Schools will have seen the media coverage earlier today in The Age in relation to a decision of the Victorian Civil and Administrative Tribunal (VCAT) in relation to a claim of indirect discrimination on the grounds of religious belief against an independent Christian school, Melton Christian College. The claim, upheld by the VCAT member, related to a Sikh boy refused enrolment because his head covering, a patka, was not consistent with the uniform policy of the College. The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) intervened to support the claim.
Putting aside for a moment consideration of the intricacies of determining whether indirect discrimination on the grounds of religious belief occurred, the key defences of the College related to two exceptions in the Equal Opportunity Act 2010 (Vic). Being exceptions the onus of proof fell on the College and the provisions were interpreted narrowly in order to give maximum effect to the objects of the Act.
Section 39 Exception – schools ‘wholly or mainly’ for a particular group
The relevant provision of the Act provides –
An educational authority that operates an educational institution or program wholly or mainly for students of a particular sex, race, religious belief, age or age group or students with a general or particular disability may exclude from that institution or program—
(a) people who are not of the particular sex, race, religious belief, age or age group; or
(b) people who do not have a general, or the particular, disability.
In considering this exception the VCAT member agreed with the submissions from the representatives for the applicant and VEOHRC that this section –
- only allows the exclusion of people who lack the particular attribute, in this case, non-Christians,
- does not allow the exclusion of people with some religious beliefs, and not others,
- does not allow the exclusion of people who have a particular religious belief, in this case, Sikhs who wear a patkas,
- does not allow the exclusion of some people who hold a particular religious belief and the inclusion of others who hold the same religious belief, and
- does not allow the exclusion of people on the basis of a religious activity, such as the wearing of the patka.
On this view, consistent with our previous information on how this provision may be interpreted, schools with a ‘closed’ enrolment policy are likely to be afforded some protection by this exception but schools with an ‘open’ enrolment policy will struggle to fall within its scope.
Certainly the view taken by VEOHRC and the VCAT member has significant potential implications for schools who have sought to rely upon this provision to allow the enforcement of standards of conduct amongst students. While this case involved Sikhs wearing a patkas the same reasoning would likely be applied to other religious groups with similar outward expressions of their faith. Similarly it is unlikely that this provision could be relied upon as the basis for limiting other expressions of faith within a Christian school.
Section 42 Exception – enforcing reasonable uniform standards
This exception provides that –
(1) An educational authority may set and enforce reasonable standards of dress, appearance and behaviour for students.
(2) In relation to a school, without limiting the generality of what constitutes a reasonable standard of dress, appearance or behaviour, a standard must be taken to be reasonable if the educational authority administering the school has taken into account the views of the school community in setting the standard.
The College was unable to satisfy the VCAT member that they had ‘taken into account the views of the school community‘ in setting their uniform policy on the facts of the case. It was also consider not to apply to a person seeking enrolment as opposed to a student. This determination being consistent with the view put forward by the VEOHRC that –
- consistent with general principles, s 42, being an exception in the EO Act, should be construed strictly,
- s 42 should also be read in a narrow and confined way, having regard to the circumstances in which it is intended to have operation,
- as a matter of general principle, where human rights are limited, courts and tribunals should not impute into the legislature an intention to interfere with fundamental rights in the absence of unmistakable and unambiguous language, and
- s 42 of the EO Act should be read strictly in accordance with its terms.
Certainly a clear message from the decision is that schools seeking to rely upon this exception must ensure that they are able to demonstrate that their policies for ‘dress, appearance and behaviour‘ have ‘taken into account the views of the school community‘.
Are your actions discriminatory?
Of course prior to any consideration of exceptions the applicant must demonstrate that discrimination has occurred. The Act prohibits two forms of discrimination –
- direct discrimination: treating, or proposing to treat, a person with a protected attribute unfavourably because of that attribute
- indirect discrimination: imposing, or proposing to impose, a requirement, condition or practice that ‘has, or is likely to have, the effect of disadvantaging persons with an attribute’ and ‘that is not reasonable’.
In this case it was indirect discrimination which was alleged. The VCAT member found that disadvantage has occurred to the applicant –
‘by not being able to attend MCC because he could not access the emotional and social advantages associated with attending a school that his cousins also attended or the practical advantages associated with attending a school that is close to his home and between the family home and the closest train station where his mother can catch the train to and from work.’
After considerable discussion the VCAT member also found that the requirement was not reasonable because, inter alia:
- the disadvantage suffered by Sidhak [the applicant] is not proportionate to the results sought by MCC by the imposition of the uniform policy such as uniformity, inclusivity and protection from inadvertent discrimination, particularly because MCC did not satisfy me that prohibiting head coverings of a non- Christian faith in fact achieves these results,
- the school could make a reasonable adjustment to the uniform policy by allowing Sidhak to wear a patka in the same colour of the school uniform,
- whilst MCC is a Christian school, it has an open enrolment policy which means that it accepts enrolments of students from other faiths, a little over 50% of the school community does not identify explicitly as Christian and many families at the school have no religious beliefs,
- it is not reasonable to accept enrolment applications from students from non—Christian faiths only on condition that they do not look like they practice a non—Christian religion, and
- it is not reasonable to exclude a potential student who wears a patka because of his religious belief or activity from attending the school.
The decision of the VCAT member, with respect, seems to grossly undervalue the importance of Christian practices, religious activity, in the formation of Christian belief. Religious practices, spiritual disciplines, are an essential element or religious formation. The College gave evidence that ‘the uniform policy is not unthinking and not one of practical considerations – it is a principled position to assist MCC in its education and practice of Christianity‘ and the VCAT member acknowledged that one aspect of the rationale for the uniform policy is ‘assisting MCC in its education and practice of Christianity‘, In this case, however this factor does not seem to have played a decisive part in the decision. This may be correct on the facts of this case – but it does point to the need for Christian schools, seeking to instil spiritual disciplines through its practices to clearly articulate the religious basis for these practices.
It is unknown at this stage whether the College will seek to appeal the VCAT finding. A copy of the decision can be accessed below.