The various declarations of human rights, including the Universal Declaration, state that every person has the right to freedom of thought, conscience and religion. What does this mean in terms of religious instruction in schools?
It might be assumed that religious freedom means that there is a right to have a religious education. But does it mean that parents have a right to have their children instructed in a religion of their choice or does it mean that a child should have the freedom to choose their own religion, and form of religious instruction?
It is unlikely that it implies there is an existing declared "right to indoctrinate" because moves are now afoot in the United Nations, instigated by Islamic countries, to establish this right. A child is a person (legally), therefore a child is supposed to be able, and has the right, to exercise their freedom of choice, and to be free from all coercion in matters of religion. However exactly what the declared right means in this context, I don’t think has ever been tested in any court.
In the beginning of 2008, the Charter of Human Rights and Responsibilities came into operation in Victoria. This legally establishes in Victoria the kind of rights that Australia has already signed up to internationally, including freedom of religion. If any existing practices or legislation violate the Charter, then these can be challenged.
As pointed out by Michael Bauer, (Victorian Humanist, Feb 2008), the recent education legislation in Victoria, the Education and Training Reform Act 2006, contradicts itself. On the one hand it says that education should be secular and should not promote any particular religion, but on the other provides for special religious instruction in schools, to be taught by churches or other religious groups. Could this provision for religious instruction perhaps be challenged as being against the rights as per the new Charter?
The motivation for such a challenge would be that as Richard Dawkins suggests, the indoctrination of children can be a form of child abuse. Instilling fear of devils, hellfire and punishment traumatises children. Further, indoctrination as to "the one true faith" fosters a religious "us versus them" attitude in children and is highly anti-social. The consequences of this attitude in global conflict are quite apparent.
The new Act has enabled teachers to provide for a "general religious education" whereas previously they could not. In practice however it may do little more than re-establish the status quo of "religious instruction" that has existed since 1950. The usual situation is that once a week someone comes in from outside the school and teaches the children about Jesus. Those pupils not participating can go and sit by themselves in another room.
What is inherently wrong with this practice, I think, is that while it may be considered to be exercising the freedom of religion of the parents, it is taking away the freedom of thought and the freedom of religion of the child. The instructors represent a particular religion, in practice, in state schools, it is always Christianity. It seems implausible that the instruction sessions could be interpreted otherwise than as promoting a particular religion. This would seem implicit, at least, in the use of the word "instruction". If children are given the impression that only one religion is true, then how does that assist their freedom of thought, conscience and religion?
Section 14 of the human rights Charter also states that a person "must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion". A child is a person, so a child has this right. Would not "instruction" as to the truth of one religion constitute a restraint in the belief in another, or none?
Can it be argued therefore that the provisions of Section 2.2.11 of the Victorian Education & Training Reform Act 2006, providing for special religious education, run counter to Section 14 of the new Charter of Human Rights and Responsibilities, and so should be struck out? Especially since Section 17 of the Charter also provides for special protection of children "by reason of being a child"?
Obviously this is a startling proposition and it would be an international sensation were it found to be the case. However this is surely not because the proposition itself is preposterous, but because freedom of thought and religion for children is not something that has ever seriously been thought of as something that deserves protection.
Whatever the moral arguments regarding the rights of the child, the probability of a successful legal challenge is apparently not good. This is the advice of Philip Lynch of the Human Rights Law Resource Centre. The procedure under the Charter is that one would have to lodge an objection to the legislation at the Supreme Court of Victoria. The plaintiff would have to bear their own costs and if the case was lost, incur the costs of the State as well. These are significant disincentives to apply.
The legal problem is, I am advised, that because there is an opt out provision, so that religious instruction is not compulsory, the Supreme Court would likely find in favour of the status quo. There cannot be coercion if one can opt out. Whatever the other merits of the case, the Court may decide that this indicates that the Act has no contradiction with the Charter.
It does not matter, apparently, that in practice, the opt-out choice may be ineffectual, that because of social pressures, there may be fear of ostracism, and lack of any adequate supervision or activities for opt-out children, and that therefore coercion may still exist. It does not matter that the opt-out children (generally Muslims, Jews and non-believers), may themselves suffer a form of coercion, because no alternative religious instruction, or non-religious humanist education, is provided.
It apparently also does not matter the child may not have the capacity to decide whether they want to accept or reject "instruction" in Christianity. The parents actually nominate to the school whether or not their child is to receive instruction, so it may not be the choice of the child. The State would argue that the child’s wishes are expressed in consultation with the parent. It would be up to the plaintiff to prove otherwise.
Another aspect that may imply a degree of coercion is that if any accredited religious instructor approaches a school to provide special religious instruction, then the school has no choice. It must make curriculum and timetable arrangements to accommodate the instruction. This is departmental practice. The students may opt out, but the school may not.
However much the indoctrination of children would seem to run counter to universal standards of morality, justice, social cohesion and the spirit of the human rights of the child, it seems that there is no legal remedy at this stage, even after the introduction of the Charter of Human Rights.
Merely having an arguable case of sufficient merit to take to court would be beneficial because it would generate publicity and awareness of the issue. Perhaps other issues could be raised, such as the use of "multi-faith" groups to teach general religions education or the teaching of the Steiner cult in state schools. Presumably however it could be counter-argued that the children could simply choose a different school. What is needed perhaps is for some bright legal mind to help find reasonable grounds legal challenge to Supreme Court.
Dr John L
Perkins is a Melbourne economist, software developer and freethinker.
He is a founding member of the Secular Party of Australia.
This paper was originally published in Victorian Humanist, Vol 47 No. 4, May 2008.
Excerpts from relevant legislation:
(a) Government schools—
(i) will provide a secular education and will not promote any particular religious practice, denomination or sect; and
(ii) are open to adherents of any philosophy, religion or faith;
2.2.10 Education in Government schools to be secular
(1) Except as provided in section 2.2.11, education in Government schools must be secular and not promote any particular religious practice, denomination or sect.
(2) Sub-section (1) does not prevent the inclusion of general religious education in the curriculum of a Government school.
(3) A Government school teacher must not provide religious instruction other than the provision of general religious education in any Government school building.
(4) In this section "general religious education"
means education about the major forms of religious thought and expression characteristic of Australian society and other societies in the world.
2.2.11 Special religious instruction
(1) Special religious instruction may be given in a Government school in accordance with this section.
(2) If special religious instruction is given in a Government school during the hours set apart for the instruction of the students—
(b) the special religious instruction must be given on the basis of the normal class organisation of the school except in a school where the Minister authorises some other basis to be observed having regard to—
(4) Nothing in this section prevents any Government school building from being used for any purpose on days other than school days or at hours on school days other than the hours set apart for the instruction of the students.
(5) In this section "special
religious instruction" means instruction
provided by churches and other religious groups and based on distinctive
religious tenets and beliefs.
Charter of Human Rights and Responsibilities Act 2006
14. Freedom of thought, conscience, religion and belief
(1) Every person has the right to freedom of thought, conscience, religion and belief, including—
(b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.
17. Protection of families and children
(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.
(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.