The Queensland Education Department’s recent edict that Christian students should be prevented from sharing their faith has been called a state “war on Christians”. The passage inspiring the controversy is contained in departmental reviews of religious instruction materials. The department’s response to the revelations in The Australian last week was swift. The reviews are now publicly said to be “under review and will be updated shortly”. The question is whether the directives are compliant with the law.
The departmental reviews state: “While not explicitly prohibited by the [relevant legislation], nor referenced in the 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.” The reviews then provide a series of examples of conduct that is inconsistent with the policy, including cards that share “the good news of Jesus’ birth”.
They assert that the blanket ban on “evangelism” is based upon the state’s obligation to prevent harm to children in its care, drawn from the general principles of negligence. This however is inconsistent with a 2013 ruling, upheld on appeal to the Victorian Court of Appeal, that the sharing of faith by students who had attended religious instructions classes did not amount to a “detriment” to those with whom they shared.
If the absurdity of banning Christmas cards was not in itself self-evident, under the Queensland Anti-Discrimination Act “religious belief means holding or not holding a religious belief”. To avoid discrimination, the Queensland Government must then also require teachers and principals to ensure that any child of any faith and agnostic or atheistic students are also prohibited from sharing their beliefs. If this is the measure, it would seem to me that, in attempting to curtail the expression of one’s convictions on such foundational and personal matters, the State itself breaches the obligation to prevent harm to our children.
Looking internationally, the European Court of Human Rights has upheld what one would have thought was the fairly non-contentious principle that “the possibility of pluralism in education … is essential for the preservation of a ‘democratic society’ “. Indeed, such statements reflect Article 29 of the Convention on the Rights of the Child, which Australia has ratified, which requires that State education prepare “‘the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all … religious groups”. Furthermore, Article 14 provides that children enjoy the freedom of religion or belief. International human rights law recognises that the right to religious freedom enfolds the protection of the right to share one’s faith.
The ECHR has also recognised that a child’s right to religious freedom is not to be relegated solely to the time allotted to religious instruction, but instead applies across the entirety of the educational experience. It has also held that human rights law “does not embody any right for parents that their child be kept ignorant about religion and philosophy in their education”.
Importantly, we are not just talking about the rights of children here, we are also talking about the rights of principals and teachers who are obliged to enforce the policy interpretation, possibly against their conscience. Serious doubt is thus cast over the consistency of the departmental reviews with human rights, as internationally recognised.
Returning to Australia, the problem for the department is that our own High Court has held that “absent statutory or executive indications to the contrary … administrative decision-makers will act in conformity with” ratified International Conventions. Australian Courts have also recognised that the common law right to religious freedom is subject only to Parliamentary sovereignty.
Importantly, as I pointed out recently to the current Commonwealth Parliamentary Inquiry into Religious Freedom, by its own acknowledgment the department’s statement has no grounding in parliamentary action. The Minister has also clarified her view that the policy has not changed. The reviews cannot thus prevail against either the applicable international law, or the common law right to religious freedom. If that wasn’t enough, the reviews arguably contravene the right to free speech under Australian common law, and potentially the implied Constitutional freedom of communication. When this many fundamental freedoms are asked to bow down before state diktat we know something has gone dreadfully awry.
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