Aitken & Ors v The State of Victoria - Department of Education & Early Childhood Development - [2012] VCAT 1547 - VCAT 2012 case summary

Aitken & Ors v The State of Victoria - Department of Education & Early Childhood Development - [2012] VCAT 1547 - VCAT 2012 case summary — Zoe

[5]

There are two proceedings by the same parties: the first, numbered A123/2011 a complaint made under the Equal Opportunity Act 1995 (the 1995 Act) to the Victorian Equal Opportunity and Human Rights Commission, which was referred to the Tribunal and the second, numbered A296/2011 an application made in the Tribunal under s 122 of the Equal Opportunity Act 2010 Act (the 2010 Act.). That application was brought by the complainants in the complaint numbered A123/2011 and related to conduct that occurred since 1 August 2011, when the relevant provisions of the 2010 Act commenced. The complainants submitted, and I proceed on the basis that, the 1995 Act applied to conduct occurring until the commencement of the 2010 Act and that it applied to conduct occurring thereafter. The two proceedings were heard together and a number of witnesses gave evidence about events that had occurred both before and after 1 August 2011.
The Victorian Equal Opportunity and Human Rights Commission (the Commission) intervened in the proceeding under s 40 of the Charter of Human Rights and Responsibilities Act 2006.
There are about 1200 government primary schools in Victoria.[4] Two-thirds offer SRI.[5] SRI is also offered in a small percentage of secondary schools.[6]
Religious instruction has been provided on Victorian Government school premises since at least 1930 and there is a suggestion that this has occurred since 1905. Since 1950, it has been provided in reliance on the Education Act and since 2006 in reliance on the Education and Training Reform Act 2006. The Parliaments of 1950 and of 2006 decided that children attending state schools should be able to receive religious instruction.
SRI is not compulsory and parents were provided with an 'opt out' choice concerning participation of their children, which, in 2011, was changed to an 'opt in' choice.
SRI is conducted between March and December for 25-30 minutes a week. It is often scheduled after the lunch break. It is provided to students on a grade by grade basis.
The pattern of participation in SRI at the three schools was as follows. At East Ivanhoe Primary School in 2011, 550 students were enrolled and 389 students attended SRI and 161 did not. In 2012, although figures were not complete at the time of the hearing, of 531 students enrolled, between 310 and 320 students will be attending Christian and Bahá'í SRI and 165 will not.
At the second school: in 2011, of the 327 students enrolled, 47 did not attend SRI. In 2012, of the 336 students enrolled, 238 will be attending SRI, 64 students will not and as at the time of the hearing the parents of some students had not returned their forms and their children therefore could not attend SRI. A few parents had also ticked the box for other Christian religions, but they had also ticked the box for SRI.
At the third school: in 2011, of the 171 students, 58 students attended SRI and 113 students did not attend. In 2012, of the 190 students enrolled at the school, 45 students will attend SRI and 145 will not.

[8]

The complainants made their complaint and bring their application, on behalf of their children pursuant to s 104 (1)(c)(ii) of the 1995 Act and s 123 (1)(c)(ii) of the 2010 Act. Those provisions permit a parent to make a complaint, or application, on behalf of their children.
The Tribunal ordered under s 101 of the Victorian Civil and Administrative Tribunal Act 1998 that no person may publish any information that might enable the second and third Complainants and their children to be identified.[7] The first complainant did not seek such an order for herself, or her children.[8] To give effect to the order of the Tribunal requires, so it was submitted, that the names of the schools attended by the children of the second and third complainants not be published.[9] As a matter of logic, it also means that the names of their teachers, who gave evidence should not be published. After some consideration, I have decided that to give effect to the order of the Tribunal, that in addition to a prohibition on the publication of the names of the second and third complainants, the names schools of the second and third complainants' children should not be published, nor should the names of their teachers. When I refer to the evidence of the second and third complainants and to the evidence of teachers at their children's schools, I will endeavour, where appropriate, to provide the reference to the Tribunal Book page where that evidence is located, without naming the school or teacher concerned. I will refer to the schools of the second and third complainants' children as the second and third schools respectively. I will not name the teachers at the second and third schools, who gave evidence. I will use letters to refer to the second and third complainants and their children.
None of the children gave evidence of their experience at school of the time when SRI was provided. That was understandable in view of their age. However, it meant that the parents' evidence was based, in many respects, on their recollection of things their children had told them. Parents would often see themselves as the most accurate assessor of their children's feelings. Some said in evidence that their children would tell them things that they would not tell teachers. That evidence has the air of authenticity and is supported by human experience. Nevertheless, those aspects of the parents' evidence were hearsay.[10] The Tribunal is not bound by the rules of evidence and can admit hearsay evidence: see s98(1) of the Victorian Civil and Administrative Tribunal Act.
Parents may often know best, at least in an overall sense, how their children are experiencing their school life. However, it is possible parents may misunderstand the context of school events of which their children tell them, or give an event a greater importance than it deserves.
There was no suggestion that the parents were not endeavouring to give a truthful account of what their children had told them. The fact that I rejected the respondent's application that the second and third parents should leave the hearing room, so that they would not hear the cross-examination of another parent, does not require any different conclusion.
I take into account, and give weight to, the parents' evidence of what they say their children have told them about the SRI program at their schools, but I bear in mind the possibility of their misinterpretation of things that the children have described.
I have also decided, for reasons that I give below, that in respect of the events at school, particularly about where the students not attending SRI were located and the tasks that they were given to do, I should place most weight on the evidence of the children's teachers.

[133]

It is appropriate at this point to determine whether the application of the interpretative provisions of the Charter affects the meaning of the provisions of the Education Act that deal with SRI.
The complainants argued that the Charter required both the respondent and the Tribunal to interpret s 2.2.11 of the Education Act, so far as it was possible to do so, consistently with its purpose, in a way that is compatible with human rights.
The complainants submitted that if, on its ordinary construction, s 2.2.11 of the Education Act necessitated, or authorised, discrimination against their children, as alleged in these proceedings, it followed that the provision limited the rights given to them by s 8(2) and (3) and s14 of the Charter.
The complainants argued that the respondent had presented no evidence to justify under s 7(2) of the Act the limitation of their children's human rights by s 2.2.11 of the Education Act.
The Tribunal should attempt to interpret the statutory provisions in a way that did not privilege the freedom of religion, thought and conscience of the children who attend SRI, over those who did not.
The complainants also submitted that prohibition on instruction in core curriculum during SRI time impermissibly privileged the rights of those children who attended SRI over those who do not. A similar submission was put about the scheduling of SRI during the school instruction hours.
The complainants submitted that it was possible, pursuant to the obligation imposed by s 32 of the Charter, to interpret s 2.2.11 of the Education Act consistently with its purpose, in a way that was compatible with the human rights that were engaged and that:
- (a) did not require the primary schools administered by the respondent to timetable SRI during normal school hours;
- (b) did not require or authorise SRI to be provided at these schools administered by the respondent on a 'opt out' basis;
- (c) did not forbid secular instruction or instruction in the core curriculum being given to students who do not attend SRI; and
- (d) did not require or authorise the provision of no instruction to students who do not attend SRI.
The Commission submitted that s 32 (1)of the Charter required the Tribunal to interpret the Education Act and the Equal Opportunity Acts compatibly with human rights, so far as it is possible to do so, consistent with their respective purposes.
Secondly, that the Charter rights engaged in the proceedings should be interpreted in the broadest possible way.[44]
The Department is a public authority for the purposes of the Charter and therefore by reason of s 38 had to comply with the obligations that that section imposed.
Section 2.2.11 could be interpreted so as not to require schools to teach SRI during ordinary schools hours; or alternatively, if it was taught at those times, not prohibit those students who do not attend from receiving new educational instruction, in the same way that students attending SRI receive new instruction that is out side the core curriculum. The State should either interpret s2.2.11 in a human rights compatible way so that meaningful and new instruction was provided to students not attending SRI, or it should schedule SRI outside normal school hours, or at lunchtime.
The Education Act did not compel the State to provide SRI, or mandate that SRI must be given during ordinary school hours. The State must act in a way that is compatible with the human rights of the complainants' children, specifically their rights to freedom from discrimination, equality and freedom of religion.
The issue, as the Commission put it, was that the Department's implementation of this legislative command through its policy making had a discriminatory effect.
The respondent challenged the submission that the requirement that the complainants opt their children out of SRI, or since 2011, opt them in, limited the children's human rights. Alternatively, it argued that any limitation of the children's rights was justified under s 7(2) of the Charter. The nature and extent of the limitation caused by the opt out requirement was minimal. It was within the range of reasonable alternatives available to the Department to achieve the purpose of ascertaining and implementing the wishes of parents as whether their children should participate in SRI.
The prohibition on instruction in the core curriculum during SRI times, was authorised because the State had to provide secular education. If that prohibition limited human rights, it was a reasonable limitation because its purpose was to ensure that students who attended SRI did not miss instruction in the core curriculum. The prohibition on instruction in the core curriculum during SRI times was also authorised by ss 2.2.11 and 2.2.10 of the Education Act. All children were treated the same in that none received instruction in the core curriculum instruction during the time that SRI was conducted.
Scheduling SRI during school hours was within the range of reasonable alternatives available to the respondent for the purposes of facilitating non-compulsory denomination, or religious instruction in government schools. It had the purpose of facilitating denominational religious instruction in government schools for parents, who wanted their children to attend. Its effect was minimal. There was a range of practical problems with scheduling SRI before or after school or at lunchtime.
The respondent referred to the significance of Article 18 (4) of the ICCPR and to the decision of the United Nations Human Rights Committee in Leirvag v Norway to reinforce that significance.[45] That decision dealt with exemptions available to parents from a new mandatory religious subject in the Norwegian school system entitled "Christian Knowledge and Religious and Ethical Education". The Committee held that there had been a breach of the parents' freedom of religious rights contained in Article 18 (4) of the ICCPR.
Parliament had chosen not to incorporate a provision like s 18 (4) in s 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.
Section 2.2.11(2)(c) of the Education Act ensured that participation in SRI was not compulsory, but left the choice of whether to provide it and, if it was provided, how parental wishes were to be ascertained, to the schools. Both the opt out and opt in systems of ascertaining parents' wishes were authorised and did not limit the children's human rights.

[167]

The parties submitted that the relevant comparison under the 1995 Act was between the treatment of the complainants' children while they were opted out of SRI and the treatment of students in their classes who do participate in SRI (the comparator).[50] I have proceeded on the basis of applying that comparator under the 1995 Act. There was no evidence that would have supported a case based on any other comparator.[51]
Hereafter in these reasons, when I refer to less favourable treatment, I intend to convey less favourable treatment than the respondent provided to the comparator.
Secondly, the complainants must prove that the true basis for their less favourable treatment by the respondent was that they had the attribute or attributes relied on. In Kapoor v Monash University,[52] the Victorian Court of Appeal stated that it was necessary to ascertain, by consideration of all the surrounding circumstances, the substantial reason (or reasons) for the conduct or the 'true basis' on which the conduct was pursued. Direct discrimination on the basis of an attribute occurs where the attribute is the true reason, or the true ground, or one of them, of the treatment alleged.[53] This conclusion must be reached following an objective assessment of all the circumstances. Another way of dealing with the issue is to ask the question: why did the treatment occur?
It is irrelevant:
- (a) whether the person said to directly discriminate was aware of the discrimination or considers the treatment to be less favourable (1995) or unfavourable (2010); [54]
- (b) whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.
The determination of whether less favourable treatment has occurred requires a factual inquiry, taking into account all of the surrounding circumstances: see per Kiefel J in Commonwealth of Australia v Humphries.[55] An objective consideration of the relevant evidence is required.
In Haines v Leves [56] Kirby P said:

[179]

Ms Sophie Aitken, the first complainant, has three children attending Ivanhoe East Primary School. Howard, is 12 and is in Grade 6. Toby and Elliot are 9 year old twins in Grade 3.[65]
Ms Aitken stated that she and her husband are atheists and their boys knew that they did not believe in God. They have never attended church and treat Christmas and Easter as secular events. They have encouraged the boys to think for themselves and told them that it is not what people believe that matters, but how they behave towards one another.
Ms Aitken stated that very little information is provided to parents about what SRI involves and who teaches it. At enrolment, parents are required to specify their child's religion and whether they will be participating in SRI. At the beginning of each year, the school sends parents a form offering a choice between Christian and Bahá'í SRI. This form allows parents to opt their children out of SRI altogether, as she and her husband have done for their children.
Ms Aitken gave evidence that she was disturbed by three particular aspects of the provision of SRI at the school. First, her children had to be identified as non-Christian at the beginning of their schooling and had to justify their position as non-believers very early in life. She would have preferred that they had time and space to find their own paths, rather than having to be identified as different from their peers and atheist, when they were too young to know what that meant. It was wrong that they have been put in such a position by the State secular school system. State primary schools should be inclusive of, and treat all children equally. Howard, when in Prep, had been identified as someone who did not believe in God and had to deal with that in the playground.[66] Her children tell other students, who ask them why they are not participating in SRI, that it is because they do not believe in God.[67]
Secondly, there was pressure on children to participate in Christian activities just to fit in and to feel part of their peer group, to conform, rather than be identified as different. During Prep, Howard told her that he did not like being sent to another, strange class during SRI time.[68] Howard has attended the Christmas event, since Grade 1, because he wanted to be with his peers. During Grade 1, Elliot told her that he wished that he could stay with his best friend during SRI time. A number of parents have told Ms Aitken that their children only attend SRI because they don't want to be separated from their classmates or that there was no alternative, even though their preference was that their children not do SRI. Parents told her that if there was a secular alternative, they would take it. She seriously considered enrolling her children in Bahá'í SRI, as a better alternative than having them do nothing during SRI time.[69]
Thirdly, the scheduling of SRI means that all children miss out on secular instruction for 100 hours of primary school education, so that religious instruction by unqualified volunteers can take place. Children, who opt out of SRI, receive no instruction at all during SRI time.
Ms Aitken's preference was that SRI be run outside of school hours, or that instruction be provided in philosophy and ethics for children, or in values education without religious overtones. Instead of having free time while SRI is taught, her children should have some instruction in values, about right and wrong, and how to lead a good life. She developed an applied ethics program for primary schools, in conjunction with the Humanist Society of Victoria. She approached the school Principal, who was supportive of the idea. Other parents wanted such a program to be offered at the school. However, the Department of Education and Early Childhood Development decided that the Humanist Society of Victoria could not provide instruction in applied ethics in a government school because it was not a registered religious group. Ms Aitken produced a letter dated 3 August 2009 from the Minister for Education, Ms B Pike, to the President of the Humanist Society which stated in part:

[183]

Before that correspondence had occurred, on 15 February 2009, the Department received, via the World Conference of Religions for Peace, an application for accreditation of Mr H Gardner, Humanist Society of Victoria, as volunteer instructor for the provision of SRI in Victorian Government schools. On 25 March 2009, the Department responded stating that the application was not acceptable because:
- The Humanist Society is not registered or recognised as a religious organisation in Australia.
- The Humanist Society does not provide instruction that can be defined as special religious instruction "provided by churches and other religious groups and based on distinctive religious tenets and beliefs" (Section 2.2.11.5 of the Education and Training Reform Act 2006.)[71]
The Aitkens have opted Howard out of SRI since Prep class in 2006. Ms Aitken's evidence was that, initially, Howard, and two other children, were the only children in his class opted out. They were given Lego to play with at the back of the classroom. Ms Aitken concluded that Howard must have listened in to the SRI, because he came home saying things like 'God made the world'. Ms Aitken complained to Howard's teacher and he, and the two other students were placed in the computer cubicle at the back of the classroom, where they could see their classmates, but could not hear the instruction. They were not allowed to use the computers, but were given reading and drawing materials instead. Later in that year, the three children were sent to another prep classroom, where they could read or draw. Howard complained to his mother that he did not like having to go to another class, because he did not know the children there. He told her that one of his classmates told him that he would go to hell, if he did not believe in God. He wanted to make sure that that was not true.
In Grade 3, Howard was allowed to use the classroom computer. In recent years, he has been placed in classrooms with other children from his year level, who are not attending SRI classes.
Ms Aitken stated that in 2010, while SRI was being conducted, Howard was forbidden to work on an assignment that he was preparing on an Antarctic explorer and was told to read a book, or do some drawing instead. Howard complained to her that these activities were boring. In 2011, he asked the supervising teacher if he could do a drawing during SRI. He was told that he was not allowed to draw and he had to read instead. Howard told his mother that he has been reading AFL football records during the SRI time.
Since the revised policy was introduced in 2011, Howard has been allowed to work on school assignments, or to finish school work during SRI time. However, because he is a fast worker, he often does not have work to complete, so generally he still reads during SRI.
The Aitkens have opted Toby and Elliot out of SRI since Prep class. As previously stated, Toby commenced Prep in 2009 and is currently in Grade 3. Ms Aitken gave evidence that in Prep, about 6 children in Toby's class were opted out of SRI and they sat in the teacher's office adjoining the classroom. On at least one occasion, Toby said that they had been placed in the corridor. One teacher supervised both the SRI students and those who had been opted out of SRI. Toby brought home craft and drawings that he had completed during SRI time in Prep and told his mother that he would also spend some time reading.
Ms Aitken stated that Toby, when in Prep, forgot to hand in his form indicating that he had been opted out of SRI and brought home a colouring sheet stating that 'God made the world'. When Ms Aitken told Toby that this is not what she believed he asked: "Why would a teacher say it if it isn't true?"
Since Prep, Toby has spent the time during which SRI was conducted with other children, who have been opted out of SRI. He has told his mother that he has spent it working with Lego, drawing, playing on the computer and playing games such as Uno, chess and battleships and he has also done reading.
Ms Aitken said that Elliot's experiences with SRI have been similar to Toby's, although a smaller number of children opted out of SRI in Elliot's Prep class. In Grade 1, students not attending SRI sat in the corridor. Elliot played with Lego, drew, read and sometimes finished off class work. In 2011, he stayed in the classroom with other Grade 2 children, who had been opted out of SRI and performed similar activities to Toby: reading, playing Uno, chess and battleships.
Elliot has expressed some discontent at being separated from his best friend during SRI. At the end of 2011, he informed his mother that he wished to participate in Bahá'í SRI at school, because he wanted to be with his friends, who were doing Bahá'í, he didn't want to have to do boring silent reading and he wanted the lollies that were given out at the end of Bahá'í SRI.[72]

[184]

Ms Milena Maranville, who has been the Principal since 2006, recalled being approached by Ms Aitken on this matter. She suggested she contact the Department, since the school was not able to provide an ethics education program that was not approved by the Department.
She recalled telling Ms Aitken that the school already provided values education to every class, based on the agreed school values of respect, integrity, caring, learning, cooperation and fun. These were community agreed values, determined every four years through consultation with the staff, parents and students.
Ms Aitken stated that the changes made to the SRI policy in 2011 have not resulted in any significant changes at the school. Children, who do not participate in SRI, continue to be denied instruction during that period.
Ms Aitken accepted that under current arrangements, it would be unfair on the students attending SRI, if their classmates, who were not attending, were instructed in the core curriculum.[73] She considered that SRI was an add on to the VELS curriculum, in that it built on it.
Ms Maranville gave evidence that SRI was part of the make up of the school and there was an expectation among parents that it was part of the programs on offer.[74] Since 2007, after an approach from a small group of parents, a Bahá'í Faith program has also been offered as SRI.
As previously stated, the number of students attending SRI for 2012 were not finalised when Ms Maranville gave evidence, but, based on forms returned, of the 531 students, 271 were to attend Christian Faith SRI or Bahá'í SRI and 165 will not be attending SRI. About 40-50 will attend the Bahá'í Faith program. The parents of 85 students have requested SRI in one or more religions other than Christianity or Bahá'í Faith. The highest proportions of those other faiths were Catholicism and Orthodox Christianity. If there are no accredited or approved representatives to provide SRI for these religions, these children will not attend SRI. The parents of two students have ticked the box "Other" and written the words "ethics education". These students will not attend SRI. Because ethics education is not provided by a church or religious group, it cannot be offered as a form of SRI. The parents of 8 students have not yet returned their form and if they did not before SRI commenced, those students will not attend SRI.
There are seven instructors for Christian SRI and four for Bahá'í Faith SRI.
At the commencement of each school year, Ms Maranville writes to parents asking them to complete and return a reply slip specifying whether their children will participate in Christian religious education, the Bahá'í Faith program or neither of the SRI programs. She stated that the school had "opt in" system for SRI, during her time as Principal. She considers that the "opt in" system is the best way to make sure the choices of parents and students are respected. At the start of each year, it is made clear to teachers in staff meetings that children are not to be sent to SRI classes, if their reply slip does not give permission, or if no reply slip has been returned.
In February 2012, Ms Maranville sent parents the new Departmental Form No. GC 566 and flyers about the CRE and the Bahá'í programs.
Ms Aitken disagreed that the school had operated an "opt in" policy prior to September 2011. She referred to the occasion in 2009, when Toby was in Prep, forgot to hand his form in and was placed in Christian SRI.
Usually, SRI will be scheduled for two classes of the same grade level at the same time, with one teacher supervising the Christian SRI classroom and another supervising the other students in the other classroom. An additional staff member, who is sometimes Ms Maranville, will supervise the Bahá'í Faith SRI class in another room. When SRI classes are not scheduled at the same time, students not attending SRI, either work in a class room or, in a corridor learning space adjoining the classroom or, join a neighbouring class for that time.
Ms Maranville said that the school corridors operated as open learning spaces in keeping with the Reggio Emilia educational philosophy, which places importance on the school's physical environment and encourages a sense of community. The corridors are called the 'piazza' or break out spaces. They are wide communal spaces, where children can spread out and explore a learning topic, have their work displayed, participate in group activities and interact with children from other classrooms. They are ideal for student groups to engage in construction activities, maths games, problem solving or creating large murals. Chairs and tables are placed in the corridors. Ms Maranville's statement attached a photograph showing a number of children working together in one such corridor.[75]
Teachers are given a degree of autonomy and flexibility as to how students not attending SRI spend the time. It is not free time. Students are to be given something educationally interesting, or valuable to do. They may read, complete, or illustrate school work, write stories, play maths and strategy games such as chess, carry out construction with equipment such as Lego, or Meccano, or work on computers on educational programs. Teachers use their professional judgment and, a diversity of approaches, in determining which activities will have the best outcome for each child. Generally, if a teacher's students are going to someone else's class during SRI time, that teacher will tell them what work to do. However, they cannot be taught something new, that the other students who are attending SRI will have to learn later and catch up.[76]
It is not unusual for students to spend time in other classrooms undertaking educational activities with students from that classroom. Cross-age tutoring and the buddy program between Grade 6 and Prep students occur throughout the year. Generally students of the same grade level will be familiar with one another, even though allocated to different classes and classrooms, because they are taught in close proximity, frequently with the doors open between classrooms and they see each other in the playground.
Ms Maranville stated that students were under no pressure to participate in Christian SRI in order to fit in. It is made clear to parents and students that there is a choice. The school has a track record of children exercising choice. The children are very articulate and, if they are not happy with something, they tend to say so. The school has zero tolerance of bullying behaviour and emphasises tolerance of different beliefs and respect for everyone's right to hold their own belief. Ms Maranville gave evidence that neither Ms Aitken, or her husband, have ever raised with her or, to her knowledge, any of the children's teachers, that they have felt isolated, or excluded from their peers, by not attending SRI.
Ms Maranville gave evidence about the school's annual Christmas event, which is prepared by the Christian and Bahá'í Faith instructors and generally involves the children in a nativity scene and singing carols and songs from the SRI lessons. Some of the children get dressed up for the event and teachers and parents attend. It is held during school time for about 45 minutes in the morning, with separate sessions for junior students and senior students. Ms Maranville generally speaks to the audience about the community service that the students have undertaken and the charities that their fundraising has supported. Students are not expected to attend, if they have not participated in SRI and in that case are supervised by staff.
Ms Aitken gave evidence that in Howard's prep year, she and her husband kept Howard from the Christmas event. However, he felt excluded and wanted to be with his friends. Therefore, in subsequent years, they have let Howard and, later, the twins attend.
Ms Maranville denied that the provision of SRI meant that students were missing out on secular instruction, or that children not attending SRI had free time. The school day is not made up entirely of instruction and students are not empty vessels to be filled up with information every minute of the day. On other occasions, children work independently and discover things for themselves eg in developmental play.
Ms Maranville stated that the school did not make significant changes in the arrangements for students not attending SRI students after the policy changes of August 2011, because its practices already complied with the new policy.
Some extracurricular activities such as the chess club, which is run by an outside provider, are conducted at lunchtime. Sports' training takes place before school, under the supervision of the classroom teachers or the PE teacher.[77]

[185]

Howard's teacher in his Prep year indicated that she did not wish to be involved in the proceeding. There was no specific evidence from his teachers in 2007, 2008 and 2009, when he was in Grades 1, 2 and 3.
His Grade 4 teacher in 2010, Ms M Joseph, gave evidence to the following effect. SRI was scheduled on Wednesday afternoons between 2.40pm and 3.05pm for her class and another of the three Grade 4 classes. Those classes were split into three groups during the SRI time. From the two classes, 21 children attended Christian SRI, 10 attended Bahá'í Faith SRI and 23 did not attend SRI and were supervised by Ms Joseph in her classroom. The children attending Christian SRI were sent to Ms Coulter's classroom and the children attending Bahá'í SRI to another room. SRI was not free time and the children not attending SRI, undertook quiet reading, which was often done in the afternoon in any event. Reading is a valued part of a child's learning. The children were expected to have a book that they were currently reading, but Ms Joseph would give them an appropriate book if necessary. She supervised and generally roved the room and helped children as required.
Ms Joseph described Howard as an avid, prolific reader with highly advanced literary skills. He enjoyed reading during this time. She could not recall him seeking to work on his assignment about an Antarctic explorer. However, she would have refused any such request and told him that it was more appropriate to continue the assignment during class time.
In 2011, Howard's class teacher in Grade 5 was Ms C Borbely. There were 27 children in that class: 9 attended Christian SRI, 5 attended Bahá'í Faith SRI and 13 did not attend SRI. SRI occurred on Thursdays from 2.15pm to 2.40pm, which was a good time of day for it because, generally, no specialist classes were scheduled then and teachers often used that time to hand out homework and arrange teams for class projects and activities. Teachers discussed the activities that students not attending SRI might do, including playing chess or checkers, completing silent reading or finishing off work, not otherwise completed in class. Project work was not an appropriate activity, because generally, not all the people in a given group would be present.
In terms one and two in 2011, the students not attending SRI were supervised by Mr N Katsis, the teacher of the neighbouring Grade 5 class. In the middle of the year, Howard's Grade 5 class paired with Ms Coulter's Grade 6 class. Thereafter, Ms Coulter generally supervised the non-SRI students, while Ms Borbely supervised the students attending Christian SRI.
Ms Coulter gave evidence that the Grades 5 and 6 students knew each other, as they had been involved in joint activities, including a camp and sports activities. The students not attending SRI were directed to do quiet reading from a selection books in the classroom, or from a book that they had brought with them, to finish off work, or to do activities related to maths. If children did not bring a book, the classroom had a large bookshelf with a range of reading materials from which they could choose, including the Guinness Book of Records, football books and football records. Howard likes to look at the football records with one of the other students. Ms Coulter considered that even reading the football record was making use of a reading resource and that it was educational for children to read about topics that interested them. She required the children to use the time valuably, either to read, finish off work, or take part in other activities like the maths challenge. Sometimes, but not generally, drawing was appropriate during SRI times, as when children illustrated the front covers of their book reports. She was not to teach the students anything new.[78]
In term three in 2011, Ms Coulter arranged a problem-solving math challenge for students, who wished to participate.
In 2012, in Grade 6, Howard's teacher is Ms Calvert. Of the 26 students in his class, based on the forms that had been returned when Ms Maranville gave evidence, 1 student will be attending Christian SRI, 6 will be attending Bahá'í Faith SRI and 12, including Howard, will not be attending SRI. One student had not yet returned the form and 6 have requested SRI in a religion other than Christianity or Bahá'í Faith. Based on those numbers, it is intended that students, who do not attend SRI, will be engaged during that time in activities such as: "writer's notebook", which is a personal journal in which students note observations, new words and phrases to be used at a later time, maths revision games, English revision games eg scrabble, or boggle, or silent reading of material of their choice.

[186]

Toby's Prep teacher was Ms M Bannon. Initially 6, and later 8, children in Toby's class of 24 did not attend SRI and none attended the Bahá'í Faith SRI. Initially, Ms Bannon sent the students, who did not attend SRI, into the neighbouring classroom, with an activity related to a unit of study, or with some incomplete work to finish, and sometimes with the book boxes, from which the children could change their readers and obtain new books to read.
Some of the students said they did not want to go to the other classroom, whilst SRI was being conducted in Ms Bannon's classroom. Therefore, a few weeks into term two, Ms Bannon changed the arrangement so that those students were placed in the teacher's office, which adjoined the classroom and which had glass windows and a door, allowing her easy observation of them, without allowing them to hear the SRI lesson.
Ms Bannon gave students not attending SRI activities to do, either independently, or by assisting one another. Ms Bannon said that Toby, and one of his good friends, were among the students that did not attend SRI. She felt an obligation and commitment to ensure that the students, who did not attend SRI, were engaged in meaningful activities, such as craft activities related to their current integrated unit of learning. When the SRI class was finished, those students would return to her classroom and assist in helping the other children to learn the craft activity on which they were working. On occasion, she would give the students a task of finding particular information in a text.
The number of students not attending SRI increased over the year and, Ms Bannon moved them into the computer area adjoining the classroom, which she could clearly view. She sometimes moved the students into the corridor outside the classroom, when their activity required more space for example when they were working on a bigger project, or in groups of three.
Ms Bannon could not recall an occasion in 2009, when Toby forgot to hand in his form and was therefore, automatically placed in the Christian SRI class. Her normal practice was to check the permission form and if it had not been returned, or was incomplete, the student would not be sent to SRI. She believed that Toby would have told her if he was not to attend SRI. She recalled Toby as being part of the group that did not attend SRI throughout 2009.
In 2010, Toby was in Grade 1F and his teacher was Ms E Forde. Seven students in his class did not attend the SRI on Wednesday afternoons. Toby's class would "buddy up" with the Prep/1M class. Of that combined group of students, 23 attended Christian SRI in Toby's classroom, 6 students went to Bahá'í Faith SRI in the junior school corridor and 13 non-SRI students, including Toby, went to the Prep/1M classroom, where Ms G Moncrieff supervised them.
Ms Moncrieff and Ms Forde discussed appropriate tasks for the students, who were not participating in SRI. They generally included computer time, maths puzzles and reading or finishing off work and drawing connected with the students' class work. Neither Toby, nor his mother, ever complained to Ms Forde about the arrangements adopted for students not attending SRI. She recalled on one occasion when a group of boys, including Toby, excitedly brought back a maths puzzle that they had worked on during SRI time.
In 2011, Toby's Grade 2 teacher was Ms N Kiley. Toby was one of 6 students who did not attend SRI. Ms Kiley supervised the students participating in Christian SRI in her classroom and students not attending SRI were supervised in the other Grade 2 classroom by Ms S Grant, who was Elliot Aitken's teacher. Ms Kiley gave her students, who went to Ms Grant's class during SRI time, the tasks of reading a book, finishing off class work, or a work sheet that built on classroom learning. Ms Kiley recalled one occasion when she gave Toby permission to do drawing, which he loved, but generally drawing was only permitted, when connected to the students' class work.
For a few weeks at the start of 2011, when Ms Grant was new to the school, the students not participating in SRI whom she supervised, played with Uno, chess and battleships, which are educational games that teach strategy, mathematical concepts and sharing skills. After a few weeks, and after speaking with another Grade 1/2 teacher about appropriate activities for students not attending SRI, she introduced quiet reading and finishing off schoolwork, which were more in line with the School's approach.
Ms Grant described Toby as a bright student and an avid reader, who usually liked to bring a book to read to the class. In her opinion, drawing was only an appropriate activity, if it related to the child's class work, as it did when she directed the children to finish a maths concept symmetry activity, which involved drawing a butterfly.
Ms Grant stated that she had never observed any teasing of children or pressure on children because they did not participate in SRI and received no complaints from Toby and Elliott. Her class talked about zero tolerance of bullying behaviour and tolerance of different beliefs. These values were an integral lesson from the class' study of different cultures in 2011.
In 2012, Toby is in Grade 3 and his teacher is Ms S Purdie. There are 23 students and, based on the forms returned at the time of hearing, 7 students will attend Christian SRI, 1 will attend Bahá'í Faith SRI and 10, including Toby, will not be attending SRI. Five have requested SRI in a religion other than Christianity or Bahá'í Faith. Based on those numbers, it is intended that the students not attending SRI will perform child-selected reading, personal writing and self-study in an area of personal interest.

[187]

Elliot's Grade 1 teacher in 2010, Ms C Borbely gave evidence that approximately 8 children did not participate in SRI and that she supervised them, including sitting in the corridor break out space with them. They would rotate through activities, including, handwriting and spelling revision, reading aloud and Lego construction. At the same time, she also supervised the Christian SRI class through the glass window in the wall separating the corridor and the classroom. The students in the corridor break out space could not hear the SRI class. It was not unusual for teachers and students to be in the corridor, as it was used as a break out space for activities during the year.
In 2011, Elliot's Grade 2 teacher was Ms Grant and 10 students in his class did not participate in SRI. Elliot's class had SRI at the same time as Toby's class on Wednesdays between 3.05 pm and 3.30 pm. During SRI time, Ms Grant supervised 16 students from her class and Ms Kiley's class, who were not attending SRI. The activities undertaken were the same as those undertaken by Toby.
Ms Grant stated that the students enjoyed reading. SRI time was an opportunity for them to practise, while she was present to assist them. Many of the children did not do the required ten minutes reading, each evening. It was also an opportunity for the students to have one on one time with a teacher, who could chat with them to gauge how they were going. Her class enjoyed the children from the other class coming into their classroom.
In 2012, Elliot is in a Grade 3 of 22 students and his teacher is Mr N Katsis. Based on the forms returned at the time of the hearing, 6 students will attend Christian SRI, 1 will attend Bahá'í Faith SRI and 7 will not be attending SRI. Eight have requested SRI in another religion. Based on those numbers, it is intended that the students not attending SRI will spend the time doing child-selected reading, self-study in an area of personal interest eg making a poster for the classroom about robotics or finishing work.

[189]

Ms B made a witness statement and gave evidence on behalf of her two children. She said that she and her husband are atheists, that religion is not a feature of their family life and that Christmas and Easter are secular celebrations for them. They have not taught their children to believe in God, but they have not been strident in their views. Initially, they were happy for their children to attend SRI classes, as they did not want them to feel isolated, or to place them under any pressure at the start of their schooling. Both their children attended SRI in their Prep year.
Their school offers only Christian SRI and children attend, unless they are opted out. Neither Ms B nor her husband has been provided with any information about whether the SRI instructors are accredited.
During Prep, Ms B's daughter BB came home upset and said things like: "if you don't believe in God, you won't go to heaven" and "if you don't believe in God, you're not real". BB knew that her mother did not believe in God and Ms B was troubled at these statements. She wrote to the Principal on 19 July 2010, withdrawing her children from SRI. In the letter, she asked for advice about how non-participants in SRI were occupied during SRI time and whether there was a suitable alternative for children, who do not attend religious education, eg, a factual science or humanistic ethics program.[80]
Ms B said that about a month later, the Assistant Principal contacted her and told her that the school was concerned by the content of her letter and had investigated it. She assured her that her daughter's comments did not reflect the approved SRI curriculum.
The Assistant Principal gave evidence that in July 2010, the Principal asked her to investigate Ms B's complaint and follow it up with her. Ms B's letter said that her children had made comments to her after SRI classes, that were inconsistent with the school's educational principles and that she wanted to withdraw her children from participating in SRI classes. She expressed concern about the contents of the SRI syllabus and questioned the appropriateness of children, who attended SRI, being given lollies. She asked for information about how students, who did not participate in SRI, were occupied and asked if there was suitable alternative instruction for non-participants.
The Assistant Principal investigated Ms B's complaint. She spoke to the CRE co-ordinator, who, after enquiries, told her that the instructor was adamant that she had not said what BB had reported to Ms B. She assured her that the instructor followed a script relating to the approved syllabus and that the comments from BB did not reflect that syllabus. ACCESS Ministries had made the decision to ban the giving of lollies to children in 2009 and the instructor denied that she had done so in 2010. The instructor brought to school books relating to the syllabus and a poster setting out the values that were part of the script that the instructors followed, to show to interested parents.
The Assistant Principal reported the result of her enquiries to Ms B, who told her that she was happy with them. Ms B refused the opportunity to meet with the ACCESS Ministries' co-ordinator.
Ms B stated that she was not satisfied with the school's investigation of her concerns. She declined the offer to look at the official CRE curriculum/syllabus because it had no bearing on what was said in the classroom. She did not feel there was any point meeting the ACCESS Ministries' representatives.
The enrolment form details for BA and BB were not altered after Ms B wrote to the school to withdraw them, but the children were not thereafter included in SRI.
Ms B stated that her son's separate identity, as one whose mother did not believe in God, was reinforced week after week, when SRI class was held and he has to leave the classroom. Her son is aware that he is leaving the class, because his mother does not believe in God. He can see, from the corridor, what the rest of the class is doing. BA has often mentioned outside school that 'his mum doesn't believe in God'. Ms B finds this strange, as religion is not a topic that is discussed at home. She tells her son that everyone believes different things and he is free to make his own decisions. She believes that his weekly separation from the SRI class reinforces the to him fact that his mother is somehow different and, as a result, he has become self-conscious about this issue and feels the need to defend her.
Ms B stated that the core issue for her son is not the type of work he does during SRI, but that it is different from the work being done by the rest of the class. He is doing different work, because his mum does not believe in God.
When SRI commenced for 2011, BA's teacher was not aware that he had been opted out. BA had to put up his hand and say: "my mum doesn't believe in God so I'm not doing SRI". He was then identified as an "opt out" student and he was told to sit in a corridor and do a drawing. Ms B said that she remembered the conversation about this incident clearly, because she was a little sad that BA saw, and identified himself, as the "one whose mum doesn't believe in God."
Ms B stated that her son is unlikely to tell his teacher if he is unhappy or bored, but has told her that many times at home. He has often been placed at the back of the classroom in which SRI has been taught, without any work to complete. He has told his mother that he has been prevented from doing maths and other schoolwork and from using the computers. More recently, he has indicated that he has been allowed to play on the computer in the Grade 1 classroom, and to help children in Grade 1 with their reading and has also sat with the remedial maths teacher and his students. Sometimes he has been required to stay in an corridor adjoining the SRI class, where he can be seen by the teacher through a side window of the classroom.
Ms B said that BA has told her two or three times, that during SRI he was placed in a separate multi-purpose room, in which a computer is located and which is used for before and after care of children, for Italian classes and for classes that involve big group work.[81]
BA has told Ms B that sometimes the computers that he is told to work on are not operating and that, at times, the activities of the children in the SRI class seemed more fun than what he was doing.
Ms B said that she talked over dinner every day with BA about what he did at school. She accepted that she did not know herself what generally happens to students, who were not undertaking SRI and, it varied so much from week to week, that she could not generalise.
Ms B's son and daughter stopped attending SRI in August 2010. Her son, BA, is the only child to opt out of SRI in his class and her daughter, BB, is one of 4 such children. When BB was in Prep, she was the only child in her class who did not attend SRI.
BB has told her mother that she feels very upset about being excluded from SRI. She is anxious not to be seen as different from her peers and says that she does not want to miss out on colouring in and on the other activities that the children participating in SRI are offered. She could not finish her colouring book that she commenced when she was doing SRI.
Ms B accepted that participation in a number of activities requires a parental choice, eg, whether a child should go on school camps, excursions, swimming and sporting programs. Children who do not undertake these activities may be upset at being separated from the students who do. In the case of SRI, however, Ms B stated that she didn't have the choice that was available with the other activities. Her children could either sit in a corridor, or sit in the classroom, where SRI was being conducted and be told things that she did not believe.
Typically, from Grade 1 on, during SRI classes, BB has been placed at the back of the SRI classroom and allowed to spend time using the computer. This did not occur in Prep. Ms B stated that BB understands that she is placed at the back of the classroom because her mother does not believe in God.
On one occasion when Ms B attended the SRI class to collect BB for an appointment, she noticed that only one of the four children opted out of SRI, who were using the computers in the classroom where SRI was occurring, had been provided with headphones.
The class teacher said that she did not recall Ms B attending the SRI class to collect BB on such an occasion.[82] She said that all of the computers have headphones, which students use to access the audio element of the maths and literacy programs. However, the audio content is not continuous and she accepted that it was possible that BB did not wear headphones on the occasion to which Ms B referred.
Even when BB stays in the classroom using computers, she feels she is missing out on the SRI activities including songs, dancing, and using colouring books. BB remains very unhappy about being left out of these activities. Ms B said that she must not have the headphones on at all times, as she sometimes tells Ms B what has been discussed during the lessons.
BB has told her mother that even though she has been opted out of SRI, she has, on occasion, been allowed to participate in SRI when there has been a relief teacher in charge of the class. On at least some of these occasions, BB has chosen to participate in SRI, because she wanted to receive a colouring book. BB has sometimes insisted that she believes in God, so she can do SRI classes with everyone else. Ms B did report these events to any teacher.
BB has told her mother that sometimes she has been placed in the corridor, where there was a spare computer, that cannot be seen by the supervising teacher in the classroom.
Ms B states that neither of her children has received any instruction while SRI has been conducted and considers that it is a waste of productive learning time.
In 2012, Ms B received a letter from the Principal about the SRI program, a Form GC 566 and a Christian religious education program. She received a student information document which stated that her children were to receive the agreed syllabus Religion in Life. That was not correct and she went to the school to correct that position.[83]
Ms B has not noticed any changes in the way in which SRI is administered at the school, since the changes in SRI policy in 2011. Her children have not been offered opportunities to participate in activities such as community service, peer mentoring or club activities.

[190]

The Principal of the school for the last 11 years made a witness statement and gave evidence. The school has 336 students and 32 staff. SRI is well established at the school and has been provided for at least the period in which she has been Principal.
When children commence at the school, parents are given an enrolment pack, which includes a brochure from ACCESS Ministries with information about SRI.
The enrolment form requires a 'yes' or 'no' and 'responses to whether the student will participate in religious instruction classes'. Until 2012, this information determined whether the child attended SRI. The parents' response is entered in the school's database. The information could be changed by parental request.
In 2011, of 327 students, 47 did not attend SRI. In 2012, the number attending SRI had not been finalised at the time of the hearing, but, based on the forms returned, of the 336 students, 238 would attend SRI and 64 would not. Fifty one had not returned their form and if they do not, they will not attend SRI.
At the start of 2012, the Principal sent parents and guardians the new Departmental Form No GC 566. If no response was received to it, the school follows up parents and guardians to find out their wishes, but ultimately, if parents do not return the form, the student will not attend SRI.
The Assistant Principal reviews the data obtained from the Forms, makes a handwritten note of the students who will not be attending SRI and passes that information to classroom teachers. She then assists them to fit SRI into their class timetables, by trying to find the least disruptive time to schedule a class when instructors are available. On rare occasions, SRI cannot be appropriately scheduled.
The school has an active after schools program and some club activities, eg chess, are conducted at lunchtime.
Students not attending SRI are engaged in independent, positive learning activities during that time. Teachers are given flexibility as to the activities the students undertake and determine an appropriate activity for the students.
In 2011, students not attending SRI were directed by their teacher to attend one of the alternative classes of the same grade level, use one of the computers in the corridor learning area adjacent to the classroom, or a computer in their classroom, while wearing headphones. The corridors at the school are treated as a learning space for use by small groups. They are sufficiently wide to fit tables and chairs, computers, or book racks with room for people to walk past.[84]
The most common activity for students not attending SRI is using computers to publish their writing, or to access an educational program such as 'Mathletics', 'Studyladder' and 'The First 200 Words'. These programs are designed to allow students to practise and improve their numeracy, or literacy skills, that they learn as part of the school curriculum. They are self-paced and allow students to progress at their own level, guiding them through the concepts with a mix of visual and audio cues. They are often used by classroom teachers as part of maths or English classes. Because the programs have an audio component, the students often use them with headphones. All computers have headphones attached. Students may also read or continue with class work.
In 2012, the same kind of activities were intended for students not attending SRI to be performed under supervision in another classroom. Those students will be sent to a class of more junior year, so that they are not learning any further part of the curriculum.[85]
Since the changes in the SRI policy in 2011, the Principal is open to the possibility of the school providing other activities during SRI time, such as participation in club activities, or instruction outside the core curriculum, but this will depend on the numbers involved and logistics. No additional funding has been allocated to provide additional activities.

[191]

BA attended SRI in 2009 when in Prep Class. In the first half of 2010, BA attended SRI but then stopped.[86] He was the only student in the class not attending SRI. He was given 'Mathletics' and the 'First 200 Words' to work on at a large table at the back of the classroom, where there were four computers. He would wear headphones, while working on the programs, because the 'First 200 Words' has a significant audio component. Headphones can also be used for the 'Mathletics' program. Students, including BA, were familiar with those programs as they were regularly used in class time. Students normally look forward to computer time and the teacher doubted that BA would have been bored while he was using those programs. He loved his computer time and liked to use the computer whenever he could. The teacher never prevented BA from doing maths during SRI and he often did so, but he preferred to work on the computer and never asked to do other work. The teacher remained in the classroom during SRI lessons to supervise the class and if BA needed assistance, he would provide it.
In 2011, BA was in Grade 2 and there were 63 students in the three Grade 2 classes. BA was the only student in his class who did not attend SRI, which was scheduled from 9.10 to 9.35 am on Friday mornings.
BA's teacher did not remember him putting up his hand and saying that: "my mum doesn't believe in God so I am not doing SRI", however she was unable to deny that he did so. She had been informed that BA did not attend SRI by his 2010 teacher.[87]
During SRI in 2011, BA used the computer in the corridor directly outside his classroom. The teacher supervised the class, and if necessary, helped the instructor manage it. Sometimes, she remained in the classroom and supervised BA working in the corridor through the large double glazed windows between the corridor and the classroom. On other occasions, she sat with BA in the corridor, while he worked on a computer, or used the time to do his reading running records by assessing his reading and comprehension levels.
There were a few exceptions to these arrangements in 2011. In term 2, on three or four occasions, the teacher directed BA to use the computer in the grade 1 classroom next to her classroom, when, for instance, the computer in the corridor was not working. He would then be supervised by the grade 1 classroom teacher. Two or three times in 2011, the grade teacher asked him to assist as a 'peer tutor' by helping the Grade 1 students with their reading. This was not a formal arrangement, but BA was a good reader and was able to step in and assist.[88]
There may have been three to four times when the teacher directed BA to go to one of the other Grade 2 classrooms, when the Grade 1 class was not present in their classroom next door.
During term 2, or 3, of 2011, a maths coach attended the school and assisted and supported students and teachers by modelling lessons and by teaching alongside classroom teachers. On one occasion, the teacher took BA to sit in with a selection of students from the other Grade 2 classes, while the coach was taking a maths lesson.
The teacher said that BA always had something to do during SRI time and she aimed to set him challenging work that kept him actively engaged.[89] Often, she would tell him to work on his level of 'Mathletics' or, 'Study Ladder'. At other times, she would tell him to finish off a writing piece, or an inquiry task that he had not completed on the computer. The teacher disputed Ms B's account that BA had been placed in the back of the classroom when SRI was being taught and said that he was not in her classroom during SRI. She did not recall BA ever telling her that he was unhappy with the arrangements for the time when SRI was being conducted. She would only have told him not to use the computers if there was another task she wanted him to do, such as reading, writing or enquiry work.
In 2012, there are 22 students in Grade 3: 17 were to attend SRI, 3 were not to and two had not indicated their intention.

[192]

BB attended SRI in 2010 until the middle of the year and then was the only student in her class not to do so.
BB's Prep teacher remembered that BB was not happy about missing out on SRI. She thought it was because she liked the SRI instructor.[90] Ms B disputed that that was the case.[91]
In 2010, from that point, BB went to the other Prep classroom and became involved in the activities of that class, be it speaking and listening (show & tell), story time or maths. If she had already completed an activity that the other class was doing, she would use the computer and work on a maths program, or the "Reading Eggs" program, which is a literacy program focusing on reading, writing and computer skills.
Children in Prep were used to working in both Prep class rooms. The two prep classes were located in a double portable classroom with a middle room and folding doors that could divide them. When one class had SRI, the folding door would be closed. BB's class teacher would supervise the SRI class, she would observe and help with classroom arrangements and administration tasks, where appropriate and. if time permitted.[92]
In 2011 in Grade 1, BB was one of 5 students in her class of 23, who did not attend SRI.
SRI was conducted on Thursday afternoons from 2.20 to 2.50pm. Students not attending SRI accessed maths or literacy programs on a computer, including Mathletics, 'Spelling 200' and 'In2era'.There were four computers in the classroom and another in the corridor. As the programs had audio content, the students using the computers wore headphones. The students were familiar with the computers and knew how to access the programs.[93]
The teacher supervised the SRI class and the students not participating in that class and helped both groups with their activities when needed. She had no knowledge of BB being allowed to participate in SRI when there was a relief teacher in charge of the class. [94]
In 2012, BB is in Grade 2 and of the 21 students in her class, 12 will attend SRI, 6 will not, and 3 had not returned their forms at the time of the hearing.[95]

[194]

Mr C stated that neither he, nor his wife, was religious in any way. They only attend church for weddings, or funerals and do not celebrate the religious side of events such as Christmas and Easter. Their children share their outlook. The parents tell them that they did not believe there is a God, but that they can make up their own minds.
Mr C stated that he and his wife have not been given the opportunity to meet the volunteers, who teach SRI and did not know whether they are accredited. They had been given very little information about the contents of SRI classes, but had seen a small notice in the school newsletter requiring parents to pay $5 to cover the cost of SRI work books. He and his wife had seen some SRI worksheets, that their children brought home, which suggested that the content of SRI classes was quite intense and included teachings of the supernatural. They decided that their children would not receive SRI in that form, so they opted CB and CC out of SRI in 2011.
Mr C stated that early in CA's time at the school, he believed in 2006, when he was in Grade 3, he and his wife wrote to the Principal opting him out of SRI. It was pointed out to Mr C that CA was in Grade 2 in 2006, so on reconsideration, he thought CA was opted out in 2007. According to Mr C, in response to the letter, the Principal told him that, because we live in a Christian society, it was expected that the children would attend SRI classes and learn Christian values. However, in cross examination, he stated that "those earlier years I don't recall as well"[96] and it appeared, that he did not recall a number of matters concerning whether his children attended SRI in particular years.[97]
The Principal of the time, who has since retired, made a witness statement denying that she had received a written communication from Mr C, or that she had said what Mr C attributed to her,[98] or had offered any resistance whatsoever to the parents opting CA out of SRI. She did not recall the parents approaching her to discuss SRI. Parents, who wished to opt their child out of SRI, were requested to forward that instruction in writing to the class teacher. She did not recall viewing such instructions regarding CA or CB.
In a reply statement, Mr C stated that it may have been his wife who spoke to the Principal and that, although they remembered the event distinctly, they acknowledged that it occurred 5 or more years ago and that his "memory would be a little unreliable after that time." [99] Mr C's wife did not give evidence.
On 4 March 2010, Mr C wrote to CA's teacher stating that, after discussion with CA:

[196]

Mr C believed that in 2007, he and his wife decided to opt their daughter CB out of SRI. CB was in Grade 1 in 2007, but Mr C was unaware whether she attended SRI classes. He said that he was away a lot and his wife wrote to the school. The evidence from a teacher was that CB still attended SRI in 2009 and 2010.[101] Mr C did recall opting CB out, and then opting her in again.[102] She was opted in on her enrolment form and did attend in prep and Grade 1. In re-examination, he said that CB was opted out in Grade 2 in 2008 and in 2009 and 2010.[103]
Mr C agreed that it appeared that CB had attended SRI in Prep (2006) and Grades 1 (2007), 3 and 4 (2009-2010).[104]
Mr C stated that their children attended SRI classes in 2009 and 2010, because CA objected to being isolated and bored and both CB and CC told him and his wife that, they would prefer to take part in SRI, than to suffer the consequences of segregation from opting out.[105]
On 24 March 2011, CB's mother wrote to the school stating that he chose not to attend religious education classes and that they supported that choice.[106]
CB talked to her parents of there being two groups at the school based on religious belief. She referred to the SRI instructors or group as the "God botherers".[107] Mr C said that CC hates being away from some of his friends during SRI and thinks it is a waste of time.[108]
Mr C's witness statement contained what he said that he had been told by his children about SRI at the school, as well as his understanding of aspects of SRI. CA and CB told him that they were sometimes taken out of the classroom when SRI was taking place, and placed alone at times, without supervision, in the library or the computer room. More recently, they were placed in a class with older children, who had opted out of SRI, and told to do silent reading or to finish off work, or given worksheet based activities or told to go to the library.
Mr C stated that his children had not received instruction while SRI classes occurred. Sometimes, they had been required to remain within earshot of the SRI instruction being given to their classmates.
On 8 March 2011, Mr C sent an email to the Principal stating that the Humanist Society of Victoria was building a case to get the Department of Education to change its policy concerning teaching of religious instruction and that he was to be a complainant and that:

[200]

The Principal commenced in that position in July 2010, having taught at the school since 2001. In 2011, the school had approximately 190 students.
The school had not retained records of whether the eldest child, CA, attended SRI between 2004 to 2009. The school did have a letter, dated 4 March 2010, from Mr C to the Principal. CA's teachers in Prep, Grades 1 and 2 have retired and his teacher in Grade 4 has moved away from the locality.
SRI classes run for 30 minutes each Thursday afternoons between 2pm and 2.30pm or 2.30pm and 3pm. They are scheduled in the afternoon, as the morning is the optimum learning time and is set aside for uninterrupted literacy and numeracy blocks where possible.
SRI is not compulsory and is not part of the VELS and therefore does not form part of the matters discussed at parent teacher interviews. It does build on the interpersonal part of VELS about how people get along with others, but not on a large part of VELS.[115]
From at least 2004 to 2010, at the start of each year, parents were notified via the school newsletter that, if they did not want their child to participate in SRI that year, they needed to write a note to the school. This arrangement was changed early in 2011 and information about parents' wishes regarding SRI was obtained from enrolment forms and from letters that parents had written the previous year for existing students. The position changed again in February 2012, when parents were sent the new Departmental Form No GC 566. Now, if the school is unable to get any indication from the parents about whether the child will attend SRI, that student does not participate.
In 2011, the number of students not participating in SRI was high. This allowed SRI classes to be scheduled at the same time for each composite class grouping. One teacher of the composite class would supervise the SRI class, while the other teacher supervised students not attending SRI.
In previous years, when smaller numbers of students opted out of SRI, they would go into an adjoining classroom and join in the activities of that other class, or complete work given to them by their own class teacher.
Children were not left unsupervised and, if CA and CB were in the library/computer lab, they would have been supervised. The Principal stated that the school tried to arrange SRI classes so that children not participating in SRI are not within earshot of the classes, where SRI is being provided. She referred to one instance where concern was expressed that this was not occurring and that concern was addressed.
The Principal has never seen any resentment between the students that do, and those who do not attend, SRI. She has not been informed of any division, or teasing between the two groups. No parents have approached her about feelings of segregation, or division between students over SRI. She would take any such report very seriously.
The Principal instructed staff that activities for students not attending SRI needed to be purposeful and valuable. A common activity is quiet reading, which is an activity done every day, regardless of whether SRI is scheduled. In that sense, SRI is not a disruption to normal class activity. Not all school time is spent with teachers giving instruction to student. Other activities in 2011, included a combination of finishing off work, using educational games and puzzles or reading to a group. For Grades 3/4 and 5/6, the activities for students not attending SRI, would frequently include revision, writing practice, or completing unfinished work. Given the range of activities available, students not attending SRI are unlikely to be bored. In 2012, new activities may be introduced for students not attending SRI.

[201]

In 2007, CA was in Grade 3 in a composite Grade 3/4 class. One of the teachers of the composite class stated that approximately three quarters of her class attended SRI and students, who were not, would bring a note with them.[116] During the time that students from this teacher's class were attending SRI, the other Grade 3/4 teacher would take the children into her class. The SRI classes for the two Grade 3/4 classes were not conducted at the same time. The students not attending SRI would often do silent reading and take books with them to the other class. A similar arrangement applied when students from the other composite Grade 3/4 class undertook SRI.
In 2008, when CA was in Grade 4, the same situation applied.
In 2009, CA was in Grade 5 in a composite Grade 5/6 class. One of his teachers in Grade 5 had taught his composite Grade 3/4 class in 2007 and 2008. The two Grade 5/6 classes had SRI at the same time and that teacher would supervise the SRI class, while the other teacher would supervise the students not attending SRI in the adjacent classroom.[117]
That other teacher of the Grades 5/6 class also gave evidence.[118] Her recollection was, that for the majority of 2009, CA did not attend SRI. The two Grade 5/6 classes were located in a portable building that contained two large classrooms, which were separated by a bi-fold door. When SRI was conducted on Thursdays after lunch, either at 2.00pm or2.30pm, the students attending were supervised by the other teacher in one classroom, while she supervised the remaining students in the adjacent classroom. The bi-fold door was always closed and the students could not hear the activities taking place in the adjacent class. At the start of the year, the teachers discussed with the students not attending SRI what they might do. They told them to bring a book, their exercise book, or their life book, which was a personal journal in which they wrote their story ideas and other personal things. The students were expected to work independently and could choose from a selection of activities. These activities included, reading, which was always valuable for the students, but some weeks some of the children chose to finish off work that they had not had time to finish in class, for example, completing display posters or finishing off maps. CA was an excellent student, who was always engaged and never appeared to be, or complained of, being bored. He would usually finish off his work and then go on to reading.
The Grade 5/6 students use computers for a lot of their work and now they have their own 'netbook', which is a small laptop computer. In 2009, the Grade 5 students did not have netbooks, but had access to a desktop computer. If they were finishing off work during SRI time, they might have used the computer.[119]
The teacher did not allow the students to do things that the students attending SRI needed to be present to learn. SRI was only half an hour, but was a valuable time for the students not attending SRI.
The Grade 5/6 teacher disputed Mr C's statement that students not attending SRI were sometimes sent to the library.[120] There was no library at the school for most of 2009, as it was being moved to the main building. There were books for students in the classroom and, even after the library move was completed, she did not send students to the library during SRI times.
In 2010, when CA was in Grade 6, the same teacher[121]and another teacher[122] taught the two Grade 5/6 classes. One teacher stayed with the children attending SRI in the classroom, while the other teacher supervised students not attending SRI in the other classroom. The doors between the classrooms were closed. While SRI was conducted, CA undertook reading, writing, listening to reading and finishing off class work. The teacher supervising those students understood that they were not to receive direct instruction, but were to be engaged meaningfully in learning activities.[123] He denied that CA would have been sent to the library, while it was in a separate building, but said that he would have been permitted to use it when it formed part of the learning space of the senior building.
Both teachers denied that they gave the students worksheet based activities. One of the Grade 5/6 teachers stated that she had never placed children from the year level she teaches with older children during SRI, save in the case of children who were in the same composite class.
The teacher who supervised CA, while SRI was being provided in 2010 said that no student had ever told him that he was bored.[124] There was a wealth of activities available to the students. He has never seen and never received any complaints from students or parents about any resentment or teasing between the two groups related to SRI.

[202]

The second child, CB is in Grade 6. Her student enrolment completed by her parents, stated that she would participate in SRI classes.[125] The school has no records showing whether CB attended SRI between 2007 and 2010. Her teachers in Prep and Grade 1 have retired and did not provide witness statements.
Mr C stated that he and his wife decided to opt CB out of SRI in 2007, or 2008, when she was in Grade 2.
CB's teacher in a composite Grade 3/4 class in 2009 and 2010 gave evidence.[126] She stated that CB attended SRI in 2009 and 2010. In 2010, when CB was in Grade 4, about half the students attended SRI classes and about half did not. In 2009 and 2010, the children in her class, who were not attending SRI, were generally directed to do silent reading or finish off work.
The teacher stated that children had never been left alone, or unsupervised. Teachers take their duty of care for the students very seriously. She has never seen any students teased for doing, or not doing, SRI. The matter did not seem to be that big a deal for the students in her class. She has never been conscious of any tension between the students, who do SRI and those who do not.
The other teacher of the composite Grade 3/4 classes in 2010 gave evidence to similar effect.[127] She described the culture of the school as exceptional and stated that she had never seen any division between the students over SRI. In her experience, the children who did not participate in SRI were not bored during that time. They practised essential skills such as reading or finishing off work. They were undertaking independent learning. Neither CA or CB had complained to her that they were bored during SRI time.
In 2011, CB was in Grade 5 in a composite Grade 5/6 class. There were 48 students in the two Grade 5/6 classes and 32 including CB did not attend SRI.
The other teacher of the composite class[128] supervised the students not attending SRI for thirty minutes between 2.00pm and 3.00pm on Thursdays. During that time, the doors between the two classrooms were closed and the children in one classroom could not hear the activities in the other classroom. As previously stated, the non-SRI students could read, write, listen to reading or finishing off class work. They could read one of the books in their book box. They could undertake writing focussed on their current class lessons. Their writing might be persuasive writing, own-choice writing and reading and commenting on the writing of other students. They could use their 'netbook'. Listening to reading is one of the 'daily fives' done in class. The other daily fives are: reading to self (independent reading); reading to someone (take turns to read aloud to another student); work on writing and work on words (spelling practices). Each of these activities lasted twenty minutes. The teacher recorded audio books segments, that were put on line and which the children could access on their netbooks. Generally, students were given a choice between these activities, but none involved the teacher giving instruction in the curriculum, or presenting new material.
In 2012, CB is in Grade 6 in a composite Grade 5/6 class, in which there are 25 students, of whom 23 students will not participate in SRI.

[219]

The complainants submitted that, by scheduling SRI during normal school hours and requiring parents to make a choice about whether their children participated in this non-compulsory religious activity, the respondent required them to make a choice about a religious matter for their children and to identify them by reference to their own religious beliefs. Children, some very young, were being separated from their classmates along religious lines. Prior to August 2011, parents were required to opt their children out of SRI if they did not wish them to attend. The opt out policy and the separation were both argued to be direct discrimination in respect of the children.
I note that, although, the Particulars of the Complaint set out above refer also to the new SRI policy, the Complainants' case was ultimately directed so far as the "opt out" and "opt in" policies were concerned at the opt out policy.
The parents' choices, that their children not attend SRI, were informed by, and reflected their own religious outlooks and beliefs and to some extent, those of their children.
Disrupting children's relationships with their peers on the basis of participation, or non participation, in a religious activity and segregating children along religious lines were argued to be detriments to which the children were subjected. It was not a trivial matter for children to be separated from their classmates along religious lines, to the contrary, it was a most serious matter in a secular school.
This action was direct discrimination against the complainants' children on the basis of their religious beliefs or activities, or, alternatively, their personal association with their parents' religious beliefs or activities, in contravention of s 37(2)(c) of the 1995 Act and s 38(2)(c) of the 2010 Act**.**
The existence of detriment did not depend on there being a majority, or minority, of school students attending SRI. The children did not want to be seen to be different to their peers.
Particular reference was made to the position of BA and BB, who were the only, or among the few students of their class, who did not attend SRI and who were sent to a number of locations, while it was conducted.
The Commission submitted that the evidence suggested that a substantial reason for treating the complainants' children differently to the other children who attended SRI was their religious beliefs or activities, or their personal association with their parents' religious beliefs or activities. The children were subjected to a detriment by being segregated from their peers, and being identified as different during ordinary school hours on the basis of that reason.
The Commission submitted that a person may experience a detriment if the impugned discriminatory conduct impairs the enjoyment of one or more of their human rights.
The respondent submitted that the complainants had not established any differential treatment of the children. The children had not been treated less favourably by the respondent than the way in which the respondent has treated a person without the relevant attribute in the same, or similar circumstances. Nor had they been treated unfavourably within the meaning of the 2010 Act.
Because the parents were given a choice about whether their children participated in SRI, all children at a school where SRI was provided, needed to be identified either as children whose parents wished them to participate in SRI, or as children whose parents did not wish them to do so. This process did not constitute less favourable treatment or unfavourable treatment of either group.
Even if the imposition of an opt out requirement amounted to unfavourable or less favourable treatment than the treatment of the children's peers who participated in SRI, the true basis for that treatment was not an attribute under the Acts. Parents made their decision for a range of reasons, which may, or may not be, connected with a religious belief. There was no link between the parents' choice and religious beliefs and activities.
The respondent submitted that at the three schools, the periods when the opt out policy was operating were to be distinguished from the period when the opt in policy operated. However, in neither period, did the children suffer any detriment.
The opt out requirement did not have any negative impact on the children. Separation of children from their friends for a period of 20 to 30 minutes a week during the school day did not constitute a detriment. Children at schools are often divided into groups and are separated routinely for activities such as sport, music and camps. Separation, per se, is not a detriment. It is part of growing up. There was no difference between the separation required to provide non compulsory SRI and any other separation.
To determine if detriment was caused by separating children into different groups for SRI, it was necessary to consider what the children who did not attend SRI, did during that time. They were not just separated, but given worthwhile work to do and in locations with which they were familiar. They usually knew the other with children whom they spent the time, when SRI was conducted. They were not subject to teasing or resentment, because they did not attend SRI.

[220]

The first question is whether the complainants' children suffered any differential treatment through the opt out process, when in operation, and the separation of children into groups. I use the expression differential treatment, as a shorthand expression of the direct discrimination provisions in the 1995 Act: treating someone with an attribute less favourably than the person treats or would treats someone with that attribute, or with a different attribute in the same or similar circumstances, as well as a shorthand expression for the unfavourable treatment provision in the 2010 Act.
The complainants submitted that each of the children had been treated less favourably, or been subject to unfavourable treatment. In considering the complainants' case, I bear in mind that it is the treatment of the children and not their parents that is in issue.
I also take into account that any detriment of substance is sufficient in the application of the direct discrimination provisions.
Whether a person has been treated less favourably or unfavourably, or been subject to a detriment is to be determined objectively. I apply that approach in respect of the findings that I make in respect of each of the three grounds of direct discrimination relied on by the complainants.
A number of the matters relied on by the complainants related to the division of their children into separate groups and I will first consider that issue.
The respondent, acting through its Department of Education and Early Childhood Development, permitted, or arranged for, the provision of SRI on a non compulsory basis in each of the three schools, in reliance on the provisions of the Education Act.
The respondent, acting through the Department, in schools where SRI was to be provided, had to establish a mechanism for parents to make a choice whether their children would participate. The "opt in", or "opt out" process, were in essence, a means for recording a "yes" or "no" answer to the question; "do you wish your child to participate in SRI?" Many choices require a "yes", or "no" answer. No other mechanism, for ensuring that SRI was not compulsory, other than the "opt in" or "opt out" processes were suggested in submissions. Under the "opt out" process, if no response was received from a parent, this was taken as a 'yes" answer. Under the "opt in" process, if no response was received from a parent, this was taken as a "no" answer.
In the nature of providing a choice, the outcome of the parents' decisions could not be predicted. At one end of a spectrum of the possible result of parental choices, a school might have to make arrangements for a few students, who did not participate in SRI and at the other end, they might have to cater for a few students who did attend SRI. The making of the choices formed the need for the separate groups and the State gives effect to those choices.
The respondent acts through schools to form separate groups, when SRI is provided. But neither the provision of SRI at a particular school, nor the seeking of a "yes' or "no" answer from parents, as to whether their children will attend, can by themselves be accurately characterised as actions taken by the State treating students less favourably or unfavourably.
If the complainants arguments are correct, the State could never arrange, nor provide, non compulsory SRI during school hours, unless perhaps, all parents agreed to their children attending SRI. Even if SRI was provided outside school hours, parents would still be required to exercise a choice of whether their children would attend SRI and the children attending SRI would still be identifiable as a separate group.
The evidence does not establish, nor is it self-evident, that the children, who attended SRI at the three schools, were viewed, or would be viewed, more favourably than those who did not. Segregation is an inappropriate word to apply to the separation of children into groups, while SRI is conducted, not least because of the disparity in numbers of those attending SRI at the three schools. As is discussed below, attendance at SRI was not a marker of religious belief at the three schools.
The determination of whether the separation of the eight children into groups defined by their non attendance at SRI is less favourable or unfavourable treatment has to occur in the context of the environment, at the three schools, where students were separated for a range of reasons often because of parental choice. Each year, students were placed in a particular class or group, no doubt sometimes separated from classmates from previous years. Twins may be separated and placed in different classes as occurred with two of the children.
Although there was no specific evidence of this occurring at these schools, it is in the nature of school education, that children may be required to repeat a year with an entirely new group of students, or be separated for a time to attend remedial classes, or accelerated learning classes with different groupings of students.
Children were routinely separated into groups, because of their interest in, or their parents' wish, that they have the opportunity to participate in, particular activities. Parents make choices concerning their children's participation in many things, e.g. whether they will attend a school camp, play a particular sport, or learn a musical instrument. The outcome of those choices is the creation of different groups at the schools and, on occasion, separation of students for a time from their friends.
The years from childhood to adulthood involve many separations and divisions into different groups. Those events may cause distress, sometimes temporary and sometimes more lasting. That distress would not, by itself, be regarded as being caused by the person or body, who created the separate groups. Nor would that person, or body, be regarded as treating the children concerned less favourably, or treating them unfavourably. Such separation is part of growing up.
Separation into groups in itself, is not less favourable or unfavourable treatment. However, it may be if the separation, in any real sense, resulted, in this case, in any of the children, being treated adversely in some way, e.g. by being stigmatised for a reason connected with the separation, or by experiencing the separation in a manner that could be objectively characterised as adverse, or a detriment. Whether this has occurred, is a question of fact to be answered on an objective basis by considering all the relevant evidence.
The evidence does not establish that any of the children has been subject to any differential treatment. The picture that emerged from the teachers' evidence was that the provision of SRI was no "big deal" at the three schools, to use the words of a teacher at the third school.[133] There was no evidence that the children treated this separation differently from any other separation into groups at school, or dealt with students separated from the main group in a detrimental or adverse way.
This issue of the treatment of children requires particularly close consideration when in one class, a small number of children attend SRI. An example is BA at the second school. However, the evidence did not establish that BA suffered any differential treatment, or detriment, because he was the only child not attending SRI. No such suggestion was put to his teachers who gave evidence.
The action of placing one student in a corridor outside the classroom in past eras, might have been as a form of punishment. But the evidence shows that Government schools now use their wide corridors as learning spaces for students to undertake activities, including using computers. This use is apparently consistent with accepted educational practice.
I accept the teachers' evidence that there was no teasing, bullying or pressure on students to attend SRI. The evidence does not establish that the children were treated adversely by teachers, or other students, because they did not attend SRI. Mr C described the conduct, that he had specifically mentioned as relating to attendance at SRI at the third school, as "banter". It has to be remembered that separation was occurring for both those students who attended SRI and the those who did not. At the third school, the majority of students did not attend SRI.
The assessment of whether a separation into groups has affected any of the eight children differentially, or caused them detriment, has to take into account the work they did during the time that SRI was conducted. I conclude below, in determining the complainants' second ground of direct discrimination, that the activities were generally of educational value**.**
I will now consider other specific matters that were relied on by the complainants.
The evidence does not establish that the fact that the Aitken children did not attend SRI, identified them as religious or non religious.
Insofar as Toby's statements in class that he was not attending SRI identified him as non Christian, I do not consider that such an identification, viewed objectively was less favourable or unfavourable treatment or subjected him to detriment.
There was no evidence that at these schools, or for that matter, more generally in twenty first century Victoria, that the fact that a child, or an indeed an adult, is known to be not a Christian, or known not to belong to a particular religious group, leads that child or adult to be treated in a differential manner.
Howard Aitken suffered some distress in Prep, at being placed in a class with students that he did not know. However, when the activities that he undertook are taken into account, and I discuss them in dealing with the complainants' second ground, it has not been established that that action involved differential treatment of him.
Howard, and a number of the children, complained to their parents of experiencing boredom while SRI was conducted. However, the teachers' evidence establishes that they were usefully occupied. Boredom at school, from time to time, does not constitute less favourable or unfavourable treatment of, or detriment to the child, who is bored.
Toby and Elliot Aitken spent the time, during which SRI was provided, doing a range of activities. Toby and Elliot have on occasions been placed in the corridor during SRI time, but the evidence was that that was an often used learning area.
Elliot complained of being bored and was discontented at being separated from his friend, but I do not consider that to be less favourable or unfavourable treatment or a detriment.
BA also complained of being bored and I repeat the same conclusion in respect of that complaint as I expressed in the previous paragraph. His mother expressed the view that his identity as one who does not believe in God, or whose mother does not believe in God, was being reinforced each week, when he had to leave the classroom while SRI was being conducted. He had to tell his teacher in 2011 that he was not to attend SRI.
BB, when withdrawn from SRI, was upset and did not want to be seen as different and considered that she was missing out on things. She was concerned about some of the things taught in SRI.
There is some similarity between the issue of BA developing an identity as one whose mother does not believe in God and BB's concern at being seen to be different. As I conclude below, attendance or non attendance at SRI at the three schools was not an identifier of a child's, or his or her parents', religious beliefs. BA and BB both attended SRI at one point. The fact is that Ms B, on her evidence, does not believe in God. It would be wrong, therefore, to decide that the results of the provision of SRI was the cause of the understanding that BA formed of his mother's beliefs, or his identity that followed from that understanding. The steps by which children establish their identities, is in all probability, a complex process, or at least one which it is difficult to accurately describe. Its proper understanding would involve knowledge of the psychological development of children. The development of children to adulthood may, at times, find them associating with their parents' view of life and, at other times, rejecting that view. There was no evidence that forming a view that his parent does not believe in God causes a child detriment. Nor is such a proposition self-evident in twenty first century Victoria.
The Supreme Court of Canada in S.L v. Commission scolaire des Chenes, recently dismissed a parental challenge on freedom of religion grounds to a mandatory Ethics and Religious Culture program in the Quebec education system. In delivering the judgment of seven members of the Court, Deschamps J made the following comments, which are of some present relevance:

[222]

There was no evidence to justify a finding that an early understanding by BA that his mother does not believe in God might affect his identity, in a way that would constitute less favourable, or unfavourable treatment, or subject him to a detriment.
BB's position involved concerns at feeling different, particularly in Prep, when she was withdrawn from SRI and was the only student not attending. As previously stated, the path from childhood to maturity involves many separations into groups and a possibility that at particular times children may feel different from other children. However, it was not established that such an experience is a detriment. BB's distress appears, at least in part, to have been caused by her being withdrawn from activities that she enjoyed doing, e.g. colouring in a SRI book.
CA, CB and CC all complained of being isolated, or bored through not participating in SRI. They understood that they were separated on grounds of religious belief and hated being away from their friends. CB and CC would have preferred to take part in SRI, rather than being separated from classmates. For reasons given in respect of the other children, that alleged isolation or boredom does not constitute less favourable, or unfavourable treatment, or detriment. For reasons given below, the evidence does not establish that they were separated because of their religious belief.
Some of the matters raised by the second and third parents related to questions, or concerns raised by their children about things that they had heard when they attended SRI, or things that other students told them about the teachings of Christian religions. It was not shown that being exposed to such comments, either through attendance at SRI, or through play ground conversations, subjected the children was less favourable, or unfavourable treatment, or subjected them to a detriment.
The same conclusion is applicable to the experience of those of the children, who listened in to SRI, while supposedly listening to computer programs and wearing headphones.
The evidence led does not require or permit, a different conclusion to be reached concerning the treatment of the children, when an "opt out" system applied from that existing when an "opt in" system applied. There was no suggestion that the "opt in system" added any less favourable, or unfavourable treatment, or detriment to the children. The complainants ultimately did not challenge the "opt in" system by itself. Rather they challenged, in their second and third grounds, the other features of SRI that remain under the "opt in" system.
Most of the evidence concerning the second and third schools related to the operation of the opt out system. I accept that at all relevant times the first school had an opt in policy, even though it was not always implemented.
In my opinion, the complainants have not established on the basis of the first ground that the respondent treated any of the eight children less favourably than the comparator under the 1995 Act, or unfavourably under the 2010 Act.

[223]

If, contrary to my conclusion, the respondent treated any of the children less favourably, or unfavourably, then making an objective assessment all of the relevant evidence, the complainants have not established that a substantial reason for, or the true basis of the respondents' conduct referred to in its first ground, including the separation of the children into groups, was the attribute that the parents, or the children, had a religious belief. I use that expression with its statutory definition, which includes not holding a lawful religious belief. It has not been proved that that attribute was a substantial reason, or the true basis for the separation of the complainants' children into groups, or that that separation occurred because of that attribute. As previously stated, the children were separated into the two, or more groups, because of the choices made by their parents and because of the need for the school to comply with the requirements of the Education Act and the SRI policy to provide a mechanism to ensure that SRI was not compulsory.
Attendance at SRI did not show that the child, or the parents, necessarily held a religious belief, or did not. That is clear from the fact that a number of the children, e.g. Ms B and Mr C's children, attended SRI for some of the time. There was no obvious connection between attendance at SRI and holding a religious belief. Based on the evidence of parents and teachers at the three schools, there was probably a diverse range of reasons for parental decisions about whether their children should attend SRI. The bases of the decisions are likely to have ranged from inertia, or following the lead of other parents, to parents who acted on strong convictions favouring, or opposing, SRI. It is possible that some parents, who had strong religious beliefs, might have regarded it as inappropriate for persons, other than them and their church, or religious community, to provide religious education to their children. It is also possible that parents, who had no religious belief, may have decided that they wished their children to attend SRI.
There is no evidence that the State, or the schools, were separating the children on the basis of religious belief, or that it was a substantial reason for the separation. There is no evidence that the school took into account the religious belief of the parents. Equally, applying the test of the 2010 Act, the separation of the children into groups was not because of a religious belief. The true ground of the children's separation was the need of the schools to act on the parents' choices and to comply with the requirement of the Education Act, that SRI not be compulsory.
The second attribute relied on by the complainants was that their children were treated less favourably or unfavourably on the ground of, or because, they were not engaging in, or refusing to engage in, SRI, which was a lawful religious activity. I consider that attending SRI is a lawful religious activity. It involves instruction in various religious faiths, e.g. the Christian faith and the Bahá'í faith.
The evidence supports the conclusion that the separation of those children not attending SRI into a separate group, following an opt-out process, was because their parents had chosen that they not take part in a lawful religious activity, i.e. SRI. The true reason, or a substantial reason for that separation was that attribute. The separation was because of that attribute.
The third attribute relied on by the complainants was the children's association with their parents and their religious beliefs. The reasons I have given for deciding that the first attribute was not a substantial reason, or the true basis of the separation of the children into groups also requires the conclusion that the third attribute was not a substantial reason, or the true basis of that separation. Equally, the separation into groups was not because of that attribute.

[224]

I will also state my conclusions briefly in respect of the other element of the complainants' first claim of direct discrimination under s 37(2) of the 1995, or under s 38 (2) of the 2010 Act. That element is proof that there has been:
- (a) the denial or limitation of access to a benefit provided by the authority; or institution; or[135]
- (b) the subjection of the student to any other detriment.
The complainants' submissions on this part of their first ground were principally directed to the establishment of detriment.
The complainants largely relied on their submissions made as part of this first ground in respect of the issue of less favourable, or unfavourable treatment.[136] The parties proceeded on the basis that that was an appropriate position to adopt.
The students not attending SRI were supervised by teaching staff. They undertook activities in school learning locations, sometimes in other class rooms, sometimes in their own, sometimes in offices and sometimes in corridors, which were recognised learning spaces. The students were familiar with the other classrooms that they attended and the students in the other classes, who formed part of their grade or composite grade.
The question of whether the evidence has established detriment has to be assesses objectively and I have applied that approach in respect of each of the complainants' three grounds.
For the same reasons as I gave in finding that the complainants had not proved that their children had not been treated less favourably than the comparator, or unfavourably treated, I do not consider that the complainants have established viewing the evidence objectively, that the separation of the children into groups by an opt out process constituted a denial or limitation of access to a benefit, or subjected the children to a detriment.
All the children at the three schools were separated into groups as part of SRI and in the third school, those who attended SRI were in the minority. The evidence does establish that some children were distressed on some occasions, because they were separated from their friends attending SRI. Some of those children, e.g. BB, had first attended SRI and then been removed. However, that distress could not accurately be described as detriment.
There was no detriment caused by teasing, or bullying of children not attending SRI. The children undertook other valuable activities during the time that SRI was being provided.
There was no evidence suggesting that this separation was different in its effect on children from any other separation that occurs as an inevitable part of the education process and growing up.

[229]

This ground was also expressed in the Amended Particulars of Complaint in terms of the respondent not providing instruction to the complainants' children, while other children attend SRI.
The complainants argued that this conduct constituted direct discrimination on the basis of religious belief or activity, or alternatively, personal association with the complainants' religious beliefs or activities, in contravention of s 37(2)(a) and (c) of the 1995 Act and s 38(2)(a) and (c) of the 2010 Act.
The complainants argued that the children not attending SRI received no instruction during the time that SRI was provided. They practised and consolidated skills that they had already learned. The school curriculum is crowded and instruction time is at a premium. It was not a trivial matter that, for about half an hour each week, their children were not instructed in the curriculum. Their classmates, who attend SRI, were instructed in a syllabus that complemented and built on the VELS. They learnt something new every week and received extracurricular instruction at a very convenient time during class hours.
The CRE curriculum, as the Department Form states, builds on VELS "as they relate to the physical, personal and social learning strand". Students attending SRI, worked through a SRI book, heard stories and had the opportunity to reflect on values. In contrast, the activities undertaken by the complainants' children had to be done in any event. The activities provided for them, were not comparable with the instruction that their classmates, who attended SRI, received. The current SRI policy ensured that instruction in the core curriculum was not delivered.
Children, who attended SRI, were given an opportunity during school hours to pursue an extra-curricular activity and to receive extra-curricular instruction in a matter of value to their parents, while the children who did not participate in SRI did not receive that opportunity. They were denied secular instruction. They undertook silent reading, or sat in front of a computer, playing an educational game that they could have played at home. These activities were not directed in a particular manner.
Ms Aitken expressed concern that her children did not receive an ethics, or life choices course, something that had elements of SRI, but stripped of the religious component. They had no equivalent opportunity to that provided to students attending SRI, to explore life's big questions. They were denied the opportunity to attend the proposed Humanist Program.
Ms Aitken expressed concern that her children missed out on secular instruction for 100 hours of primary education so that religious instruction by unqualified volunteers could occur.
Although the current SRI policy allows the provision of instruction in areas outside the core curriculum during SRI time, it had not been introduced at the three schools.
The Commission submitted that the fact that the children were being denied the benefits of new educational instruction during ordinary school hours, while those children attending SRI received new instruction, constituted direct discrimination.
The respondent submitted that the complainants had to prove that the activities that their children were actually engaged in, during the time that SRI was conducted, resulted in less favourable treatment than the children of the same class attending SRI, or resulted in unfavourable treatment.
The references to building on VELS in the prescribed Form, did not mean that the SRI syllabus, which was delivered by volunteers, and not teachers, formed part of the core curriculum. It did not do so.
Both the children attending SRI and those who did not, were engaged in supervised learning activities of value. It was not necessary to compare those activities in order to decide whether one activity was more valuable than the other, or whether they had equal value.
The children who did not attend SRI, were provided with a range of positive, independent and age-appropriate educational activities. They included practising skills already learned and reinforcing instruction already given. Those activities did not involve new instruction in the core curriculum. Additional activities are planned to take account of the changes introduced in the 2011 Policy.
SRI classes were often timetabled after lunch, when no new instruction was provided in any event. Not every moment of the school week was filled with new instruction in the curriculum.
The respondent argued that it was not possible to schedule SRI out of school hours for logistical reasons, such as the need to provide teachers to supervise the children and the need for children to catch transport to, or from, school.

[230]

The complainants have not proved on the their second ground of direct discrimination, that their children have been treated less favourably than the comparator, or been subject to unfavourable treatment. All the children at the three schools have been treated similarly, as no new instruction, whether secular, or core curriculum instruction was provided to any of them, while SRI was being conducted.
I accept the teachers' evidence concerning the activities that students not attending SRI undertook. The teachers are likely to have the best understanding of, and memory of, those activities. I give that evidence greater weight than the parents' evidence, which relied on information received from their children.
The teachers' evidence establishes that each of the eight children, when they did not attend SRI, undertook activities of educational value. These included reading, finishing off school work, or making use of computer literacy, or numeracy programs. The activities were chosen after careful consideration by the teaching staff. Practising and consolidating skills that students have already learned is a valuable activity.
As stated, these activities were available to each of the children at various times, so it is not necessary to make particular findings on this issue in respect of particular children.
The students not attending SRI were supervised by teaching staff. They undertook activities in a variety of school learning locations: sometimes in other classrooms, sometimes in their own classroom, sometimes in offices and sometimes in school corridors, which were recognised learning spaces. The children were usually familiar with the locations in which these activities were undertaken and with the other students, who were present.
On one view, the activities undertaken by students not attending SRI might be regarded as curriculum based, because they involved consolidating, or revising skills required to be learned as part of the curriculum, e.g. writing and maths. However, neither party advanced that argument. Mere difference in what is provided to the two groups is not enough to establish the complainants' case - the difference must have been detrimental to their children.[137]
Neither the Equal Opportunity Acts, nor the Charter, requires the State to provide particular types of curriculum. The Education Act permits schools to provide SRI by churches and other religious groups and based on distinctive religious tenets and beliefs. Both students who attend SRI, and those who do not, are engaged in activities that are not curriculum related or secular instruction.
There are other occasions during the school schedule when time is spent on activities, which are not core curriculum activities.
The evidence does not establish that the SRI has a direct connection with the core curriculum. The complainants have not established that the SRI syllabus has any real connection with the VELS, or the core curriculum. The statement in the prescribed Form, that SRI builds on the core curriculum, does not mean that it involves instruction in the core curriculum. Any program activity that involves reading or drawing, or interacting with other children, as the CRE SRI syllabus appears to do, will assist children develop skills, which are part of the VELS curriculum. But the same could be said of many of the activities undertaken by students not attending SRI.
There is another analysis of this point that leads to the same result. The complainants' children did not receive the instruction that was provided in SRI, because their parents, or they, made the legitimate choice that they should not attend. The respondent did not treat children differentially or deny them a benefit, or subject them to a detriment by permitting instruction that was not compulsory.
Ms Aitken's application for a Humanist program to be provided during SRI was refused because the Department determined that such a course did not come within the definition of SRI and because the Department considered that the Humanist Society was not a church or religious group. That matter was not pleaded as an instance of discrimination. In any event, if it had been, it would amount to a complaint about not being able to attend a program, or lesson, that was not being provided.
For the above reasons, the complainants have not established that the children were treated less favourably than the comparator under the 1995 Act, or unfavourably under the 2010 Act, as alleged in the second ground.
Despite this conclusion, I will state my conclusions about the other elements of the complainants' second ground of direct discrimination.

[255]

As previously noted, equal opportunity and discrimination legislation are beneficial legislation. Construing exceptions, or exemptions contained in them narrowly, may promote their purpose. However, that is not always the case. The purpose of exceptions in such legislation varies. They may have been included to provide the practical balance between competing public interests.[147] They may, for instance, except conduct from the prohibitions contained in the legislation, in order to protect other important human rights that the equal opportunity, or discrimination legislation does not address or protect. In such circumstances, it would not be appropriate to read the exceptions narrowly rather both the principal enactment and the exception to it, should, in those circumstances, be given their ordinary meanings.
The statutory authority exceptions in the Equal Opportunity Acts serve a different purpose than the exceptions I have discussed in the previous paragraph. They reflect the power of Parliament to legislate so as to authorise conduct that is discriminatory. However, the common law principles of statutory interpretation require a clear expression of intent to interfere with human rights.[148] Section 32(1) of the Charter adds to the strength of that common law principle.
The word "authorise" means to give authority or legal power to; to empower (to do something); to give authority for; formally sanction an act or proceeding.[149]
The Tribunal, and its predecessors, have consistently adopted the interpretation of the statutory authority exception described in _Wojcik v Roads Corporation,[150]_i.e. that the conduct is excepted if required, or permitted expressly, or by necessary implication by a statute.
The ordinary meaning of the statutory authority exception in the Equal Opportunity Acts extends to conduct permitted by an Act. Section 32(1) of the Charter, which is applicable to conduct after 1 January 2008, does not require that that ordinary meaning be departed from. Conduct expressly permitted by a statute is within the ordinary meaning of the exception. The express permission of conduct must also include within the permission, conduct necessary to enable the permitted conduct to occur.
The provision of SRI in the three schools was expressly authorised and permitted by the Education Act. The provision of a choice to parents concerning whether their children would participate in SRI was required, or permitted by the Education Act. The "opt out" and "opt in" mechanisms were the way in which SRI was made not compulsory.
The giving of effect to the "opt out" mechanism and the determination of whether children not opted out would be always sent to CRE SRI was a matter for the particular schools. The Education Act did not extend to that level of detail and therefore, neither authorised, nor prohibited, such conduct.
The provision of SRI during the hours set apart for the instruction of students was expressly permitted by the Education Act.
The decision not to provide curriculum instruction during the time that SRI was provided was a matter for the Department, or the schools to determine. As previously stated, the school day is not entirely occupied with curriculum instruction. The Education Act does not require that it be so occupied.
If I had concluded that the complainants had otherwise proved direct discrimination in breach of the Equal Opportunity Acts, I would have concluded that the statutory authority exception applied to the first and third grounds of the alleged direct discrimination, but not to the second.

Aitken & Ors v The State of Victoria - Department of Education & Early Childhood Development

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Judgment (319 paragraphs)

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Legislation Cited (7)

Cases Cited (16)

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