No religious discrimination where school has optional clause in creed

A recent interesting decision in the State Administrative Tribunal of Western Australia deals with the question whether it is “religious discrimination” for a school to ask students to recite a fortnightly “school creed” containing an optional line mentioning God. The Tribunal decision, Jason Camp on behalf of Charlotte Camp v Director General, Department of Education [2017] WASAT 79 (29 May 2017), sensibly finds that there was no such discrimination.

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Special Religious Education in NSW and “grooming”

Over the course of three days the local Herald newspaper here in Newcastle (NSW) has been publishing a series of misleading and inflammatory articles designed to put pressure on the NSW Government to stop offering the Special Religious Education program (SRE, or sometimes popularly called “Scripture”) in public schools. Here I want to address a particularly inflammatory accusation implied or made in these articles, that SRE material somehow supports “grooming” of children for sexual purposes. These accusations are completely false and should not have been made in the first place.

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Establishing Religion and Islamic schools in NSW

The recent decision of the NSW Court of Appeal in Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 (5 July 2016) is one of the most important court decisions on the scope of s 116 of the Commonwealth Constitution for some years. The Court held that the Federal Government does not breach the Constitution by “establishing” a religion when it provides funds through the State government to support the operation of a Muslim school. The Court also comments in passing on other important aspects of s 116 to do with “imposing a religious observance” and “prohibiting the free exercise of religion”. In this note I will aim to outline the broad features of the decision, though its full implications will have to be worked out in more detail as time goes on.

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Schools, Scripture and Book Banning in NSW

There has been quite some concern in Christian circles in my home State of NSW over the last few days, over bureaucratic action to “ban” some books from being used in Special Religious Education classes. While events are still unfolding (the relevant Department has so far made no general public comment on the matter, which seems to be promised for the coming week), it seems worthwhile to set some of this dispute in legal context.

Schools and the Separation of Church and State in Australia

Perhaps it is best to start off with the background in NSW, and in Australia, on the question of the relationship between “church and state”. That is because many even in Australia have the impression that all Western countries have erected a high “wall of separation” between the two spheres, getting that impression from US TV shows and comments from the US on the internet.

The fact is that even in the United States the theory that there is this high wall (said to be mandated by the First Amendment to the US Constitution, which says that “Congress shall make no law respecting an establishment of religion”) has been seriously challenged by many scholars. Still, the effect of the “establishment clause” in the US has been felt in decisions holding that there can be no public prayer offered in public schools, for example.

But, while s 116 of the Commonwealth of Australia Constitution seems at first glance to be similar, there are a number of important differences between the way that the Australian provision has been interpreted by the courts here, and the reading of the US First Amendment offered in that country.

Section 116 provides, on this issue:

The Commonwealth shall not make any law for establishing any religion..

The history of interpretation of the provision makes it clear that, unlike the US, this is not a prohibition on State, as opposed to Federal, action (so in theory a State is free to even “establish” its own religion, although in fact such a decision would not be politically acceptable today.) In addition, the important decision of the High Court of Australia in Attorney-General (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559 (sometimes known as the DOGS case for the group which sponsored the challenge, “Defence of Government Schools”) held that s 116, far from mandating a “wall of separation”, was not breached by direct Commonwealth funding of Catholic schools.

The interpretation given to s 116 was very narrow. Relying on the phrase “for establishing”, the majority of the High Court held that the prohibition would effectively only be breached by a law the very purpose of which was to set up something like a “state church”. Hence there would be no breach of the establishment clause by a moderate engagement with, and even-handed support for, religion in schools. This has been regarded as the settled meaning of the term for many years, which is presumably why, for example, when the “school chaplaincy” scheme was challenged in the High Court over the last few years, those making the  challenge did not even attempt to argue that the “establishment” clause was breached by the Government providing funding to private religious organisations to allow the placement of “chaplains” in Government schools. (The cases challenging the scheme, Williams v Commonwealth [2012] HCA 23, (2012) 86 ALJR 713 and Williams v Commonwealth of Australia (No 2) [2014] HCA 23, were successful in that they led to the Court declaring the schemes invalid as then constituted. But the invalidity was on the grounds of the direct funding arrangements that had been adopted, not on a breach of s 116, despite some inaccurate press reports of the decisions.)

(It is of course possible that in the future the High Court might give a slightly broader reading of Australia’s “establishment clause”. Those with an interest in the academic issues can see some very interesting analysis and suggestions along these lines in some recent articles:

  • Barker, Renae “A Critical Analysis of Religious Aspects of the Australian Chaplaincy Cases” (2015) 4 Ox. J Law Religion 26-53
  • Beck, Luke “Dead Dogs? Towards a Less Restrictive Interpretation of the Establishment Clause: Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2)” (April 18, 2013), available at SSRN: http://ssrn.com/abstract=2253260
  • Beck, Luke “THE ESTABLISHMENT CLAUSE OF THE AUSTRALIAN CONSTITUTION: THREE PROPOSITIONS AND A CASE STUDY” (2014) 35 Adelaide Law Review 225-250
  • Mortensen, R “The Establishment Clause: A Search for Meaning” (2014) 33 Uni of Qld Law Jnl 109-129

But unless and until some change happens, the view summarised here is the current interpretation.)

Banning books in “Scripture” classes in schools

So we come to “Scripture” in schools, the popular name for what is formally designated “Special Religious Education” or “SRE”. For some years the law of NSW has required that a small amount of time be set aside each week in public schools for SRE. It is a voluntary system, in that parents are free to remove their children from the classes if they so choose. It is not meant to be general information about the concept of religion and “world religions”- that is “General Religious Education”, to be provided by the ordinary class-room teacher. (Under s 30 of the Education Act 1990 that is classified as part of the “secular education” which is to be provided by the schools.) But s 32 of the Act allows representatives of various religions to come into the schools and provide religious instruction from their own faith perspective, to children whose parents are willing to allow this.

32 Special religious education

(1) In every government school, time is to be allowed for the religious education of children of any religious persuasion, but the total number of hours so allowed in a year is not to exceed, for each child, the number of school weeks in the year.

(2) The religious education to be given to children of any religious persuasion is to be given by a member of the clergy or other religious teacher of that persuasion authorised by the religious body to which the member of the clergy or other religious teacher belongs.

(3) The religious education to be given is in every case to be the religious education authorised by the religious body to which the member of the clergy or other religious teacher belongs.

(4) The times at which religious education is to be given to children of a particular religious persuasion are to be fixed by agreement between the principal of the school and the local member of the clergy or other religious teacher of that persuasion.

(5) Children attending a religious education class are to be separated from other children at the school while the class is held.

(6) If the relevant member of the clergy or other religious teacher fails to attend the school at the appointed time, the children are to be appropriately cared for at the school during the period set aside for religious education.

In general, SRE has been an accepted part of life in NSW schools for many years. But recently there have been voices expressing opposition. One development saw complaints by parents who withdrew children from SRE classes, that they were not doing useful work. The suggestion was made that there should be an alternative class offered in Ethics, from a non-religious perspective. This has been happening, authorised by s 33A of the Act, where it is “reasonably practicable” to offer the alternative class. (This will usually depend on there being motivated and qualified local volunteers willing to take the classes.)

But a more recent development has seen a campaign to remove SRE from public schools altogether. It seems these latest events are part of this campaign.

A press report of Wednesday May 6 suggested that a textbook being used in SRE promoted the messages of “sexual abstinence outside a “lifelong relationship” and the doctrine of male headship and female submission.” That a Christian organisation should want to present standard features of Christian doctrine which have arguably been there in the Bible for millennia seems to have been a surprise to some of those quoted. The book which was most strongly challenged was one called Teen Sex by the Book, produced by Patricia Weerakoon, a highly qualified Christian sex expert and lecturer on the topic at the University of Sydney. This book was not, in fact, actually on the official reading list for SRE classes. It was published by the same organisation that published the SRE materials, but it was not an SRE text. Yet the article misleadingly suggested, if it did not quite state, that it was part of the formal curriculum. A representative of a lobby group was quoted:

“We call on the (DEC) to remove all of these materials from schools immediately and conduct a parliamentary review into how this damaging curriculum was able to become available to SRE teachers,” she said.

Few who read the article would have predicted how alarmingly quickly this call was to be heeded by an apparently compliant Department of Education and Communities, the body responsible for schools. On Thursday May 7 it was reported that SRE teachers arriving at schools to teach their classes were abruptly informed by local school principals that the Department had sent around a warning about three books: one of them the Teen Sex book, and two others: You, by Michael Jensen, and A Sneaking Suspicion, by John Dickson. Both of these authors are currently serving Anglican rectors but also well-known Christian authors. (Actually there was some confusion as to whether the books themselves were to be “banned”, or the study guides which accompanied the books, but the intention seems to have been to ban both.) It is still as I write not precisely clear why the two latter books were targeted, although the most obvious reason is that they formed the basis for some of the courses taught to high school students, and generally supported Christian morality on sex.

This sudden censorship was, frankly, astonishing. As far as can be determined from the authors concerned, and from the body administering SRE on behalf of the Anglican church in Sydney, there had been no consultation or discussion on the matter. An extract from one of the emails received by the schools says that:

SRE-directive

The letter then continued:

SRE-directive2

It seems likely that this action was contrary to the way that the SRE system was meant to work. As noted above, s 32(3) of the Act specifies that it is the religious education provider which is to determine the content of what is offered in these classes. The Department’s internal policy says:

NSW DEC Religious Education Policy

§1.3 Curriculum for general religious education is provided as part of the Board of Studies NSW syllabuses.
Curriculum for special religious education is developed and implemented by approved providers.

Another Departmental document indicates:

Responsibilities of providers

Lesson content

It is the responsibility of an approved provider to:
• authorise the materials and pedagogy used by special religious education teachers
• provide an annual assurance to the NSW Department of Education and Communities that authorised teachers are only using materials and pedagogy authorised by the provider
• make lesson content accessible on a website or at least provide a program outline and curriculum scope and sequence documents

In other words, the content of lessons and how they are taught are meant to be the responsibility of the SRE provider, not the Department! It can hardly be supposed that with all these responsibilities carefully set out, the intention of Parliament, or even of the Department, was to allow a single bureaucrat to decide without warning to “ban” the use of certain texts in response to a one-sided press report, with no consultation. Yet this seems to be what has happened.

It is to be hoped that on review the Department will realise both that the way this was done is entirely unacceptable, and also that the content of the books concerned is not as harmful as it has been alleged to be. While one can perhaps imagine that a prescribed text which urged, for example, believers to immediately wage war on, and kill, unbelievers, could be the subject of such urgent action, it beggars belief that matters of Christian morality which have been taught for millennia could overnight have become so immediately harmful that they had to be withdrawn without due process and opportunity for explanation.

Even if this odd decision is rescinded, the very fact that someone in the bureaucracy could contemplate that this was a lawful action says much about the change in perception of issues of morality in recent years. As I have already noted elsewhere, we have gone in a short space of time from the church and its teaching on appropriate sexual relationships being thought merely “old-fashioned”, to these views being painted by many as positively evil. Hopefully the very extreme action that was taken here will cause many in the community to reflect on the merits of these issues once again.

For further comments on these events, see here and and interview with one of the authors, here. I will aim to update this post if there are further developments.