Background
The claim, in this case, was brought by a Mr John Perkins, representing the “Secular Party of Australia”, after seeing in a hot summer month, a child at a Victorian government school wearing “religious style clothing that covered her body, leaving only her face and hands exposed” – at para [7] of the report. Presumably, though it is not spelled out, the child was a child of Muslim parents and was wearing a head scarf and perhaps a long tunic of some sort. Mr Perkins took it on himself to write to the principal of the school, saying that this form of clothing was harmful; presumably, he was expecting the principal to demand that the child’s parents change the way that the child was dressed, though it is not entirely clear. Perhaps the most astonishing thing about the claim is that Mr Perkins did not at any time consult the child or her parents, and was making a legal claim against the Education Department “on behalf of” the child, without her consent!
Legal basis of the claim
Mr Perkin’s claim was brought under the
Victorian Equal Opportunity Act 2010, s 124, claiming that his organisation was a “representative body” under that provision. The claim, purporting to be on behalf of the child, was that the school was “subjecting the child to a detriment” on account of her (or her parents’?) religion. Section 38 provides that:
(2) An educational authority must not discriminate against a student—… (c) by subjecting the student to any other detriment.
The concept of “discrimination” is defined in Part 2 of the Act, and presumably s 8, “direct discrimination” was supposed to be invoked:
8 (1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.
So it seems that the argument was that, because of the girls’ “religious belief or activity” (one of the protected “attributes” under s 6(n)), she was somehow treated unfavourably by allowing her to wear religious garb.
[9] In November 2017, Mr Perkins wrote again to the school principal expressing his view that the approval of such clothing constituted discrimination against the child on the basis of religion in contravention of the EO Act.
In this confused claim, however, an almost completely opposite assertion was then made:
[10] According to the applicant, the child was too young to genuinely hold a religious belief and the choice of clothing was that of the child’s parent. Even if the child did have a genuine religious belief, the applicant asserted that the imposition of detrimental clothing was still discriminatory.
So either the child’s religious belief was the basis for a detrimental action, or the child was too young to have a religious belief! In which case it would seem to be hard to find a ground for asserting religious discrimination.
Decision of the Tribunal
There were a number of other claims made by Mr Perkins, all of which were unconvincing. In the end, however, the Tribunal’s rejection of the action was based on the simple fact that he had not obtained either the consent of the child, or the child’s parents, to bring this action which was supposed to be on their behalf. Under s 124(1)(a) a representative action can only be brought if each person on whose behalf the claim is brought
(i) is entitled to make an application under section 123(1)(a); and (ii) has consented to the application being made by the body on the person’s behalf
Another provision of the Act, s 123(1)(c)(iii), allows an action to be brought on a child’s behalf by “any other person”, but it is pre-requisite for such an action that either the child, or a parent of the child, must consent. Mr Perkins tried to avoid the claim being dismissed on this ground by arguing that the child was too young to know what she was doing, so the court should “deem” her to have consented to his bringing this claim (on the basis, presumably, that a representative from the Secular Party whom she had never met, was better placed to know what her desires or interests were, than the parents who brought her into the world and raised her!) As has been cogently pointed out by my “law and religion” colleague Dr Renae Barker from UWA, in an SBS interview on this case (see “
Can a child consent to the practice of religious beliefs?” SBS World News Radio, Sept 3, 2018), in effect Mr Perkins was saying that the school or the parents had somehow taken away the child’s freedom by allowing or encouraging this outfit, but then himself proposing that her freedom to choose to wear the outfit be restricted by his (uninvited and probably unwelcome) intervention. Mr Perkins tried to strengthen his case by providing testimony from five other women who said that they had been required to wear religious dress as children, but would have preferred not to. Correctly, the Tribunal (Senior Member B. Hoysted) rejected this evidence as irrelevant to what
this child and this child’s parents thought about the issue- see para [60]. The lack of consent alone was sufficient reason to dismiss the claim- see [61].
Other claims that were not fully dealt with
As with any litigation, where a claim is made on a number of bases, if a preliminary issue about the ability of the applicant to bring the claim (a “standing” issue) is disposed of contrary to the applicant, then it is not necessary to resolve other issues about the substantive merits of the claim. Here the lack of consent to the possible claims made under ss 123 and 124 meant that there was no need to go further. As a matter of interest, in case claims of this sort come up in future, it is worth noting briefly the other issues that were not finally dealt with.
(a) Did the Secular Party have “standing” to mount a representative action?
Mr Perkins claims that the Secular Party was a “representative body” which had standing to bring this claim. Because obtaining consent was a pre-requisite to an action by such a body, it was not necessary for the Tribunal to resolve this. But it seems clear to me that in any event the Party would not have satisfied the relevant requirements. Under s 124(2) the definition of such a body is as follows:
(2) A representative body has sufficient interest in an application if the conduct that constitutes the alleged contravention is a matter of genuine concern to the body because of the way conduct of that nature adversely affects or has the potential to adversely affect the interests of the body or the interests or welfare of the persons it represents.
While it may be conceded that the actions of religious persons seem to be a matter of “genuine concern” to the Secular Party, it seems clear that nothing done by the school (the alleged discriminator here) “adversely affected” the interests of either that body or “the persons it represents”. While it might be suggested, perhaps, that the Secular Party as an organisation has an “interest” in seeing a wholesale restriction of religious activity in society, the law cannot allow itself to be a tool of the self-defined “interests” of every lobby group in existence. (For example, a Christian “theonomist” group might wish to see the introduction of Old Testament law across the nation.) Nor could it legitimately be said that, since members of the Secular Party might be “offended” or upset by seeing children in religious garb, that their “interests or welfare” were harmed. At para [48] the Victorian Department noted that the general principles on which decisions as to the “standing” of organisations to bring actions include the following:
An organisation needed to demonstrate a “special interest” in the subject matter. A “mere intellectual or emotional concern” was not enough. The interest must go beyond that of members of the public in upholding the law and must involve more than genuinely held convictions.
In the circumstances, of course, the specific “standing” provisions of s 124 would need to be weighed up. But taking all these things into account, it seems fairly clear that an officious uninvited interest in a religious person’s welfare (where that person has not made any complaint themselves) is not a good enough ground for an organisation to seek to restrict that person’s religious freedom. Of course there are legitimate concerns that can be raised in relation to children’s welfare. Where actual harm is being committed to a child (sexual or other violence, or genuine and oppressive bullying) then organisations interested in child welfare are justified in intervening. But in general we still assume in our society that the best people to make decisions for a child’s welfare are the child’s parents. This is reflected, for example, in the International Covenant on Civil and Political Rights (ICCPR)
art 18(4):
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
This provision recognises that, granting that “coercion” of persons to hold religious beliefs is wrong (see art 18(2)), while children are in their minority their parents are at liberty to instruct them in the tenets and beliefs of their own faith. All children are under the influence and guidance of their own parents or guardians, whether those parents are intentionally religious or “default secularists” (in which case the children will imbibe a form of default secularism.) We must not let the terrible mistakes and wrongs of a small number of abusive parents lead us into suspicions about all parents. Care and instruction of children by their own parents is still the best way to provide for future generations. We certainly don’t need to hand over responsibility for child welfare to officious interest groups.
(b) Other “human rights” reasons for the action
A range of other “human rights instruments” were cited by the applicant in seeking to restrict the religious freedom of this child and her parents. The Tribunal did not find it necessary to deal with these. But none of the claims seems very strong. For example, one claim was that the involvement of the organisation was justified by s
14(2) of the Victorian Charter of Human Rights and Responsibilities Act 2006. That provision, like art 18 of the ICCPR, does refer to the need not to be “coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching”. But of course the interference of the Secular Party here would have interfered with the religious freedom of both the child and her parents. Unfortunately s 14 does not contain any equivalent of art 18(4), referring to the right of parents to educate children in accordance with their own convictions. But it seems that the point is probably covered by the coercion that the parents of this child would suffer if forced to not allow her to wear religious dress. A slightly similar argument, that a child’s religious freedom was somehow restricted by a parent’s decision to send them to a religious school, was rejected by the NSW Court of Appeal in
Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 15 , where Basten JA commented at [281]:
[C]entral to the concept of “imposition” is the element of religious observance which is non-consensual. With respect to children, the source of any consent must be found in the beliefs and intentions of the parents.
(See my
previous post for a fuller analysis of this case.)
Conclusion
Some Australians feel uncomfortable seeing others, including children, wearing religious dress such as long tunics or head coverings. But in a generous, diverse society we ought to be keen to protect the religious freedom of all citizens to live out their faith in accordance with their deep convictions, so long as no violence or actual physical abuse is happening. All children grow up watching and learning from their parents. While they may reject those teachings as they grow older, while they are young the best place for children to be cared for is in the home, and by their own parents. Actions like this failed attempt by an officious interest group to disrupt the religious faith of child and parents, should continue to be resisted.
This article first appeared on Neil Foster's blog, Law and Religion 
