Astonishingly, the answer to the question posed here, recently provided by the Queensland Department of Education and Training is: No! In their latest reviews of material used in Special Religious Instruction (SRI) offered in public schools in that State, they assert as follows:
While not explicitly prohibited by the [relevant legislation], nor referenced in the [Departmental published] RI policy statement, the Department expects schools to take appropriate action if aware that students participating in RI are evangelising to students who do not participate in their RI class, given this could adversely affect the school’s ability to provide a safe, supportive and inclusive environment for all students.
(This statement is found both in the Report on the Review of the GodSpace Religious Instruction Materials, March 2017, at para 3.1.1 on p 5, and in the Report on the Review of the ACCESS ministries’ Religious Instruction Materials, Feb 2017, at para 3.1.1 on p 6.)
In this post I want to explain why this over-reaching bureaucratic imposition is not justified by the law governing the Department’s activities, and indeed is probably illegal.
Background to SRI issues in Queensland
Long-term readers of this blog may recall that I have commented on SRI issues in Queensland in the past: see “Religious Instruction in schools and “soliciting”” (June 7, 2016). Let me repeat some of what I said there to set the scene for this issue:
RI or SRE is offered in most States and Territories of Australia, and has been for many years. I gave some general background to this in a previous post when the SRE materials in the State of NSW were under challenge- see here and a follow-up here. The usual practice is for the law to allow representatives of various religions to come into classrooms once a week, often for a 30 minute lesson [in Qld, up to one hour], to teach about their religious faith. The classes are voluntary, parents of course being entitled to not send their children along. But the content of the classes is not determined by the relevant State authorities- it is left up to the discretion of the religious teachers.
… Under the Education (General Provisions) Act 2006 (Qld) [EGPA], s 76(1) provides:
76 Religious instruction in school hours
(1) Any minister of a religious denomination or society, or an accredited representative of a religious denomination or society, which representative has been approved by the Minister for the purpose, shall be entitled during school hours to give to the students in attendance at a State school who are members of the denomination or society of which the person is a minister or the accredited representative religious instruction in accordance with regulations prescribed in that behalf during a period not exceeding 1 hour in each week on such day as the principal of that school appoints. (emphasis added)…
This provision is supplement by more detailed regulations in the Education (General Provisions) Regulation 2006 (Qld) [EGRA], where among other things reg 27 provides:
27 Authorised religious instruction
A minister of religion or an accredited representative may give only religious instruction approved by the religious denomination or religious society the minister or accredited representative represents.
So the clear assumption is that materials to be used in RI are to be those approved by the relevant religious group. Parents, if they send their children to RI classes, know that they are being taught by representatives of the religious group running the classes.
In the previous post the main issue was that a local Principal had decided to cancel SRI because the materials seemed to support “proselytising”, which he interpreted as encouraging students to follow Jesus. My post explained why the Principal was wrong- both because the Departmental policy he was reading did not prohibit SRI teachers from encouraging students to become disciples of Jesus, and because for wider reasons a ban on such activity would be contrary to the legislation and generally to recognised human rights principles. (We will return to these issues below). It seems that the Department accepted that interpretation, for in their later report on the Connect materials (produced by the Anglican Diocese of Sydney but often used in general Protestant SRI, or “scripture”, classes around Australia) we find the following comment:
Although outside the scope of this review, it is noted that legal advice provided by faith groups has indicated the view that there is no legislative basis for prohibition of proselytising in the EGPA or EGPR. The Department’s Legal and Administrative Law Branch supports this view.
(See Report on the Review of the Connect Religious Instruction Materials (August 2016) at para 4.0, p 6).
So, to be clear, the Department has already conceded, in accordance with the law, that SRI teachers are able to teach the Bible to children whose parents want them to do so, and that this teaching includes telling children that Jesus invites them to become his followers.
Reviews of the Godspace and Access materials
The Department has now released, by way of follow-up to its former review of the Connect materials, its review of the Godspace materials (written by authors connected to the Baptist Union) and ACCESS materials (written by another Protestant ministry). While these two reviews were apparently concluded in February and March respectively, the Department chose to release them online on the Thursday afternoon before the Easter long weekend.
The good news for SRI teachers using the materials is that the overall conclusion of the reviews is as follows:
The review did not find significant inconsistences with the Department’s RI policy statement. (Godspace review, p 5; ACCESS review, p 5.)
There are then some minor suggestions made on matters which the reviewers suggest need more careful handing in presenting Biblical materials to children. I will not spend much time here discussing those, although I must say that most of them seem to be really trivial issues, to vastly over-state the possible “emotional” and other harm that may come to children from recounting historical events in the Bible, and to not in effect understand what the material in the Bible is actually teaching. I must comment on one particularly egregious example, however.
One of the lessons examined in the Godspace materials was a study of the story in the Old Testament book of Daniel concerning four Israelite youths who were taken to Babylon after the invasion of Israel by that country. As part of their training they were required to eat the food and wine supplied by the king of Babylon to all such “trainees”. But some of this food would be contrary to Jewish food laws. So Daniel, their leader, requested permission for he and his colleagues to only eat vegetables and water, and said that the officer in charge could assess whether this regime was keeping them healthy by comparing their state of health after 10 days with that of the other trainees. (See the incident in full at Daniel 1:8-16).
The purpose of the lesson, in context, is to describe the obedience that these Hebrew youths showed in a particular situation in Biblical history. This incident is part of a pattern of such events in the Bible. But the specific issue of food is, as the Bible unfolds, seen to not be the point. In the New Testament Jesus abolished the Old Testament food laws- see Mark 7:14-23, esp v 19). So it is really not likely that this incident has been included in the Godspace materials for the teachers to urge the students to become vegetarians! But this seems to be the concern of the Departmental reviewers, who say this, starting with a quote from the materials:
“Feed us only vegetables and water and then you can see how strong we are.” Three years later, after eating vegies only: “Yes! It was Daniel and his friends. They were the strongest, the healthiest and also the wisest men of all.” (Purple 2, p. 43). This is inconsistent with the balanced and healthy eating promoted under the Department’s Smart Choices – Healthy Food and Drink Supply Strategy. (at p 7)
Really? The reviewers saw this material as urging a vegetarian diet? In doing so they show themselves to be very poorly equipped to assess the impact of Biblical teaching materials. (This article from Eternity News contains a graphic from the lesson which shows clearly that the point of it is really obedience to God despite the orders of competing secular authority, not diet issues.) One wonders why they did not focus on the story of Daniel in the lion’s den and not express concern that children would be encouraged to breach zoo enclosures!
Forbidding playground evangelism
However, by far the most serious issue raised by the reports is the paragraph quoted at the beginning of this post, where the Department expresses its “expectation” that “appropriate action” be taken if students doing RI classes are “evangelising” their classmates who do not attend. This suggests both that SRI materials are not to encourage such activity, and also that principals are to stop pupils engaged in religious discussions in the playground. This is a piece of astonishing bureaucratic over-reach, for at least five reasons.
1. This “expectation” is not supported by legislation
The first and most obvious reason why this “expectation” is inappropriate is that it is not supported by the law governing the Department’s activities! The Department itself concedes that the activity of evangelism is “not explicitly prohibited by the EGPA or EGPR, nor referenced in the RI policy statement”. In that case what on earth gives the officers of the Department any authority to direct SRI teachers, schools or pupils to behave in accordance with their “expectations”? In our Westminster system of government, public officials have the powers given to them by the elected representatives of the people in Parliament, in laws interpreted by the courts. They do not have the power to make up their own rules and expect other people to abide by them. This is a straight-forward issue of the “rule of law” as it operates in our country.
Of course there are many areas where guidance or clarification may be issued by the Department to schools on non-controversial matters. But on this issue, a question of regulating the free speech of school pupils while chatting with their friends in the school playground, the Department has no authority to impose this sort of rule.
Their only justification for doing so is that they claim that this “could adversely affect the school’s ability to provide a safe, supportive and inclusive environment for all students.” Of course if there is a serious (not a speculative and far-fetched) danger that the playground will erupt into fights when some issues are discussed, then principals will be able to deal with this on a case by case basis. But to assume as a blanket rule that a mild discussion about religion will automatically create a lack of safety is ridiculous. Far more likely that children will fight over whose football team or preferred pop singer is better! And we find no proposal to bar discussion of football or pop music from the playground.
The words “supportive and inclusive” may suggest that the Department thinks that if one child tells another child that his or her religion may be wrong, there will be some major emotional trauma. But the fact is that human beings of all ages are well used to finding that others disagree with them on a number of important issues. And it hardly seems “inclusive” to tell a Christian pupil, who sees his or her identity as a child of God saved by Jesus, that they are forbidden from telling others about this news, which they regard as the best news of all.
Indeed, this leads on the second reason why this is a bad policy.
2. This “expectation” is probably illegal as discriminatory
The Departmental “expectation” is directed only to the sharing of religious views with others. It does not address itself to the child who wishes to discuss climate change, or the desirability of fracking, or immigration policy. Of course it is clear that these matters do not often find themselves at the top of chatter around the handball court. But there is clearly a singling out of “religious” topics as one which cannot be discussed by pupils with others.
The Queensland Anti-Discrimination Act 1991 makes it unlawful to discriminate against a person on the basis of “religious belief or religious activity”- see s 7(i) (the letter “i” not the Roman numeral “i”). According to the Dictionary to that Act, “religious activity means engaging in… a lawful religious activity”. One area where such discrimination is unlawful is the “educational area”. Section 39 of the Act provides:
39 Discrimination by educational authority in student area An educational authority must not discriminate—… (d) by treating a student unfavourably in any way in connection with the student’s training or instruction.
A blanket prohibition of students sharing their faith with fellow students, when other students who are passionate about specific non-religious issues are at liberty to discuss them with others, would seem to clearly be treating a student unfavourably on the basis of their lawful religious activity. It is worth noting that under s 3 of the ADA, the Act binds “the Crown in right of Queensland”.
3. The “expectation” is illegal as contradicting the head legislation
In addition, it seems clear that another reason the purported “expectation” (which clearly amounts to a directive to schools) is illegal, is that it not only is not supported by any power given by the empowering legislation, but it actually contradicts that legislation. As noted above, reg 27 of the EGPR provides that the content to be delivered must be that “approved by the religious denomination or religious society”. The authority to determine the content of the Biblical material presented to children is not given to the Department, but to the religious providers.
Of course the Department could intervene if it became clear that material based on religious documents was being used to support exhortations to violence or hatred. But the simple “expectation” or preference of Departmental officers that children should not be encouraged to speak to others about their faith, falls very far short of that. The material presented by the religious groups is not be “watered down” to meet the personal preferences of public servants. Parents who are happy for their children to be instructed in a religious faith, will be able to determine if what is being taught goes beyond their beliefs, and have conversations with their children or withdraw them from the classes. But the ultimate arbiter of content in these classes cannot be the Department; the legislation gives the authority to the religious group. That is as it should be, in a country which generally supports the idea that governments are “neutral” when it comes to support or opposition of particular religious views.
4. The “expectation” undermines free speech of pupils
Even at a young age, it seems contrary to the value our legal system places on free speech for the Department to forbid school pupils from discussing certain topics with others in the playground. Indeed, this is another reason for suggesting the expectation is not lawful.
While there is no free-standing right to free speech in Australia, the principle of free speech is an important underlying value of our common law legal system. The High Court has held that this is such an important principle, that under the so-called doctrine of “legality”, legislation will be interpreted not to allow the taking away of the right to free speech unless it does so clearly and unambiguously. In the decision in Attorney-General (SA) v Corporation of the City of Adelaide  HCA 3 (the “Adelaide Preachers case“) the Chief Justice, French CJ, noted at :
the construction of [the relevant legislation] is informed by the principle of legality in its application to freedom of speech. Freedom of speech is a long-established common law freedom. It has been linked to the proper functioning of representative democracies and on that basis has informed the application of public interest considerations to claimed restraints upon publication of information. (footnotes omitted)
The Court there held that the relevant legislation, a regulation made under a broad statutory power, was valid as it dealt with traffic issues, but that it would not be a valid exercise of the power given to the Council to prohibit verbal activity because the officers disagreed with the content of what was said- . Here it seems clear that it is precisely the religious content of the conversations which is being targeted. In light of the principle of legality, such an “expectation” from the Department cannot be justified as a legitimate exercise of Government discretion, given that it has such a serious impact on freedom of speech.
5. The “expectation” undermines religious freedom for pupils
Finally, though perhaps most obviously, the Departmental expectation is a fundamental impairment of the free exercise of religion by school pupils. Again, at the moment there is no over-arching protection of this value in Australia. It is to some extent protected by the discrimination law noted above. But at a more general level, the value of religious freedom may on occasions provide a further reason for supposing that a broad legislative power to lay down guidelines, was not intended to allow a radical restriction of religious freedom.
(It is also worth noting that the current Queensland government has expressed its support in theory for the introduction of a Human Rights Act for Queensland modelled on the existing Victorian provision. If this was to follow Victoria, it would include a clear right to free exercise of religion, as s 14 of the Victorian legislation does. This would provide yet another reason for challenging this administrative guidance from the Department.)
I have written a paper on the general protection of religious freedom in Australia, linked in a previous post here. In that paper I discuss a case of particular interest here, the decision of the Federal Court in Evans v NSW  FCAFC 130. In that decision a major ground for overturning restrictive NSW regulations that had prohibited the “annoying” of Catholic World Youth Day participants, was that they interfered (without explicit Parliamentary authority) with the fundamental common law right of freedom of speech. But the Court also noted that another principle it could refer to, in interpreting legislation, was the value of religious freedom, supporting this by reference to the general terms of s 116 of the Constitution, and to Art 18 of the Universal Declaration of Human Rights. These two principles operating together meant that a restrictive NSW law aimed at preventing persons being “annoyed” was held to be invalid, as going beyond the power given by the relevant statute. All the more would such combined principles operate to challenge an administrative “expectation” not supported by any legislation at all.
While international conventions are not directly binding in Australia, Australian courts often refer to them in interpreting similar rights that are given under Australian law. In that context it is worth noting, as I did in my previous post on the Queensland SRI rules, that there is firm international support for the view that the ability to freely speak to others in a polite and respectful way about one’s religion, and to hear others speak, are significant aspects of religious freedom. As I noted there:
Kirby J in the High Court of Australia, in NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs  HCA 29; (2005) 216 ALR 1; (2005) 79 ALJR 1142, at , offered clear support for the view put forward by the European Court of Human Rights in Kokkinakis v Greece (1993) 17 EHRR 397 at 418, where that Court affirmed that religious freedom includes the freedom:
“[T]o manifest one’s religion … not only exercisable in community with others, ‘in public’ and within the circle of those whose faith one shares, but can also be asserted ‘alone’ and ‘in private’; furthermore, it includes in principle the right to try to convince one’s neighbour … through ‘teaching’, failing which … ‘freedom to change [one’s] religion or belief’ … would be likely to remain a dead-letter.”
In short, it is good to see that the SRI materials provided by these two groups generally meet the Department’s guidelines, and where changes to the material are possible without compromising the religious teachings involved, I am sure the providers will be willing to co-operate with the Department. But those aspects of these reports which suggest that the Department “expects” that students will not be told that it is a good thing to share their faith with others in a polite and respectful way, must be rejected as not legally justified and not binding.
To remove teachings about sharing one’s faith from the SRI material, when it is clearly justified by the Bible, would be to substantially interfere with the religious freedom given by the Queensland legislation to the providers, to determine the religious content of the instruction. It would also amount to a serious impairment of free speech and religious freedom rights of pupils. That aspect of the guidance given by the Department is unlawful and ought to be withdrawn.