Aitken v State of Victoria

[2013] VSCA 28

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0220
S APCI 2012 0221

SOPHIE AITKEN & ORS	Applicants
	v
STATE OF VICTORIA – DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT	Respondent

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JUDGES	NEAVE and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 February 2013
DATE OF JUDGMENT	22 February 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 28
JUDGMENT APPEALED FROM	Sophie Aitken & Ors v State of Victoria – Department of Education & Early Childhood Development [2012] VCAT 1547

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DISCRIMINATION − Non compulsory religious instruction in government schools − Whether  constituted discrimination on grounds of religious belief − Equal Opportunity Act 1995 − Equal Opportunity Act 2010 − Claim dismissed by VCAT − Application for leave to appeal on a question of law under s 148 of Victorian Civil and Administrative Tribunal Act 1998 − Leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Applicants	Ms M J Richards with Ms A E Forsyth	Holding Redlich
For the Respondents	Ms R Orr	Victorian Government Solicitors Office

NEAVE JA:
PRIEST JA:

1. These applications arise out of the dismissal of proceedings brought by the applicants in the Victorian Civil and Administrative Tribunal (‘Tribunal’), in which they alleged that the provision of Special Religious Instruction (‘SRI’) in State primary schools amounted to direct and ongoing discrimination against their children.  The provision of SRI before 1 August 2011 was said to contravene the Equal Opportunity Act 1995 (‘the 1995 Act’).  Its provision after that date was said to contravene the Equal Opportunity Act 2010 (‘the 2010 Act’).[1]   

   [1]For that reason, there were two separate proceedings in the Tribunal: Sophie Aitken & Ors v State of Victoria – Department of Education & Early Childhood Development [2012] VCAT 1547 (‘Reasons’) [12]). The applications relate to both proceedings.

1. The applicants seek leave to appeal on a question of law under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) against the reasons and orders made by the Tribunal on 18 October 2012, dismissing their discrimination claims. The applicants also seek orders that:

·The publication of any information that might enable the identification of the second and third applicants and their children be prohibited under s 18(1)(c) of the Supreme Court Act 1958; and

·If the Court exercises its discretion to order costs against one or more of the applicants in favour of the respondent, the maximum amount of costs that may be recovered from all of the applicants be limited to $10,000.00.  We describe this as a ‘protective costs order’.

·The costs of the application be costs in the appeal.

Background

1. The applicants are three parents of eight children at three Victorian State primary schools at which SRI is provided.  SRI is ‘instruction provided by churches and other religious groups and based on distinctive religious tenets and beliefs’.[2] The terms on which SRI is offered are governed by ss 2.2.10 and 2.2.11 of the Education and Training Reform Act 2006, and by Departmental Policy.  SRI is normally conducted for between 25 and 30 minutes per week during school hours and is often conducted after a lunch break. 

   [2]Ibid [2].

1. Two-thirds of Victoria’s 1200 government primary schools offer SRI.  It is not compulsory.  Before 23 August 2011, parents could choose to ‘opt out’ of their children’s participation in SRI.  This meant that when a parent failed to return a form seeking consent to their children attending SRI, they were regarded as consenting to their participation in SRI.  From August 2011, this was changed to an ‘opt in’ choice, so that children who did not return the form, or whose parents did not give consent to attendance, did not receive SRI instruction. 

1. Children who do not participate in SRI engage in other non-curriculum activities under supervision, including working on a computer, silent reading and playing educational games.  Until the policy changes in mid 2011, departmental policy prohibited schools offering secular instruction (for example, instruction in ethical principles) as an alternative to SRI for children who did not attend SRI class.

1. In their amended particulars of complaint dated 5 September 2011, the applicants claimed that the provision of SRI at their children’s schools constituted direct discrimination of their children on the following grounds:

·by requiring the parents to opt their children out of SRI, the children were identified as different and segregated from their class mates during normal school hours when SRI classes take place;

·by forbidding schools from offering secular instruction (under the previous SRI policy) or instruction in the core curriculum (under the current SRI policy) to the applicants’ children, the respondent had

odenied or limited their access to instruction during school hours; and

osubjected them to the detriment of spending time at school while not receiving instruction;

·by not providing instruction to the applicants’ children while other children were attending SRI:

othe respondent had denied or limited the children’s access to instruction during school hours; and

osubjected them to the detriment of spending time at school while not receiving instruction.

1. The applicants sought declaratory relief, as well as orders that the respondent alter its SRI policy to:

(a) require, or alternatively allow, the timetabling of SRI outside normal school hours, before or after school or, at lunchtime;

(b) require that SRI be offered on an ‘opt in’ rather than an ‘opt out’ basis; and

(c) require instruction to be provided to students who do not attend SRI, if SRI is timetabled during normal school hours.

The legislation

1. Before summarising the Reasons of Vice President Judge Ginnane, it is convenient to set out the relevant legislative provisions.

1. Section 37(2) of the 1995 Act (now repealed) stated that:

(2)       An educational authority must not discriminate against a student—

(a)by denying or limiting access to any benefit provided by the authority;

(b)       by expelling the student;

(c)       by subjecting the student to any other detriment.

1. It was not disputed that the respondent was an educational authority within the definition in s 4 of the Act. ‘Detriment’ was defined in s 4 to include humiliation and denigration. Section 7(1) defined discrimination to mean ‘direct or indirect discrimination on the basis of an attribute’. The relevant attribute in this case was religious belief or activity or ‘personal association (whether as a relative or otherwise) with a person who is identified by reference to’ that attribute.[3]  Religious belief or activity was defined to mean:

(a)       holding or not holding a lawful religious belief or view;

(b) engaging in, not engaging in or refusing to engage in a lawful religious activity.[4]

[3]1995 Act, s 6(j) and (m).

[4]1995 Act, s 4(1).

1. Section 8 of the 1995 Act explained the meaning of direct discrimination.  It provided that:

(1)Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

(2)In determining whether a person directly discriminates it is irrelevant—

(a)whether or not that person is aware of the discrimination or considers the treatment less favourable;

(b)whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.

1. Section 7(1) of the 2010 Act defined discrimination in the same way as the 1995 Act. The definition of ‘attribute’ included religious belief defined in the same way as the 1995 Act. The provision prohibiting discrimination by educational authorities in s 37(2) of the 1995 Act is repeated in s 38(2) of the 2010 Act.

1. There are differences between the description of ‘direct discrimination’ in the 1995 and 2010 Acts.  Section 8 of the latter provides that:

Direct discrimination

(1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

…

(2)In determining whether a person directly discriminates it is irrelevant—

(a) whether or not that person is aware of the discrimination or considers the treatment to be unfavourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

1. Other legislation considered by the Tribunal included the Charter of Human Rights and Responsibilities Act 2006, and the Education and Training Reform Act 2006. For the purposes of this application, it is necessary to refer only to the latter, s 2.2.11 of which provides that:

(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—

(a) the persons providing the special religious instruction must be persons who are accredited representatives of churches or other religious groups and who are approved by the Minister for the purpose;

(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—

(i) the particular circumstances of a school or schools; or

(ii) the preparation or conduct of a pageant, special event or celebration of a festival in a school or schools;

(c) attendance for the special religious instruction is not to be compulsory for any student whose parents desire that he or she be excused from attending.

…

(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.

His Honour’s reasons

1. His Honour said that the applicants relied upon two main grounds of direct discrimination, which were:

(a) that the children not participating in SRI are identified as different and separated from their class mates when SRI takes place.

(b) the lack of curriculum instruction during SRI classes for students not attending SRI.[5] 

[5]Reasons [4].

1. He continued by saying that ‘[t]he “trunk” of the complainants’ case…is that SRI is timetabled during school hours.  This really became a third ground relied on by the complainants’.[6]

   [6]Ibid [5].

1. His Honour then identified the ultimate issues which arose in determining whether the provision of SRI during school hours to children whose parents had not ‘opted out’ prior to the change of policy, or had not ‘opted in’ after 23 August 2011, amounted to direct discrimination as follows:

·had there been less favourable treatment of the children, or any of them, under s 8(1) of the 1995 Act or unfavourable treatment of the children, or any of them, under s 8(1) of the 2010 Act?

·was a substantial reason, or the true basis for that treatment of the children an attribute protected by the 1995 Act, or was the treatment because of an attribute within the meaning of the 2010 Act?

·did the children, or any of them, suffer any denial or limitation of a benefit, or were they, or any of them subjected to a detriment as a result of the treatment within the meaning of s 37(2)(a) or (c) of the 1995 Act or s 38(2)(a) or (c) of the 2010 Act?

1. After a very extensive review of the evidence relating to the treatment of each of the children, his Honour answered each of these questions in the negative.  

1. The first claim made by the applicants was that direct discrimination had occurred because the effect of their decision that their children should not attend SRI was that their children were identified, and then ‘segregated’ from their classmates, by reference to their refusal to engage in religious belief or activity. 

1. His Honour found that the applicants had not established that the separation of the children from the students attending SRI amounted to less favourable treatment.  His Honour accepted the teachers’ evidence that there was no teasing or bullying of students who did not attend SRI, and that they were not treated adversely by teachers for this reason.[7]

   [7]Ibid [428].

1. He observed that children are routinely separated into groups to take part in particular activities, and that parents often make choices about their children’s participation in many things (such as school camp, sports and music).[8]  There was no evidence that separating students based on participation on SRI affected the applicants’ children differently from these other forms of separation.[9]

   [8]Ibid [422].

   [9]Ibid [461].

1. Further, the Vice President was not satisfied that a ‘substantial reason’ for the separation of children not participating in SRI was their religious beliefs.  The Tribunal found that there was no obvious connection between attendance at SRI and holding a particular religious belief, since there were a number of reasons for parental decisions about whether their children should attend SRI, including inertia and the desire to follow the lead of other parents who had strong views about whether their children should or should not attend SRI.[10]

   [10]Ibid [450]−[451].

1. The applicants do not seek leave to appeal against this aspect of the Tribunal’s decision.

1. In relation to the second ground of alleged discrimination (which is particularised in [6] above), the judge said that:

All the children at the three schools have been treated similarly, as no new instruction, whether secular, or core curriculum instruction was provided to any of them, while SRI was being conducted.[11]

[11]Ibid [482].

1. The judge accepted the teachers’ evidence that students who did not attend SRI were supervised and undertook activities of educational value, including ‘reading, finishing off school work, or making use of computer literacy, or numeracy programs’,[12] during the time that other students were receiving SRI.  Since the children undertook ‘educationally valuable activities’ during SRI time, it could not be established that the children had suffered any detriment or deprived of any benefit.  He noted that:

Both students who attend SRI, and those who do not, are engaged in activities that are not curriculum related or secular instruction.

There are other occasions during the school schedule when time is spent on activities, which are not core curriculum activities.

The evidence does not establish that the SRI has a direct connection with the core curriculum. The complainants have not established that the SRI syllabus has any real connection with the VELS, or the core curriculum. The statement in the prescribed Form, that SRI builds on the core curriculum, does not mean that it involves instruction in the core curriculum. Any program activity that involves reading or drawing, or interacting with other children, as the CRE SRI syllabus appears to do, will assist children develop skills, which are part of the VELS curriculum. But the same could be said of many of the activities undertaken by students not attending SRI.[13]

[12]Ibid [484].

[13]Ibid [288]−[490].

1. Although this decision made it unnecessary to consider whether the claimed discrimination was based on the attribute of religious belief, his Honour noted that the necessary link was not established because a decision affecting all children had been made not to provide secular or core curriculum instruction during the period that SRI was provided, and neither the children attending SRI, nor those who did not, received new curriculum instruction.

1. His Honour then turned to consider what he had described as the ‘third ground’, which was that SRI was scheduled during normal school hours and that schools were not given the option to schedule it outside those hours.  He described the argument as being that the SRI group had extra-curricular instruction at a convenient time, whereas children outside the group did not have the same opportunity to participate in extra-curricular activities.  His Honour held that this did not amount to unfavourable treatment because the scheduling of SRI during school hours affected all students in the same way, in the sense that no new curriculum was taught to either group of students during the 30 minute period set aside for SRI.  Further, there was no evidence that the children or their parents’ lack of religious belief was a substantial reason or the true basis for the scheduling of SRI during school hours.[14]

   [14]Ibid [598]−[515].

The leave application

1. The applicants rely on six issues identified as questions of law in the draft Notice of Appeal. The principles relevant to determining whether leave should be granted under s 148 of the VCAT Act were considered by this Court in Myers v Medical Practitioners Board,[15]  in which Warren CJ said that:[16]

   [15](2007) 18 VR 48.

   [16]Ibid 55−6 [28]−[29] (citations omitted).

The approach as to when a court will grant leave to appeal pursuant to s 148(1) of the VCAT Act is set out by the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls.  In summary, Phillips JA states:

·whether leave is granted or not must always depend upon the justice of the particular case;

·if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal’s succeeding or failing;

·the applicant need not establish an error below — that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;

·although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;

·once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is  a final order or final in its effect; and

·where the order sought to be appealed is an interim order, there may be reasons bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.

Subject to the emphasis of Phillips JA that the guidelines laid out are not hard and fast rules, he states:

When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.

1. The questions of law relied upon by the applicants are as follows:

1. Did the Tribunal address the submission of the Appellants that, by not providing any instruction to the Appellants’ children while other children attended special religious instruction (SRI) classes, the Respondent had discriminated against the Appellants’ children on the basis of their religious belief or activity?

2.Can a finding as to whether there had been:

2.1 less favourable treatment for the purposes of the definition of direct discrimination in s 8(1) of the Equal Opportunity Act 1995 (1995 Act); and

2.2unfavourable treatment for the purposes of the definition of direct discrimination in s 8(1) of the Equal Opportunity Act 2010 (2010 Act)

be made without first making findings about the treatment of the relevant comparator group?

3.Does a finding of:

3.1less favourable treatment for the purposes of s 8(1) of the 1995 Act; and

3.2 unfavourable treatment for the purposes of s 8(1) of the 2010 Act,

necessarily require a finding of detriment to the complainant, or can it be based on a finding that a benefit afforded to others is denied to the complainant?

4.Did the Tribunal address the submission of the Appellants that the Respondent’s refusal to approve instruction in applied ethics at Ivanhoe East Primary School during SRI time was evidence of direct discrimination against the First Appellant’s children on the basis of religious belief or activity?

5.In light of the answers to questions 1 to 4, and the Tribunal’s finding that SRI was a lawful religious activity for the purposes of the 1995 Act and the 2010 Act, was it open to the Tribunal to make any finding other than that the Appellant’s children did not receive instruction during SRI time because they were not engaging in or had refused to engage in a lawful religious activity?

6.In light of the answers to the questions 1 to 5, was it open to the Tribunal to make any finding other than that, by not providing any instruction to the Appellants’ children while other children attend SRI classes, the Respondent had discriminated against the Appellants’ children on the basis of their religious activity in contravention of s 37(2)(a) and (c) of the 1995 Act and, from 1 August 2011, s 38(2)(a) and (c) of the 2010 Act?

1. As the High Court acknowledged in Collector of Customs v Agfa-Gevaert Limited,[17] there is ‘no satisfactory test of universal application’ for determining the distinction between a question of fact and a question of law.  Despite the difficulties which arise in making this distinction, it is necessary to consider whether the applicants’ grounds of appeal are, in essence, questions of law or are simply objections to the factual conclusions which his Honour reached.

   [17](1996) 186 CLR 389, 394 (this case related to the decision of a tribunal deciding the meaning of a word in a tariff concession order).

Stated question of law 1 and draft ground of appeal 1

1. The first stated question of law mirrors draft ground 1, which claims that:

1.The Tribunal failed to address in its reasons for decision the submission of the Appellants that, by not providing instruction to the Appellants’ children while other children attend SRI classes, the Respondent had discriminated against the Appellants’ children on the basis of their religious belief or activity:

1.1by denying or limiting their access to the benefit of instruction during normal school hours, in contravention of s 37(2)(a) of the 1995 Act and, from 1 August 2011, s 38(2)(a) of the 2010 Act; and

1.2by subjecting them to the detriment of spending time at school during normal school hours during which they receive no instruction, in contravention of s 37(2)(c) of the 1995 Act and, from 1 August 2011, s 38(2)(c) of the 2010 Act.

1. The applicants submit that their case was founded on three separate bases. The third basis was that by not providing any instruction to their children while other children attended SRI classes, the respondent had denied or limited their access to the benefit of instruction and subjected them to the detriment of spending time during normal school hours during which they received no instruction. Although his Honour had addressed the first two bases,[18] the Tribunal had erred in law by failing to address this third issue and had instead identified a ‘third ground’ of discrimination (the offering of SRI during normal school hours),[19] upon which they had not relied in putting their case.  The essence of the applicants’ case was that the children in the SRI group learned new material and addressed ‘life’s big questions’, whilst the children outside that group received no instruction at all.  

   [18]The first basis was that the children had been treated less favourably and hence suffered discrimination because of the separation of the pupils into two groups under the opt out process: see reasons [409]−[481].  The second basis was that by forbidding primary schools from offering secular instruction or instruction in the core curriculum during school hours, there was discrimination against children not attending SRI.  This was discussed by his Honour at [482]−[502] of his reasons.

   [19]The judge described this as a complaint that SRI was scheduled during normal school hours and that schools were not given the option of scheduling it outside that period.

1. In support of that ground, the applicants relied on his Honour’s statement that: 

All the children at the three schools have been treated similarly, as no new instruction whether secular, or core curriculum instruction was provided to any of them, while SRI was being conducted.[20]

[20]Reasons [482].

1. It was said that rather than referring to the different treatment of the two groups (in that the SRI group received ‘instruction’ whilst the other did not), his Honour had focused on the similarities in their treatment, which was that neither group received secular or core curriculum instruction.

1. In response, the respondent conceded that the complaint made to Tribunal particularised three grounds of discrimination, but argued that the second ground  (forbidding instruction of the non-SRI group on the secular and non-core curriculum) and the third ground (not providing alternative instruction to the non-SRI group) coalesced in the course of the hearing.  The respondent argues that the ground of discrimination based on the failure to provide instruction to the applicants’ children while other children were receiving SRI was dealt with by the judge at the same time that he dealt with the complaint that there was discrimination by virtue of the respondent’s ‘forbidding the primary schools from offering secular instruction (under the Previous SRI Policy) or instruction in core curriculum (under the Current SRI Policy)’.  This was consistent with the approach adopted by the applicants themselves, who dealt with these grounds together in their Closing Submissions.  

1. The respondent also argued that the provision of SRI during school hours was a fundamental part of the underpinning of the applicants’ case and that it was not inappropriate for his Honour to treat this as the ‘trunk’ to which the other complaints were attached.

1. The failure of a Court or Tribunal to consider a substantial submission may  amount to an error of law,[21] although in some cases, the reasons for decision will permit an appellate court to infer that the judge or tribunal below has considered the relevant submission, even though it has not been discussed at length.[22]

   [21]Kalwy v Secretary,Department of Social Security(No 2) (1993) 32 ALD 451, 461; XYZ v State Trustees Ltd [2006] VSC 444 [42].

   [22]As in Dennis Willcox Pty Ltd  v Federal Commissioner of Taxation (1988) 79 ALR 267.

1. In our opinion, his Honour clearly addressed the matters identified in paragraphs 1.1 and 1.2 of draft ground of appeal 1.  The Vice President specifically referred to the arguments made by the complainants that ‘the children not attending SRI received no instruction during the time that SRI was provided’.  Further, his treatment of this argument mirrored the approach taken by the applicants in their Closing Submissions and he dealt with the substance of both the second and third complaints in [482] to [494] of his Reasons.  

1. I note, also, that it was not surprising that his Honour discussed whether it was discriminatory to provide SRI during school hours, when the applicants’ submission claimed that:

The starting point for each instance of discrimination alleged by the Complainants is that SRI is provided at each of the schools during normal school hours.  The discrimination [claimed] flows from that starting point.  

1. It follows that there is no real or significant argument to be put on that question of law to justify the grant of leave on the basis of draft ground 1.

Stated question of law 2 and draft grounds of appeal 2 and 3

1. Draft grounds 2 and 3 claim that:

2.The Tribunal failed to make findings on material questions of fact, namely the treatment by the Respondent of the students in the Appellants’ children’s classes who attend SRI classes (SRI students) 

3.Having failed to make findings about the Respondent’s treatment of SRI students, the Tribunal did not undertake an objective consideration of all of the relevant circumstances surrounding the Respondent’s treatment of the Appellants’ children and so erred in finding that the Respondent:

3.1had not treated the Appellants’ children less favourably than the SRI students, and so had not directly discriminated against them as defined in s 8(1) of the 1995 Act; and

3.2from 1 August 2011, had not treated and was not treating the Appellants’ children unfavourably, and so had not directly discriminated against them as defined in s 8(1) of the 2010 Act.

1. The question said to arise from ground 2 is whether the Tribunal failed to make a finding on a factual threshold issue, which finding was, as a matter of law, required in order to determine whether the applicants’ children were disadvantaged by comparison to the SRI students.  

1. The applicants argue that although the judge recited the applicants’ submissions on this issue, he made no finding on the treatment of the comparator group.  Such a finding was necessary to compare the treatment of the SRI students, who were the comparator group for the purposes of s 8(1) of the 1995 Act, with the treatment of the applicants’ children.  The applicants’ written submission argued that although s 8 of the 2010 Act does not explicitly require examination of the treatment of a comparator group, the treatment of the SRI students was a relevant consideration under the 2010 Act as well.  At the hearing of the application, counsel for the applicants submitted that the question of whether it was necessary to take account of the treatment of a comparator group under the 2010 Act was a matter of general or public importance, which would justify the grant of leave to appeal.

1. In relation to draft ground 2, we accept that a failure to have regard to the position of a comparator group under the 1995 Act would amount to an error of law.

1. It is more doubtful whether such a comparison was required under the 2010 Act.  The Explanatory Memorandum for that Act states that s 8 was intended to replace the ‘comparator test applicable under the 1995 Act with a new test based on unfavourable treatment’. 

1. In Re Prezzi and Discrimination Commissioner and Quest Group,[23] the Australian Capital Territory Administrative Appeals Tribunal held that the Discrimination Act 1991 (ACT) ― s 8 (1)(a) of which is similar to s 8 of the 2010 Act ― does not require a comparison between the treatment of a person who has the relevant attribute with a person who lacks that treatment, but simply a consideration of whether the person has been treated unfavourably because of the relevant attribute. However, that decision is not binding on this Court. We would therefore accept that the question whether a comparator group is required under the 2010 Act remains an unresolved question of law in Victoria.

   [23](1996) 39 ALD 729.

1. We will assume for the purposes of this application that draft ground 3 is intended to raise the question whether it was open on the evidence for the Tribunal to reach the conclusion that it did.  If so, it also raises a question of law.[24]  

   [24]Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48.

1. However, assuming that a comparator was required under both the 1995 and 2010 Acts, we would reject the argument that his Honour failed to take account of that requirement.  In relation to the 1995 Act, his Honour said that:

Whenever in these reasons, I refer to less favourable treatment within the meaning of the Equal Opportunity Act 1995, I intend that expression to mean less favourable than the comparator referred to in s 8(1) of the Act.[25]

[25]Ibid [10].

1. Moreover, we would accept the respondent’s submission that his Honour made factual findings about the nature of the instruction provided to the SRI students, for the purposes of deciding whether the applicants’ children were treated unfavourably.  In his reasons, the Vice President described the teaching material provided by ACCESS Ministries, which formed the basis for SRI instruction and the program offered on the Bahá’í faith.[26]  He discussed the activities in which the children in the SRI groups engaged, and, in the passage set out in [33] above, found that all the children were treated similarly.  His Honour also referred to evidence about the activities in which the applicants’ children engaged while the other children were doing SRI.  His Honour said that:

   [26]Reasons [58]−[63].

The evidence does not establish that the SRI has a direct connection with the core curriculum. The complainants have not established that the SRI syllabus has any real connection with the VELS, or the core curriculum. The statement in the prescribed Form, that SRI builds on the core curriculum, does  not  mean  that  it  involves  instruction  in  the  core curriculum. Any program activity that involves reading or drawing, or interacting with other children, as the CRE SRI syllabus appears to do, will assist children develop skills,

which are part of the VELS curriculum. But the same could be said of many of the activities undertaken by students not attending SRI.[27]

[27]Ibid [490].

1. In our view, these findings of fact were well open to the Vice President on the evidence.  We would accept that the question whether there is a requirement to make findings about the position of a comparator group for the purposes of the 2010 Act could, in some circumstances, raise a question of general public importance. However, in our view, draft grounds 2 and 3 do not raise sufficient doubts about the correctness of his Honour’s reasons or orders to justify the grant of leave to appeal.

Stated question of law 3 and draft grounds of appeal 4, 5 and 6.

1. These draft grounds of appeal are as follows:

4.The Tribunal misconstrued the definition of direct discrimination:

4.1in s 8(1) of the 1995 Act, by conflating the requirement for less favourable treatment in s 8(1) with the requirement for detriment in s 37(2)(c); and

4.2in s 8(1) of the 2010 Act, by conflating the requirement for unfavourable treatment in s 8(1) with the requirement for detriment in s 38(2)(c).

5.In determining whether the Respondent treated the Appellants’ children less favourably than the SRI students or, from 1 August 2011, unfavourably, the Tribunal identified the wrong issue, by asking whether the difference in treatment was detrimental to the Appellants’ children.

6.In determining that the Respondent did not treat the Appellants’ children less favourably than the SRI students or, from 1 August 2011, unfavourably, the Tribunal failed to have regard to a relevant consideration, namely that the Respondent afforded the SRI students a benefit that it denied to the Appellants’ children.  

1. The applicants contend that discrimination may involve either inflicting a detriment on the person discriminated against on the ground of a prohibited attribute or denying a benefit to that person. They point to his Honour’s statement that ‘[m]ere difference in what is provided to two groups is not enough to establish the complainants’ case ― the difference must have been detrimental to their children’,[28] and argue that this demonstrates that the judge asked himself the wrong question.

   [28]Ibid [487].

1. The respondent submits that the applicants relied on the same facts to establish both imposition of a detriment or denial of a benefit. Nevertheless, it submits that his Honour clearly stated that either the imposition of a detriment or denial of a benefit could amount to discrimination under s 37 of the 1995 Act and s 38 of the 2010 Act,[29] and at various points in his judgment had explained his reasons for rejecting the argument that the applicants’ children had not been denied a benefit.

   [29]Ibid [9], [461], [501].

1. We would accept the respondent’s submission.  It is clear that his Honour did not misunderstand the test to be applied in deciding whether discrimination occurred.  Having set out the relevant statutory provisions, his Honour observed that:

Section 38, like s 37 of the 1995 Act, requires proof of either denial or limitation of access to a benefit that is provided by the authority, or of being subjected to “any other detriment”.[30]

[30]Ibid [161].

1. After discussing the evidence of teachers at the three schools which the children attended and the evidence of the children’s parents, who referred to what they had been told by their children, his Honour rejected the applicants’ arguments relating to all three grounds of discrimination.

1. In essence, the applicants seek to challenge to his Honour’s factual findings about the absence of discrimination, by contending that his Honour applied the wrong test.  In our opinion, there is insufficient doubt attending that question to justify the grant of leave to appeal.  None of these proposed grounds have any prospects of success.

Stated question of law 4 and draft grounds of appeal 7 and 8.

1. Grounds of appeal 7 and 8 alleged that:

7.The Tribunal failed to address in its reasons for decision the submission of the Appellants that the Respondent’s refusal to approve instruction in applied ethics at Ivanhoe East Primary School during SRI time was evidence that, by forbidding the school from offering secular instruction during SRI time and by not providing instruction to the First Appellant’s children during SRI time, the Respondent had:

7.1denied or limited their access to the benefit of instruction during normal school hours; and

7.2subjected them to the detriment of spending time at school during normal school hours during which they received no instruction,

and as a result had directly discriminated against the First Appellant’s children on the basis of religious belief or activity, in contravention of s 37(2)(a) and (c) of the 1995 Act and, from 1 August 2011, s 38(2)(a) and (c) of the 2010 Act.

8.Alternatively, by dismissing the Appellants’ submission that the Respondent’s refusal to approve instruction in applied ethics at Ivanhoe East Primary School during SRI time was evidence of direct discrimination against the First Appellant’s children on the basis of religious belief or activity on the basis that “that matter was not pleaded as an instance of discrimination” the Tribunal failed to have regard to a relevant consideration

1. These grounds of appeal apply only to the first applicant, Ms Aitken.  Ms Aitken gave evidence that prior to the change in departmental policy in mid 2011, she applied for an applied ethics program developed by her with the Humanist Society of Victoria to be provided at her children’s school during SRI.  This application was refused by the Department because such a course did not come within the definition of SRI and the provision of secular education to children not attending SRI was prohibited by Departmental policy at that time.[31]  Further, although the Humanist Society had sought approval from the Minister for accreditation of an individual as an instructor to teach SRI this was not approved because the Humanist Society was not a registered or recognised as a religious group.[32]

   [31]Ibid [492].

   [32]Ibid [178].

1. Ms Aitken submitted that the prohibition on secular education had always been an aspect of her claim and that his Honour had failed to address her argument that this amounted to denial of a benefit or imposition of a detriment on her children.  Thus, the judge had erred by dismissing this part of the claim because it ‘was not pleaded as an instance of discrimination’.[33]

   [33]Ibid [492].

1. The respondent argued that although the Tribunal is not a court of pleading, the applicants elected to pursue their case on the basis of detailed pleadings and his Honour was entitled to determine the proceedings on that basis.  But, in any case, his Honour had considered the issue and rejected that aspect of the applicants’ claim.  Further, after the change of policy in mid 2011, Ms Aitken had not sought to offer an applied ethics course again.

1. Although it might well be desirable for such a program to be made available to children who do not attend SRI classes, in our opinion, Ms Aitken could not succeed on this ground. His Honour took account of the first applicant’s evidence about the Department’s rejection of the program,[34] and her complaint that unlike the children attending SRI, her children had no opportunity to ‘explore life’s big questions’.[35] 

   [34]Ibid [177]−[178].

   [35]Ibid [472].

1. His Honour said that even if this had been pleaded, the Department’s failure to permit the offering of a program  would not have amounted to discrimination, because it was a complaint about the children’s inability to attend a program that was not being provided.[36]  Further, the respondent did not approve the offering of the course because it did not satisfy the requirements for SRI contained in the Education Training and Reform Act, rather than because of the lack of a religious belief in the parents or their children. 

   [36]Ibid [492].

1. It is also unlikely that the applicant could succeed on this ground given his Honour’s reasons for concluding that the applicants’ children were not treated less favourably than the comparator, and were not subject to unfavourable treatment.

1. Moreover, even if it were accepted that there was sufficient doubt on this question to justify the grant of leave, we do not consider that allowing the error to go uncorrected would impose substantial injustice.  We take that view because even after the policy changed, Ms Aitken has not sought to present such a course.  

Stated questions of law 5 and 6 and draft grounds of appeal 9 to 12

1. In essence, these grounds complained of his Honour’s conclusion that, even if the applicant’s children suffered discrimination, the applicants had not established that this was because of their religious belief.  The draft grounds were as follows:

9.The Tribunal identified the wrong question at [496] of its reasons for decision.  It should have asked why the Appellants’ children did not receive any instruction during SRI time, while the SRI students received instruction.

10.The Tribunal identified the wrong questions at [501] of its reasons for decision.  It should have asked whether, in not providing any instruction to the Appellants’ children during SRI time, while the SRI students received instruction, the Respondent had:

10.1denied or limited their access to the benefit of instruction during normal school hours; and

10.2subjected them to the detriment of spending time at school during normal school hours during which they received no instruction.

11.Given the errors identified in the preceding grounds of appeal 1 to 10, and the Tribunal’s finding that SRI was a lawful religious activity for the purposes of the 1995 Act and the 2010 Act, the only finding open to the Tribunal was that the Appellants’ children did not receive instruction during SRI time because they were not engaging in or had refused to engage in a lawful religious activity.

12.Given the errors identified in the preceding grounds of appeal 1 to 11, the only finding open to the Tribunal was that, by forbidding primary schools from offering secular instruction during SRI time and by not providing instruction to the Appellants’ children while other children attend SRI classes, the Respondent had discriminated against the Appellants’ children on the basis of their religious activity in

contravention of s 37(2)(a) and (c) of the 1995 Act and, from 1 August 2011, s 38(2)(a) and (c) of the 2010 Act.

1. The applicants conceded that if they were not granted leave on draft grounds one to eight, they cannot be granted leave on these grounds, which are premised on the basis that the judge erred in law by finding that the difference in treatment between the applicants’ children and students attending SRI did not amount to discrimination.  It is therefore unnecessary to consider them any further.

1. For these reasons, we would refuse leave to appeal under s 148 of the VCAT Act.

Protective costs order

1. The applicants also sought a protective costs order limiting the costs payable by them relating to the application and, if leave is granted, to the appeal.  They sought a cap of $10,000.

1. They argued that the Court has wide discretion in relation to costs. Section 24(1) of the Supreme Court Act 1986 provides that:

Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.

1. Further, r 64.24(1) of the Supreme Court (General Civil Procedure Rules) 2005 states that:

The Court of Appeal may make such order for the whole or any part of the costs of an appeal as it thinks fit.

1. The applicants argued that although the above provisions do not confer a specific power on this Court to make a protective costs order, such an order falls within the Court’s broad discretion as to costs. They also relied on s 65C of the Civil Procedure Act 2010 (which came into force on 24 December 2012) which provides that:

(1) In addition to any other power a court may have in relation to costs, a court may make any order as to costs it considers appropriate to further the overarching purpose.

(2)       Without limiting subsection (1), the order may—

…

(d)      fix or cap recoverable costs in advance.

1. The applicants argued that the ‘overarching purpose’ of facilitating ‘the just, efficient, timely and cost-effective resolution of the real issues in dispute’ set out in s 7(1) of the Civil Procedure Act justified the making of such an order.

1. The applicants contended that in deciding whether to make such an order, the Court should take account of the factors set out in R (Corner House Research) v Secretary of State for Trade and Industry,[37] which were as follows:[38]

(1) A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: (i) the issues raised are of general public importance; (ii) the public interest requires that those issues should be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved, it is fair and just to make the order; and (v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.

(2) If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.

(3) It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above.[39]

[37][2005] 1 WLR 2600.

[38]Ibid [74].

[39]The applicants also relied on R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600 in support of their claim that the Supreme Court of Victoria’s general jurisdiction to order costs extends to the making of a protective costs order because of the similarities between s 51 of the Supreme Court Act 1981 and s 24(1) of the Supreme Court Act 1958. Reference was also made to r 40.51(1) of the Federal Court Rules 2011 and r 42.4 of the Uniform Civil Procedure Rules 2005 (NSW). See also Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864; Haraksin v Murrays Australia Ltd (2010) 275 ALR 520; Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; King v Jetstar Airways Pty Ltd [2012] FCA 413.

1. The applicants contended that the discrimination claim raised issues of public importance about the provision of religious education in schools and that the applicants were unlikely to proceed if they had to bear their own costs.  

1. The respondent submitted that the making of a protective costs orders would not facilitate the overarching purposes of the Civil Procedure Act and it was doubtful whether the general costs power permitted the making of a protective costs order.[40]  Moreover, even if such a power existed, no order should be made in the exercise of the Court’s discretion, particularly where the applicants’ arguments had been fully aired below and the respondent had the benefit of a judgment in its favour.

   [40]It submitted that the making of protective costs orders by the Federal Court and the New South Wales Supreme Court was based on a specific power to do so contained in the rules of those courts: r 40.51(1) of the Federal Court Rules 2011 and r 42.4 of the Uniform Civil Procedure Rules 2005 (NSW).

1. Because we have refused leave to appeal, the issue is now relevant only to the costs of this application. In these circumstances, we consider it unnecessary to decide whether the Court’s general costs powers, or s 65C of the Civil Procedure Act would permit a protective costs order to be made in this case.

1. Assuming that such jurisdiction exists, we would decline to exercise our discretion in favour of making a protective costs order.  Although questions of discrimination undoubtedly raise questions of public importance, the public interest element in the case has largely been resolved by changes to departmental policy which have resulted in SRI now being provided on an opt-in basis.  There is no longer any prohibition on offering an ethics course to children who do not participate in SRI.  The applicants had the benefit of careful and meticulous consideration of their claims in the Tribunal and have failed to satisfy the requirements for obtaining leave to appeal.

1. The Court will order that the publication of any information that might enable the identification of the second and third applicants and/or their children be prohibited under ss 18 and 19(b) of the Supreme Court Act 1958, on the basis that their identification could prejudice the administration of justice.  Such an order was made by the Tribunal and if they were now identified, this could discourage other children and parents claiming discrimination from taking proceedings in the Tribunal or appealing from a Tribunal order, for fear that their complaint will result in stigmatisation or other adverse consequences.  The respondent did not object to such an order being made.

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