Special religious instruction at school not unlawful discrimination

Aitken & Ors v The State of Victoria – Department of Education & Early Childhood Development (Anti-Discrimination) [2012] VCAT 1547 (18 October 2012)


In the recent decision of Aitken & Ors v The State of Victoria – Department of Education & Early Childhood Development, the Victorian Civil & Administrative Tribunal rejected a claim of direct discrimination made by parents of children at Victorian State primary schools against the Department of Education & Early Childhood Development in relation to its Special Religious Instruction (SRI) program.


The complainants argued that the method of providing SRI in these schools, which is based on distinctive religious tenets and beliefs, is discriminatory because:

  • children not participating in SRI (Non-participating Students) are identified as different, and separated from their classmates when religious instruction classes are held;
  • there is no curriculum instruction during SRI classes for Non-participating Students, denying them the opportunity to be taught secular subjects; and
  • SRI is timetabled during school hours.

The complainants also claimed that implementing SRI in this way meant that their children had been subject to “less favourable treatment” under section 8(1) of the former Equal Opportunity Act 1995 (Vic), or “unfavourable treatment” under section 8(1) of the Equal Opportunity Act 2010 (Vic). The complainants submitted that a substantial reason for this treatment was the attribute of their children's “religious belief” or “activity” within the meaning of the EO Acts.

The complainants sought that:

  • the Department make religious education something parents must opt into, rather than out of;
  • SRI occur after school or at lunchtime; and
  • Non-participating Students be provided with proper educational alternatives.

(In 2011 following the lodgement of the complaint, the Department amended its SRI policy to shift to an "opt-in" system. The amendments to Department policy also included a commitment that Non-participating Students would be engaged in meaningful activities.)


Discrimination – differential treatment?

Judge Timothy Ginnane held that the complainants had failed to establish that the Non-participating Students had suffered any "differential treatment", a term which Judge Ginnane used to encompass the direct discrimination provisions in both the EO Acts.

His Honour held that ''the evidence did not establish that the children, who did not attend SRI at the three schools, were treated in any discriminatory manner,'' and accepted evidence of teachers that there was no teasing, bullying or pressure on students to attend SRI.

The complainants' argument that SRI limited Non-participating Students' access to the benefit of instruction during core school hours, as a result of schools failing to offer the core curriculum to Non-participating Students while other students attended SRI, was rejected. Judge Ginnane considered that as both groups were engaged in learning of value and neither were engaged in learning the core curriculum, it could not be said that the Non-participating Students were subjected to any differential treatment from the students attending SRI.

Religious belief – a substantial reason for the treatment?

The Tribunal was also not satisfied that a substantial reason for the treatment of the children was their religious belief. In this regard, his Honour considered that ''attendance by a child at special religious instruction does not, necessarily, indicate that the child, nor the parents, hold any particular religious beliefs.”

Further, the Tribunal considered that the decision not to offer the core curriculum during periods of SRI was reasonable, and was unrelated to any person's decision to engage or not engage in SRI.

Relevance to the Victorian Charter

The complainants made submissions about the effect of the Charter of Human Rights and Responsibilities Act 2006 (Vic) on the interpretation of the Department's SRI policy, the Education and Training Reform Act 2006 (Vic) and the EO Acts.

It was argued that the rights of the complainants' children under sections 14 and 8 of the Charter had been engaged. Section 14 of the Charter provides for "the right to freedom of thought, conscience, religion and belief", whilst section 8 provides, inter alia, for the right to enjoy human rights without discrimination, equal protection of the law without discrimination, and equal and effective protection against discrimination.

The complainants argued that the Charter required the Department and the Tribunal to interpret the Education Act and the EO Acts, so far as it was possible to do so, in a way that is compatible with human rights.

The Charter and the EO Acts

The Tribunal held that the ordinary meaning of the direct discrimination provisions in the EO Acts were clear and unambiguous. Therefore, there was no occasion for the application of section 32 of the Charter to alter their meaning. Noting the purposes of the EO Acts as protecting important human rights, not least the right of equality contained in section 8 of the Charter, his Honour considered that "Giving the direct discrimination provisions their ordinary meaning is compatible with human rights and, indeed, promotes them."

Judge Ginnane considered that the factual findings made in determining the complaints of direct discrimination also led to the conclusion that no infringement or limitation of the human rights of the complainants' children was established.

The Charter and the Education Act

The Tribunal also accepted that the State must act in a way that is compatible with the human rights of the complainants' children. However, it also considered that holding SRI during school time and not teaching the core curriculum during those times was a reasonable way of implementing the program and was consistent with the purpose of the Education Act.

The complainants argued that section 14 of the Charter applies to their decision not to adopt any belief or religion. On this basis, they argued that the section of the Education Act which provides for SRI should, by virtue of section 32 of the Charter, be interpreted such that SRI, as presently conducted by the Department, is inconsistent with their human rights under section 14 of the Charter.

Whilst noting that the Education Act ensured that participation in SRI was not compulsory, his Honour gave weight to Parliament's decision not to incorporate a provision like article 18(4) of the International Covenant on Civil and Political Rights into section 14 of the Charter, so as to give parents a right to ensure that their children are educated in accordance with their own moral and religious convictions.

The Tribunal held that both the "opt-out" and "opt-in" systems for ascertaining parents' wishes regarding SRI were authorised under the Education Act, and did not limit children's human rights.


This decision indicates that while the Tribunal sees the Charter as having an "important interpretative role" in respect of legislation, it will be reluctant to apply the Charter to displace the ordinary meaning of legislation, where that ordinary meaning promotes human rights.

The decision also highlights that the Tribunal will not read into the Charter rights those rights which exist at international law but which are not expressed in the Charter itself. Article 18(4) of the ICCPR, which requires that states "respect the liberty of parents … to ensure the religious and moral education of their children in conformity with their convictions" does not find expression in section 14 of the Charter, and the Tribunal held that article 18(4) did not expand the rights protected by the Charter.

It is clear from this decision that when the Tribunal considers that the ordinary meaning of the statutory provision in question is compatible with rights under the Charter – and where there is no ambiguity in the provision – section 32(1) of the Charter will not be afforded an expansive application.

Recent media articles have indicated that the complainants intend to appeal the decision.

The decision is available online at: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2012/1547.html

Kaitlyn Gulle is a lawyer at Lander & Rogers.