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)

 by Kaitlyn Gulle

original can be read here:



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 Nonparticipating 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 HUMAN RIGHTS LAW CENTRE | RIGHTS AGENDA | 19
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

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
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 HUMAN RIGHTS LAW CENTRE | RIGHTS AGENDA | 20
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

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

The decision is available online at:



Kaitlyn Gulle is a lawyer at Lander & Rogers.