The claim by parents that special religious instruction (SRI) provided in Government schools was discriminatory against their children has been rejected by VCAT.

SRI is instruction provided by churches and other religious groups and based on distinctive religious tenets and beliefs. In the Government schools, SRI is provided by accredited instructors from ACCESS ministries (an inter-church body providing Christian religious education) and other approved faiths or denominations.

The parents contended that their children, who elected not to attend SRI classes, were discriminated against on the ground of religious belief (which includes not having a religious belief). The alleged discrimination was that the students were treated unfavourably – they were separated from other students attending SRI and lost the opportunity during that time to undertake other meaningful learning opportunities.

The provision of SRI in Government schools is permitted by the Education Training and Reform Act. Parents may chose for their children to “opt out” of SRI – it is not compulsory.

VCAT held:

  • Attendance at SRI was not a marker of religious belief – parents may wish their children to attend SRI for reasons other than that they held or followed a particular religious belief.
  • Separation of the students during SRI was not discriminatory – students were separated because their parents choose for them not to attend SRI and students are separated during the school year for a range of reasons often because of parental choice and other times for example to attend remedial classes or accelerated learning classes.
  • Separation of the students during SRI may be discriminatory if, in any real sense, it resulted in any of the students being treated adversely in some way, such as being stigmatised for a reasons connected with the separation, or by experiencing the separation in a manner that could be objectively characterised as adverse or a detriment.
  • The separation of children during SRI in any event attracted the statutory authority exception under the Equal Opportunity Act – SRI being authorised by the Education Training and Reform Act is covered by the exemption for acts authorised by legislation.

There was no evidence before VCAT that any of the children had been subject to any differential treatment. In fact, the evidence from the school teachers was that the students treated the separation as no differently to any other separation into groups during the school year.

Position of independent schools

The position of independent schools in relation to SRI is likely to be treated no differently by VCAT except that SRI by independent schools is not specifically provided for under the Education Training and Reform Act. The separation of students who chose not to undertake SRI should not be treated unfavourably because they have chosen not to take SRI providing they are given appropriate educational alternatives.

The position of an independent school may also differ according to whether or not it is a religious school conducted in accordance with religious doctrines, beliefs or principles. The Equal Opportunity Act provides an exemption against discrimination to anything done on the basis of a person’s religious belief by a religious school that conforms with the doctrines, beliefs or principles of its religion or that is reasonably necessary to avoid injury to the religious sensitivities of adherent of the religion.

A religious school with non-compulsory SRI, for example, may be able to rely upon this exemption to avoid a discrimination claim although specific advice should be sought in each case.

Reference: Aitken & Ors v The State of Victoria – Department of Education & Early Childhood Development (Anti-Discrimination) [2012] VCAT 1547; Equal Opportunity Act 2010 (Vic); Education Training and Reform Act 2006 – sections 2.2.10 and 2.2.11.