Secular, singular and self-expression? Religious freedom in Australian and New Zealand education

Abstract

Children today live in a multicultural society. Its ethnic, religious and cultural diversity is reflected in school communities. In Australia, education is provided largely within the secular public systems of each state and territory. In addition, there is a significant denominational, primarily Catholic, school sector. In New Zealand, the state system is similarly secular but with much fewer private denominational providers. An important mission of all educators is to assist and encourage young people to achieve their full potential to contribute to a society characterized by tolerance and understanding. Parents of different races, cultures and religions want their children to be educated in accordance with their convictions and religious beliefs. In addition, the partakers of education, the young people of today, are generally more confident and comfortable in expressing their beliefs, either through words or appearance. The challenge is for all involved in education, from government policy makers to educators, to cater for all needs within the education system. This article considers the exercise of individual rights and freedoms within the context of religion in education. It focuses on the issues relating to incorporating and promoting diversity and individual freedoms within the secular education systems of Australia and New Zealand.

Keywords:

• education
• schools
• religion
• secular
• rights
• freedom

Notes

1. R (on the application of Begum (by her litigation friend, Rahman)) v. Headteacher and Governors of Denbigh High School (Appellants) [2006] UKHL15, at paragraph 97.

2. This right is clearly set out in instruments such as the Universal Declaration of Human Rights (Article 26); the United Nations Convention on Economic, Social and Cultural Rights (Article 13), and the United Nations Convention on the Rights of the Child (Articles 28 and 29). Although in Australia and New Zealand, international instruments must be incorporated by legislation to have the force of domestic law, the judicial view is that ratification of such instruments creates a ‘legitimate expectation’ that the executive will act in accordance with the rights contained in such instruments. This view was expressed in the New Zealand Court of Appeal in Tavita v. The Minister of Immigration [1994] 2 NZLR 257 and the High Court of Australia in The Minister of Ethnic Affairs v. Teoh (1995) 128 ALR 353. Although in Australia the veracity of this view was later questioned by the same court in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] 195 ALR 502, the law as stated in Teoh stands.

3. For example, s. 4, Education Act (NSW), s. 3, School Education Act 1999 (WA), s. 7, Education Act 2004 (ACT). Australian parents have the choice to educate their children in state schools, independent schools, and schools with religious affiliations.

4. State schools are publicly funded; private schools, also referred to as ‘independent schools’, are essentially privately funded although they receive some government funding; and integrated schools, previously state schools, are now largely government funded, while retaining their own ‘special character’ pursuant to the Private Schools (Conditional) Integration Act 1975 (NZ).

5. This section and others of the 1964 Act remain in force, not having been amended or repealed by the Education Act 1989.

6. The Cronulla riots were a series of incidents, including fighting, assaults, damage to property and attacks on police, involving groups of young people of Middle Eastern backgrounds and local residents of Cronulla, a Sydney beachside suburb, which took place in December 2005.

7. In Australia this is pursuant to state and territory legislation-for example: s. 30, Education Act 1990 (NSW); s. 2.2.10, Education and Training Reform Act 2006 (Vic); s. 68(1), School Education Act 1999 (WA); s. 28, Education Act 2004 (ACT). Secular education is provided for in New Zealand in ss. 77 and 78, Education Act 1964 (NZ).

8. This list of such cases begins with the original prayer in school cases such as Engel v. Vitale [1962] 370 US 421 and Abington School District v. Schempp [1963] 374 US 203.

9. Attorney-General (Vic); Ex rel Black v. The Commonwealth [1981] 146 CLR 559 (DOGS case).

10. s. 14, Charter of Human Rights and Responsibilities 2006 (Vic), and s. 14, Human Rights Act 2004 (ACT).

11. See s. 77, Education Act 1964 (NZ), preserved by the Education Act 1989 (NZ).

12. See ss. 75 and 78, Education Act 1964 (NZ), respectively.

13. s. 78A, Education Act 1964 (NZ).

14. ss. 78, 79, Education Act 1964 (NZ), preserved by the Education Act 1989 (NZ).

15. s. 25A (3), Education Act 1989 (NZ).

16. The Karakia is a Maori incantation or prayer which acknowledges a spiritual presence.

17. See: s. 32, Education Act 1990 (NSW); ss. 75–80, Education (General Provisions) Act 2006 (Qld); s. 66, School Education Act 1990 (WA); s. 102(1), Education Act 1972 (SA); ss. 28 and 29, Education Act 2004 (ACT); ss. 34(2)–(3), Education Act 1994 (Tas).

18. s. 28, Education Act 2004 (ACT); s. 33(1), Education Act 1994 (Tas); s. 2.2.10, Education and Training Reform Act 2006 (Vic); s. 68, School Education Act 1999 (WA); s. 73, Education Act (NT); Education (General Provisions) Act 2006 (Qld); Education Act 1972 (SA).

19. In the USA, large numbers of cases are founded on allegations that religious practices in schools are in breach of the establishment clause in the First Amendment to the US Constitution.

20. [1974] 1 NZLR 1 and [1974] 1 NZLR 21, respectively.

21. [1976] 2 NSWLR 199.

22. The relevant provisions are repeated in ss. 32 and 33 of the current Education Act 1990 (NSW).

23. [2000] NSWADTAP 14.

24. This proposal also gives rise to issues relating to federal intervention into state rights by the use of the ‘corporations’ power under the Constitution. As noted by Kirby J of the High Court of Australia in New South Wales v. Commonwealth (known as the WorkChoices case), ‘the “expanding cohort of private schools” that are incorporated means that traditional state matters, such as education, may be transferred to the Commonwealth’ (at 539). This case concerned the division of power between state and federal governments pursuant to s. 51 of the Constitution. The High Court of Australia, by a majority of 5 to 2, upheld the Workplace Relations Amendment (WorkChoices) Act 2005 (Cth) as validly enacted under the Commonwealth ‘corporations’ power.

25. The application of public funds to private schools in Australia is a complex, thorny and ongoing debate which is outside the scope of this article.

26. Can. 800.1, Code of Canon Law: www.vatican.va/archive/ENG1104/_P2N.HTM

27. The Qur'anic Society v. Camden Council [2009] NSWLEC 1171 (2 June 2009).

28. [1999] EOT (WA).

29. 393 U.S 503 [1969].

30. Lamb's Chapel v. Center Moriches Union Free School District 508 U.S. 384 [1993].

31. [1992] 177 CLR 106 and [1994] 179 CLR 427, respectively.

32. See Williams 2006 for a comprehensive discussion of this Charter.

33. See section 40 inserted by section 7 of the Human Rights Amendment Act 2008 (ACT) which came into force on 1 January 2009.

34. This inserted a new s. 28(2) into the 2004 Act.

35. 393 US 503 [1969].

36. [1990-192] 1 NZBORR (New Zealand Bill of Rights Reports) 480.

37. [1992] 3 NZBORR and [1993] 3 NZLR 435, respectively.

38. 127 S.Ct. 2615 [2007].

39. For example, s. 7(1) (i) Discrimination Act 1991 (ACT); s. 6(j) Equal Opportunity Act 1995 (Vic); s. 7 (i) Anti-Discrimination Act 1991 (Qld); s. 61 Equal Opportunity Act 1984 (WA); s. 19 (m) Anti-Discrimination Act (NT). Others, such as s. 51 Equal Opportunity Act 1984 (SA) and ss. 7 & 17 Anti-Discrimination Act 1977 (NSW), contain only a prohibition on the grounds of race.

40. For a discussion of such a project, see Sydney Morning Herald 2008c; see also the Together for Humanity website: http://togetherforhumanity.org.au/contact.php