From the left. Our anti-discrimination case was at VCAT, King Street, Melbourne, before Mr Justice Timothy Ginnane with Ms Melinda Richards, counsel for the complainants, and Ms Rowena Orr, counsel for the Department of Education and Early Childhood Development (pix from FOI Solutions and Vicbar, respectively).
Today, 9 March 2012, concluded the seven-day hearing in which parents took the Department of Education & Early Childhood Development to the Victorian Civil & Administrative Tribunal (VCAT). They claimed their children suffered detriment,
(i) by being identified as different and separated from their classmates when christian special religious instruction classes took place, and
(ii) from lack of instruction in the past.
The single judge took evidence from three parents, the principals of the three primary schools involved and seventeen of their teachers, and a spokesperson of the Education Department.
Victorian government schools are nominally secular. Special religious instruction (sri) during school hours was instituted as an exception in 1950. This is the first time that its administration by the Education Department has been challenged in a court of law.
Since sri is not a compulsory subject, parents may withdraw their child. But segregation by religion is incomprehensible to young children. Some are disturbed by being identified as atheist. The activities permitted to non-participating students during sri have been circumscribed by Departmental policy, and some opting-out parents feel cheated. A parent told the Tribunal, “I still don’t know if I made the right decision!” Teachers gave assurance that independent activities like silent reading were meaningful learning.
In July and August 2011, when the case was at an earlier stage, the Education Department suddenly changed its regulations, ordering school principals to make sri an opt-in system and permitting opted-out students to receive ‘non-core’ secular instruction. That was a sensible reform.
However, no new resources for schools are being provided. The new policy still forces parents to make a choice of a religious nature, requires schools to open their doors to any accredited religious provider, and fails to ensure instruction for students who don’t participate in sri.
On the Department’s side it was argued that separation into sri streams was logically necessary, since the subject was not compulsory, and that separation was not necessarily detrimental. The christian provider has recently made its syllabus more attractive with the claim that it ‘builds on’ Victorian Essential Learning Standards, which make up the core curriculum set by Victorian Curriculum & Assessment Authority.
On the matter of forcing parents to choose sri or not, the Department argued that Equal Opportunity Acts exempted this action from unlawful discrimination, because it was ‘authorized’ under the Education Act, and further that it was no infringement of religion or belief. The judge remarked that it did force parents to declare their choice when they might prefer privacy. When the Department repeated that no freedom had been limited, the judge detected a degree of coercion; the Department disagreed.
The parents submitted that the Education Department should acknowledge the discrimination against the parents’ children and that it should refrain from continuing to discriminate. The parents requested that the Department require instruction to be provided to students who do not attend sri, where sri is conducted during normal school hours.
The parents also raised the possibility of staging sri out of normal school hours, which would solve the problem of discrimination. One principal said that there would then be no need for teacher supervision, because the school’s direct duty of care finished with school hours. The Equal Opportunity & Human Rights Commission advised the Tribunal that the issue of discrimination would be cured simply by interpreting the Education Act in accordance with human rights.
The judge reserved his judgment. When the judgment is known, the Humanist Society plans to hold a public forum on religion and ethics in State schools.
Stephen Stuart, president