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Saturday, 31 December 2011 00:00

Aitken & Ors v State of Victoria – Department of Education and Early Childhood Development (VCAT) – December 2011

Parents at three Victorian State primary schools challenged the provision of Special Religious Instruction (SRI) at their schools as amounting to direct and ongoing discrimination against their children because their children were segregated from their classmates when SRI took place and not provided alternative instruction during that time. SRI is "instruction provided by churches and other religious groups and based on distinctive religious tenets and beliefs". In two-thirds of government primary schools in Victoria, it is provided in one 30-minute class a week on a non-compulsory basis. Its provision is governed by the Education and Training Reform Act 2006 and Departmental Policy.

The parents sought a change to the Departmental Policy that SRI be offered on an 'opt in' rather than 'opt out' basis; timetabled outside school hours; and if not timetabled outside school hours, to require that students not attending SRI be given alternative instruction.

The Commission intervened to make submissions on how the Charter affects the interpretation of the Education and Training Reform Act 2006. The Commission submitted that it was possible to interpret the Act so as not to require government schools to teach SRI during ordinary school hours or, alternatively, so as not to prohibit other students from receiving alternative instruction during that time.

VCAT rejected the discrimination complaint. VCAT held that:

  • The separation of children from their classmates during SRI was not direct discrimination because it did not amount to unfavourable treatment and the 'substantial reason' for the separation was not the children's religious beliefs (rather there were a number of reasons for parental decisions about whether their children should attend SRI.
  • There was no discrimination because no children were receiving new curriculum instruction during the period SRI was provided, and children not attending SRI received educationally valuable activities.
  • The scheduling of SRI during normal school hours was not discrimination because it affected all students in the same way since no new curriculum was taught to either group.

The parents sought to appeal VCAT's decision to the Court of Appeal but leave to appeal was refused.

See VCAT's decision and the Court of Appeal's decision to refuse leave to appeal.

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