible; homosexual lusts and behaviours are contrary to the Bible; and that there are two fixed genders or sexes, namely male and female.[280]
284. Dr Bredenhof's evidence is that:[281]

[t]hese beliefs are unanimously taught and preached in the FRCA and members are expected to uphold these beliefs and live according to them.

285. Dr Bredenhof said the Seventh Commandment forbids not only the breaking of the marriage relationship but also all other sexually immoral acts, gestures, words, thoughts and desires. Dr Bredenhof said:[282]

Members of our churches are expected to hold to what the Bible teaches in its entirety. We do not promote or allow a buffet-style approach to the Bible where readers can select which key beliefs they will hold and which they will reject. Also when it comes to sexual ethics, FRCA members are expected to maintain everything the Bible teaches. They are expected not only to hold those beliefs, but to live by them as consistently as they can.

286. Dr Bredenhof's evidence is that members of the FRCA believe that the Bible teaches that God created Adam and Eve and thus established two fixed biological sexes and that the Seventh Commandment forbids all kinds of sexual immorality including sex outside of marriage, sexual relations with prostitutes, incest and child abuse, homosexuality, bestiality, pornography and rape.[283]
287. Dr Bredenhof gave evidence in cross-examination that it was his view that the FRCA would not regard the relationship between a foster parent and a foster child as a parent-child relationship because the foster parent does not have the same responsibility for the foster child.[284] His evidence was that as a consequence of that distinction it was not necessarily the case that a member of the FRCA who 'tolerated' the homosexuality of a foster child would be regarded as living in sin themself.[285] In cross-examination the following exchange about that issue occurred:[286]

GILES, MS: Yes. Would you consider that a member of the Free Reformed Church of Australia is living in sin if that member had a member of their household, a child, who is homosexual and the member of the church tolerated that sexuality? --- It's possible but every situation has numerous complexities that go far beyond just a simple question like that.

All right. Why is it so complex? --- Because you have to deal with people pastorally. You don't just - it's not a court of law. A consistory is not a court where, you know, judgments are made. And we work with people pastorally and we try to understand where they're coming from, and we listen to their motivations and we try to walk with them, walk alongside them before reaching a conclusion that they're - they're living in sin.

288. There was no evidence to contradict Dr Bredenhof's evidence, and as we are satisfied as to his expertise, we accept Dr Bredenhof's evidence.

Conclusion – the FRCA views about sexuality and gender are religious convictions

289. On the basis of the evidence given by Dr Durie and Dr Bredenhof to which we have referred above and to the evidence given by Mr and Mrs Hordyk, we accept that the FRCA is a denomination of the Christian religion which is well understood and recognised to be a religion according to the tests identified in the Scientology case.
290. On the basis of the evidence of those experts and of the Hordyks, we find that the FRCA teaches that God's Seventh Commandment is understood to mean that sexual relations are only to take place within a marriage of one man and one woman and that any other expression of sexuality is sinful. It also teaches that God created only two immutable genders.

Are the Hordyks' beliefs in relation to the sinfulness of homosexuality and in relation to gender identity a religious conviction?

291. Wanslea submits that the Hordyks have not established that their proposed response to a foster child in their care manifesting non­heterosexual orientations or gender identities is a consequence of a religious conviction. Wanslea submits that the Hordyks were considered not to be competent to be foster carers because they expressed a degree of 'rigidity' that was not consistent with the emotional safety of the hypothetical foster child. Wanslea submits that there is no evidence that their 'rigidity' is part of their religious convictions or their religion more broadly. Wanslea submits that the Hordyks' response was a belief of their own and not a reflection of the beliefs of the FCRA.
292. In support of that submission, Wanslea points to the following matters:
     1. The Hordyks fell pregnant before they married, showing a willingness to live outside of their asserted religious convictions.[287]
     2. The statement made by the Hordyks in the course of the assessment that they could be flexible and accommodate a foster child who did not wish to attend Church.[288]
     3. The Hordyks' evidence about their religious conviction was contradicted by Dr Bredenhof, who gave evidence that it was his view:

(a) that fostering a homosexual child would not cause the foster parent to be living in sin and would not cause the foster parent to be subject to the FRCA's disciplinary processes; and

(b) that the FRCA would not view the relationship between foster parent and foster child as a parent-child relationship.

4. Dr Durie's evidence was that he did not view homosexuality or being transgender as sinful despite being an Anglican Minister with orthodox Christian values.[289]
5. Professor Hughes' evidence, which we accept and which we discuss below, that:[290]

(a) he personally accepts homosexual relations are valid;

(b) within most Christian Churches, only 9 – 50 percent consider that homosexual relations are not wrong at all; and

(c) some people within most Christian denominations would be able to comply with what the Hordyks claim is Wanslea's requirement or condition.

293. We accept Dr Bredenhof's evidence as to the way in which the FRCA regards a foster parent-foster child relationship, and the evidence of Dr Bredenhof, Dr Durie and Professor Hughes about their own beliefs that homosexual relations are not sinful. For the reasons set out below we also accept Professor Hughes' evidence that within most Christian Churches a minority of members believe homosexual relations are not wrong at all but that some members would be able to affirm Wanslea's SOGI views.
294. Nevertheless, we find, as a matter of fact, that the Hordyks' belief that feeling and acting upon a same-sex attraction is a sin is a belief which is consistent with that taught in the FRCA as derived from the FRCA's teaching in relation to the meaning of the Seventh Commandment.
295. We find that the Hordyks' belief that this is God's view, as taught by the Bible, is not 'fictitious, or capricious or an artifice'.[291] The genuineness of their conviction can be found from the following matters to which we have already referred above, including:
     1. the Hordyks' own evidence, which we have already found to be honest;
     2. the answers the Hordyks' provided to the Case Study, which referred to sin and sinfulness;
     3. the fact that the Hordyks have been lifelong participants in the FRCA;
     4. the Hordyks' evidence of recent involvement in the FRC of Baldivis, including attending Church services every week and teaching Sunday School classes as part of the Little Lambs Ministry; and
     5. the fact that the Hordyks' belief is consistent with the teaching of the FRCA.
296. We, therefore, find that the Hordyks' belief in relation to the sinfulness of homosexuality is a genuinely held religious conviction.
297. Even if their religious conviction in relation to homosexuality was not in conformity with the teaching of the FRCA (a question to which we return later in these reasons), we would find that the Hordyks' view as to the meaning of the Seventh Commandment is a religious conviction. In doing so, we respectfully adopt the reasoning expressed in Williamson as set out to the effect that the Hordyks do not have to establish that their views conform to orthodox teachings accepted by adherents to the FRCA in order for them to amount to religious convictions.

Was the Hordyks' answer to the Case Study based upon a religious conviction?

298. As we have found above, the Hordyks' religious conviction is that both feeling same-sex attraction and acting upon it is sinful. However, there was no direct evidence before us that the Hordyks' beliefs require them to take any action in order to save others from what they regard to be sinful behaviour. There was also no direct evidence that the Hordyks' religious conviction prevented them from permitting a person they regarded as living a sinful life to live in their home, or required them to provide religious instruction in the views of their faith to such a person, including by telling them that their sexual orientation is sinful. There was evidence from Ms Symes, which we accept, that Ms Hordyk had informed her that they would discourage their own child from being LGBTQI but would not kick them out of home and would 'dislike the sin but not the sinner'.[292]
299. Despite the lack of any express evidence that their religious conviction would necessitate the Hordyks conveying those beliefs to a foster child who was acting on a same-sex attraction, the only inference which can reasonably be drawn, on the evidence given by the Hordyks that they are bringing their children up in their faith, is that the Hordyks would teach foster children the requirements of the Seventh Commandment. The Hordyks take their children regularly to church, are involved in the Little Lambs Ministry and pray with them every day. We infer from that evidence that, at an appropriate time, the Hordyks will give their children instruction in the meaning of the Seventh Commandment according to the FRCA.
300. We find that it necessarily follows that the Hordyks would provide that same instruction to a child living in their home as part of their family (as a foster child would be), especially if that child was experiencing or acting upon a same-sex attraction.
301. We reject the submission that the evidence established that the Hordyks and the FRCA could be flexible and accommodating in relation to matters of sexuality.
302. In our view, it is not tenable to suggest, as Wanslea does, that the Hordyks' response in the Case Study was not religiously based but was somehow just 'rigidity' on their part. Their 'rigidity' on the issue was entirely the consequence of their religious conviction. We accept Wanslea's evidence that it had approved, as foster carers, persons of a variety of Christian religions, some of which we would regard as conservative.[293] But, as we have already found, none were assessed as to their SOGI beliefs by use of the Case Study, or other case studies as the Hordyks were. Further, it matters not whether others of the same religion may have been able to be accommodating of the hypothetical foster child in the scenario posed in the Case Study. The relevant question instead, is whether the Hordyks believed their response to the Case Study (which is the reason they say they were unable to comply with the condition or requirement imposed by Wanslea) was necessitated as a result of their religious conviction. We find that that was their belief.
303. We respectfully adopt the following statement which was made by Mason ACJ and Brennan J in the Scientology case:[294]

The canons of conduct which [a man] accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself.

304. As we have noted, an individual's religious belief need not accord with the orthodox views of their religion or of others who profess to be of the same religion. We conclude that the Hordyks' foreshadowed response to a school-aged foster child acting on same-sex attraction, as expressed in their answer to the Case Study, was a manifestation of their religious conviction.
305. Furthermore, we reject Wanslea's submission for the following additional reasons. First, it was never put to the Hordyks in cross­examination that their 'rigidity' was the result of something other than their religious beliefs. Second, the documentary evidence established that Wanslea's witnesses accepted that the response the Hordyks gave to the Case Study reflected their religious beliefs. In our view, it was disingenuous of Wanslea to try to cast a different light upon the conduct of its staff by describing the Hordyks' response as evidence of 'rigidity'.[295] As we have already found, it was also disingenuous of Wanslea to try to discredit the Hordyks' reasons for their response by pointing to their pre-marital sexual activities as demonstrating flexibility in their adherence to their religious convictions.

Did Wanslea impose a requirement or condition – What was it?

306. Next, we turn to consider whether Wanslea imposed a requirement or condition in relation to the provision of the service of assessing the Hordyks' application to be foster carers.
307. The requirement or condition, which was said to have been imposed, was characterised by the Hordyks as a condition or requirement that they be prepared to affirm all sexual orientations and gender identities, consistently with Wanslea's SOGI views. That is, they would only be able to have their application assessed by the Assessment Panel if they complied with the SOGI condition.
308. Wanslea submits that we cannot find that to be the condition or requirement which it imposed. Wanslea says further that the Hordyks' framing of the conditions is imprecise, misleading, not supported by the evidence and conflates the Hordyks' personal views on matters of sexual orientation and gender identity with an evidence-based assessment process which is based on the knowledge of trauma­informed care and child development.
309. Wanslea says that the Hordyks gave no evidence of what was meant or understood to be Wanslea's SOGI views. Wanslea submits that it is not for the Tribunal to guess as to what the condition means. Further, Wanslea submits that there is no evidence to support a finding that Wanslea has any SOGI views. Rather, it is submitted that Wanslea simply respects gender and sexual minorities and expects foster carers to treat all children in care as individuals with unique identities, all of which warrant respect and present their own unique challenges.

Did the evidence establish that Wanslea held any SOGI views?

310. The evidence given by Ms Murray, Ms McLeod and Ms Symes was to the effect that Wanslea did not hold any particular views about SOGI issues. The point of that evidence appeared to be to establish that it would not have imposed a condition about a matter in respect of which it had no view.
311. Ms Murray's evidence was that Wanslea did not hold any views about LGBTQI+ issues, and treated all people respectfully and without judgment. She stated that all of Wanslea's employees who are responsible for the assessment of foster carer applicants are qualified professionals who are engaged based upon their skills and knowledge and perform their role in line with the Assessment Manual and the Service Standards. Ms Murray also said that Wanslea's values were to respect all of those with whom it engages and maintain integrity in how it worked. Its decisions about the suitability of foster care applicants were based on evidence and were designed to ensure quality service provision that placed the child at the forefront of any decision­making.[296]
312. Ms McLeod and Ms Symes each gave evidence to the effect that Wanslea did not approve of the approach the Hordyks had indicated they would take to the hypothetical foster child in the Case Study.[297] However, they maintained that Wanslea did not have a view on LGBTQI+ issues.[298]
313. They said that Wanslea's views were concerned with 'inclusivity' and the Hordyks' views on LGBTQI+ people did not align with Wanslea's views on 'inclusivity'.[299]
314. We reject Wanslea's witness' evidence that Wanslea did not have a view about SOGI issues. It was inconsistent with other evidence including that given by Ms McLeod herself, whose evidence on this issue in cross­examination was, in our view, more candid. In cross­examination, Ms McLeod accepted that she believed that the Hordyks' view on the sinfulness of homosexuality, and how they would respond to that sin was not consistent with Wanslea's view. She said:[300]

Well, Wanslea – my understanding is that Wanslea does not feel that LGBTQ – that there is anything wrong with LGBTIQ – that there's anything wrong with being LGBTIQ. It's – it's perfectly natural. There's nothing – nothing shameful or wrong about it.

315. Further, it is inconsistent with the documentary evidence, in particular the content of the email from Ms McLeod to Dr Lund and Ms Cain in which she stated '[the Hordyks'] views on LGBTQ people and children did not align with Wanslea's views and standards'.[301] There is no evidence before us that Dr Lund or Ms Cain expressed any disagreement with the premise that Wanslea had a view on the issue.
316. In so far as Ms McLeod and Ms Symes sought to characterise Wanslea's view as one of 'inclusivity' we regarded that characterisation as self­serving. Ms McLeod's evidence, quoted above, that the Hordyks' views did not align with Wanslea's views was a reference to both the Hordyks' and Wanslea's views about homosexuality.
317. We have already found that aspects of Ms Murray's evidence were disingenuous and an attempt to defend Wanslea's position. This is one such aspect.
318. Ms Murray's evidence that Wanslea had no views on SOGI or LGBTQI+ issues was at odds, with the evidence to which we have referred above, which we find clearly established that Wanslea had a very clear view about the validity of all sexual orientations and gender identities.

Conclusion – requirement or condition

319. We find that Wanslea's view was reflected in a requirement or condition imposed by Wanslea on the Hordyks to the effect that in order for their application to progress to assessment, they would be required to accept that if approved as foster carers, they would affirm all sexual orientations and gender identities of any foster child.
320. Wanslea submits in the alternative, that if a requirement or condition was imposed on the Hordyks, the Tribunal should find that it was one of the following:[302]
     1. that the Hordyks could meet all five Carer Competencies; or
     2. that the Hordyks could demonstrate that they could care for any child between the age of 0 and 18 on a permanent or temporary basis; or
     3. that the Hordyks could provide an emotionally and psychologically safe environment to any child Wanslea may place with them; or
     4. that the Hordyks could care for a foster child in a manner consistent with the Service Standards, in particular in a manner that would not expose the child to emotional and psychological harm; or
     5. that the Hordyks could care for a foster child in a manner that would meet the requirements of the CCS Act, including by ensuring that they could provide care that would be in the best interests of any child Wanslea may place in their care by taking into account:

(a) the child's age, maturity, sex and sexuality;

(b) the child's physical, emotional, intellectual, spiritual and developmental needs, and

(c) the likely effect on the child of any change in the child's circumstances; or

6. that the Hordyks could demonstrate flexibility and preparedness to work closely and constructively with Wanslea and the Department if a child with complex needs were to be placed with them; or
7. that the Hordyks could demonstrate that they were prepared to develop their knowledge and skills in relation to:

(a) the complex needs of children, including children who may identify as LGBTQI;

(b) how to provide a safe living environment for children with complex needs, and of a different sexuality;

(c) how to care for a foster child who might be or may identify as LGBTQI;

(d) how to maintain a physically and emotionally safe environment for foster children in their care, irrespective of the foster children's age;

(e) how to manage their personal views about LGBTQI people and not letting those views inform their parenting style, that is learning how to maintain an emotionally safe environment for a foster child who identifies as LGBTQI, by adopting a non-judgmental and non­punitive parenting approach; or

(f) how to shift towards a parenting approach that would demonstrate flexibility, understanding and an appreciation for differences and complexities when it comes to matters of gender identify and/or sexual orientation.

321. We do not accept that the evidence supports a finding that any of these alternative formulations encapsulate the requirement or condition imposed on the Hordyks. Further, while Wanslea's proposed alternative formulations of the condition or requirement are neutral on their face, they hide the actual condition or requirement within their terms. On Wanslea's own evidence, it would only be possible for the Hordyks to comply with any of those conditions if they were prepared to accept that all sexual and gender identities were normal and not sinful.

Could the Hordyks comply with the requirement or condition?

322. Wanslea submits that we cannot find, on the evidence, that the Hordyks could not comply with the requirement or condition. In support of that submission, Wanslea relies on the following matters.
323. First, Wanslea relied on two aspects of Dr Bredenhof's evidence. First, the evidence of Dr Bredenhof that he did not consider that the beliefs held by the members of the FRCA required the Hordyks to instruct a foster child that acting on a same-sex attraction was sinful. Second, Dr Bredenhof's evidence that he did not believe that living with a homosexual foster child would cause the Hordyks to be living in sin themselves.
324. Second, Wanslea submitted that the evidence showed that the Hordyks were able to be less rigid about their adherence to the requirements of the Seventh Commandments when they wished to be. In that respect, Wanslea pointed to the Hordyks' acknowledgment that they had been in a sexual relationship before their marriage and to the fact that they had indicated to Wanslea that they could accommodate a foster child who did not wish to attend the FRCA in Baldivis with them.
325. Third, Wanslea pointed to the evidence that it had, as at 2018, assessed and approved as foster carers, persons from a range of religions which teach that homosexuality is wrong.[303]
326. We reject those submissions. We make the following observations in relation to those matters.
327. First, the first and second submissions in effect contended that the Hordyks could choose not to act in accordance with their religious convictions. Regardless of Dr Bredenhof's views, we have found that the Hordyks genuinely held their SOGI beliefs and would feel compelled to act in accordance with those beliefs. It is their religious convictions with which we are concerned.
328. Second, for the reasons we have already set out, we do not regard the Hordyks' premarital sexual relationship as demonstrating that they are prepared to be flexible in their adherence to their beliefs. We accept that they are genuinely committed to their religious convictions. We do not view what they regard as a past failing as detracting from the genuineness of that present commitment.
329. Third, in our view the Hordyks' preparedness to accommodate a foster child who did not to wish to attend church with them is not demonstrative of a preparedness to be flexible in their adherence to their religious convictions. There is no evidence before us that the FRCA teaches that attendance at church by all family members is required every week or even on any particular occasion. There is no evidence before us that failing to attend services with all family members would leave the Hordyks believing that they were living in sin, in contrast to their evidence about the consequences of living with a child acting on a same-sex attraction. Furthermore, what we do know from the evidence is that the Hordyks are very involved in the FRCA in Baldivis and attend church regularly but that sometimes Mrs Hordyk did not attend because she would stay at home to provide care for their baby[304] and that children whose parents have made a profession of faith and have thereby become members of the FRCA are not members of the church themselves. There is simply no evidence before us to establish that the Hordyks held a religious conviction that there is a requirement for adults or children to attend church. Indeed, the evidence permits the inference, and on that basis we find, that failure to attend church services is not regarded by the Hordyks to be sinful.
330. Fourthly, although we accept Professor Hughes' evidence (discussed below) that many people who identify themselves as being of a particular religion do not attend services regularly or adhere to all of the teachings of the religion, that evidence is not determinative of whether the Hordyks could meet the requirement or condition. That depends on their individual commitment to their religious convictions.
331. Fifthly, as for Wanslea's third contention, namely that it approved members of various religions as foster carers, that also has no bearing on whether the Hordyks could comply with the requirement or condition.
332. Finally, even if the possibility of compliance by other persons who belong to the same religion is relevant to compliance by the Hordyks, evidence would be required as to compliance by persons who actually adhere to the teaching of FRCA. There was no such evidence.
333. We find that as a result of their commitment to their faith, the Hordyks did not feel they could compromise their views, or permit conduct by a foster child living as a member of their family that they regarded as sinful to go without correction and instruction in the way God commands people to live. Mr Hordyk gave evidence that his beliefs take priority in all aspects of his life. Mrs Hordyk expressed a similar view. We accept their evidence. We find therefore, that in reality, irrespective of what others might have done or been able to do, the Hordyks could not comply with the condition or requirement which was imposed because doing so would have been viewed by them as being unfaithful to God and they were not prepared to behave in a way that would cause them to be unfaithful to God.

Could a substantially higher proportion of persons who do not hold that religious conviction comply with the condition?

334. We turn now to consider whether a substantially higher proportion of persons who do not hold the same religious conviction as the Hordyks could comply with the condition or requirement which we have found was imposed by Wanslea than those who do not.
335. In order to undertake that comparison, the first step is the identification of the pool from which the two subgroups may then be taken. The pool comprises all of the people who had to comply with Wanslea's requirement or condition. Depending on the factual context there is flexibility in the identification of the pool and its identification need not be overly precise.[305]
336. The second step is identifying two subgroups from within that pool. The first subgroup being the base group and the second, the comparator group. The base group is the group of people who do not share the applicants' religious conviction while the comparator group consists of those members of the pool who share that religious conviction. The determination of the appropriate base group will ordinarily involve the making of findings of fact and a decision to select particular groups involves a question of law.[306]
337. The third and final step is to determine the rate of compliance with the condition or requirement by comparing the two groups. That is a question of fact.[307]
338. In this case, Wanslea submits that the pool should consist of those people who applied to be foster carers between January 2017 and August 2017, which is the period of time during which Wanslea was engaged with considering the Hordyks' application. We agree that that is the appropriate pool. However, there was limited evidence as to those applications.
339. Ms Murray, Wanslea's CEO, gave evidence that Wanslea receives an average of 35 foster care applications per year. Her evidence was that that statistic is based on the 2019/2020 financial year data.[308] From a purely statistical perspective, a yearly average drawn from one year's data has limited utility. However, Ms Murray has been the CEO of Wanslea since 2004 and we considered her estimate of 35 foster care applications per year on average to be reliable on that basis.
340. Given the pool does not have to be determined with absolute precision, we proceed on the basis that the pool consisted of 35 applicants.
341. We must next determine the religious profile of the pool in order to then determine which members of the pool will form the base group and which will form the comparator group. Because we have no information about the actual applicants who applied between January 2017 and August 2017, Wanslea submits that we cannot properly determine the composition of the pool and the Hordyks' complaint must therefore fail.
342. There is some attraction to that position. The Hordyks bear the onus of proof. Rather than establish the pool and the two subgroups with reference to the actual applications and the applicants' religions, the Hordyks' case necessitated inferences to be drawn as to the number of applicants comprising the pool and their religious profile.
343. The Hordyks submit that we can attribute to the pool the religious profile (including no religion) of Australians, as revealed in the Australian Population and Housing Census (2016) (2016 Australian Census) data about which Professor Hughes gave evidence.

Professor Hughes' evidence

344. The Hordyks relied upon the evidence of Professor Hughes to establish the views of the Australian population, and certain religious groups, in respect of SOGI issues.
345. Professor Hughes gave evidence in cross-examination which we accept that he personally accepts that homosexual relations are valid from both a religious and legal point of view.[309]
346. At the time of writing his report[310] and giving evidence, Professor Hughes was a Professor at Alphracrucis College, where he taught research methods and supervised students doing doctoral work in the area of religion and society. He describes himself as a 'sociologist of religion'.[311] He is also an ordained Minister of the Word in the Uniting Church of Australia. His expertise was not challenged, and we accept his qualifications as an expert on matters relevant to this proceeding.
347. Wanslea submits that Professor Hughes' report, which deals with the relationship between religious groups and the attitudes of religious groups towards homosexuality should be given little weight because:
     1. although his expertise and specialised knowledge:

(a) is as a sociologist of religion not as a statistician or data analyst; and

(b) is in analysing survey data not census data,

his evidence is based on data from the 2016 Australian Census and the Australia Survey of Social Attitudes 2018 (2018 Social Attitudes Survey) and an analysis of that data;

2. the 2018 Social Attitudes Survey data has not been publicly released and therefore neither Wanslea nor the Tribunal can test the accuracy of his evidence;
3. his evidence assumed facts which are not borne out by the evidence as to the nature of the condition or requirement; and
4. his evidence was that information regarding the attitudes of various Christian denominations about gender identity is not available and yet his analysis and conclusion (at page 36 of his report) is premised on sexual orientation and gender identity.
348. We reject those submissions for the following reasons.
349. First, it would be preferable if the results of the 2018 Social Attitudes Survey were available for scrutiny by Wanslea. Expert opinion evidence is generally admissible in courts only where the facts underpinning those opinions are proved. However, the Tribunal is not bound by the rules of evidence. We are content to proceed on the basis that Professor Hughes' account of the responses to the 2018 Social Attitudes Survey is correct.
350. Second, the fact that, as Professor Hughes acknowledged, there is a difference between survey data and census data does not indicate to us that there is a difference in the way such data is analysed. It was not put to Professor Hughes in cross-examination that he had no skills or experience in analysing census data. No relevance difference in the way the data should be analysed has been identified. We do not accept that Professor Hughes' report should be given less weight for that reason.
351. Third, we do not accept that his report proceeded on an assumption as to the facts about the condition or requirement which have not been borne out by the evidence.
352. Fourthly, in any event, in our view, Professor Hughes' evidence does not depend on those facts being proved. As with the other experts, his analysis of attitudes of various groups to homosexual relations does not depend on whether the condition imposed by Wanslea was or was not that the Hordyks affirm all SOGI identities. If we were to find that the condition was not as asserted by Wanslea, Dr Hughes' evidence might be of little value in resolving the complaint. However, that does not diminish the weight to be given to the evidence per se.
353. The arguments advanced by Wanslea have not persuaded us to discount the weight to be given to Professor Hughes' evidence.
354. Put very simply, Professor Hughes' report contained a brief history of the various religious movements in Australia since European colonisation and an analysis of the data from the 2016 Australian Census as it related to the religious affiliations of the Australian population at that time. Table 1 of his report sets out the religious profile in Australia, as indicated by religious identity stated on the 2016 Australian Census. It indicates that at the time of the 2016 Australian Census, some 2,353 people identified as belonging to the FRCA. His evidence is that that equated to 0.01 percent of the Australian population at the time. Professor Hughes then went on to provide information about the attitudes of various Christian denominations about attitudes to homosexuality. We shall return to that evidence later in these reasons.
355. Professor Hughes' evidence was that the religious profile in Australia as indicated by religious identity stated on the 2016 Australian Census is as follows:
     1. 52.11 percent belonged to a Christian religion;
     2. 30.1 percent of Australian were of no religion;
     3. 8.2 percent were of a religion other than Christian; and
     4. 9.6 percent gave no response to the question concerning their religion.[312]
356. Professor Hughes explained that it is likely that some of the approximately 10 percent of people surveyed who did not respond to the question concerning their religion were likely to be religious but of the view that they should not reveal their religion to the government.[313] The consequence is that the proportion of the population identifying with a religion in the population is likely to be 'slightly higher' than the percentage stated by the 2016 Australian Census.[314]
357. The Hordyks say that Professor Hughes' analysis is broadly reflective of the evidence from Wanslea about the religious profile (including having no religion) of the applicants it has approved as foster carers. We accept that submission because Ms Murray's evidence, which we accept, is that Wanslea approved and accepted 58 applicants between August 2018 and July 2020.[315] Of those we find from the evidence that 57 percent identified themselves as belonging to a Christian religion. Thirty-one percent identified themselves as having no religion (by answering 'nil') and the remainder were either agnostic or atheist. That generally equates to the evidence of Professor Hughes.
358. Wanslea submits that Professor Hughes' evidence is not persuasive and should be disregarded.
359. However, for reasons we have set out above, we accept Professor Hughes' evidence.
360. Additionally, Wanslea submits that even if we accept Professor Hughes' analysis of the 2016 Australian Census data, there is no evidence to link the religious profile of Australians identified in the 2016 Australian Census to the religions of those who made applications to Wanslea for approval to provide foster care. Wanslea submits that it also follows for that reason that the complaint cannot be substantiated.
361. The evidence on which the Hordyks rely is imperfect. However, the pool does not have to be ascertained with precision. We consider Professor Hughes' evidence as to the religious profile of Australia at a time proximate to the time of the Hordyks' application to be foster carers to be a reliable basis for a finding as to that issue. Further, his evidence as to the religious profile of Australians broadly reflects the actual religions (including having no religion) of Wanslea's approved foster carers. We are therefore satisfied that the evidence permits us to make the following findings.
362. We find that the pool of 35 applicants reflected the religious profile of Australia as identified in the 2016 Australian Census as set out by Professor Hughes at Table 1 of his report. We therefore find the pool would be comprised as follows (rounding up or down to the nearest whole number):
     1. 5 people (being 13.3 percent) would identify as belonging to the Anglican Church;
     2. 8 people (being 22.6 percent) would identify as Catholic;
     3. 1 person (being 3.7 percent) would identify as belonging to the Uniting Church;
     4. 2 people (being 6.2 percent) would identify as being of the Evangelical and Reformed religions;
     5. 2 people (being 6.3 percent) would identify as belonging to another Christian faith;
     6. 11 people (being 30.1 percent) would identify as having no religion;
     7. 3 people (being 8.2 percent) would identify as being from another religion (i.e., other than Christian);
     8. 3 people (being 9.6 percent) would have provided no information about their religious affiliations.
363. If we exclude from consideration the 9.6 percent of the pool (3 people) who did not reveal their religion on the basis that Professor Hughes' evidence is that some of those people would have a religion but not be prepared to reveal it,[316] we have a pool of 32 persons.
364. We next turn to determine the base group and the comparator group from within the pool. The base group must comprise the people within the pool who do not hold the same religious conviction as the Hordyks, and the comparator group comprises those who share the same religious conviction.
365. Identifying the base group and the comparator group also poses considerable difficulty. Because we have no evidence of the actual people who applied to be foster carers between the relevant dates, nor about the actual religions (including no religion) to which those persons identified as belonging, Wanslea submits it is impossible to accurately separate the two subgroups. It submits that the Hordyks' case must therefore fail.
366. The Hordyks submit that we can draw inferences from the evidence available to us, which will allow us to sufficiently identify the base group and the comparator group.
367. The Hordyks submit that we can place into the comparator group the percentage of the pool who belong to what Dr Durie says is the conservative end of the Christian denominations, being Evangelical, Reformed and FRCA. That is because it is said that we can infer that members of those groups are likely to hold the same religious conviction regarding SOGI issues as the Hordyks. Professor Hughes' evidence was that people in the 'evangelical and reformed' category make up 6.2 percent of the population, based on the 2016 Census Data,[317] and FRCA equates to 0.01 percent of the population based on that same data.[318]
368. The Hordyks submit that the base group should be the remainder of people in the pool, excluding those falling into the category 'other Christian'. The Hordyks submit that that subgroup of 'other Christian' should be excluded from both the base group and the comparator group because Dr Hughes' evidence was that that group included diverse Christian groups including Eastern and Oriental Orthodox Christian denominations and Jehovah's Witnesses and Jesus Christ of the Latter­Day Saints who could not necessarily be said to have common views.[319] We accept that that is an appropriate basis on which to proceed.
369. Applying those percentages across the pool, we find that the comparator group would comprise 2 applicants from the pool of 35, and the base group would amount to 31 people.
370. The Hordyks submit that in comparing the rate of compliance of the base group against that of the comparator group, we should consider the percentage of adults in each group who consider that homosexual relations between adults is 'not wrong at all' by reference to the proportion of each group who gave that answer in the 2018 Social Survey. It is submitted that that is because people who thought that homosexual relations between adults are 'not wrong at all' could comply with Wanslea's SOGI condition or requirement.
371. Professor Hughes' evidence was that of the 1 245 people surveyed in the 2018 Social Attitudes Survey:[320]
     1. 9 percent of the people who identified as belonging to the Evangelical and Reformed Churches answered that homosexual relations between adults were not wrong at all, while 5 percent answered that homosexuality was always or almost always wrong;
     2. 40 percent of people who identified themselves as Anglicans answered that homosexual relations between adults were not wrong at all, while 44 percent answer that homosexuality was always or almost always wrong;
     3. 50 percent of Catholics answered that homosexual relations between adults were not wrong at all, while 34 percent answered that homosexuality was always or almost always wrong;
     4. 39 percent of people belonging to the Uniting Church answered that homosexual relations between adults were not wrong at all, while 29 percent answered that homosexuality was almost or almost always wrong;
     5. 34 percent of people who fell into the category he identified as 'other Christian' answered that homosexual relations between adults were not wrong at all, while 53 percent answered that homosexuality was almost or almost always wrong; and
     6. 73 percent of people of no religion answered that homosexual relations between adults were not wrong at all, while 13 percent answered that homosexuality was almost or almost always wrong.
372. In his report Professor Hughes stated that from his analysis he has been able to conclude that within most Christian groups, a minority of members (between 9 percent - 50 percent) consider that homosexual relations between adults are not wrong at all.[321] He also stated in his report that in Evangelical and Reformed groups 85 percent indicated that they believed such relations were always or almost always wrong.
373. The Hordyks acknowledged that relying on the 2018 Social Attitudes survey has limitations in that it does not identify the attitude to homosexual relations between adults of:
     1. three people attributed to the base group who would have been classified as 'other religion'; and
     2. three people attributed to the base group who would have provided no information about their religious view.
374. They submitted that, notwithstanding the acknowledged limitation, it is valid to compare in this way because we do have data from Professor Hughes about the attitude towards homosexual relations between adults of 74 percent of the people who make up the base group, being Anglicans, Catholics, Uniting Church members and people of no religion.
375. The Hordyks take the analysis in Professor Hughes' evidence reproduced at [371] and apply that to the statistics about the pool summarised at [362] and conclude that the overall percentage of people in the pool identifying as Catholic, Anglican, Uniting Church or of no religion amounts to 74 percent of the base group based on the analysis in [362] to calculate the percentage of people in the base group who believe homosexual relations between adults are not wrong at all.
376. The Hordyks submit that the information obtained from the 2018 Social Attitudes Survey[322] establishes that of that 74 percent of people in the base group identified by the Hordyks, 39 percent of Uniting Church members, 40 percent of Anglicans, 50 percent of Catholics and 73 percent of those with no religion would say that homosexual relations between adults are not wrong at all while 9 percent of those who make up the comparator group identified by the Hordyks answered that homosexual relations between adults are never wrong.[323]
377. The Hordyks submit that that analysis clearly establishes that substantially more people who do not share the same religion as the Hordyks can comply with Wanslea's requirement or condition than those who do share the Hordyks' religious conviction.
378. In our view, the figure of 74 percent of the base group which is used by the Hordyks is incorrect because they have arrived at it by including the excluded 'other Christian' group into the calculation. Excluding them and recalculating, we find that the Catholics, Anglicans, Uniting Church members and those with no religion make up 80 percent of the base group. From that we would calculate 80 percent of the base group amounts to 25 people. We have information from which we can infer that:
     1. of the five Anglicans in the base group two Anglicans could comply (representing the 40 percent of Anglicans who participated in the 2018 Social Attitudes Survey who answered that homosexual relations between adults are not wrong at all);
     2. of the eight Catholics in the base group, four Catholics could comply (representing the 50 percent of Catholics who participated in the 2018 Social Attitudes Survey who answered that homosexual relations between adults are not wrong at all);
     3. of the one member of the Uniting Church in the base group, less than one (that is, none) could comply (representing the 39 percent of the members of the Uniting Church who participated in the 2018 Social Attitudes Survey who answered that homosexual relations are not wrong at all); and
     4. of the 11 members of the base group of no religious affiliation, eight could comply (representing the 73 percent of those who participated in the 2018 Social Attitudes Survey having answered that homosexual relations are not wrong at all).
379. From that analysis, we would conclude that 14 of the 25 people in the base group could comply with Wanslea's condition or requirement. Nine percent of two people in the comparator group amounts to less than one whole person. The result is therefore that no person in the comparator group could comply.
380. We accept that that analysis would lead us to find that a substantially higher proportion of people in the base group could comply then those in the comparator group. However, in our view, the Hordyks have conflated a religious affiliation with a religious conviction and hence have incorrectly identified the base group and the comparator group. As both the evidence in this case, and human experience, reveals, merely belonging to a particular church or religion does not equate to adhering to all of the orthodox teachings of that religion.
381. Ultimately, while it does not affect the outcome, we consider the more appropriate assessment to be that the comparator group must comprise the people in the pool who share the same religious conviction as the Hordyks. That group will therefore then need to comprise those people who, regardless of their religious affiliation, believe that homosexuality is sinful and consequently always wrong. We infer that those people, like the Hordyks, would be unable to comply with Wanslea's requirement or condition because of that religious conviction. In contrast, the base group must comprise those people in the pool who, regardless of their religious affiliation, and including those who do not belong to any religion, do not hold a religious conviction that homosexuality is wrong regardless of their religious affiliation and, we infer, would therefore be able to comply with Wanslea's requirement or condition.
382. In the circumstances, the best we can do is use the evidence available to us to identify the approximate proportion of the pool who would fall into each of those subgroups. When the information necessary to establish a comparator is unavailable the Tribunal can, were appropriate, rely on common sense or matters of common knowledge in assessing the rates of compliance.[324] We have done so in this case.
383. According to Professor Hughes' evidence, the results of the 2018 Social Attitudes Survey show that 27 percent of the Australian adult population would regard homosexual relations between adults as almost always or always wrong, while 58 percent of the Australian adult population regarded homosexual relations between adults as not wrong at all.[325] Having regard to Professor Hughes' evidence, we regard it as reasonable to infer that the view that homosexual relations between adults is always wrong is one which is more likely than not to be attributable to a person holding a religious conviction. People who had a religious affiliation were far more likely than those with no religious affiliation to believe that homosexual relations between adults are always, or almost always, wrong. Common experience supports that inference being drawn in today's society. That being the case, we can use those figures and apply them to the pool to determine the base group and the comparator group.
384. Applying those percentages to our base group, we conclude that the base group (being those who do not share the Hordyks' religious conviction) comprises 20 people (being 58 percent of 35) and the comparator group (being those who share the religious conviction) comprises nine people (being approximately 27 percent of 35).
385. We then compare the percentage of people in the base group who could comply against those in the comparator group who could not comply. In doing that we find it reasonable to assume that 100 percent of the comparator group would be unable to comply because they believe homosexual relations are always or almost always wrong, and assume that 100 percent of the base group would be able to comply because they believe homosexual relations are never or almost never wrong. Comparing those numbers 9:20, it is clear, and we find, that a substantially higher proportion of people who do not hold the religious conviction can comply with Wanslea's requirement or condition than those who hold the same religious conviction as the Hordyks.
386. We accept that group includes the small number of people surveyed who, although having no religion, regarded homosexual relations between adults as always wrong. We also accept that the attribution of people to the base and the comparator groups is imperfect, relying on inferences as it did. The information was imperfect but in our view, that group was small enough so as to not fundamentally skew the analysis.

Reasonableness of the requirement or condition

387. We next consider whether the requirement or condition as we have identified it was reasonable in the circumstances.
388. Wanslea submitted that in the event that we found the requirement or condition to be as framed by the Hordyks, we should also find that it was reasonable to impose it, having regard to the following matters:
     1. the requirements of the Service Agreement;
     2. the legislative framework under the CCS Act and the CCS Regulations;
     3. the evidence before us as to the vulnerability of children coming into care and the need to mitigate the risks of emotional and psychological abuse or harm; and
     4. the evidence that the quality of early parenting can have profound impacts on a child's development that may last a lifetime.
389. The Hordyks contended that there was no rational basis upon which Wanslea could have refused to permit them to provide foster care for children between the ages of zero – five years, or for that matter children of zero – one year, or zero – two years, or even zero – four years.[326] They also contended that Wanslea gave no consideration to whether any such accommodation could occur to take account of the Hordyks' religious convictions.

How is the reasonableness of a requirement or condition to be assessed?

390. The issue of the reasonableness of a condition or requirement was a matter considered by the High Court in Waters. In that case, Brennan J, Deane J and Dawson and Toohey JJ, although expressing the test for reasonableness in slightly different ways, concluded:
     1. The reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction.

and

2. There are two aspects to the criterion of reasonableness which are:

(i) whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; and

(ii) whether the activity could be performed, or the transaction completed, without imposing a requirement or condition that is discriminatory or that is as discriminatory as the requirement or condition imposed.[327]

391. Even if the condition is adapted and appropriate to the performance of the activity, it is necessary to consider whether the performance of the activity could have been achieved without the imposition of a discriminatory condition.[328]
392. In considering those issues, the following factors will be relevant:
     1. the effectiveness, efficiency and convenience in performing the activity and completing the transaction; and
     2. the cost of not imposing the discriminatory requirement or condition or the cost of substituting another condition or requirement.[329]
393. In Secretary, Department of Foreign Affairs and Trade v Styles,[330] Bowen CJ and Gummow J stated that one of the factors to be taken into account in determining the reasonableness of any condition or requirement is the nature and extent of the discriminatory effect.[331]
394. Reasonableness is a question of fact that is arrived at by weighing all of the relevant factors which include the financial and economic circumstances of the alleged discriminator and its ability to accommodate the aggrieved person.[332]
395. The test is an objective one, applied by the Tribunal after considering all the facts.[333] In Commonwealth Bank,[334] Sackville J cited with approval, the following statement by Bowen CJ and Gummow J in Styles:[335]

[T]he test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All of the circumstances of the case must be taken into account.

396. His Honour also made the following observations about the identification and assessment of factors to be considered:[336]

A decision may be logical and understandable by reference to the assumptions upon which it is based. But those assumptions may overlook or discount the discriminatory impact of the decision. Depending on the circumstances, such a decision might be legitimately characterised as not reasonable, having regard to the circumstances of the case...the question is not whether the alleged discriminator could have made a 'better' or more informed decision. The issue is that posed by the legislation, namely, whether the requirement is not reasonable having regard to the circumstances of the case.

397. The Tribunal is not concerned with determining whether the decision to impose a particular condition was the 'correct' one but rather whether it was reasonable in light of all of the circumstances.[337]

Expert evidence relevant to the reasonableness of Wanslea's requirement or condition

398. The parties called expert evidence relevant to whether the Wanslea requirement or condition was reasonable. The Hordyks relied on the evidence of Dr Kenny while Wanslea relied on the evidence of Dr Moore.

Dr Kenny

399. Dr Dianna Kenny is a Professor of Psychology, although she started her working career as a primary school teacher and later as a school psychologist. Her PhD concerned developmental and educational psychology. She worked for 31 years at the University of Sydney from which she retired in 2019. From 2006-2019 she was a Professor of Psychology. She is now the Principal of DK Consulting through which she specialises in the assessment of infants, children and families for medico-legal purposes, the provision of child and adolescent therapy, marriage and family therapy, and family dispute resolution. Dr Kenny has published two books on infant and child development. Her clinical practice includes a specialisation in children and young people presenting with gender dysphoria. She has made submissions to government inquiries, presented at parliamentary fora and advised politicians about proposed legislation affecting gender dysphoric children and young people. In 2020, she published a book entitled Gender dysphoria in children and young people.[338]
400. Dr Kenny's expertise in child and adolescent development was not challenged and we accept that she was qualified to give expert evidence on the issues addressed in her evidence.
401. Dr Kenny provided two reports. The first was entitled Expert Report on Sexual Orientation and Gender Identity in Children Aged 0­5 Years: Byron & Keira Hordyk v Wanslea Family Services (First Report).[339] The second report was entitled Supplementary Expert Report on Sexual Orientation and Gender Identity in Children Aged 0-5 Years (Second Report).[340]
402. Dr Kenny opined that foster children are vulnerable and need stability and that all children should be cared for by carers who behave in a way which makes them feel safe and supported. No reasonable person could take issue with that evidence, and we accept it.
403. Dr Kenny's opinion is that the proportion of children in the 0­5 years age range for which issues of sexual orientation would arise 'would be a fraction very close to 0'.[341] In her First Report, Dr Kenny expressed the following views:[342]

3.2 Sexual orientation is one of the developmental features that contribute to sexual identity. The four components comprising sexual identity are (i) understanding of biological sex, (ii) adoption of a gender identity (iii) social sex-role, and (iv) sexual orientation. In turn, sexual orientation comprises four dimensions: (i) attractions (i.e., recognition of gender of those towards whom one feels sexually attracted; (ii) initiation of sexual relationships; (iii) disclosure of sexual orientation to others; (iv) identity labelling as heterosexual, bisexual, or lesbian/gay.

3.3 There has been increased interest in understanding how sexual orientation develops across the lifespan but most of the literature in this area involves adolescents and young adults.

3.4 The reason for this focus in the literature is that sexual orientation issues are extremely unlikely to arise in the age group 0 – 5 years because the concepts outlined above that underpin the notion of sexual orientation will not have developed in children aged 0 – 5; indeed, they do not emerge until the child is entering adolescence and has appropriate life experience to understand the biological and social phenomena that are necessary for such an understanding to develop.

3.5 Based on available data, the proportion of children in the age range 0 – 5 years for whom issues of sexual orientation would arise would be a fraction very close to 0.

404. Dr Kenny said in her First Report that gender identity tends to develop much earlier than sexual orientation because it 'is one of the critical developmental processes unfolding in [the] 0-5-year age group'.[343] However, Dr Kenny noted that:[344]

The number of children presenting with gender identity, gender confusion, or gender non-conforming behaviour in the age group 0­5 years has not been established in population or epidemiological studies.

405. Her opinion was that the evidence establishes that the majority of younger children presenting as gender dysphoric desist in that presentation at adolescence.[345] In answer to the question 'What proportion of children between the age of zero to five would identify as LGB or present with sexual orientation attributes?', Dr Kenny's opinion was as follows:[346]

The proportion of children aged between 0 – 5 identifying as gender discordant would constitute a proportion close to but greater than zero. There are currently no large, randomised sample studies that have identified precise numbers. The area is fraught with problems related to definition of gender dysphoria, self-identification as gender dysphoric, and socio-political issues that have artificially inflated the numbers in recent years.

406. Dr Kenny then went on to express the opinion that the recent increase in the number of children, young people and adults identifying as transgender is 'highly suggestive of a social contagion effect, whereby young people are persuaded by forceful individuals in their social networks, including on social media, to adopt a transgender identity'.[347]
407. Dr Kenny said:[348]

Issues related to gender would rarely arise before the age of 2.5 years. There is a very low frequency probability that children aged 2.5+ years may question their biological sex. If the child expresses gender confusion or cross-gender preferences at this age, the best practice would be to engage in 'watchful waiting' which means, in effect, to do nothing but observe the child and provide a safe, non-judgmental and loving environment with opportunities to explore the world and have their experiences.

408. Dr Kenny went on to express her opinions about whether it is appropriate to allow prepubescent children who are expressing gender dysphoria to take puberty blockers. Her opinions about that issue are irrelevant to these proceedings, and we do not take them into account.
409. Dr Kenny's Second Report addresses the question of what effect these might be on a child of zero to five years of age if they heard a parent explain to an older child in the family that homosexual and transgender practices were sinful. Her answer to that question was, quite reasonably, that it would depend on the way in which that communication was conveyed. She said:[349]

Because children 0-5 would not have the cognitive capacity nor vocabulary to understand the intellectual content of the interchange, they would rely on cues emanating from parent and older biological child to determine whether this situation signalled danger or rejection.

410. Wanslea's submissions in relation to Dr Kenny's evidence were inconsistent.
411. Wanslea submitted that in so far as Dr Kenny's evidence is consistent with that of its own expert, Dr Moore, it should be given significant weight.[350] The evidence it points to as evidence which we should accept is her evidence that:[351]

(a) foster children are extremely vulnerable and need stability; and

(b) all children should be cared for by carers who behave in a way that makes them feel safe and supported.

412. Wanslea also submitted that, to the extent that it was consistent with Dr Moore's evidence, we should accept Dr Kenny's evidence about the ages at which children might express LGBTQIA+ ideas and feelings.
413. As we have said, Wanslea did not challenge Dr Kenny's expertise in child and adolescent development. Her opinions about the ages at which children develop a capacity to understand and express their sexual orientation was not contradicted by Dr Moore whose evidence concerned the age at which a child might express a view about their gender to which we refer later in these reasons. We accept Dr Kenny's evidence about that issue. Her opinion about when a child might express a gender identity was not contradicted by Dr Moore, whose evidence did not specifically address children under the age of two years. We accept Dr Kenny's evidence on that issue.
414. On the other hand, Wanslea submitted that most of Dr Kenny's evidence should be given little or no weight because it proceeded on an erroneous understanding of the facts. We disagree. The questions Dr Kenny was asked to answer are set out in her two reports. It is clear from those questions that she was briefed that the Hordyks had been told they could not foster children unless they were prepared to affirm all SOGI manifestations in a foster child. Based on the evidence given in this case, that understanding is essentially correct. That was, in essence, the requirement or condition which we have found that Wanslea imposed.
415. Dr Kenny's evidence was that she did not consider Wanslea's requirement or condition would be in the best interests of a child because it was based on an unscientific gender ideology that lacked an evidence base and violated the principle 'first do no harm'.[352] This is, in summary, because she holds the view that science demonstrates that most children who express a different gender identity than that with which they are born will cease to do so by the time they are adolescents. For that reason, affirming their childhood gender identity, including by permitting the taking of puberty blockers and other medication, may cause harm to a child who later desists with that identity. Dr Kenny's view is that the appropriate course is what she described as 'watchful waiting'.[353]
416. Wanslea also submitted that Dr Kenny's opinion evidence should carry little weight because it was based on facts which were not established by the evidence about the condition or requirement, namely that Wanslea suggested to the Hordyks that in order to be approved as foster carers they would have to indicate a willingness to assist in obtaining medical treatment for a prepubescent child who identifies as transgender. We accept that there was no such evidence. However, in our view, Dr Kenny's evidence in relation to this factual point was very confined and we have taken the view that that evidence (about the taking of puberty blockers and other medication) is not relevant to the resolution of the issues raised in the proceeding. However, in our view, the remainder of Dr Kenny's evidence outlined above, which concerned the ages at which children will be able to have an awareness of their sexual orientation and gender identity, was derived from her expertise in child and adolescent development, was not premised on any erroneous understanding of the facts of the case, is admissible and highly relevant to this proceeding, and we accept it.

Dr Moore

417. Dr Moore, a child and adolescent psychiatrist who works at the Gender Diversity Service at Perth Children's Hospital, gave the following evidence in her expert report:[354]
     1. sexuality develops through the life span;
     2. children under the age of six years are unlikely to make verbal statements such as 'I am gay' but it is common for issues regarding childhood masturbation, childhood play relevant to developing ideas about relationships and sex, non-abusive peer sex play between same-sex same age peers and childhood non­gender stereotyped behaviours to arise in children under six leading to caregivers to wonder or worry about the child's potential future sexual identity/non-heterosexual orientation;
     3. children under the age of six years are very unlikely to have the cognitive and language capacity to 'question their sexual identity' in a conscious and overt way;
     4. children under the age of six years are in the process of experiencing their individual sexual development trajectory, appropriate to this developmental stage; and
     5. children under the age of six experience pleasurable sensations in their genitals and commonly masturbate as part of their normal development from infancy;
     6. when children under six have developed enough spoken language they very commonly ask curious questions about important and sensitive things including for example about where babies come from, why another child has two dads, why another might have a mum and no dad and the like;
     7. children under the age of six learn from the adults and children around them what behaviours are ok and what are not ok, what is ordinary and what is special, what is praised and desirable and what is forbidden, naughty, dangerous and sinful;
     8. typical preschool behaviour includes kissing and holding hands with other children, touching genitals and masturbation and children might engage in these behaviours either because they are learning about touch and social rules and/or because it feels good;
     9. messages children receive in early childhood about sexuality, whether accepting and positive or disapproving and shaming, are likely to continue to have an emotional impact; and
     10. gender dysphoria can arise in children between the ages of 0 and 5 years, including children who have experienced trauma, although the prevalence of gender dysphoria and transgender identity at any age is definitively not known.
418. We accept that Dr Moore is an expert in child and adolescent psychiatry.[355] Since 2014 she has held the position of Consultant in the Paediatric Consultation Liaison Program and Gender Diversity Service, Child and Adolescent Mental Health Service at the Perth Children's Hospital. She has a particular interest in transgender health, family therapy, infant mental health and attachment and parent-child relationships. We accept the evidence given by Dr Moore. The weight which we give to her evidence is discussed below.
419. Dr Kenny and Dr Moore also prepared a Joint Report.[356] In their Joint Report they agreed that parent-reported concern about children aged four to 11 expressing a wish to 'be of the opposite sex' is 'not uncommon', 'especially in clinic-referred children'.[357]

Wanslea's justification for the requirement or condition

420. We accept Wanslea's evidence that children who come into the care of the CEO, and who are in need of foster care, typically require foster care because, for the most part:[358]
     1. they have experienced neglect and/or abuse whether sexual, physical or emotional in their original home environment; and/or
     2. their family of origin live in an unsafe environment created by drug and/or alcohol addiction, mental health issues, domestic violence and/or the effects of poverty.
421. Wanslea's witnesses were of the view that the termination of a foster care placement because of a child's sexuality would be traumatic and disruptive to a child who needs stability and security in their care arrangements.[359] For that reason, Wanslea's staff were of the view that the appropriate response by a foster carer to a foster child expressing or explaining a same sex attraction was the provision of 'comfort without judgment'.
422. For example, Ms Cain gave evidence that a foster child who identifies as LGBTQI+ or who may be questioning their sexuality and/or gender identity needs support from their carer and that it is crucial that such a child is able to openly discuss with a carer their sexual identity and not be met with a judgmental or punitive response. She gave evidence that if a foster child is not supported in their emerging identity, this will impact the child's self-worth and self­esteem.[360]
423. The evidence of the experts, Dr Moore and Dr Kenny, which we accept is that children who identify as LGBTQI+ are generally vulnerable and require parents to adopt an attitude described as 'loving acceptance' in order to maximise the prospects of healthy emotional development.[361]
424. Having regard to the evidence, we find that as a result of their experiences before coming into care, foster children have often experienced trauma. We accept Wanslea's evidence, and we have no doubt about the correctness of the evidence that the impact of trauma on children may manifest itself in various behavioural disturbances. We find that children in the CEO's care are vulnerable and less able to deal with complex issues including those relating to their own sexuality and or gender identity. We also accept Wanslea's witness' evidence and find that foster children would be at risk of being emotionally harmed if they were to experience rejection within a foster home and that, generally speaking, if that occurred, they would be at risk of developing mental health issues in the medium to long term.
425. Therefore, we find that a foster carer who was not prepared to remain, at the very least, neutral in response to a foster child who was LGBTQI+, may cause that foster child to suffer hurt feelings, and potentially emotional and psychological harm. The extent of any harm will of course depend upon the particular circumstances involved.
426. Given the existence of that potential for harm, we accept that Wanslea could not approve, as a carer for children of all ages, an applicant who would not, at the least, remain neutral in the event that their foster child was expressing or exploring an LGBTQI+ identity and who would instead tell that child that a non-heterosexual and cisgendered identity was sinful and must be fought against.

Our conclusion as to reasonableness

427. But that is not the end of the matter. The question to be determined is whether in the particular circumstances of this case, it was reasonable for Wanslea to impose as a requirement or condition of its assessment of the Hordyks' foster care application, that they would be willing to affirm all sexual orientations and gender identities of a foster child.
428. We find that it was not reasonable to assess the Hordyks' competency to provide care for children from newborn to 18 years of age, and thus to impose the requirement or condition that they be willing to affirm the sexual orientation and identity of all children under 18 years of age. That was particularly so in circumstances where they had indicated that their preference was to care only for children on emergency or short-term basis and only for children who were younger than their oldest child who was then six years of age. There are several reasons why we have come to that view.
429. First, as we have already found, that approach was not required by the CCS Act or the Service Agreement.
430. Second, we do not accept Dr Lund's evidence that children may be placed with foster carers with a view to a short-term placement but that it is frequently the case that plans change and a child may come to need a longer term placement of months or years. He said that in such cases a decision is made for the child to stay with the foster family indefinitely because moving from each placement can cause anxiety for the child and sometimes even trauma.[362] While we accept that it is impossible to predict a child's trajectory in foster care from the time they are placed in the first instance, we do not accept Dr Lund's evidence that it 'frequently' occurs that plans change, such that a child initially placed for short-term care may need longer care and in those cases a decision is made for the child to stay with the original foster family indefinitely.[363] That evidence was not borne out by Wanslea's own foster care statistics which establish that between January 2017 and August 2017, the average time spent in care by a child for whom Wanslea provided a foster care placement was under one month.[364] Further, it is simply inconceivable that when a child is initially placed in foster care, the decision can be taken in every case, that the child will stay with the initial foster carers for the indefinite future. While that may be Wanslea's aspiration for foster children needing long term care, and may be a partial explanation for why it screens all carers for every kind of care for children from 0 to 18 years of age, it is contradicted by other evidence to which we have already referred that some approved foster carers only provide or are only suitable to provide respite or temporary short-term care.[365]
431. Third, it is not the approach taken by every other organisation that provides general foster care under a service agreement. Nor was it Wanslea's practice before 2016.
432. Fourthly, it was not the approach taken by Wanslea in every other case. We have already referred to the evidence that Wanslea approved (or did not cancel the approval upon the conduct of an annual review) of some foster carer applicants who Wanslea identified as suitable only to care for children over the age of two years (for reasons including that those persons smoked) or who were only suitable to care for children who were able to walk (for reasons including that the carer was unable to carry a child). No cogent reason has been advanced for taking one approach to making accommodations for those individuals and a different approach to the Hordyks. Ms Murray's view, that the difference was one of health rather than competency, was not persuasive.
433. Fifthly, there was no evidence of the economic or administrative burden that would be caused to Wanslea as a result of having to make accommodations for the religious convictions of the Hordyks (and other applicants). There was no evidence of the number of applicants that Wanslea finds to be unsuitable to care for all children as a result of religious convictions but who, if assessed differently, might be suitable to care for some foster children. Nor was there any evidence as to the extent of the likely financial or administrative impact upon Wanslea if it were required to assess an approved foster care applicants on a subsequent occasion (for example if the child in their care came to exceed the age range of the children for whom the foster carer had been approved and the carer wished to continue providing foster care for the child).
434. The only evidence that even remotely addressed the issue was that of Dr Lund, who gave the following evidence:[366]

The running of [the] assessment process is funded by resources Wanslea obtains from the Department. It is therefore important that the assessment process is run in an efficient way and that decisions as to whether or not to progress an assessment [are] made as soon as practicable. In circumstances where an assessor has evidence that an applicant may not meet one of the carer competencies, that evidence has to be tested and verified without delay. The assessors and other decision-makers within Wanslea must exercise their professional judgment and make a timely decision to avoid expending resources on applicants who may not ultimately be suitable for foster caring.

435. Accepting that Wanslea should endeavour to make the best use of its limited resources, there was still have no specific evidence about the financial and administrative burden that would befall it if it were required to make accommodations for persons whose religious convictions would make them unsuitable to care for every child but which may nevertheless be able to be accommodated by restricting the age of the children for whom they could care or the type or types of foster care they could competently provide that may have assisted in establishing the reasonableness of Wanslea's requirement or condition.
436. The Hordyks submit that caring for children under five years of age on a short-term, emergency or respite basis was something they could undertake without causing any emotional harm to the child. The Hordyks say that their religious convictions could have, and should have, been accommodated by Wanslea in that way because there is no rational basis for concluding that that a child under five who might come to be placed in their care would identify as LGBTQI+.
437. In making that submission, they rely on the evidence of Dr Kenny that the percentage of children who would identify as LGBTQI+ at under five years is almost negligible.
438. Wanslea submitted that no such accommodation could be made because the age at which children begin to develop a sexual orientation or gender identity makes it impossible to identify an age group of children for whom the Hordyks could safely care. Further, it submits that that kind of accommodation is unreasonable because it is administratively burdensome and defeats Wanslea's aim of finding foster carers who might, as circumstances with a foster child develop, be capable and willing to foster the child continuously, regardless of the child's age.
439. Wanslea has submitted that the Hordyks' response to the Case Study, and the information they provided in discussions with Ms Symes that followed, showed that they were rigid. Wanslea has also submitted that the Hordyks' responses were not the result of a religious conviction. Given Wanslea's claim that it did not regard the Hordyks' response to be motivated by a religious conviction it cannot now claim that it gave any consideration to accommodating the Hordyks' religious conviction. We find that it did not.
440. Nevertheless, we will still need to consider whether any accommodation of the Hordyks' religions convictions could have been possible.
441. The only expert who gave evidence about the age at which a child will develop an awareness of its own or another person's sexual orientation was of Dr Kenny. She gave evidence that the possibility of a child under two years of age expressing any awareness of their own sexual orientation or gender identity was negligible. She said that the proportion of children aged between zero and five years of age who would identify as gay, lesbian or bisexual is 'close to zero'.[367]
442. Dr Moore's evidence, which we have set out above, addressed the issue of children expressing a sexual orientation and gender identity more broadly. However, we prefer the evidence of Dr Kenny to that of Dr Moore and therefore place greater weight on Dr Kenny's evidence for the following reasons.
443. First, Dr Moore's evidence is focussed on children under the age of six years of age and did not specifically address the position in relation to children in specific age brackets younger than six years.
444. Second, Dr Moore did not directly address Dr Kenny's opinion that the proportion of children aged between zero to five years of age who would identify as gay, lesbian or bisexual is close to zero. We regard Dr Moore's evidence that children need to have developed sufficient language in order to begin to express a sexual orientation is generally consistent with Dr Kenny's opinion that children under two years of age are unlikely to express a sexual orientation (even accepting that they may find pleasure in actions such as masturbation).
445. Third, Dr Moore gave evidence that parents reporting that their children had expressed the desire to be the opposite gender under the age of six is 'reasonably common'.[368] She did not expressly state whether she was referring to parents of children presenting at the Gender Diversity Service or parents generally, but we infer from her report she was referring to the former rather than the latter. That is, Dr Moore was reporting about the age at which children presenting at the Gender Diversity Service are observed to have expressed a desire to be the opposite gender, rather than how common it is for children under six years of age to express such a desire. Even so, Dr Moore's evidence on that point does not provide any basis to conclude that children under the age of two years would be likely to express any non-cisgender identity.
446. There was some evidence that young children in foster care had exhibited behaviour, which was atypical for the gender they presented with, and that Wanslea had had to place those children with foster carers. Wanslea relied on Dr Lund's evidence that he has placed with foster carers:[369]
     1. boys aged three or four years and who wanted to dress in girls' clothes and a girl who wanted to wear her hair short and only play with boys;
     2. a five-year-old girl who refused to wear girls' clothes and only wanted friends who were boys and played in way more associated with boys;
     3. a four or five-year-old boy who was effeminate and wanted to wear girls' clothing; and
     4. a 10-year-old girl who wore her hair short, wanted only male friends and presented in a masculine way who had had a very traumatic childhood and had frequently moved between placements.
447. Even if it is assumed that any of those behaviours would constitute indications that the child might not identify with its birth assigned gender, none of the children in the examples given by Dr Lund were under the age of two years.
448. Also in evidence was a copy of a Care Plan form[370] which identified that a child (whose identity was redacted) had, by September 2020, been exploring her gender identity for two years, identified as non-binary and had sought support to purchase a breast strap.[371] However, the Care Plan identifies that that particular child was born in 2005, so by the time that child was said to have begun exploring their gender identity, they were approximately 13 years of age. This evidence thus did not establish that Wanslea had arranged a foster care placement for a child under two years of age who expressed a non­cisgender identity.
449. Ms McLeod gave evidence of her understanding that very young children can present with gender dysphoria. Ms McLeod did not profess any expert qualifications or personal observations to support that understanding. She said that that understanding came from the Assessment Manual which sets out the developmental behaviours of children and which states that children between the ages of three and five may engage in generalised genital play and early experimentation and watch and ask about bodily function and that gender identity is established during that age bracket.[372] That evidence does not cast doubt on Dr Kenny's evidence that children under two years of age are unlikely to express a sexual orientation or a non-cisgender identity.
450. Wanslea submits that accommodating the Hordyks' 'preferences' would compromise Wanslea's ability to ensure foster children received care in an expedited fashion. The evidence before us was that when a foster child is referred to Wanslea by the Department and is not a child with whom Wanslea has had previous involvement, Wanslea often has very little information about that child and that Wanslea's staff, therefore, begin the process of identifying a foster carer without a great deal of information about the child. We do not doubt the correctness of that very general evidence. However, we have no evidence about how often a referral is made without information about the child's age being available. The fact that it may occur occasionally does not mean that it would be unreasonable to expect Wanslea to assess the Hordyks' suitability to care for children under two years of age.
451. The evidence does not support the conclusion that the requirement or condition imposed by Wanslea was reasonable. We find that it was not reasonable. We find that Wanslea could reasonably have accommodated the Hordyks' religious convictions by assessing their suitability to be foster carers for children under the age of two years, on an emergency, respite or short-term basis.

Conclusion regarding indirect discrimination

452. It follows from what we have said above that we are satisfied that Wanslea did indirectly discriminate against the Hordyks on the grounds of their religious conviction in the provision of a service, namely the assessment of their application to be foster carers, by imposing a requirement or condition that the Hordyks must satisfy before their application would be assessed. That requirement or condition was that the Hordyks confirm that they would affirm (or at least remain neutral about) the sexual orientation and gender identity of any foster child. That was a requirement with which the Hordyks could not comply because of their religious conviction, and with which a substantially greater proportion of applicants who did not hold the same religious conviction could comply in the circumstances. The condition or requirement was not reasonable.
453. Wanslea submitted that its refusal to assess the Hordyks' application to be foster carers, by virtue of their failure to comply with the requirement or condition, was not discrimination which is of a kind prohibited under the EO Act for three additional reasons:
     1. Wanslea was performing the statutory functions of the CEO under the CCS Act and was therefore not providing a 'service' for the purpose of the EO Act;
     2. the CCS Act impliedly repealed the EO Act; and/or
     3. s 62 of the EO Act was operationally inconsistent with the CCS Act in this case.

Was Wanslea performing the statutory functions of the CEO under the CCS Act when assessing foster care applicants?

454. Wanslea submitted that in carrying out the assessment of potential foster carers, its employees were properly to be regarded as carrying out the functions of the CEO under the CCS Act albeit that they assessed applications pursuant to the Service Agreement. Wanslea submitted that this coloured the question of whether it was performing services for the Hordyks when considering their application to become foster parents. Wanslea submitted that we should follow the reasoning of Brennan CJ and McHugh J in IW v Perth and find that the exercise of a statutory function cannot be regarded as a service.
455. We do not accept that Wanslea or its staff was acting as an officer of the Department in performing its obligations under the Service Agreement. There are two reasons for that conclusion.
456. First, the term 'officer', when used in the CCS Act is defined in s 3 of the CCS Act as:

a person employed in, or engaged by, the Department whether a public service officer under the Public Sector Management Act 1994, under a contract for services or otherwise.

457. The term 'public service officer' is itself defined in s 3 of the Public Sector Management Act 1994 (WA) to mean:

an executive officer, permanent officer or term officer employed in the Public Service under Part 3;

458. The Macquarie Dictionary Online relevantly defines the term 'officer' as follows:

a person appointed or elected to some position of responsibility and authority in the public service, or in some corporation, society, or the like.

459. Neither Wanslea itself, nor any of its staff is an officer on that basis.
460. Second, although Wanslea is engaged under a contract for services, namely the Service Agreement for reasons we set out above we found that the Service Agreement is an agreement with the Minister not the Department. So, while Wanslea is contracted to perform functions which could and would otherwise be performed by the CEO and officers of the Department, when Wanslea staff do so, they cannot be regarded as 'officers' of the Department.
461. The Intervenor makes three arguments in support of the submission that Wanslea is performing functions under the CCS Act in assessing applications for approval to foster. First, it submits that Wanslea is bound by s 7, s 8 and s 9 of the CCS Act by virtue of section 15(1) of the Act.[373] We do not accept that submission. Section 15(1) simply provides that the Minister may, on behalf of the State, enter into an agreement with a person for the provision or promotion of social services by that person or for the conduct of research and development by that person in relation to the provision of 'social services'.[374] It says nothing about the terms on which those services are to be provided and certainly does not apply the provisions of any sections of the CCS Act to anyone who enters into an agreement with the Minister under that section.
462. Second, the Intervenor submits that it would be absurd to assert that Wanslea is acting independently of the CCS Act because it would not be assessing foster carers but for the force of the CCS Act and would have no role in the lives of children in the care of the CEO but for the provisions of the EO Act.[375] That argument did not identify any pathway for the application of the CCS Act to Wanslea.
463. Third, the Intervenor submits that the long title to the CCS Act, which refers to the CCS Act being, among other things, an Act 'to confer functions in relation to the provision of social services' supports the interpretation that officers of Wanslea are performing functions under the CCS Act when assessing foster care applicants.[376] That argument did not grapple with identifying how the provisions of the CCS Act actually apply to Wanslea.
464. In our view, Wanslea's officers are not performing functions under the CCS Act when carrying out its obligations under the Service Agreement for the following reasons.
465. First, Wanslea is not acting as a delegate of the CEO or as a subdelegate of the CEO. No evidence of any delegation of a function or power conferred on a person by the CCS Act to any employee of Wanslea or to the holder of any position within Wanslea has been tendered. The Service Agreement does not refer to any delegation which, pursuant to the terms of the CCS Act itself, must be in writing and must identify to whom particular functions or powers are delegated. No such delegation can be inferred from the terms of the Service Agreement. Wanslea's counsel expressly stated that it did not contend that it was acting as a delegate.[377]
466. Second, the CCS Act and the CCS Regulations do not expressly apply to organisations that have entered into an agreement with the CEO under s 15(1) of the CCS Act and do not expressly confer functions on such service providers. It would have been simple for Parliament to so provide. There is also nothing in the Service Agreement that expressly requires Wanslea to comply with the provisions of the CCS Act as part of its contractual obligations.
467. Third, contrary to the Intervenor's submission, we do not accept that the long title to the CCS Act supports the conclusion that Wanslea is performing functions under the CCS Act. Relevantly, the long title is:

An Act –

to confer functions in relation to the provision of social services, the provision of financial and other assistance, and, other matters concerning the wellbeing of children, other individuals, families and communities;

• to make provisions about the protection and care of children and the employment of children;
• to repeal the Child Welfare Act 1947;
• to repeal the Community Services Act 1972;
• to repeal the Welfare and Assistance Act 1961;
• to amend certain Acts, and to provide for related matters.

468. While s 31 of the Interpretation Act 1984 (WA) provides that the preamble to a written law forms part of the written law and shall be construed as part thereof intended to assist in explaining its purport and object, we do not consider that the long title supports the position that Wanslea is performing functions under the CCS Act. In our view, the fact that the CCS Act confers on the Minister the power to enter into agreements for the provision of social services cannot be equated with conferring, upon employees of any organisation with whom such an agreement is entered into, a function under the CCS Act.
469. Finally, the conclusion that persons carrying out activities under contract, being activities could be performed by government in the exercise of statutory powers, are not themselves considered to be performing statutory functions or exercising statutory powers, is not novel. Courts in Australia have consistently held that a consequence of governments contracting with third parties to perform governmental functions is that decisions made by those third parties are not amenable to judicial review, whereas had the same decision been made in the exercise of a statutory power they would be amenable to judicial review.[378] A conclusion that Wanslea did not perform functions under the CCS Act when assessing the Hordyks' foster care application, and was not legislatively bound by ss 7 – 9 of the CCS Act, is consistent with the well-established principles in the Australian administrative law context.[379]
470. That conclusion does not deny that Wanslea is obliged to have regard to the best interest of the child when assessing foster care applicants and placing a child with an approved foster carer. However, in our view, that is solely a contractual obligation. Wanslea is contractually bound to make decisions that have, as the paramount consideration, regard to the best interests of the child. That this is the case can be seen from the Service Standards and the Service Agreement itself. Outcomes to be achieved under the Service Agreement include:
     1. that children and young people receive safe, secure and stable placements and that carers are recruited and appropriately trained, assessed and supported to provide quality placements; and
     2. ensuring that children and young people are cared for in a stable, secure home environment where their social, emotional, psychological, physical and developmental needs are met in accordance with the Service Standards.
471. Under the Service Agreement, Wanslea is responsible for the recruitment and assessment of foster carers that best meet the needs of children and young people who are referred to it by the Department and for their ongoing support and training. It is also required to work collaboratively with the Department to ensure the best interests of children and young people. The services it provides are required to be provided in accordance with the Quality Standards specified in Schedule B1, which include:
     1. the 2007 Standards;
     2. the Charter of Rights for Children and Young People in the CEO's care; and
     3. the Protocols for the Foster Carer Directory.
472. As we have already noted, the 2007 Standards include:
     1. Standard 3.7, which required that foster carers have been assessed to determine their competency prior to placement of a child in the CEO's care;
     2. Standard 3.9, that services provide a safe environment for children and young people, which includes emotional, psychological, physical, and environmental safety and take into consideration their age and any specific needs of a child; and
     3. Standard 4, which requires, among other things, that services ensure that the best interest of the child or young person is the paramount consideration.
473. There is nothing in the CCS Act that dictates the terms which are to be included in an agreement made under s 15(1) of the CCS Act. The CCS Act does not require that the same principles be applied by a person performing social services pursuant to an agreement under s 15(1) as are applied when a person is performing functions under the CCS Act. In short, while Wanslea is obliged to apply the Quality Standards, including that the best interest of the child is the paramount obligation, we find that the obligation lies solely in contract, and Wanslea is not exercising functions under the CCS Act.

Implied repeal and operational inconsistencies

474. Initially, the Intervenor and Wanslea both submitted that the CCS Act impliedly repealed the EO Act. In its submissions dated 4 December 2020, the Intervenor eschewed the notion that the CCS Act was repugnant to the EO Act in its entirety. Instead, it submitted that there was an operational inconsistency between the two Acts. Wanslea however continues to maintain that s 8 of the CCS Act impliedly repeals s 62 of the EO Act and advances the operational inconsistency point in the alternative.
475. Wanslea submitted that because it was performing a function or exercising powers under the CCS Act when determining an application, then:
     1. the legislative requirements in s 7 of the CCS Act to give primacy to the best interests of the child applies; and
     2. the requirement that a person exercising a function under the CCS Act is to be guided by its objects and to observe the principles in Pt 2 of the CCS Act,

such that the relevant provisions of the EO Act do not apply. It is said that they do not apply because operational inconsistency between the Acts arises when Wanslea finds that the best interest of the child requires it to act in a manner that would otherwise be regarded as unlawful under the provisions of the EO Act.

476. The Hordyks submit that the CCS Act does not impliedly repeal s 62 of the EO Act and that there is no operational inconsistency between the EO Act and the CCS Act that would result in an implied repeal of the EO Act to the extent of the inconsistency.

Implied repeal

477. The CCS Act, which was enacted in 2004, was enacted after the EO Act. As we understood Wanslea's case, it was that ss 7 – 9 of the CCS Act, with the clear command that the best interests of a child must be the paramount consideration in the performance of functions under that Act, necessarily and by implication repealed any inconsistent provisions in the EO Act. It is well-established that in cases where a later Act of a Parliament dealing with a particular subject matter is wholly inconsistent with the provisions of an earlier Act of that Parliament dealing with that same subject matter, the earlier Act is repealed as a matter of necessary implication.[380] Furthermore, particular provisions, rather than the entirety of an Act, may be repealed by reason of inconsistency with a provision or provisions of a later Act. The more detailed the later Act, or the relevant provision of the later Act, the more likely it is to be found to be wholly inconsistent with a less detailed earlier Act or the relevant provisions of such an Act.[381]
478. However, it was not contended that the CCS Act impliedly repealed the EO Act in its entirety, but rather that it did so only in circumstances where in the operation of the EO Act, its provisions may be in conflict with the provisions of the CCS Act. In our view, Wanslea's argument, properly understood, is one of operational inconsistency only.
479. That that is so is also illustrated by the fact that the two pieces of legislation can comfortably co-exist in circumstances where no decision or conduct affects children. Even in cases involving children, the two Acts may comfortably co-exist. Counsel for the Intervenor gave the example that if Wanslea had refused to approve an applicant as a foster carer simply because of that applicant's race, the EO Act would apply, and the refusal would be unlawful by virtue of s 62 of the EO Act because the best interests of the child would have no part to play in that decision-making process.
480. We find that there was no implied repeal of the EO Act or of s 62 of the EO Act by operation of ss 7 - 9 of the CCS Act.

Operational inconsistency

481. Where two State laws operate in relation to the same matter, there is a presumption that the Parliament did not intend to contradict itself and statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict.[382] Where provisions of two State Acts are not wholly inconsistent but may become inconsistent in their application to particular cases, then to that extent, the provisions of the earlier in time of the two Acts are excepted, or their operation is excluded with respect to cases falling within the provisions of the later in time Act.[383]
482. Strictly speaking, because we have found that Wanslea is bound only in contract to apply the Quality Standards, and to ensure that the best interests of the child is the paramount consideration, this is not a case where any operational inconsistency between the CCS Act and the EO Act, in their application to Wanslea can arise for decision. Nevertheless, for the sake of completeness we will deal with the argument.
483. Like Wanslea, the Intervenor's primary submission is that the assessment of the Hordyks' foster care application by Wanslea does not constitute the provision of a service to the Hordyks. They also submit that in the event that we find that the relevant interaction with the Hordyks does constitute the provision of a service, then discriminating in the provision of that service was not unlawful because of an operational inconsistency between s 62 of the EO Act and ss 7 - 9 of the CCS Act in the Hordyks' case. That is said to be so because the CCS Act requires the best interests of a child to be the paramount consideration. If, to avoid discrimination in breach of the EO Act would need Wanslea to make a decision which did not give paramount consideration to the best interests of the child, then the two Acts would be operationally inconsistent, and the EO Act provision would give way to the requirements of the CCS Act in that circumstance.
484. The Intervenor submits that we should find that the Hordyks' application was assessed and, in effect, refused, on the basis that Wanslea, through its officers, were not satisfied that the Hordyks met all of the Carer Competencies, and in particular, Carer Competency 2 (which is the requirement that they can provide an emotionally and psychologically safe environment for potential foster children) and therefore that it would not be in the best interests of the child to approve the Hordyks' application even if doing so would amount to discrimination on the grounds of their religious conviction.
485. Even if we had found that Wanslea is performing functions under the CCS Act, we do not consider that an operational inconsistency would arise. That is because we have found that Wanslea acted unreasonably in failing to accommodate the Hordyks' suitability for providing foster care for children under two years of age. Nothing in the evidence or submissions suggested that to do so would have been inconsistent with the best interests of any foster child.
486. Accordingly we do not accept that there would have been any basis for an operational inconsistency in the circumstances of this case.

Conclusion in relation to the Hordyks' complaint of discrimination

487. For the reasons set out above we have concluded that:
     1. in assessing and determining their application for approval to be foster carers, Wanslea was providing a service to the Hordyks; and
     2. that Wanslea indirectly discriminated against the Hordyks in the provision of that service on the ground of their religious conviction; and
     3. that there was no implied repeal of the provisions of the EO Act by virtue of the operation of the CCS Act in the circumstances of this case
488. We therefore find the Hordyks' complaint to be substantiated.

Remedies

489. We turn next to consider what orders we should make consequent upon our finding that the Hordyks' complaint is substantiated.
490. Section 127 of the EO Act provides as follows:

After holding an inquiry, the Tribunal may:

(a) dismiss the complaint that is the subject of the inquiry; or

(b) find the complaint substantiated and do any one or more of the following —

(i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 107(1), order the respondent to pay the complainant damages not exceeding $40 000 by way of compensation for any loss or damage suffered by reasons of the respondent's conduct; or

(ii) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act; or

(iii) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 107(1), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant; or

(iv) make an order declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act; or

(v) decline to take any further action in the matter.

491. We have set out the relief sought by the Hordyks. They seek damages in addition to orders which will properly reflect the outcome of their application and which they say will redress loss or damage they have suffered as a result of that discrimination. We deal next with each of those matters in turn.

Damages

492. Mr and Mrs Hordyk submit that they should each be awarded the sum of $3 000 as damages for the loss and damage they suffered as a result of Wanslea's discrimination. The loss and damage was described in their submissions as being in the nature of hurt feelings and humiliation.
493. The Hordyks must prove on the balance of probabilities that the unlawful discrimination materially contributed to their loss and damage and that they actually sustained the loss and damage claimed.
494. Section 127(b)(i) of the EO Act permits the Tribunal to award damaged up to $40 000 by way of compensation for loss or damage suffered by a complainant. The $40 000 is a cap on damages which, in some cases could be assessed as exceeding $40 000.
495. Damages for non-economic loss are awarded to compensate for the injury (including hurt, humiliation and other injury to feelings) suffered as a result of the contravening conduct. They are, by their nature incapable of mathematical calculation.[384] The amount of damages depends on the nature and degree of the loss that is established on the evidence as well as the general standards prevailing in the community. In considering an award for general damages, regard may be had to compensatory awards made in other jurisdictions.[385]
496. In Airflite Pty Ltd v Goyal,[386] Pullin J made the following statement about the assessment of damages under the EO Act:

... In awarding damages, the character and conduct of the respondent as well as the appellant should be taken into account in determining the quantum of damages. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the anti-discrimination legislation gave effect. Compensable loss would include injury to feelings or humiliation[.]

497. In that case, Pullin J quashed the award of $10 000 originally made on the grounds that it was manifestly excessive and outside the limits of sound discretionary judgment and substituted an award of $2 000 as compensation for the complainant's injured feelings and period of depression suffered as a result of the discrimination in the area of employment.
498. The Hordyks submit that the amount sought for their hurt feelings and humiliation is modest and consistent with awards made in other cases. No other cases in relation to religious discrimination were drawn to our attention in submissions. Having said that, the quantum of damages inevitably depends on the facts relating to the discrimination and its impact on the individual complainant.
499. We accept the evidence Mrs Hordyk gave about the impact that Wanslea's decision to terminate the application to foster children had upon her. She said that she was devastated that her religious beliefs had been viewed as dangerous. She also gave evidence that she and her husband had put a lot of time and effort into the application process and had genuinely wanted to help those who needed it most by providing a home and that she was very distressed that she and her husband were considered unfit to become foster carers.[387]
500. Mr Hordyk said he felt deflated and hurt when told he and his wife would not be approved as foster carers.[388] He regarded it has having been 'rejected'.[389]
501. There was no evidence that Wanslea's conduct has caused either of the Hordyks acute distress or psychological issues that required any treatment.
502. We have reached the view that the $3 000 sought by each of the Hordyks is an appropriate sum to award as general damages to each of Mr and Mrs Hordyk for the hurt and embarrassment they suffered as a result of the discrimination Wanslea engaged in.

Order amending Wanslea's Notification to the Department's Foster Carer Directory - redress

503. The Hordyks also seek an order that Wanslea be required to correct its notification to the Foster Carer Directory by deleting the words 'assessed not to meet competencies' and replacing them with the words 'application discontinued'.
504. Section 127(b)(iii) of the EO Act permits us to make an order that the respondent perform any reasonable act to redress any loss or damage suffered by the complainant. Orders under this section must be made for the purposes of redressing the loss or damage and not to punish or discipline the people who committed the unlawful discriminatory acts.[390]
505. In our view, an amendment to the Foster Carer Directory's entry in relation to the Hordyks’ application will serve to redress, in part, the hurt suffered by the Hordyks as it will mean that the record no longer shows that they were not able to meet the Carer Competencies. It was that which has caused them to suffer the hurt feelings they each identified in their evidence and was the result of Wanslea's decision to terminate the assessment of their application.
506. We do not have any power to direct the Department to amend the Department's Foster Carer Directory because it is not a respondent to the proceedings. However, we have no doubt that the Department, acting in accordance with the Protocols for the Foster Carer Directory, would act on a further Notification from Wanslea, correcting the information it provided in relation to the Hordyks' application, were one provided to it.
507. The Hordyks have not actually discontinued their application. However, we accept that the application to have the Department's Foster Carer Directory entry amended in that way indicates that that is what the Hordyks would do now if they could. There does not appear to be any more appropriate way in the context of entries in the Department's Foster Carer Directory, to provide redress in relation the entry in that Directory. In those circumstances, we consider the order sought ought to be made.

Proposed Orders

508. We propose to make the following orders:
     1. The complaint made by the applicants of discrimination in the respondent's provision of services, on the ground of their religious convictions is substantiated.
     2. The respondent is to pay to the first applicant damages in the sum of $3,000 within 28 days or such time period as may be agreed.
     3. The respondent is to pay to the second applicant damages in the sum of $3,000 within 28 days or such time period as may be agreed.
     4. The respondent is to provide to the Department an amended Notice Form in respect of the applicants' foster care application which deletes the words 'assessed not to meet competencies' and replaces them with the words 'application discontinued'.
     5. Any application for costs is to be made within 28 days.
509. The parties should confer about the precise terms of the orders. If necessary, we will convene a short hearing to hear any submissions on that issue.
     
     

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MA

Associate to Deputy President Judge Glancy

23 DECEMBER 2022

[1] The contract is known as the Service Agreement.

[2] See Outcome of Foster Carer Assessment in Witness Statement of Kay Brenda Symes (Exhibit 3.2), pages 341-342.

[3] Applicants' Second Further Amended Statement of Issues Facts and Contentions dated 30 November 2020, para 3.

[4] Applicants' Closing Submissions dated 22 April 2021, paras 139–143. At para 145 of the Applicants' Closing Submissions, it was expressly stated that the other relief detailed in the Applicants' Statement of Issues, Facts and Contentions was no longer sought.

[5] Letter dated 10 April 2019 from the EOC to Mr and Mrs Hordyk advising that their complaint had been dismissed (Exhibit 1.13).

[6] Exhibit 1.13.

[7] Letter dated 30 May 2019 from EOC to SAT (Exhibit 1.1).

[8] Krysiak v Public Transport Authority [No 2] [2017] WASC 103 (Krysiak) at [37] (Pritchard J).

[9] Krysiak at [30] and [36] - [38] (Pritchard J).

[10] SAT Act, s 32.

[11] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 in which it was held that the seriousness of an allegation, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved.

[12] Edoo and Minister for Health [2010] WASAT 74 (Edoo) at [53] (Pritchard P and McNab SSM).

[13] Interpretation Act 1984 (WA), s 5.

[14] The CCS Act has been amended since 2017. As Wanslea's conduct occurred primarily between July and August of 2017, the CCS Act as in force on 1 July 2017 applies.

[15] Other kinds of arrangements include children being placed in group homes or in secure care.

[16] CCS Act, s 30.

[17] CCS Act, s 8(1)(a).

[18] CCS Act, s 8(1)(g).

[19] CCS Act, s 8(1(h).

[20] CCS Act, s 8(1)(i).

[21] CCS Act, s 8(1)(j).

[22] CCS Act, s 8(1)(m).

[23] CCS Act, s 16(3).

[24] CCS Act, s 16(4).

[25] CCS Act, s 18(2).

[26] CCS Act, s 18(4).

[27] CCS Act, s 18(5).

[28] CCS Act, s 21(1)(a).

[29] Witness Statement of Patricia Anne Murray (Exhibit 3.6), pages 3–4, paras 1–6.

[30] ts 585, 589, 595 and 598, 15 December 2020.

[31] See for example: ts 464–465, 470–471, 7 December 2020.

[32] First Report of Dr Dianna Kenny dated 16 April 2020 (Exhibit 2.4); Supplementary Report of Dr Kenny dated 30 October 2020 (Exhibit 2.5); Redacted Joint Report of Dr Moore and Dr Kenny (Exhibit 14).

[33] Expert Opinion of Dr Mark John Durie (Exhibit 2.6).

[34] Expert Opinion of Dr Wesley L. Bredenhof (Exhibit 2.7).

[35] Report of Professor Phillip Hughes (Exhibit 2.8).

[36] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (Makita).

[37] Makita at [85].

[38] Makita at [69], citing Lawton W in R v Turner [1975] QB 834 at 840.

[39] Reserve Capital v Seascapes Supermarket WA Pty Ltd [2022] WASC 56 at [16]–[18].

[40] Exhibit 3.6, page 4, para 8.

[41] Exhibit 3.6, page 4, paras 7–8.

[42] Exhibit 3.6, page 4, para 7.

[43] Exhibit 3.6, page 5, para 17.

[44] Exhibit 3.6, pages 20–96.

[45] Exhibit 3.6, pages 17–20.

[46] Exhibit 3.6, page 22.

[47] Exhibit 3.6, page 19.

[48] Exhibit 3.6, page 17.

[49] The General Provisions for Purchase of Community Services by Public Authorities – Feb 2012 Edition is found at Exhibit 3.6, pages 57-98.

[50] Exhibit 3.6, page 17.

[51] Exhibit 3.6, page 100.

[52] Exhibit 3.6, pages 29–34.

[53] Exhibit 3.6, pages 31–32.

[54] Exhibit 3.6, page 34.

[55] Exhibit 3.6, page 34.

[56] Exhibit 3.6, page 34.

[57] Exhibit 3.6, page 34.

[58] Exhibit 3.6, pages 40–41.

[59] Exhibit 3.6, page 40.

[60] Exhibit 3.6, page 40.

[61] Exhibit 3.6, page 133.

[62] Exhibit 3.6, pages 128–144.

[63] Exhibit 3.6, page 45.

[64] Exhibit 3.6, pages 101–116.

[65] Exhibit 3.6, pages 117–126.

[66] Exhibit 3.6, page 127.

[67] Exhibit 3.6, page 128–144.

[68] The requirement is set out at page 14 of the Service Agreement. See Exhibit 3.6, page 27.

[69] Witness Statement of Charlotte Cain (Exhibit 3.4), para 46.

[70] Exhibit 3.4, para 47.

[71] Statement of Ms Giles at ts 402, 7 December 2020.

[72] Respondent's Closing Submissions, para 8.26

[73] Exhibit 3.6, pages 130–131.

[74] Exhibit 3.6, page 131.

[75] Exhibit 3.6, page 131.

[76] Exhibit 3.6, page 27.

[77] Exhibit 3.6, pages 128–144.

[78] Exhibit 3.6, page 133.

[79] Exhibit 3.6, page 133.

[80] Exhibit 2.6, page 133.

[81] Being Exhibits 4.1 and 4.2.

[82] Exhibit 3.6, page 134.

[83] Exhibit 3.6, page 131.

[84] See Exhibits 4.1 and 4.2.

[85] CCS Act, s 79(2)(a)(i); Regulations, reg 4(1).

[86] Exhibit 2.2, paras 1–4; ts 137, 2 December 2020.

[87] Exhibit 2.2, paras 6 and 13.

[88] Exhibit 2.2, para 11.

[89] Exhibit 2.2, paras 8-9.

[90] Exhibit 2.2, paras 21, 23, 31.1–31.4 and 31.7; ts 140 and 183, 2 December 2020.

[91] Exhibit 2.2, para 28.

[92] Exhibit 2.2, para 22.

[93] Exhibit 2.2, para 23.

[94] Exhibit 2.2, para 31.7.

[95] Exhibit 2.2, para 28.

[96] ts 167, 2 December 2020.

[97] Exhibit 2.2, para 79.

[98] Exhibit 2.2, para 88.

[99] Exhibit 2.3, paras 1 and 4.

[100] Exhibit 2.3, para 2.

[101] Exhibit 2.3, paras 13–14, 17–18 and 20.

[102] Exhibit 2.3, para 15.

[103] Exhibit 2.3, para 15.

[104] Exhibit 2.3, paras 6-9.

[105] Exhibit 2.3, para 18.

[106] Exhibit 2.3, para 19.

[107] ts 191, 2 December 2020.

[108] Exhibit 2.3, para 22.

[109] Exhibit 2.2, para 26.

[110] Exhibit 2.2, para 26.

[111] Exhibit 2.2, para 26.

[112] Witness Statement of Dr Stephan John Lund (Exhibit 3.7), para 14.

[113] Witness Statement of Kay Brenda Symes (Exhibit 3.2), paras 13(a)–13(l).

[114] Presumably, the same panel referred to as 'the Organisation Panel' in the Outcome of Foster Carer Assessment: see Exhibit 3.2, page 342.

[115] Exhibit 3.7, para 17.

[116] The Redacted List of Wanslea Carers as at 8 December 2020 (Exhibit 7).

[117] Exhibit 7.

[118] Supplementary Witness Statement of Dr Stephan John Lund dated 14 December 2020 (Exhibit 12), para 7.

[119] Exhibit 12, paras 11–12.

[120] Exhibit 12, para 13–15.

[121] Exhibit 12, paras 13–18.

[122] See Exhibit 12, paras 19-32.

[123] Exhibit 12, paras 20-21.

[124] Exhibit 3.2, para 66(b)(i); Exhibit 3.7, para 53(f); Exhibit 12, para 24; Further Supplementary Witness Statement of Charlotte Cain dated 14 December 2020 (Exhibit 10), para 24.

[125] Exhibit 10, para 25.

[126] Exhibit 3.7, para 53(i).

[127] Exhibit 3.6, para 23.

[128] Exhibit 3.7 paras 53(h)-53(l); Exhibit 10, para 26.

[129] ts 417, 7 December 2020.

[130] See Exhibit 4.2.

[131] See, for example, Exhibit 4.2, page 18 shows AccordWest have approved carers who are listed as being approved to care for children ages 5-12. Exhibit 4.2, page 16 shows EnableWA approved carers to care for males.

[132] Exhibit 4.1, page 12.

[133] ts 411–437, 7 December 2020.

[134] ts 603–604, 15 December 2020.

[135] ts 626, 15 December 2020.

[136] ts 662–665, 16 December 2020.

[137] ts 676–681, 16 December 2020.

[138] Supplementary Witness Statement of Charlotte Cain (Exhibit 3.5) contains a copy of Wanslea's Foster Carer Smoker Policy issued 3 August 2017 at pages 368–370.

[139] Exhibit 7, page 15.

[140] Exhibit 7.

[141] Exhibit 7, page 24.

[142] Exhibit 7, page 24.

[143] Exhibit 7, page 38.

[144] Exhibit 7, pages 6, 20 and 25.

[145] Exhibit 4.1, page 1.

[146] See Exhibit 3.2, pages 19–261.

[147] Exhibit 3.2, pages 24–25.

[148] Exhibit 3.6, pages 139–140.

[149] Exhibit 2.2, paras 33–34.

[150] Exhibit 3.2, pages 278 and 282.

[151] Exhibit 3.2, paras 14-16.

[152] Exhibit 3.2, paras 14–16.

[153] Exhibit 3.2, para 16.

[154] Exhibit 3.2, pages 296–300 is a copy of the Foster Care Home Safety Checklist Ms Symes completed which identifies the home modifications that might be required.

[155] Exhibit 3.2, paras 18(d) and (e).

[156] Exhibit 2.2, para 44.

[157] Exhibit 2.25.

[158] Exhibit 2.2, para 48.

[159] Exhibit 2.2, para 49.

[160] Exhibit 2.16, pages 3 and 4.

[161] Exhibit 2.2, para 51.

[162] Exhibit 3.2, para 28; Exhibit 2.2, paras 55–57.

[163] Exhibit 3.2 para 28.

[164] Exhibit 3.2, para 28.

[165] Exhibit 3.2, para 29.

[166] Exhibit 3.2, para 29; Exhibit 2.2, paras 56–57.

[167] Exhibit 3.2, para 30; Exhibit 2.2, para 58.

[168] Exhibit 3.2, para 31; Exhibit 2.2, para 58.

[169] Exhibit 3.2, paras 27–35.

[170] ts 651, 16 December 2020.

[171] ts 651, 16 December 2020.

[172] Exhibit 3.2, para 36(b).

[173] Exhibit 3.2, paras 36–37.

[174] Exhibit 3.3, para 15.

[175] Exhibit 3.3, para 20.

[176] Exhibit 3.2, para 36.

[177] Exhibit 2.2, paras 60–64.

[178] Exhibit 3.2, pages 318–319.

[179] Footnotes have been omitted from the quote.

[180] Exhibit 3.2, pages 318-319. Note that the final sentence is not clear in the exhibit, but all of the parties agreed that the Hordyks' answer was as quoted above.

[181] Exhibit 3.2, para 42.

[182] Exhibit 2.2, para 65.

[183] Exhibit 2.2, para 68.

[184] Exhibit 2.2, para 70.

[185] Exhibit 2.2, paras 65 and 70; Exhibit 3.2, paras 50–51.

[186] Exhibit 2.2, paras 71–74.

[187] Exhibit 2.2, para 72.

[188] Exhibit 2.2, paras 71-74, Exhibit 3.2. para 52.

[189] Exhibit 3.2, para 54(e).

[190] Exhibit 3.2, paras 55–57.

[191] Exhibit 2.2, para 77.

[192] Exhibit 2.2, para 81.

[193] Exhibit 2.2, para 82.

[194] Exhibit 2.2, para 83.

[195] Exhibit 2.2, para 85; Exhibit 36, pages 14–15.

[196] Exhibit 2.2, para 86.

[197] Exhibit 3.6, page 16.

[198] Exhibit 3.2, pages 321 and 329.

[199] ts 587–588, 15 December 2020.

[200] Exhibit 3.7, para 29.

[201] ts 668–669. 16 December 2020.

[202] ts 670–671, 16 December 2020.

[203] Exhibit 3.2, para 38.

[204] Exhibit 3.3, page 34.

[205] Waters and Ors v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (Waters).

[206] Krysiak at [65].

[207] Krysiak at [58]-[64], [71].

[208] IW v The City of Perth and Ors [1997] HCA 30; (1997) 191 CLR 1 (IW v Perth).

[209] For the Tribunal's decision, see Perth City and Ors v DL and Ors (1996) 90 LGERA 178.

[210] IW v Perth at 17.

[211] IW v Perth at 11.

[212] IW v Perth at 11–12.

[213] IW v Perth at 12.

[214] IW v Perth at 12–13.

[215] IW v Perth at 15.

[216] IW v Perth at 17, citing Waters.

[217] IW v Perth at 15.

[218] IW v Perth at 18.

[219] IW v Perth at 22–23.

[220] IW v Perth at 23.

[221] IW v Perth at 24.

[222] IW v Perth at 27, citing Waters (Dawson and Toohey JJ), 359 (Mason CJ and Gaudron J), 372 (Brennan J) and 406–407 (McHugh J).

[223] IW v Perth at 29–34.

[224] IW v Perth at 35–36.

[225] IW v Perth at 44.

[226] IW v Perth at 45.

[227] IW v Perth at 73–75.

[228] IW v Perth at 73–75.

[229] Farah v Commissioner of Police of the Metropolis [1998] QB 65; [1997] 1 All ER 289 (Farah).

[230] Farah at 299-300.

[231] Savjani v Inland Revenue Commissioners [1981] 1 QB 458 (Lord Denning MR, Templeman and Dunn LJJ) (Savjani v IRC).

[232] Richards and Commissioner of Police [2010] WASAT 115.

[233] Director General, Department of Community Services v MM [2003] NSWSC 1241 (MM).

[234] MM at [5].

[235] MM at [14].

[236] [1998] QB 65.

[237] [1981] QB 458.

[238] (1997) 80 FCR 46.

[239] [1986] IRLR 502 (CA).

[240] MM at [44].

[241] MM at [43]–[44].

[242] MM at [45].

[243] MM at [59].

[244] Intervenor's Closing Submissions, para 63.

[245] Intervenor's Closing Submissions, para 64.

[246] Intervenor's Closing Submissions, para 65.

[247] Intervenor's Closing Submissions, para 66; Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 at [180] (Yates J).

[248] Intervenor's Closing Submissions, para 66.

[249] Intervenor's Closing Submissions, para 67.

[250] Intervenor's Closing Submissions, para 68.

[251] Interpretation Act 1984 (WA), s 59(1)(d).

[252] ts 48–49, 1 December 2020.

[253] Respondent's Closing Submissions dated 4 December 2020, Annexure C.

[254] Respondent's Closing Submissions dated 4 December 2020, Annexure B.

[255] Western Australia, Parliamentary Debates, Legislative Assembly, 11 December 2001 (Jim McGinty) 6843.

[256] Adelaide Company of Jehovah's Witnesses Incorporated v Commonwealth [1943] HCA 12; (1943) 67 CLR 116 at 123 cited with approval in Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120 (Scientology case) at 131.

[257] Scientology case.

[258] Scientology case at 136.

[259] Scientology case at 174.

[260] R (Williamson and Ors) v Secretary of State for Education and Employment and Ors [2005] UKHL 15 (Williamson).

[261] Article 9 provided:

'1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.'

[262] Williamson at [22].

[263] Dr Durie's expert report is Exhibit 2.6 and he gave oral evidence on 3 December 2020.

[264] Exhibit 2.6, para 1

[265] ts 236, 3 December 2020.

[266] Exhibit 2.6, para 4.

[267] ts 236, 3 December 2020.

[268] Exhibit 2.6, paras 1-4.

[269] Exhibit 2.6, paras 44–46.

[270] Exhibit 2.6, para 47.

[271] Exhibit 2.6, para 52.

[272] ts 202, 2 December 2020.

[273] ts 202, 2 December 2020.

[274] Exhibit 2.7, pages 31–33.

[275] 'Missiology' is defined by the Macquarie Dictionary Online as 'the study of mission work, encompassing theology, social sciences such as history, communications, and evangelical strategy'.

[276] Exhibit 2.7, paras 1.1–1.4.

[277] Exhibit 2.7, paras 3.10–3.15.

[278] Exhibit 2.7 para 4.2.

[279] Exhibit 2.7 para 4.3.

[280] Exhibit 2.7, para 1.3.

[281] Exhibit 2.7, para 1.4.

[282] Exhibit 2.7, para 6.3.

[283] Exhibit 2.7, paras 6.12–6.13.

[284] ts 213-214, 2 December 2020.

[285] ts 212-214, 2 December 2020.

[286] ts 212, 2 December 2020.

[287] Respondent's Closing Submissions, para 12.10(a).

[288] Exhibit 3.2, para 30(b).

[289] Respondent's Closing Submissions, para 12.15.

[290] Respondent's Closing Submissions, para 12.16.

[291] See Lord Nicholls of Birkenhead in Williamson at [22] adopting the language of Iacobucci J in Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1, 27 at [52].

[292] Exhibit 3.2 paras 52(c)–(d).

[293] Evidence of Ms Murray at Exhibit 3.6, paras 49–50.

[294] Scientology case at 135 (Mason ACJ and Brennan J).

[295] See for example the email from Ms McLeod to Ms Cain and Dr Lund dated 29 June 2017 (Exhibit 3.2, page 321) which makes reference to 'other' Christian foster carers being able to respond differently to a LGBT foster child.

[296] Exhibit 3.6, paras 52(b)–52(c); ts 476–479, 7 December 2020.

[297] Exhibit 3.2, para 42; Exhibit 3.3, para 20.

[298] Ms McLeod at ts 591, 15 December 2020 and Ms Symes at ts 648, 16 December 2020.

[299] Ms McLeod at ts 590–591, 15 December 2020 and Ms Symes at ts 648, 16 December 2020.

[300] ts 592, 15 December 2020.

[301] Exhibit 3.3, pages 34-35.

[302] Respondent's Closing Submissions, para 13.27.

[303] Exhibit 3.6, paras 49–50.

[304] Exhibit 2.2, para 9; Exhibit 2.3, para 20.

[305] Rawcliffe v Northern Sydney Central Coast Area Health Service and Ors [2007] FMCA 931 (Smith FM).

[306] Australian Iron & Steel Pty Ltd v Banovic & Ors [1989] HCA 56; (1989) 168 CLR (Banovic) at 179 and 187, applied in Clarke v Catholic Education Office (2003) 76 ALD 84; 202 ALR 340; [2003] FCA 1085 at [46] - [48] (Madgwick J).

[307] Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41 at [17] (Hennessy DP, Chesterman DP, Pan Me).

[308] Exhibit 3.6, para 36.

[309] ts 264, 3 December 2020.

[310] Exhibit 2.8.

[311] Exhibit 2.8, page 10.

[312] Exhibit 2.8, Table 1 and para 11.

[313] Exhibit 2.8, para 2.

[314] Exhibit 2.8, para 2.

[315] Exhibit 3.6, para 50.

[316] Exhibit 2.8, para 2.

[317] Exhibit 2.8, Table 1.

[318] Exhibit 2.8, Table 1.

[319] Exhibit 2.8, Table 2.

[320] Exhibit 2.8, page 7.

[321] Exhibit, 2.8 para 32.

[322] Exhibit 2.8, Table 2.

[323] Exhibit 2.8, Table 2.

[324] Jordan v North Coast Area Health Service (No 2) [2005] NSWADT 258 at [61] (Judicial Member Rice, Member Lowe, Member Weule); Rawcliffe v Northern Sydney Central Coast Area Health Service & Ors [2007] FMCA 931 at [87] (Smith FM).

[325] Exhibit 2.8, Table 2.

[326] Particulars of the Applicants' Claim as to Reasonableness of the Respondent's Requirement or Condition dated 10 December 2020.

[327] Waters at 378 (Brennan J), and 395 (Dawson and Toohey JJ).

[328] Waters at 379 (Brennan J) and 395 (Dawson and Toohey JJ).

[329] Waters at 378 (Brennan J), 383 (Deane J), and 395 (Dawson and Toohey JJ).

[330] Secretary, Department of Foreign Affairs and Trade v Styles and Another [1989] FCA 342; (1989) 23 FCR 251 (Styles).

[331] Styles (1989) 23 FCR 257 at 263.

[332] Waters at 395 (Dawson and Toohey JJ); Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78 (Commonwealth Bank) at 111 (Sackville J).

[333] Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Another (1995) 63 FCR 74 (Dopking No 2) at 83 (Lockhart J).

[334] Commonwealth Bank.

[335] Commonwealth Bank at 110 (Sackville J) citing with approval Styles at 263 (Bowen CJ and Gummow J).

[336] Commonwealth Bank at 112 (Sackville J).

[337] State of New South Wales v Amery (2003) 129 IR 300, 309–310 (Latham DCJ).

[338] Kenny, D. T (2020) Gender dysphoria in children and young people (Scholars' Press, Germany).

[339] Exhibit 2.4.

[340] Exhibit 2.5.

[341] Exhibit 2.4, para 3.1.

[342] Exhibit 2.4, paras 3.2-3.5.

[343] Exhibit 2.4, para 3.6.

[344] Exhibit 2.4, para 4.1.

[345] Exhibit 2.4, para 4.1.

[346] Exhibit 2.4, para 6.1.

[347] Exhibit 2.4, para 6.2.

[348] Exhibit 2.4, para 8.0.

[349] Exhibit 2.5, para 2.2.

[350] Respondent's Closing Submissions, para 7.21.

[351] ts 371, 4 December 2020.

[352] Exhibit 2.4, para 9.1.

[353] Exhibit 2.4, para 8.0.

[354] Redacted Report of Dr Julia K Moore dated 8 January 2021 (Exhibit 13).

[355] Exhibit 13, pages 45–48.

[356] Dr Kenny and Dr Moore's Joint Report is dated 16 March 2021. It is entitled Redacted Joint Report of Dr Moore and Dr Kenny (Joint Report). It is Exhibit 14.

[357] Exhibit 14, page 4.

[358] Exhibit 3.6, para 25.

[359] Exhibit 3.3, para 18; Exhibit 3.7, para 53(d)–(e).

[360] Exhibit 3.4, para 27(a).

[361] Exhibit 14, page 4.

[362] Exhibit 3.7, para 53(c).

[363] Exhibit 3.7, para 53(c).

[364] ts 408-409, 7 December 2020.

[365] See Exhibit 7.

[366] Exhibit 3.7, para 53(i).

[367] Exhibit 2.4, para 5.1. She also acknowledged that a foster carer responding to such a child would need to behave in a way that made the child feel safe and supported and ending a placement is a serious matter.

[368] Exhibit 13, page 28.

[369] Exhibit 12, paras 28–31.

[370] Witness Statement of Christine Lindahl dated 14 December 2020 (Exhibit 9), pages 50–56.

[371] Exhibit 9, page 55.

[372] ts 596–597, 15 December 2020.

[373] Intervenor's Supplementary Submissions dated 4 December 2020, para 19.

[374] 'Social Services' is defined in s 4 of the CCS Act to mean ' services provided to assist children, other individuals, families and communities including, but not limited to, the following services - (a) preventative services; (b) protective services; (c) placement services; (d) child care services; (e) information and advisory services; (f) education and training services; (g) counselling services; h) therapeutic services; (i) advocacy services; (j) mediation services; (k) crisis services; (l) family violence services; (m) support services.

[375] Intervenor's Supplementary Submissions dated 4 December 2020, para 23.

[376] Intervenor's Closing Submissions dated 8 April 2021, para 30.

[377] ts 48, 1 December 2020.

[378] See generally N Sneddon, Government Contracts Federal, State and Local (Federation Press, 6th ed, 2018) Ch 8.

[379] NEAT Domestic Trading Pty Ltd v AWB Ltd and Another [2003] HCA 35, (2003) 216 CLR 277.

[380] Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7 (Griffiths CJ).

[381] Jennings Industries Ltd v Commonwealth of Australia (1984) 57 ACTR 5; 69 FLR 189 at 204 (Kelly J).

[382] Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268.

[383] Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 8 (Griffiths CJ).

[384] Paff v Speed [1961] HCA 14; (1961) 105 CLR 549 at 558–559 (Fullager J).

[385] Richardson v Oracle Corporation Australia Pty Ltd and Another [2014] FCAFC 82; (2014) 223 FCR 334.

[386] Airflite Pty Ltd v Goyal [2003] WASCA 45 at [44].

[387] Exhibit 2.2, para 88.

[388] Exhibit 2.3, para 22.

[389] Exhibit 2.3, para 22.

[390] Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745 at [46]- [53].