JASON CAMP ON BEHALF OF CHARLOTTE CAMP and DIRECTOR GENERAL, DEPARTMENT OF EDUCATION
[2017] WASAT 79
•29 MAY 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: JASON CAMP ON BEHALF OF CHARLOTTE CAMP and DIRECTOR GENERAL, DEPARTMENT OF EDUCATION [2017] WASAT 79
MEMBER: MR J MANSVELD (SENIOR MEMBER)
HEARD: 6 DECEMBER 2016
DELIVERED : 29 MAY 2017
FILE NO/S: EOA 16 of 2016
BETWEEN: JASON CAMP on behalf of CHARLOTTE CAMP
Applicant
AND
DIRECTOR GENERAL, DEPARTMENT OF EDUCATION
Respondent
Catchwords:
Equal Opportunity Act 1984 (WA) - Direct discrimination - Indirect discrimination - Religious conviction - Education - School Creed - Recitation of School Creed at school assemblies - Line in School Creed states 'And love of God' - Applicant is an atheist - Students permitted to not recite line 'And love of God' or to substitute that line with an appropriate phrase - Comparator - Applicant not treated less favourably than a student who is a non-atheist - Applicant was not subject to any other detriment - Applicant complies with requirement that she recite School Creed with the option of a different phrase for line 'And love of God' - Complaint of discrimination is dismissed
Legislation:
Disability Discrimination Act 1992 (Cth), s 15(2)
Equal Opportunity Act 1984 (WA), s 3, s 4(1), s 4(3), s 53, s 61, s 61(2), s 61 (2)(b), s 90 s 90(2), s 161
Family Law Act 1975 (Cth), s 4(1), s 61B, s 65DAC
School Education Act 1999 (WA), s 61, s 63, s 66, s 68, s 70, s 71(1)(b), s 125, s 127
Result:
The application is dismissed
Summary of Tribunal's decision:
Mr Jason Camp lodged a complaint on behalf of his daughter, Charlotte Camp with the Equal Opportunity Commission of Western Australia alleging discrimination by the Director General of the Department of Education.
Mr Camp alleged that Charlotte was subject to discrimination on the ground of religious conviction in the area of education under the Equal Opportunity Act 1984 (WA).
The Commissioner for Equal Opportunity dismissed the complaint subsequent to which Mr Camp required the Commissioner to refer the complaint to the Tribunal.
Charlotte's parents described themselves as atheists. Mr Camp maintained that Charlotte too was an atheist.
At the time of making the complaint Charlotte was six years of age and attending a government primary school. She is now seven years of age.
The complaint centred on the School Creed which was recited by students at most school assemblies.
The School Creed contained a line 'And Love of God' to which Mr Camp objected. He considered the School Creed to be the means by which Charlotte's school imparted its values and Charlotte was therefore excluded from those shared values by virtue of her not being able to say 'And love of God'.
Mr Camp contended that this exclusion was itself a form of discrimination and that it could result in Charlotte having negative feelings and emotions.
As with all students, Charlotte was not required to attend that part of the school assembly at which the School Creed was recited. If she did attend an assembly at which the School Creed was recited, as with all students, she was permitted to state the Creed as given, not say the line 'And love of God' or substitute the line 'And love of God' with another appropriate phrase.
The Tribunal found that Charlotte had a religious conviction. Under the Family Law Act 1975 (Cth) parents have parental responsibility over their child which includes making a decision about the child's religious and cultural upbringing.
The Tribunal decided that Charlotte was not subject to discrimination in accordance with the Equal Opportunity Act 1984 (WA).
The Tribunal found that Charlotte had not been treated less favourably than a student who was a non-atheist, and even if she had been treated less favourably, there was no evidence she had suffered a detriment.
The Tribunal also found that if it was considered that students when attending a school assembly were required to recite a version of the School Creed (the only possible change being to the line 'And love of God'), then Charlotte had complied with the requirement because she used the line 'And love of life'.
The Tribunal dismissed the complaint.
Category: B
Representation:
Counsel:
Applicant: In Person
Respondent: Ms K McDonald and Ms S Teoh
Solicitors:
Applicant: N/A
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Abela v State of Victoria [2013] FCA 832
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Edoo v Minister for Health [2010] WASAT 74; (2010) 72 SR (WA) 16
Human Rights & Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301
Krysiak v Public Transport Authority [No2] [2017] WASC 103
Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165
Li and Edith Cowan University [2012] WASAT 72
Purvis v New South Wales (2003) 217 CLR 92
Soelburg (formerly van Droffelaar) and Commissioner of Police [2008] WASAT 305
Varas v Fairfield City Council [2009] FCA 689
Williams and Commissioner of Police [2005] WASAT 349
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings arise in the Tribunal's original jurisdiction under the Equal Opportunity Act 1984 (WA) (EO Act).
On 8 March 2016, Mr Jason Camp (Mr Camp) lodged a complaint (complaint) on behalf of his daughter, Charlotte Camp (Charlotte) with the Equal Opportunity Commission of Western Australia (EOC) alleging discrimination by the Director General of the Department of Education (respondent).
At the time of making the complaint Charlotte was six years of age and attending the Edgewater Primary School (School). She is now seven years of age.
The complaint alleges discrimination on the ground of religious conviction in the area of education.
The EOC appeared to treat the complaint as one of what is commonly called direct discrimination: s 53(1) of the EO Act (letter to the applicant dated 31 March 2016).
On 31 March 2016, the EOC dismissed the complaint.
On 1 April 2016, Mr Camp gave the EOC written notice pursuant to s 90(2) of the EO Act requiring the Commissioner for Equal Opportunity to refer the complaint to this Tribunal.
On 6 April 2016, the referral from the EOC was filed with the Tribunal.
The complaint was referred to mediation in the Tribunal on 19 May 2016. Mediation was not successful and the complaint was listed for a final hearing on 6 December 2016.
In the original complaint to the EOC and in a document entitled 'Addendum Agreed Statement of Issues and Facts' dated 2 October 2016, Mr Camp, in addition to the allegation of direct discrimination, alleges that Charlotte has been subject to what is commonly called indirect discrimination (s 53(2) of the EO Act).
Mr Camp attended the hearing in person. The respondent was represented by counsel.
In addition to the material filed by Mr Camp and the respondent, the Tribunal also relied on the referral material filed by the EOC.
The decision was reserved.
The EO Act
Section 4(3) of the EO Act provides:
For the purposes of this Act, religious or political conviction shall be construed so as to include a lack or absence of religious or political conviction.
Section 53 of the EO Act provides:
Discrimination on ground of religious or political conviction
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of religious or political conviction if, on the ground of
(a)the religious or political conviction of the aggrieved person; or
(b)a characteristic that appertains generally to persons of the religious or political conviction of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the religious or political conviction of the aggrieved person,
the discriminator treats the aggrieved person less favourably than in the same circumstances or in circumstances that are not materially different, the discriminator treats or would treat a person of a different religious or political conviction.
(2)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of religious or political conviction if the discriminator requires the aggrieved person to comply with a requirement or condition
(a)with which a substantially higher proportion of persons who are of a different religious or political conviction comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Section 61 of the EO Act provides:
Education
(1)It is unlawful for an educational authority to discriminate against a person on the ground of the person's religious or political conviction
(a)by refusing or failing to accept the person's application for admission as a student; or
(b)in the terms or conditions on which it is prepared to admit the person as a student.
(2)It is unlawful for an educational authority to discriminate against a student on the ground of the student's religious or political conviction
(a)by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or
(b)by expelling the student or subjecting the student to any other detriment.
(3)Nothing in this section applies to or in respect of an educational authority prescribed by regulations in relation to such circumstances, if any, as may be prescribed by regulations.
An outline of the complaint
The complaint of discrimination centres on something called the 'School Creed' of Charlotte's school (School Creed).
A statement of facts was agreed by Mr Camp and the respondent. The statement is dated 30 June 2016 and reads:
•[Charlotte] is six years old and a Year One student at [the School] [she is now seven years of age].
•[Mr Camp] is an atheist.
•[Mr Camp] objects to the use of the word 'God' in the School Creed.
•School assemblies are held fortnightly and the School Creed is recited by students at most but not all school assemblies.
•[Charlotte] attends school assemblies.
•The wording of the … School Creed is as follows:
This is our School
Let peace dwell here.
Let the rooms be full of contentment.
Let love abide here, love of one
Another,
Love of mankind, love of life itself,
And love of God.
Let us remember that as many
Hands build a house,
So many hearts make a school.
•The word 'God' appears in one place in the School Creed.
•The respondent does not require [Charlotte] to say the word 'God' when reciting the School Creed … instead she may say nothing at all or substitute the word 'family'.
Complaint of direct discrimination applicant's case
Mr Camp filed a Statement of Issues, Facts and Contentions dated 30 June 2016 and an Addendum Agreed Statement of Issues and Facts dated 2 October 2016 (ASIFC) and a Witness Statement dated 23 November 2016 (WS).
Mr Camp states that he and Charlotte's mother are atheists. He says that he has had numerous conversations with Charlotte regarding religions and different beliefs in gods. He has told Charlotte that it is up to her what she believes and maintains that she has told him she does not believe in a god or gods.
Because of this Mr Camp contends that Charlotte, too, is an atheist.
At the beginning of February 2016, Mr Camp wrote to Julie Tombs, the School Principal (Principal), with a complaint about the inclusion of the phrase 'And a love of God' in the School Creed.
On 18 February 2016, Mr Camp met with the Principal and the Associate Principal, Val Gray.
In crossexamination, Mr Camp confirmed his understanding of the outcome of the meeting he had with the Principal on 18 February 2016, that Charlotte is permitted to either say the School Creed as it is written, say nothing in place of 'And love of God' or replace that phrase with something like 'And a love of family'.
Subsequently, Mr Camp said he spoke to Charlotte who told him she uses the words 'And a love of life' in place of 'And love of God'.
Mr Camp describes a 'creed' as a brief authoritative formula of religious belief or a set of fundamental beliefs; a guiding principle. Mr Camp submits that the purpose of a school creed is to provide students with a shared identity and a feeling of inclusion and that a school creed is a means by which those shared beliefs and values which are important to a school are passed on.
In the complaint to the EOC, Mr Camp also asserts that school creeds help to form part of a student's identity outside of their school.
In an email to the EOC dated 15 March 2016 (March email), Mr Camp argues that a child's sense of belonging is paramount for their social and emotional development.
In adopting this characterisation of a school creed, it appears that Mr Camp is asserting that the School Creed is inherently discriminatory to those students who, because of their particular beliefs, are unable to say it as it is written. That is they cannot relate to the belief 'And love of God' and therefore even if they are given permission to substitute a phrase, they are not included in the School's stated shared belief(s).
In the complaint to the EOC, Mr Camp contends that as the School Creed is against his family's belief, reciting it separates Charlotte from the feeling of school unity and camaraderie. He further states in the March email that:
[Charlotte] will feel different to others, by not feeling part of the school, due to the discriminatory creed. The creed represents the 'heart' of the school, if you will. The school represents an authority figure and institution that should include all children, with the creed being a representation of that school's beliefs. The mere act of having to substitute a word or phrase, or not say a word or phrase in the creed, treats [Charlotte] differently to those of a monotheistic belief. As soon as that change happens, she is discriminated against[.]
In framing the person or persons Charlotte's situation should be compared to, Mr Camp provides what he says are statistics of religious beliefs which demonstrate:
… that the majority of children would be able to participate in the [S]chool [C]reed and gain that inclusion from the school … The vast majority of other students in her grade and in the school, which statistics and evidence show that do have a religious belief. (T:12, 06.12.16)
The statistics Mr Camp refers to, the documents of which are not before the Tribunal, are the 'National Census of 2011, a 'Morgan Poll in December 2013' and a 'Gallup Poll, 2014' (ASIFC at 5).
In response to the question of whether Charlotte is being treated 'less favourably' than those he compares her to, Mr Camp states:
… And the term 'less favourable', to me, is the inability for them to participate in school shared values and beliefs, which the school is saying, 'our value is that we believe in a god', and the particular 'God' in the [S]chool [C]reed is capitalised, so it's a proper noun, so it's not generic. And [the applicant] can't have that inclusion[.] (T:11, 06.12.16)
In the March email, Mr Camp contends that Charlotte is treated 'less favourably' by either making her say the School Creed (a religious creed which is different to her beliefs), or making her not say the School Creed or saying a creed that is different to the School Creed.
Complaint of indirect discrimination applicant's case
In addition to the submissions given in respect of the allegation of direct discrimination, Mr Camp submits that the elements of s 53(2) of the EO Act are met in the following way so as to show that Charlotte has been subject to indirect discrimination.
Whilst accepting that Charlotte does not have to say the School Creed or at least the line 'And love of God', Mr Camp submits that she is required to comply with a 'requirement or condition' of the respondent. In his oral evidence, Mr Camp states:
… However, I believe that the requirement comes from the authority of the school. In the eyes of the children, obviously the school is the authority, and the school is saying that this creed and our values are this, that you will love a god, or that you do love a god.
… I believe it places a requirement on the children through an adherence to authority … it's only adherence to authority to accept the values of the school as they are officially[.]
[A] six-year-old child, when all the other children at assembly are standing up and saying the creed in line with their religious beliefs, then … my case is that there is requirement on them, that is placed on them directly by the school, because of its authority. (T:13, 06.12.2016)
Mr Camp refers to the '2011 census data' as evidence that a substantially higher proportion of persons who are of a different religious conviction are able to comply with the requirement. The statistic is that contained in the ASIFC where it is stated:
[I]n the 2011 National Census 61.1% of Australians declared themselves as some variety of Christianity. A further 22.3% declared they had 'No Religion'.
Also in the ASIFC, Mr Camp contends that the '2011 census data' shows that between 68.3% and 77.7% of students will identify as religious compared to 22.3% with 'No Religion'.
Mr Camp makes a point that 'no religion' does not mean atheist. (T:14, 06.12.16)
As to the reasonableness of the requirement, Mr Camp submits that it is not reasonable for a person of one religious belief to affirm a separate religious belief or conviction.
The submission that Charlotte is unable to comply with the requirement is put by Mr Camp in this way:
[A] condition on to affirm a religious conviction that is not theirs is not able to comply because … just say the [S]chool [C]reed was replaced with Allah, you wouldn't have other children affirming a different god from what they believe in. So in that sense, a child a person is not able to comply with that requirement. (T:14, 06.12.16)
The respondent's case background
The respondent filed the following documents with the Tribunal:
•A Substituted Statement of Issues facts and Contentions dated 28 September 2016 (RSIFC).
•A Bundle of Documents.
•Witness Statement of the Principal.
•Witness Statements of Maria Christine McGrath and Jennifer Frances Lowe, teachers at the School (School Teachers).
•A Submission dated 6 December 2016 (Submission).
On the uncontested evidence of the Principal and School Teachers and the documents in the Bundle of Documents, the respondent states that the following has been established:
The School is a government primary school and has approximately 420 students from kindergarten to year six.
The Chief Executive Officer of the respondent is responsible for determining, implementing and monitoring the standard of educational instruction in government schools and the standard of care provided to students in those schools (s 61 of the School Education Act 1999 (WA) (SE Act).
The Principal is subject to the SE Act and the direction and control of the respondent and is responsible for the educational leadership and daytoday management and control of the School and its functions as set out in s 63 of the SE Act.
Pursuant to s 125 of the SE Act, the School has a council (now known as a School Board) constituted with members in accordance with s 127 of the SE Act (School Board).
The Principal consults, seeks advice and receives recommendations from the School Board which is comprised of four parent representatives, two staff representatives and two community representatives as well as the Principal.
In particular, the Principal consults with the School Board on matters of general policy concerning the use in school activities of prayers, songs and material based on religious, spiritual or moral values as part of general religious education, pursuant to s 70 of the SE Act.
The respondent has issued Guidelines for Religious Education, effective 17 November 2015 (Guidelines), to support the implementation of the relevant provisions of the SE Act.
The Guidelines state it is the Principal in consultation with the School Board that determines the use of prayers, songs and materials referred to in s 68 to be of the SE Act in school activities, such as assemblies, commemorations, religious observations and multifaith services.
I digress to note that the Guidelines also provide for two types of religious education that can be provided in public schools. They are General Religious Education (GRE) and Special Religious Education (SRE) which are defined in s 66 of the SE Act.
GRE means education about the major forms of religious thought and expression characteristic of Australian society and SRE means education provided by churches and other religious groups and based on distinctive religious tenets and beliefs.
Section 68 of the SE Act allows a parent of a child in a government school to notify the principal in writing that the child is not to receive SRE or attend that part of a school activity at which 'prayers, songs and other material based on religious, spiritual or moral values' are used as part of GRE.
The School was established in 1983 and the School Creed was adopted in the first few years following the establishment of the School. It is contained in the 2016 version of the Student Information Booklet which is before the Tribunal.
The School Creed is recited at most, but not all, assemblies. Assemblies are held fortnightly and are required to be attended by all students except those in kindergarten.
The School Creed is recited at the beginning of the assembly and takes under a minute to recite.
The respondent's Bundle of Documents includes a letter to the chairperson of the then School Council, dated 15 August 2011, from the respondent's regional Executive Director. The School Council had sought a formal direction from the respondent on whether the recitation of the Lord's Prayer and reference to 'God' in the School Creed at school assemblies could continue and whether there were any restrictions on how that would be done.
The respondent's then position, as put by the regional Executive Director, was that the Principal after consulting with the School Council had sole carriage of the decision to allow or not allow the recitation of prayers or a creed, including the suitability of any words used. The respondent did not issue formal directions on these matters and it was considered to be the role of the Principal to consider the ramifications of the decision to continue or to discontinue the practice.
In 2011, there was consultation by the Principal with the School Council and school community about, amongst other things, the recitation of the School Creed in its current form at school assemblies. At that time the Principal, following consultation with the then School Council, decided to retain the School Creed in its current form at (School) assemblies.
At the same time the Principal had decided to limit the recitation of the Lord's Prayer to Easter and Christmas.
The current cohort of students at the School includes students whose families have identified themselves on enrolment as Catholic, Anglican, Jehovah Witness and Hindu or no religion.
Where parents who for reasons of religious belief advise the School that they do not wish their child to attend a school activity, the school takes all reasonable steps to accommodate their wishes as the case requires.
Complaint of direct discrimination respondent's case
The respondent has assumed (correctly) that Mr Camp's case is that the respondent is vicariously liable for the acts of her employees pursuant to s 161 of the EO Act.
Mr Camp did not seek to crossexamine either the Principal or the School Teachers.
The respondent states that on the uncontested evidence of the Principal and School Teachers the following can be relevantly established:
Students at the School have a diverse range of religious beliefs. There is a provision for families to identify their religion on enrolment and approximately 70% leave it blank. Of those who do nominate a religion it includes, Catholic, Anglican, Jehovah Witness, Hindu, Muslim, Judaism and as having no religion.
When the School Creed is taught in preprimary, it is the practice to advise students that as everyone has different beliefs, they do not have to say the School Creed if they do not want to and that practice was followed when the applicant was in preprimary in 2015.
Following the meeting between Mr Camp and the Principal on 18 February 2016, Charlotte and her class were told, as a group, when at assembly they do not have to say anything they do not believe whether, it is the School Creed or the National Anthem. The students were told that because everyone believes in different things, if they did not want to say the word 'God' in the School Creed for example, they did not have to and could say 'family' instead.
The School takes no action if students do not recite the School Creed provided they are not misbehaving or distracting others.
The respondent does not admit that Charlotte has a religious conviction for the purposes of s 53(1) of the EO Act. The only evidence before the Tribunal is said to be hearsay evidence from Mr Camp, which the respondent submits is of little probative value and should be treated with caution.
Despite this the respondent contends that Mr Camp has failed to establish to the relevant standard that discrimination has taken place and that Charlotte has suffered any detriment.
In particular, the respondent states that in order to get to the point where it can be determined whether Charlotte is treated 'less favourably', requires the formulation of a comparator whether actual or hypothetical.
In respect to the complaint of direct discrimination, the respondent submits that Mr Camp has not offered evidence of a real comparator by simply asserting on unverified statistics that, unlike Charlotte, the majority of students will have a belief in a god or gods.
The correct comparator according to the respondent is a student who is not an atheist.
Citing Purvis v New South Wales (2003) 217 CLR 92 at [223], the respondent submits that once a comparator is established, what is required to be identified are the circumstances attending the treatment given (or to be given) to Charlotte. Once that is done a comparison must be made to the treatment given (or to be given) to a student who is not an atheist in the same circumstances or circumstances that are not materially different from those of Charlotte.
From the uncontested evidence of the School Principal, the respondent states that the circumstances surrounding the School Creed are that students are given the following options:
•Saying the complete School Creed;
•Saying the School Creed but omitting the phrase 'And love of God'; and
•Saying the School Creed but replacing the phrase 'And love of God' with 'And love of family', or other appropriate word.
The respondent submits that because all students have these options, students of different religious convictions are treated exactly the same and therefore Mr Camp has not demonstrated that Charlotte has been subjected to differential treatment.
The respondent argues that even if it were accepted that Charlotte is treated differently she is not treated 'less favourably' than other students, that term taken to mean treating a person less obligingly, with less partiality and evenhandedness (Human Rights & Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 at [14]).
The respondent submits that all students (including Charlotte) are given the option of saying a particular version of the School Creed that accords with their religious conviction.
Complaint of indirect discrimination respondent's case
The respondent submits that Mr Camp has not proved to the required standard any of the matters contained in s 53(2) of the EO Act.
The respondent contends that Charlotte is not required to comply with a 'requirement or condition' in respect to the School Creed in the sense that she is not compelled to state the line 'And love of God'. A 'requirement or condition' has an inherent element of compulsion and Charlotte, as with all other students, has been given options (Li and Edith Cowan University [2012] WASAT 72 at [32]).
The respondent submits that to characterise the need to choose one of the options when saying the School Creed as a 'requirement or condition' is to 'strain the language' of s 53(2) of the EO Act.
The respondent notes that Charlotte is not compelled to attend that part of a school assembly in which the School Creed is recited, however Mr Camp has not availed himself of that option (s 71(1)(b) of the SE Act).
However, if it is accepted that by choosing one of the options to replace 'And love of God' in the School Creed is a 'requirement or condition', then the respondent submits Mr Camp has not demonstrated that the matters in s 53(2)(a), (b) and (c) of the EO Act have been met.
First, the respondent says that it is nonsensical to argue that a substantially higher proportion of students at the School, who are nonatheists are able to say something other than the phrase 'And love of God' but that Charlotte is not.
The respondent submits that in any case Mr Camp has not provided any probative evidence concerning persons who are of a different religious conviction including what proportion of the School population is atheist or nonatheist. All that is known is that of those of the School population that expressly nominate a religion (only 30%), they identify as Catholic, Anglican, Jehovah's Witness, Hindu, Muslim, Judaism and as having no religion (Witness Statement of School Principal at paragraph 53). Therefore, even within the known nonatheist cohort there are students who may or may not identify with the term 'God'.
Secondly, Charlotte can and does comply with the choices available to replace the line 'And love of God' in the School Creed. The evidence of Mr Camp is that she says 'And love of life'.
Thirdly, the choice given to replace 'And love of God' with something that is in accord with the student's religious conviction is reasonable in the following circumstances:
•The students at the School have a diverse range of religious convictions, cultures and belief;
•The School has a policy of attempting to accommodate diverse cultures and beliefs by permitting parents of individual students to withdraw or alter their participation in a school activity based on their religious beliefs;
•The word 'God' has associations with multiple religious beliefs, beyond Christianity; and does not promote a particular belief;
•The word 'God' includes, for those who choose to identify with it, a spiritual element within the School Creed;
•Schools consist of diverse groups which need to coexist with each other and tolerate different practices based on different belief systems;
•It is not reasonable to ban all School activities that a person objects to on the basis of their individual belief; and
•The options provided permit Charlotte to fully participate in school assemblies without contradicting her beliefs.
The respondent states that the uncontested evidence of the Principal shows that a lengthy process of consultation was undertaken in the decision to retain the School Creed and that the only feedback concerning the line 'And love of God' has come from Mr Camp.
The respondent submits that the logical conclusion to allowing the complaint is that the only communal activities that would be permitted at the School would be those from which no single member of the School population dissents.
Detriment of s 61(2)(b) of the EO Act, the positions of the applicant and respondent
Mr Camp submits that s 53 and s 61 of the EO Act should not be read together and that a finding of discrimination under s 53(1) or s 53(2) is sufficient to ground the complaint, without the need to refer to the particular areas of education set out in s 61.
In his oral evidence, however, Mr Camp considers '[a] detriment [to Charlotte as being] a lack of inclusion, or exclusion to the 'school group' (T:11; 05.12.16).
In his WS, Mr Camp further contends that this lack of inclusion can lead to negative feelings and emotions in Charlotte. Mr Camp is seeking 'the removal of the discriminatory practice' (complaint to EOC).
The respondent disagrees with Mr Camp's submission.
The respondent submits that even if discrimination is found to have occurred pursuant to s 53(1) and/or s 53(2) of the EO Act, Mr Camp is additionally required to establish that Charlotte was subjected to a detriment on the ground of her religious conviction (s 61(2)(b) of the EO Act).
The respondent contends that the detriment means that Charlotte must have been disadvantaged in a substantial and not trivial way (Soelburg (formerly van Droffelaar) and Commissioner of Police [2008] WASAT 305 at [85].
The respondent submits that Mr Camp has not provided any substantive evidence of any detriment other than to assert that Charlotte is not able to participate and be included in the School Creed. The assertion is incorrect as Charlotte is not prohibited from doing so. Further, the evidence that Charlotte suffers from negative feelings and emotions is nonspecific and is no evidence that she has suffered any detriment as a result of the actions by the School.
The respondent submits that there is no evidence that children who do or do not say the School Creed verbatim are stigmatised or treated in a manner that can be objectively characterised as adverse. To the contrary, there is evidence that no action is taken with respect to children who do not recite the School Creed.
The uncontested evidence of the School Teachers is that Charlotte is considered a happy child and that neither of her parents have raised any concern with her teachers.
Discussion
Preliminary
It is not in contest that the respondent is an 'educational authority' for the purposes of the EO Act (s 3).
The respondent does not concede that Charlotte has a religious conviction.
At the time of the complaint Charlotte was six years of age; she is now seven years of age.
A conviction is a 'fixed or firm belief' (Macquarie Dictionary Online 2013).
It is not in contention that Charlotte's parents have a parental responsibility for her.
Under s 61B of the Family Law Act 1975 (Cth) (FL Act), parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Parental responsibility involves making a decision about a major longterm issue in relation to the child (s 65DAC of the FL Act).
Section 4(1) of the FL Act defines 'major longterm issues' to include the child's religious and cultural upbringing.
It is not in dispute that Charlotte's parents describe themselves as atheists.
An atheist is a person who rejects the idea of the existence of a god or gods, or of any supernatural being, on the basis of lack of evidence that they exist (Macquarie Dictionary Online (2013)).
I accept that the 'religious and cultural upbringing' for Charlotte includes that of being an atheist.
The objects of the EO Act include to eliminate, as far as possible, discrimination against persons on the ground of their religious conviction and to promote recognition and acceptance within the community of all persons regardless of their religious conviction (s 4(1) of the EO Act).
There is no qualifying age expressed in the EO Act as to who might be subject to discrimination on the ground of their religious conviction in the area of education (s 53 and s 61 of the EO Act).
I therefore accept that as a consequence of her religious and cultural upbringing, Charlotte can be said to have a religious conviction for the purposes of the EO Act.
For the purposes of the EO Act, religious conviction shall be construed so as to include a lack or absence of religious conviction (s 4(3) of the EO Act).
Having a religious conviction therefore includes someone who defines themselves as an atheist.
Direct discrimination
Mr Camp bears the onus of proof in establishing the claim of discrimination. The standard of proof is the balance of probabilities but in cases of alleged discrimination, the seriousness of the allegations requires the Tribunal to adopt the approach taken in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 when assessing the strength of the evidence: see Abela v State of Victoria [2013] FCA 832 and Edoo v Minister for Health [2010] WASAT 74; (2010) 72 SR (WA) 16 (Edoo) at [53] and [54].
To sustain a complaint of what is commonly called 'direct discrimination', Mr Camp has to show in the first place that because of Charlotte's religious conviction, the respondent has treated her 'less favourably' than the respondent treats, or would treat, a person of a different religious conviction in the same circumstances, or circumstances that are not materially different (s 53(1) of the EO Act).
The other elements to sustain a claim of direct discrimination are set out in Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 and are:
(c)[t]here is a causal connection between the ground of discrimination alleged and the decision or act complained about;
•it is not necessary for the [religious conviction] to be the sole or a dominant or substantial ground for the relevant conduct it is [sufficient] if it is one of the grounds for the conduct;
•proof of a deliberate intention to harm or discriminate against a person is not necessary, but the act which constitutes discrimination must nevertheless be advertent and done with the knowledge of the [applicant's religious conviction].
See also Williams and Commissioner of Police [2005] WASAT 349 at [35] [38] and the cases cited therein, and see also Edoo at [78] [80].
In Edoo at [160] [163] (internal citations omitted), the Tribunal said:
… The expression 'less favourably' … bears its ordinary meaning. It calls for the Tribunal to apply its judgment to the facts found to be proved in the particular case [.]
To determine whether a person has been treated 'less favourably', it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated[.]
It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is hypothetical … Nevertheless, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established.
It is not necessary that the comparator be in identical circumstances, but there must be a sufficient degree of similarity in the circumstances of the aggrieved person and the actual or hypothetical comparator to form the basis for an appropriate comparison … In considering whether circumstances are the same or not materially different, it is necessary to take into account all of the objective features surrounding the treatment which is said to have been less favourable[.]
It is not clear from the evidence of Mr Camp whom he takes to be the comparator.
I agree with the respondent that the comparator must be a student who is not an atheist.
What then are the circumstances in which the alleged act of discrimination must be judged?
The circumstances are discrete. They are about the recitation of the School Creed at school assemblies set in a wider context of the way in which the School imparts certain values through the overarching GRE and other means.
As I understand it, the main argument of Mr Camp is that by the simple fact of the School Creed including the line 'And love of God', discrimination has occurred because that line implies the existence of 'God', which is contrary to Charlotte's religious conviction as an atheist.
Because of this, Charlotte is said to be excluded from the value system the School purports to impart and therefore cannot have a sense of belonging and will feel different to other students. Charlotte, it is argued, is treated 'less favourably' because she cannot participate in the School's shared values.
I do not accept the prominence of the School Creed that is given to it by the applicant.
In the Student Information Booklet, the School Creed is stated under an eponymous heading. It is not further contextualised and is not mentioned under 'Assemblies/Ceremonies' whereas the Lords' Prayer is mentioned (recited at Easter and Christmas assemblies) as is the Australian National Anthem which is sung at all assemblies and a 'welcome to country' which precedes a number of the School's formal ceremonies.
Unless referring to an accepted system or formula of religious belief, 'creed' is more generally defined as any system of belief, or of opinion, (Macquarie Dictionary Online (2013)) or a set of beliefs or aims which guide someone's actions (The Australian Concise Oxford Dictionary (4th ed, 2004)).
I am also not convinced that the School Creed is an obviously religious statement despite the line 'And love of God'. It is one of 10 lines, the other nine of which do not contain any overt religious symbolism.
Despite the literal meaning that can be given to the word 'creed' by way of dictionary definitions, it seems to me, on the evidence, that the School Creed is not the only or necessarily dominant way by which the School attempts to impart its institutional value system. For instance the Australian National Anthem is sung at all assemblies whilst the School Creed is recited at most but not all assemblies.
In my view, what Mr Camp submits as less favourable treatment is actually a description of the detriment to which Charlotte is allegedly subject.
In the circumstances of the School assembly and the recitation of the School Creed, Charlotte is not treated 'less favourably'. She does not need to attend that part of the assembly in which the School Creed is recited. She does not need to say the line 'And love of God' and is permitted to say something in its place. These are the options available to all students.
Even if I was to accept Mr Camp's argument and as a consequence Charlotte was considered to have been treated 'less favourably' than a student who is not an atheist, I am not convinced on the evidence that she has been subject to 'any other detriment' as required by s 61(2) of the EO Act.
Perhaps that is the reason why Mr Camp argues that s 53 of the EO Act stands alone and does not need to be considered together with s 61 of the EO Act.
This submission of Mr Camp is plainly wrong. The EO Act stipulates the areas in which discrimination can be unlawful. Not all aspects of human life or endeavour are included in the EO Act.
Education is an area in which unlawful discrimination can occur and s 61 of the EO Act provides the outcomes or events which particularise the discrimination. Sections 53 and 61 of the EO Act must be read together.
The meaning of 'any other detriment' was considered by the Full Federal Court in Varas v Fairfield City Council [2009] FCA 689 at [32-36] (Varas). There the context was alleged discrimination against an employee on the ground of the employee's disability. The relevant legislation was s 15(2) of the Disability Discrimination Act 1992 (Cth) in which the term 'any other detriment' is used.
Relevantly, the cases cited in Varas suggest a number of elements in the determination of whether a detriment has occurred. They are that the person has been put under a disadvantage, the disadvantage must be a matter of substance and not directed to trivial distinctions, and that the test is an objective one.
In the case of Charlotte, there is no substantive evidence before the Tribunal that she has been subject to any detriment other than assertion by Mr Camp that her alleged 'exclusion' is capable of producing negative feelings and emotions.
There is no evidence that Charlotte's religious conviction has led to any disadvantage imposed by the School. There is no evidence that she is stigmatised or compulsory segregated in any way because of her religious conviction.
For these reasons I am not satisfied that the complaint of direct discrimination has been made out.
Indirect discrimination
In respect of a claim of indirect discrimination, Mr Camp must establish four separate matters if he is to prove discrimination: firstly, he must show that the respondent requires Charlotte to comply with a 'requirement or condition'; secondly, that a substantially higher proportion of persons who are nonatheists have complied, or are able to comply, with the 'requirement or condition'; thirdly, the 'requirement or condition' must not be reasonable having regard to the circumstances of the case and; fourthly the 'requirement or condition' must be one with which Charlotte has not complied or is not able to comply (s 53(2) of the EO Act).
The words 'requirement or condition' are to be construed broadly so as to cover any form of qualification or prerequisite but need not be expressly or explicitly imposed; it is sufficient if the 'requirement or condition' is implicit in the conduct which is said to constitute the discrimination (Krysiak v Public Transport Authority [No2] [2017] WASC 103 at[59] [60].
Mr Camp seems to argue that the 'requirement or condition' arises by the force of the School's authority to impose a certain value system on students by the recitation of the School Creed.
However, the evidence shows (and I accept) that:
•it is a requirement that students (except those in kindergarten) attend School assemblies;
•it is not a requirement that students attend that part of the School assembly at which the School Creed is recited; and
•if a student attends the complete School assembly and at that assembly the School Creed is recited, then the student can recite the School Creed as given, omit the line 'And love of God' (don't say anything) or substitute that line with some other appropriate phrase chosen by the student.
The most that can be said with any certainty is that at a school assembly at which the School Creed is recited, it is a requirement that all students recite some version of the School Creed, the variations depending on what the students do with the line 'And love of God'.
The evidence is that Charlotte says, 'And a love of life' in place of 'And a love of God'.
That being the case, Charlotte does comply (and is able to comply) with the requirement (s 53(2)(c) of the EO Act) and it is not necessary to further consider the matters in s 53(2)(a) and s 53(2)(c) of the EO Act.
For these reasons I am not satisfied that the complaint of indirect discrimination has been made out.
Order
For the reasons given, the Tribunal makes the following order:
1.The complaint in proceedings EOA 16 of 2016, Jason Camp on behalf of Charlotte Camp and Director General of the Department of Education is dismissed.
I certify that this and the preceding [151] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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