Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249 (10 July 2020)

Last Updated: 10 July 2020

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

• [1] On 18 February 2020, an application for an interim order under s 144 of the Anti‑Discrimination 1991 (Qld) (AD Act) was filed by Wendy Taniela on behalf of her son Cyrus Taniela (the applicant), seeking:

An order under s 144 of the Anti Discrimination Act 1991 (Qld) that the respondents are prohibited from taking any steps to remove, exclude or unenroll Cyrus Taniela from the Australian Christian College – Moreton or otherwise implement or give effect to the threatened enrolment until the applicant’s discrimination complaint dated 18 February 2020 has been conciliated by the Queensland Human Rights Commission and (if applicable) referred to the Queensland Civil and Administrative Tribunal, heard and determined by the Tribunal or until further Order.

• [2] On 19 February 2020, a preliminary interim order was made enjoining the school from excluding Cyrus Taniela from the school until the hearing and determination of the application. The matter was before the Tribunal again on 29 April 2020 at which time the earlier orders remained in place and the matter was set down for hearing on 22 and 23 June 2020.
• [3] The complaint is that Cyrus has been discriminated against by the Australian Christian College Moreton Ltd (the school) and its principal by their insistence that he cut his hair before the commencement of second semester 2020 or be ‘unenrolled’. Cyrus’ parents want him to have his hair cut at a ceremony held in accordance with what they contend to be a Cook Island custom to mark Cyrus’ transition from child to a man. The timing of the ceremony is, according to the applicant’s case a matter for Cyrus’ parents. They plan for the ceremony to take place around Cyrus’ seventh birthday in September 2021 in Sydney.
• [4] The applicant argues that the position adopted by the school is unlawful discrimination under s 39 of the AD Act on the basis of race or sex. They also argue that a Facebook post by Mr Underwood in relation to boy’s hair and the uniform policy and which referred to Cook Island customs amounted to victimisation under s 130 of the AD Act.
• [5] The applicant is seeking remedies under s 209 of the AD Act, specifically:

(a) an order requiring the respondents not to commit a further contravention of the Act against the complainant by not unenrolling him on the basis of his race and his uncut hair (s 209(1)(a));

(b) an order that the respondents pay to the applicant an amount of general damages including loss of dignity, humiliation, injury to feelings and loss of enjoyment of life (s 209(1)(b));

(c) an order requiring the respondents to provide to the applicant a private written apology (s 209(1)(d));

(d) an order requiring the respondent to implement programs to eliminate unlawful discrimination within the school community including implementing a uniform policy that does not discriminate against Cyrus on the basis of his race (s 209(1)(f));

(e) to the extent that the uniform policy may form part of a contract, an order declaring void that part of an agreement made in connection with a contravention of the AD Act (s 209(1)(h)).

• [6] The applicant also seeks an order that the respondents pay the costs of the applicant in relation to the Tribunal proceedings and the Queensland Human Rights Commission (QHRC) process under s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

Background

• [7] Cyrus Taniela is a 5 year old boy. His parents are Mr Jason Taniela and Mrs Wendy Taniela. Cyrus’ father is of Cook Islands and Niuean origin. Mrs Taniela is Samoan.
• [8] The applicant’s case proceeds on the basis that there is a Cook Islands/Niuean culture and that they wish to practise that culture. That such a culture exists is not disputed by the respondents, nor is it disputed that in relevant respects Mr and Mrs Taniela wished to practise that culture.
• [9] Mrs Taniela deposes that the Cook Islands/Niuean culture has a traditional practice whereby the eldest son in a family does not have his hair cut until around seven or eight years of age. The boy’s hair is usually cut in a ceremony which, in this culture, is a male rite-of-passage that symbolises the boy’s transition to manhood. Mrs Taniela claims that under Cook Islands/Niuean culture, the timing of the hair-cutting ceremony is a matter for the boy’s parents.
• [10] Mrs Taniela says that Cyrus’ race is Cook Islands/Niuean by descent as that term is defined in the AD Act.^[1] In accordance with the tradition of Cook Island/Niuean culture, Cyrus’ hair has not been cut since birth.
• [11] On 18 November 2019, Mrs Taniela received an email from the school enquiring about whether she was intending to enrol Cyrus for the preparatory year in 2020. Mrs Taniela then completed the online enrolment application to enrol Cyrus in preparatory school with the Australian Christian College, Moreton. The Australian Christian College is an independent, co-educational, Christian private school operating from the Preparatory year to year 12. On 22 November 2018, the school sent an email to Mrs Taniela advising that Cyrus was “now enrolled”.
• [12] Cyrus’ parents wanted him to attend the school because they had a daughter there in grade 1 and wanted their children to attend the same school and because they are Christian and wanted Cyrus to be enrolled in a Christian school for religious education purposes. Mr and Mrs Taniela had signed an enrolment contract in respect of their daughter on 19 November 2018. The declaration in the contract stated that they were aware of and accepted the policies of the school. Those policies included the uniform policy (titled Australian Christian College Uniform Guide), which had not changed by the time of Cyrus’ enrolment. This policy has been adopted by the school’s Board.
• [13] Mr and Mrs Taniela received a ‘welcome letter’ from the school dated 23 January 2020 which included the school’s Uniform Guide. The Guide relevantly provided:

Boys’ hair is to be neat, tidy, above the collar and must not hang over the face. Extreme styles, pony tails and buns are not permitted.

• [14] Cyrus commenced his preparatory year at the school on 29 January 2020. He wore his long hair in a bun to school.
• [15] On 31 January 2020, the principal, Mr Underwood, informed Mrs Taniela through Cyrus’ teacher that Cyrus’ hair was in breach of the school uniform policy. Mrs Taniela told the teacher that she would speak to the principal about it. That afternoon, Mrs Taniela attended the school’s administration office and asked to speak to Mr Underwood. He was not available; however, Mrs Taniela spoke to the Deputy Principal and had a discussion with her about Cyrus’ Cook Islands/Niuean ancestry and the cultural reasons for his long hair. The Deputy Principal suggested Mrs Taniela write a letter to the principal explaining this and that the principal could consider whether to grant an exemption from the policy. Later that afternoon Mrs Taniela received an email from the Deputy Principal in the following terms:

Thanks for popping in this afternoon. I’ve just spoken to Gary, the Principal, he is saying that Cyrus will need to have his hair cut as it is the school policy, cultural or not. As I mentioned, it is important that we have these policies in order to keep everyone on the same page. I am sorry. I thought I had better let you know sooner rather than later so you can discuss it with your husband.

• [16] Mrs Taniela was unhappy with this response and organised a meeting with the principal for the following Monday, 3 February 2020.
• [17] The school sent a “follow-up” email requesting the signed enrolment contract for Cyrus on Monday, 3 February 2020 around 12:15pm. At 1pm, that same day, Mrs Taniela met with Mr Underwood to explain the cultural reasons behind Cyrus’ long hair and that a hair-cutting ceremony was planned for his seventh birthday in September 2021. The principal said he would gather information from his “Cultural Team Leader” and present this information to the school’s Board for their consideration.
• [18] Mr Underwood spoke to Mr Fyfe, the Chair of the school’s Board, by telephone on 4 November 2020. Mr Fyfe advised Mr Underwood that the uniform policy as it stood was endorsed by the Board and the Board was committed to it. Mr Fyfe asked Mr Underwood to advise Mrs Taniela of his view of the matter.^[2]
• [19] Mr Underwood called Mrs Taniela on 4 February 2020 and advised that the Board would not grant Cyrus an exemption from the uniform policy in relation to hair. Mr Underwood explained that the Board had asked whether it would be possible for Mrs Taniela to move the date of Cyrus’ hair-cutting ceremony forward to February 2020 to conform with the school’s policy. Mrs Taniela explained that this was not possible given the amount of preparation that goes into organising the event, along with associated financial costs. Mrs Taniela asked if the Board would approve some other kind of acceptable solution involving braiding Cyrus’ hair and tucking the braids up under themselves so that his hair was kept above the collar. Mr Underwood said that Mrs Taniela would need to submit photographs of the proposed hairstyle and that any such proposal would still need to be approved by the Board.
• [20] On Friday, 7 February 2020, Mr Underwood telephoned Mrs Taniela to advise that the Board was not willing to compromise by permitting Cyrus to braid his hair.
• [21] On 11 February 2020, Mrs Taniela sent by cover of an email to Mr Underwood, a “formal letter of complaint” intended for the chief executive officer and members of the Board to be presented to the Board meeting on 12 February 2020.
• [22] The letter of complaint was discussed at the Board meeting on 12 February 2020. Mr Underwood was present at that meeting by invitation and recounted his dealings with Mr and Mrs Taniela to-date. He also recounted information he had obtained about the cultural aspects of Cyrus’ hair-cut, style and the hair-cutting ceremony. Mr Fyfe said he learnt that the ceremony could be, and is, done from any age from 1 to 18 and that there are Elders in Brisbane willing to carry out the ceremony.^[3] The Board resolved that Cyrus’ hair cut and style did not conform to the school’s uniform policy and that they were not willing to grant an exception to the requirement to comply with the policy for Cyrus.
• [23] On 13 February 2020, Mrs Taniela received a letter from Mr Underwood (dated 12 February 2020) in the following terms:

The Australian Christian College Board (the College Board) had its monthly meeting today and was able to discuss and respond to your formal complaint quickly. The College Board has instructed me to pass on their findings from that meeting.

The policies are displayed on the College website for all parents and for those enquiring about a new enrolment. The Uniform Guidelines and Dress Code requirements have been consistent since the time your first child was enrolled with the College, and often communicated to parents via newsletters and notifications.

The Board stands behind its policies that are publicly available on the website and referred to in the enrolment contract, that requires all students enrolled or enrolling in the College to conform to these policies. Therefore, Cyrus must meet all requirements including his hair length and style if he is to remain a student in the College. This must be complied with by Friday 14^th February 2020 or Cyrus will be unenrolled and his fees refunded to you.

The Board understands the cultural significance of the hair cutting ceremony for boys aged 5 to 7 years and is prepared to extend Cyrus’ enrolment until the end of February for that to happen. However, you must let me know by Friday 14 February 2020 if you wish to take up that option. I can refer you to the Islander elders the College consulted as part of its consideration if required.

• [24] A Facebook post relating to boy’s hair and Cook Islands customs was posted by Mr Underwood around this time but was later deleted.
• [25] On 14 February 2020, Mr Archie Atiau, the President of the Cook Islands Council of Queensland and the QHRC, wrote to Mr Underwood and the school Board raising concerns with the school’s position. On this basis, the school agreed to give Cyrus until 21 February to comply with their requirements.
• [26] On 18 February 2020, solicitors for Mr and Mrs Taniela filed a complaint on behalf of Cyrus Taniela with the QHRC alleging unlawful discrimination by the school and Mr Underwood. Mrs Taniela was authorised by the QHRC to act on behalf of Cyrus.
• [27] On 18 February 2020, Mrs Taniela made an application for an interim order under s 144 of the AD Act prohibiting the respondents from taking any steps to remove, exclude or unenroll Cyrus Taniela from the school until the complaint had been conciliated by the QHRC and, if referred to the Tribunal, heard and determined by the Tribunal. On 19 February 2020, the Tribunal made preliminary interim orders in those terms.
• [28] On 4 March 2020, the respondents, through their legal representatives, made an offer to resolve the matter on the basis that by the time Cyrus returned to the school on 22 July 2020, that he would have undertaken the haircut ceremony with a haircut that complied with the school’s uniform policy. This offer was open to acceptance until 4pm that day.
• [29] Mr and Mrs Taniela signed the enrolment contract on 10 March 2020 and returned it to the school by email dated 19 May 2020.
• [30] On 29 April 2020, the Tribunal adjourned the application for an interim order and set the matter down for hearing.
• [31] The matter was referred to the Tribunal on 8 May 2020.

Statutory framework – Anti-Discrimination Act 1991 (Qld)

• [32] The principle that an Act must be read in light of its statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation, it has been held by the High Court that there is a special responsibility to take account of and give effect to the statutory purpose.^[4] Further, the AD Act is beneficial and remedial legislation, and it is generally accepted that beneficial and remedial legislation is to be given a “fair, large and liberal” interpretation.^[5]
• [33] One of the purposes of the AD Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity.^[6] This is achieved by prohibiting discrimination that is on a ground in part 2, of a type in part 3, and in an area of activity in part 4.^[7]
• [34] The grounds on which it is unlawful to discriminate are set out in s 7. Section 7 contains a list of “attributes” on the basis of which discrimination is prohibited. The relevant attributes in this case are “race”^[8] and “sex”.^[9] Race is defined in the Schedule as follows:

"race" includes—

(a) colour; and

(b) descent or ancestry; and

(c) ethnicity or ethnic origin; and

(d) nationality or national origin.

Sex is not defined.

• [35] It is also not lawful to discriminate on the basis of a characteristic that a person has because of their attribute under s 8, which provides:

8 Meaning of discrimination on the basis of an attribute

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of—

(a) a characteristic that a person with any of the attributes generally has; or

(b) a characteristic that is often imputed to a person with any of the attributes; or

(c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or

(d) an attribute that a person had, even if the person did not have it at the time of the discrimination.

• [36] Discrimination on the basis of an attribute can be direct or indirect.^[10] In the case of direct discrimination the treatment is on its face less favourable whereas in the case of indirect discrimination the treatment is on its face neutral but has an adverse impact on a person with the attribute when compared to a person without the attribute.^[11]
• [37] Section 10 defines direct discrimination and s 11, indirect discrimination.^[12]
• [38] Direct discrimination is defined as follows:

10 Meaning of direct discrimination

Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

• [39] Section 10 requires comparison between the treatment the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person’s impairment in “circumstances that are the same or not materially different”. If the comparison shows that the person with the impairment was treated less favourably, the further question must be asked as to whether the impairment was the “basis” for the less favourable treatment.^[13]
• [40] The central question is therefore to ask why the aggrieved person was treated as he or she was. It is not necessary that the discriminator considers that the treatment is less favourable.^[14] Nor is a person’s motive for discriminating relevant.^[15]
• [41] If there is more than one reason for treating a person less favourably than another, the less favourable treatment will be on the basis of the attribute only where the attribute is a substantial reason for the treatment.^[16]
• [42] Indirect discrimination is defined as follows:

11 Meaning of indirect discrimination

(1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term –

(a) with which a person with an attribute does not or is not able to comply; and

(b) with which a higher proportion of people without the attribute comply or are able to comply, and

(c) that is not reasonable.^[17]

(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example –

(a) the consequences of failure to comply with the term; and

(b) the cost of alternative terms; and

(c) the financial circumstances of the person who imposes, or proposes to impose, the term.

(3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.

(4) In this section –

term includes condition, requirement or practice, whether or not written.

• [43] It is apparent that pursuant to s 11, for indirect discrimination to have occurred, four elements must be satisfied:

(a) the discriminator has required the applicant to comply with a term;

(b) the applicant, due to an attribute, does not or is not able to comply with the term;

(c) a higher proportion of persons without that attribute comply or are able to comply; and

(d) the term was not reasonable.

• [44] Section 11 has been described as, in effect, a deeming provision, in the sense that if the elements of the section are satisfied, discrimination on the basis of a person’s impairment is taken to have occurred.^[18]
• [45] Sections 10 and 11 do not make unlawful any discriminatory act but merely define what will amount to discrimination. Section 39 makes unlawful (in the circumstances set out in that section) acts amounting to discrimination within the meaning of s 10 and s 11. Sections 10 and 11 therefore need to be read in conjunction with s 39.
• [46] Section 39 prohibits, in certain circumstances, discrimination in the context of the education. Section 39 provides:

39 Discrimination by educational authority in student area

An educational authority must not discriminate—

(a) in any variation of the terms of a student’s enrolment; or

(b) by denying or limiting access to any benefit arising from the enrolment that is supplied by the authority; or

(c) by excluding a student; or

(d) by treating a student unfavourably in any way in connection with the student’s training or instruction.

• [47] "Educational authority" means a person or body administering an educational institution. "Educational institution" means a school, college, university or other institution providing any form of training or instruction and includes a place at which training or instruction is provided by an employer.
• [48] The complaint also alleges victimisation occurred when the principal posted on Facebook alluding to the incident by reference to the principal’s respect for Cook Island custom but of the importance of respecting the school’s uniform policy. Section 129 provides that a person must not victimise another person. Section 130 defines victimisation as follows:

130 Meaning of victimisation

(1) "Victimisation" happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant) —

(a) because the complainant, or a person associated with, or related to, the complainant—

(i) refused to do an act that would amount to a contravention of the Act; or

(ii) in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or

(iii) is, has been, or intends to be, involved in a proceeding under the Act against any person; or

(b) because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a) (i), (ii) or (iii).

(2) In this section, a reference to involvement in a proceeding under the Act includes—

(a) making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and

(b) involvement in a prosecution for an offence against the Act; and

(c) supplying information and producing documents to a person who is performing a function under the Act; and

(d) appearing as a witness in a proceeding under the Act.

• [49] Responsibility for contravening conduct can extend to responsibility for the conduct of a worker or agent. Section 133 provides:

133 Vicarious liability

(1) If any of a person's workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.

(2) It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.

• [50] The available remedies for a breach of the AD Act are set out in s 209.

The submissions of the applicant

• [51] The applicant argues that, under s 39 of the AD Act, Cyrus was directly discriminated against by an educational authority by treating, or proposing to treat, Cyrus as follows:

(a) varying the term of Cyrus’ enrolment and/or excluding him as a student;

(b) denying or limiting access to Cyrus’ benefits arising from the enrolment that are supplied by the authority;

(c) treating Cyrus unfavourably in connection with his training or instruction.

• [52] The applicant submits in relation to (a) that Cyrus was threatened with unenrolment if his hair was not cut by a certain date and that this would have occurred had the interim injunction not been granted by the Tribunal.
• [53] In relation to (b), the applicant submits that if Cyrus was unenrolled then his first year of schooling would be disrupted as his family would have to source an alternative school for him to attend; that he would not be able to continue at the same school as his sister and other relatives (which would have the practical consequence that his sister would also have to change schools); and that if both he and his sister changed schools they would lose the benefit of receiving faith-based education at a Christian school that is aligned with their parents’ religious beliefs and would also lose the practical benefits of being able to attend a school that is conveniently located and suits their parents’ family responsibilities.
• [54] In relation to (c), the applicant submits that Cyrus had been treated unfavourably in connection with his training or instruction because the policies of the school treat Cyrus’ failure to comply with the uniform policy as an issue requiring behaviour management. Further, that the school had required Cyrus’ hair to be cut short in an unreasonably short period of time which meant that Cyrus would lose the opportunity to participate in the hair-cutting ceremony that is significant for his race, culture and family life.
• [55] The applicant argues that this amounts to discrimination on the basis of race and, or in the alternative, on the basis of his sex.
• [56] The applicant argues that the discrimination amounted to direct discrimination within the meaning of s 10 because the respondents treated or proposed to treat Cyrus less favourably than other students at the school and the treatment was wholly or substantially for the reason of his race and associated characteristics.
• [57] The applicant also argues that the discrimination amounted to indirect discrimination within the meaning of s 11 of the AD Act, in that:

(a) the respondents imposed terms on Cyrus which required him to have short hair;

(b) the respondents required Cyrus to cut his hair, without participating in the traditional hair-cutting ceremony, in order to remain enrolled in the school;

(c) Cyrus could not comply with this requirement due to his race, as it would require him to reject and not observe a fundamental practice associated with his Cook Islands/Niuean heritage;

(d) the term is such that a higher proportion of students that are not of Cyrus’ race could comply; and

(e) the term is not reasonable, because:

(i) it is not necessary;

(ii) it ignores the fact that Cyrus’ practice of wearing his hair tied up in a bun keeps the hair neat and above the collar, in a manner that the school considers acceptable for female students;

(iii) it ignores the fact that the requirement that Cyrus undergo the hair-cutting ceremony is a matter of racial and cultural significance, and is not related to fashion which is the primary purpose underlying the uniform policy; and

(iv) there is no consequence to the operation of the school or the observation of the uniform policy if Cyrus does not comply with the term because of his race.

• [58] The applicant also claims the school contravened s 129 of the AD Act by victimising Cyrus within the meaning of s 130(1) of the AD Act. The applicant says the act of victimisation was the posting of a Facebook post which suggested, among other things, that Cyrus and his family did not respect the school’s policies, procedures and guidelines or the decision of the principal. The post was public, interactive, a number of people viewed and interacted with the post before it was deleted and it has since been replicated in media reporting.
• [59] The applicant submits that Cyrus has suffered loss, damage, hurt, embarrassment, shame and humiliation as a result of the discrimination and victimisation and they accordingly seek remedies under s 209 of the AD Act, including an order under s 209(1)(a) requiring the school not unenroll him on the basis of his uncut hair.
• [60] The applicant also submits that the rights and obligations under the AD Act must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights. They say that the following human rights in the Human Rights Act 2019 (Qld) are relevant to the discrimination Cyrus has experienced:

(a) Recognition and equality before the law: s 15;

(b) Freedom of thought, conscience, religion and belief: s 20;

(c) Rights as a child: s 26(2);

(d) Cultural rights: s 27; and

(e) Right to education: s 36.

The submissions of the respondents

• [61] The respondents deny they have discriminated against Cyrus.
• [62] The respondents submit that their treatment or proposed treatment of Cyrus did not constitute direct discrimination because any student, male or female, who did not meet the uniform policy and who proposed to continue not to comply would be treated in the same way as Cyrus was treated.
• [63] In respect of indirect discrimination, the respondents say:

(a) the respondents imposed a term that required compliance with the uniform policy;

(b) Cyrus is able to comply with the uniform policy;

(c) the reason why Cyrus has not complied with the uniform policy is because of a choice made by one or both of his parents as to the timing of the cutting of his hair;

(d) the term is reasonable, because:

(i) The uniform policy was known, or ought reasonably to have been known, to the applicant prior to enrolment;

(ii) The applicant, upon enrolment, agreed to comply with the school’s policies;

(iii) The uniform policy is a means via which the first respondent seeks to ensure that the College population as a whole is disciplined, rule abiding, well presented and unified;

(iv) The first respondent is entitled to set rules and standards of dress and appearance. If parents do not accept or wish to comply with those standards, they are free not to enrol their child at the school, or take their child elsewhere; and

(v) There is latitude as to when any hair-cutting ceremony for Cyrus may occur.

• [64] Accordingly, the respondents deny there has been a contravention of s 39 of the AD Act and that therefore, none of the rights under the Human Rights Act as particularised by the applicants were infringed.
• [65] Further, the respondents submit that the Facebook post was not published because of a reason in s 130(1) of the AD Act. It was published because of, and in response to, negative media attention and public reaction it had received as a result of the position taken in relation to Cyrus’s hair and was intended to clarify the school’s point of view on matters that had been raised in the media and the negative public reaction to those publications. Further, that the post did not suggest or invite public comment and was not to the detriment of Cyrus.
• [66] Accordingly, the respondents contend that the application ought to be dismissed.

Consideration

Preliminary matters

• [67] Section 39 prohibits in certain circumstances discrimination by an “educational authority” in the context of education. It is common ground, and I find, that the school and Mr Underwood are each an “educational authority” within the meaning of the AD Act.
• [68] The grounds on which it is unlawful to discriminate are set out in s 7, which contains a list of “attributes” on the basis of which discrimination is prohibited. One of those attributes is “race”.
• [69] “Race” is defined broadly in the Schedule to include, relevantly, descent or ancestry and ethnicity or ethnic origin. The Court of Appeal in New Zealand, in King-Ansell v Police,^[19] had to consider whether a pamphlet had been published with intent to incite ill-will against Jews “on the ground of their ethnic origins”. The decision was that Jews in New Zealand did form a group with common ethnic origins within the meaning of the Act. The reasoning of the members of the court was substantially similar. Richardson J held:

The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. That must be based on a belief shared by members of the group.^[20]

...

...a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents.^[21]

• [70] Cyrus’ father, Jason, was born in Australia. Jason’s mother, Nga Kalopulu, was born in the Cook Islands and his father, Hiki Kalopulu, was born in Niue. The Cook Islands is a small nation in the South Pacific. Niue is a small island in the South Pacific. Cyrus’ mother is of Samoan descent. Based on his parents’ countries of origin, Jason considers himself to be one-half Cook islander and one-half Niuean.^[22] Cyrus’ father says:

Even though my family were born in Australia, we are not just Australian. We are where we are from.^[23]

• [71] Mr Atiau of the Cook Islands Council of Queensland gave evidence of the existence of a Cook Island culture. Indeed, the organisation of which he is President performs the role of preserving cultural links between the Cook Islands and Australian residents with Cook Island heritage. In that sense, I find that Cook Islanders and Niueans are racial groups defined by reference to nationality and/or ethnic origins for the purposes of the AD Act, having a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common past.
• [72] In the circumstances of Cyrus’ ancestry, I find that Cyrus was part of the Cook Island race.
• [73] There is an issue as to whether or not the conduct of a hair-cutting ceremony as a right-of-passage from childhood to manhood at the time of choosing of the parents falls within the definition of ‘race’ or within the extending effect of s 8 of the AD Act.
• [74] Mr Atiau deposed that, from his own experience which he set out in his affidavit, he understood that the hair-cutting ceremony for the eldest son is a strong tradition in both Cook Islander and Niuean culture. He deposed to his understanding that the hair‑cutting ceremony was a strong tradition for people from the Southern Cook Islands, but that the practice extended beyond the Southern Cook Islands also to other parts of the Cook Islands. Throughout his life he had been to many hair-cutting ceremonies and he deposed that hair-cutting ceremonies were a custom and tradition of the Cook Islands.
• [75] Mr Atiau deposed that a hair-cutting ceremony in the Cook Island culture was a rite‑of-passage representing a boy’s transition from a child to a man. He deposed that the age that a ceremony will happen can vary and will depend on what the parents decide is the right time for the child. Generally, the ceremony could take place around the age when the boy is about to start schooling until around 10 years old although another ceremony might occur on a boy’s 21^st birthday. Parents often organise for a ceremony to take place on a birthday to add to its significance. Mr Atiau gave evidence that the hair-cutting ceremony is only practised for the oldest son in a family. It is based on hierarchy within the family and concerns giving the oldest son responsibility to look after and lead his family.
• [76] I should note that the respondents accepted that Mr Atiau was “an expert” in respect of Cook Island culture and was able to give opinion evidence in respect of that culture.
• [77] Ms Toka, Jason Taniela’s aunt, deposed that she was born in Mangaia, an island in the Cook Islands. She lived there until she was 14 or 15 years old when she moved to Raro Tonga, the capital of the Cook Islands, to look for work. She lived there until she was seventeen, when she left the Cook Islands for New Zealand. She lived in New Zealand from approximately 1972 to 1980, at which time she, her husband and daughter moved to Australia. Ms Toka gave evidence, and I accept, that she was very familiar with the Cook Island practice of having a hair-cutting ceremony. She deposed that the ceremony was something most families did as part of the culture in the Cook Islands. She remembered many family celebrations where the family would get together and celebrate the oldest boy’s hair being cut. She deposed that it was usually only something done for the oldest son in the family. She gave evidence that the ceremony would be the time when the child would go from being a boy to being a teenager. Ms Toka deposed that the long hair of the eldest son was part of a special relationship between he and his mother. She said:

There is a lot of nurturing and bonding when you brush their hair every day, looking after the hair and plaiting it, and telling them stories about the hair‑cutting ceremony that they will have when the time comes.

• [78] Ms Toka gave evidence concerning the timing of the ceremony. First, she said:

Firstly the parents need to decide when the child will be ready to go through with the hair-cutting. You would want the child to be old enough to understand what is happening and the reasons behind it (that it is an important part of the Cook Islands culture and it is a coming of age celebration, which the child’s family and community gather to recognise)”

• [79] Ms Toka deposed that planning the ceremony takes a couple of years, it involves gathering a pastor or minister for the ceremony, the child’s grandparents, aunties and uncles, and other relatives, family and friends are invited. Relatives gather to hand embroider bedspreads, mats, pillow-cases, cushions and other things for the home. Ms Toka said it would take a couple of years working together to make everything, because they are all hand-crafted.
• [80] Finally, Ms Toka gave evidence as to the nature of the ceremony itself.
• [81] Cyrus’ parents in a letter addressed to the school’s Board said:

This is his right of passage; it is our right as his parents to choose when we believe he was ready to go through with this process.^[24]

• [82] Cyrus’ parents gave evidence that they had always intended to have Cyrus’ ceremony on his seventh birthday, that they planned to hold the ceremony in Sydney and that many family and friends would attend, including from New Zealand and the Cook Islands. Mrs Taniela and Ms Toka gave evidence about the associated practice of giving gifts or ‘spreading’ that was an important part of the ceremony. Family members would need time, often many years, to prepare their gifts, which were hand crafted, to present to Cyrus. The ceremony also was very expensive for the family to host and they needed time to save the money and organise the event.
• [83] The respondents objected to this evidence on the basis that it had not been demonstrated that Cyrus’ parents were experts and qualified to give opinion evidence as to Cook Island/Niuean culture.^[25]
• [84] The rules of evidence do not apply in the Tribunal.^[26] I am not persuaded that the applicant’s mother and father are not in a position to give evidence about their personal experience of the Cook Island/Niuean culture. That said, the findings which follow are findings which, in any event, I would have made on the basis of the evidence of Mr Atiau and Ms Toka.
• [85] The respondents argued that the time the ceremony was held was a matter of discretion and that Cyrus’ parents had refused to hold the ceremony earlier, so as to comply with the school’s policy, for reasons of cost and convenience not associated with the practice itself. They also argued that the preparation of gifts was something that could, and in practice did, occur from the birth of the child so that it was not an issue for the ceremony to be held at short notice.
• [86] I find that the hair-cutting ceremony for the eldest son is a tradition or cultural practice associated with the Cook Island/Niuean culture. I also find that it is part of that cultural practice that the ceremony should take place at a time of the choosing of the parents. I accept the evidence of Mr and Mrs Taniela and find that their choice of timing for the ceremony is substantially and genuinely motivated by and in furtherance of the culture they seek to practise. I respectfully reject the contentions of the respondents that the choice as to timing is related to considerations of cost and convenience rather than the practise itself.
• [87] I am satisfied that discriminating on the basis of race includes discriminating on the basis of the features of that race, which includes the shared cultural practices, traditions, customs or characteristics of the race. This is because the definition of race includes those customs and cultural practices or because they are incorporated by the ‘attribute extension provision’, s 8 of the AD Act, which extends discrimination on the basis of an attribute to include discrimination on the basis of a characteristic of that attribute.^[27] I find that the cultural practice of the hair-cutting ceremony, and its timing at the discretion of the parents is a ‘characteristic’ or ‘characteristics’ of the attribute of race in these circumstances.
• [88] I turn now to consider whether there has been discrimination on the ground of race in the area of education, as particularised in s 39 of the AD Act.

Section 39

• [89] I find that the reason for the school’s treatment or proposed treatment of Cyrus was because Cyrus would not comply with the uniform policy by having his hair cut. I also accept that the reason Cyrus would not have his hair cut was because of the adoption, by his parents, of electing when Cyrus should have the hair-cutting ceremony, that being in September 2021 and not earlier.
• [90] The threat to unenroll Cyrus amounts, in my view, to “excluding” him within the meaning of s 39(a). While it is true that Cyrus has not in fact been excluded, the school made clear that was its intention. It was prevented from doing so by the terms of the preliminary interim injunction granted by the Tribunal. In my view, in any event, the AD Act must be construed liberally and extends to the prohibition of discrimination on the basis of proposed treatment. Accordingly, in my view, s 39(a) should be read to apply to the circumstances that exist here.
• [91] In any event, if I am wrong about that, the respondents’ treatment also amounted to treating Cyrus “unfavourably in connection with his training or instruction” or “limiting or denying [Cyrus] access to the benefits arising from his enrolment” within the meaning of s 39(b).

Did the treatment amount to direct or indirect discrimination

Direct Discrimination

• [92] To establish direct discrimination, the applicant needs to prove that the respondents treated Cyrus less favourably than another person without his attribute, including characteristics of the attribute, is or would be treated in circumstances that are the same or not materially different.
• [93] The applicant, in her statement of contentions, submitted that discrimination had occurred on the basis of Cyrus’ race and, or in the alternative, Cyrus’ sex. The applicant submitted that the respondents had treated or proposed to treat Cyrus less favourably than other students at the school and that the less favourable treatment was “wholly or substantially for the reason of Cyrus’ race and associated characteristics”. Under the heading “Particulars” the applicant submitted as follows:

(i) Cyrus has been treated less favourably than a male student who is not of Cook Islands/Niuean descent (and who therefore does not have the characteristics identified above).

(ii) Cyrus has been treated less favourably than a female student on the basis of his sex, because a female student with long hair would not have been required to have her hair cut.

• [94] In its written closing submissions the applicant contended that the relevant comparator was a person without the attribute or characteristics that a person with that attribute generally has and that, here, the attribute and characteristics were that Cyrus is a boy and has racial attributes and characteristics as the eldest son of a Cook Island family of long hair. The relevant comparator is of: (a) a girl; and (b) a person who does not have those attributes and characteristics.
• [95] The respondents in their written closing submissions said as follows in relation to the comparator:

There is no evidence before the Tribunal to suggest that a person of a different culture (assuming culture equates to race) or sex to the Applicant’s son would be treated differently to the Applicant’s son. Rather, the unchallenged evidence is to the effect that any student who did not comply with the uniform policy would be treated in the same way.

• [96] The applicants have effectively taken the two separate allegations of discrimination to create a comparator which combines features relevant to both. I do not consider this to be the correct approach. The correct approach, in my opinion, is to deal with discrimination on the basis of each attribute separately. The approach of the applicant tends to obfuscate the issue of whether the discrimination has occurred on the basis of race or sex.
• [97] Dealing with discrimination on the basis of race, the relevant comparator is, in my opinion, a boy whose racial customs or beliefs are not compromised by the uniform policy as applied by the respondents.^[28] That approach to the comparator takes into account the characteristics of the race generally, which, in my view, includes a tradition whereby the eldest son of the family does not have his hair cut until a time decided by his parents as appropriate to mark his transition from boy to man.
• [98] I note the submission of the respondents which, in effect, addresses whether “non‑compliance with the uniform policy” is a characteristic which a person of Cyrus’ race generally has. In my opinion this does not address the proper question, which is whether the hair-cutting cultural practice, which was the reason for the non-compliance, was a characteristic which a person of the Cook Island culture generally has. In this context, “a person” in s 8 is a reference to a person “of the Cook Island race” with the qualities of the person the subject of the alleged discrimination (here the eldest son of the family).
• [99] As to the issue of defining the relevant circumstances for the comparison exercise required by s 10, the applicant argued that non-compliance with the policy was not a circumstance the Tribunal could take into account for the purposes of s 10 and that the only relevant circumstance was that the student was at the same school. The respondents argued that non-compliance with the policy was the relevant circumstance. They argued there was no evidence before the Tribunal to suggest that a person of a different culture or sex to Cyrus would be treated differently to Cyrus. Rather, that the unchallenged evidence was to the effect that any student who did not comply with the uniform policy would be treated in the same way.^[29]
• [100] Determination of the relevant circumstances for the purposes of s 10 depends upon whether non-compliance with the uniform policy is because of a characteristic of the attribute. If it is, it cannot form part of the circumstances for the purposes of s 10. Section 8 is a provision intended to extend the definition of discrimination to cover the characteristics of an attribute so that the purposes of the AD Act are not evaded by using such characteristics as “proxies” for discrimination on the basic grounds in s 7. The intended reach of provisions such as s 8 was considered by McHugh and Kirby JJ (in dissent) in Purvis v New South Wales:^[30]

But the purpose of a disability discrimination Act would be defeated if the comparator issue was determined in a way that enabled the characteristics of the disabled person to be attributed to the comparator. If the functional limitations and consequences of being blind or an amputee were to be attributed to the comparator as part of the relevant circumstances, for example, persons suffering from those disabilities would lose the protection of the Act in many situations. They would certainly lose it in any case where a characteristic of the disability, rather than the underlying condition, was the ground of unequal treatment. And loss of the Act’s protection would not be limited to such dramatic cases as the blind and amputees. Suppose a person suffering from dyslexia is refused employment on the ground of difficulties with spelling but the difficulties could be largely overcome by using a computer with a spell checker. The proper comparator is not a person without the disability who cannot spell.

• [101] The respondents argued that non-compliance with the uniform policy is not a characteristic of Cyrus’ culture or sex as non-compliance is not a state that a person of his race or sex generally has, and may occur for many reasons unconnected with race or sex, including defiance or unconscientiousness. They say the facts of this case are distinguishable from Woodforth v State of Queensland,^[31] where the court considered that the appellant’s communication difficulties were a characteristic of her impairment. It thus held that the comparator ought to have been a person without communication difficulties.
• [102] I do not accept this submission. In my view, the characteristics of the attribute need to be determined in light of the circumstances of the particular complainant. Here, the attribute was race and, because Cyrus was the eldest son in his family, a characteristic of his race was that he was to cut his hair for the first time at a hair-cutting ceremony to signify his ‘coming of age’. That time was to be determined, as I have found above, by Cyrus’ parents.
• [103] It follows, in my view, that the attribute in this case included the characteristic of having long hair, given the time for the hair-cutting ceremony had not arrived. Accordingly, the relevant circumstances could not include non-compliance with the school uniform policy because the reason for the non-compliance was based on a characteristic of his race.
• [104] The question then is whether the educational authority would have purported to deny another student the benefits of their education in the same or similar circumstances. The answer seems plain. The educational authority would not have denied those benefits to, or imposed those detriments on, another student who complied with the uniform policy.
• [105] Accordingly, I find that there was direct discrimination on the basis of race.

Indirect discrimination

• [106] In relation to indirect discrimination, for the purposes of s 11, a term must be imposed with which a person with an attribute does not or is not able to comply. Describing the requirement or condition is a question of fact.^[32] The courts have applied a liberal approach in determining whether a requirement or condition has been imposed.^[33] While the requirement or condition is construed broadly, the fact finder must formulate it with some precision.^[34] The Tribunal and the courts are not bound by the applicant’s formulation of a requirement or condition.^[35] Rather, their duty is to ascertain the actual position, namely whether the respondents have sought to impose a requirement or condition which is discriminatory and not reasonable within the meaning of the AD Act.^[36]
• [107] The applicant approached this by defining the term to be that, under the uniform policy, boys must not wear buns or their hair in long, tucked-up braids or, alternatively, the requirement imposed by the school’s conduct that Cyrus cut his hair or be unenrolled.
• [108] I am satisfied that these requirements were ‘imposed’ by the respondents even though adherence to the school’s policies and procedures, including the uniform policy, was a condition of the enrolment contract. In any event, I am satisfied that the requirement or condition that Cyrus have his hair cut was implicit in the conduct alleged to be discriminatory which is sufficient to satisfy that element.
• [109] The meaning of “can comply” was considered by the House of Lords in Mandla v Dowell Lee,^[37] in the context of whether a young boy of the Sikh community could comply with the school’s condition that he not wear a turban. There it was held that although, construed literally, he could comply, this was not the approach Parliament intended by the protection it had afforded to members of ethnic groups. Lord Fraser held that the word “can” in the relevant statutory context must have been intended to mean not “can physically” in the sense of being theoretically possible, but as meaning “can in practice” or “can consistently with the customs and cultural conditions of the racial group”. Accordingly, it was held that the “no turban” rule was not one with which the boy could comply.
• [110] The respondents argued that because there was no evidence that Cyrus had to be any particular age for the ceremony, let alone 7, that he could comply with the requirement to have his hair cut by second semester 2020.
• [111] In my view, for the reasons above, the timing of the ceremony was a matter for Cyrus’ parents and was an integral part of the hair-cutting ceremony. It follows that, because his parents had planned to hold the ceremony around Cyrus’ 7^th birthday, Cyrus could not comply with requirement imposed by the respondents to have his hair cut earlier.
• [112] Accordingly, I find that Cyrus could not, consistently with the customs and cultural practices of his racial group, comply with the requirement to cut his hair before second semester 2020.
• [113] For the term to constitute indirect discrimination, it must be “not reasonable” within s 11(1)(c). It is for the respondents to prove that the term is reasonable.^[38] In assessing whether a term is reasonable all relevant circumstance are taken into account, including the consequences of failure to comply with the term; the cost of alternative terms; and the financial circumstances of the person imposing the term.^[39]
• [114] It is the reasonableness of the term that is the focus, not the reasonableness of the decision to require the person to comply with it.^[40]
• [115] In Catholic Education Office v Clarke,^[41] it was held:

....

(ii) The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251, at 263, per Bowen CJ and Gummow J; Waters v Public Transport Commission at 395-396, per Dawson and Toohey JJ; at 383, per Deane J. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 82-83, per Lockhart J;

(iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson [1996] FCA 1618; (1996) 68 FCR 46, at 61-62, per Heerey J; Commonwealth Bank v HREOC at 112-113, per Sackville J; and

(iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition: Waters v Public Transport Corporation at 395, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC, at 88, per Beaumont J; Victoria v Schou [2004] VSCA 71; (2004) 8 VR 120 at [26], per Phillips JA.^[42]

• [116] I turn now to consider the question of reasonableness including the nature and the extent of the discriminatory effect, on the one hand, and the reasons advanced in favour of the condition or requirement on the other.^[43]
• [117] I note the evidence of Mr Atiau in this respect. He deposed that, if Cyrus was forced to go against the protocols of the tradition and have his hair cut at an earlier stage without having the ceremony, it would be a negative thing for him in the long term; in broad terms, it would cause him to feel disconformity with his cultural heritage and that, having not having experienced the ceremony himself, he may not wish to continue the tradition.
• [118] The effect of the strict application of the policy, given my earlier findings regarding the timing of the ceremony, would be to exclude Cyrus, a young boy, from the school. The exclusion of a child from a school is a step ordinarily demanded by the child’s serious misbehaviour; in this instance, it would be a step taken because of Cyrus’ and his family’s genuinely held beliefs and cultural practices.
• [119] The exclusion of a child from a school is a serious step to take. It has potential to cause immediate dislocation for the child, immediate and significant emotional distress and embarrassment, and long-lasting effects on the child’s perception of his or her place in a community. I am satisfied that to exclude Cyrus from the school would likely, in the circumstances, cause him significant and immediate emotional distress.
• [120] The school advanced arguments which emphasised the need to have uniform policies that required certain standards of dress and appearance be maintained, and the promotion of equality and uniformity. The respondents argue that the policy is a means by which they seek to ensure the school population as a whole is disciplined, rule-abiding, well-presented and unified. The respondents argue that the policy was known to Cyrus’ family when Cyrus joined the school, or was at least knowable by them.
• [121] There is no suggestion that there is an additional financial burden one way or the other which should be taken into account in the making of my decision.
• [122] The school led some evidence that the effect of the relaxation of the rule in Cyrus’ case might lead to further pressure on the principles underlying the uniform policy; that is, in broad terms, the advancement of uniformity and appearance, common endeavour, purpose and discipline.^[44] I accept that that may be the case. Whenever an exception is made to the application of a rule, others may seek to urge the grant of a like exception.
• [123] Weighing the benefits and disbenefits of the term and its application in these circumstances, I have come to the conclusion that the school has not demonstrated that the imposition of the term is reasonable. On the one hand, I find there is a likelihood of a significant impact on Cyrus if he is excluded. On the other hand, I am not satisfied that to permit Cyrus to attend the school with long hair would be to cause a significant impact on the discipline of the school or otherwise adversely affect it to any substantial degree.
• [124] The evidence called by the school concerning the prospect of a loss of discipline was not extensive. That said, I recognise that evidence of that nature would be difficult to obtain. I am prepared to proceed on the basis that potential existed for the adverse effects about which the school was concerned. I am not satisfied, however, that the potential is significant or that to permit Cyrus to attend the school with long hair is likely to cause a significant adverse impact for the school. This decision concerns an individual who has established, to the satisfaction of the Tribunal, that the keeping of his hair long until a ceremony, to mark his transition from a boy to a man, the timing of which is, importantly, a matter for his parents is a decision consistent with deeply and genuinely held beliefs associated with his culture and ethnicity.
• [125] In my opinion, to permit Cyrus to attend the school in the particular circumstances of this case is unlikely to lead to material, adverse effects. The school is, and should be, capable of conveying the meaning and effect of the decision to the school community in a way which reflects its true nature. It would be made clear that the grounds for an exception to the policy would need to be justified on the basis of a protected attribute in the AD Act.
• [126] The school argues that the rule was known to, or capable of being known to, Cyrus and his family before he enrolled. I accept that to be so. But the operation of the AD Act is not constrained by such a circumstance. A rule or edict may offend the Act whether or not a complainant knowingly brings itself within the ambit of its operation. The fact that Mr and Mrs Taniela enrolled Cyrus in circumstances where they knew or ought to have known of the policy may be an issue relevant to reasonableness, but it does not prevent or stand in the way of the application of the Act.
• [127] While I accept that it is important for schools to have uniform policies that require certain standards of dress and appearance be maintained, I do not think it is reasonable to apply those policies without exception where exceptions are required for reasons based on race. It is reasonable that the school would approach such situations on an individual basis and not rigidly apply a policy inflexibly across the entire student population. I should add that all uniform policies are subject to such exceptions because they have been imposed by statute, namely by the AD Act.
• [128] The school says that requiring Cyrus to comply with the policy is promoting equality and uniformity. That may be so in one sense, but such an approach fails to acknowledge the statutorily entrenched protections afforded by the AD Act which apply a different concept of equality; namely, one that recognises the right to be different and to be treated just as favourably notwithstanding that difference.
• [129] Taking all the above circumstances into account, I find that the term was not reasonable.
• [130] Accordingly, I find that there has been indirect discrimination on the basis of race.
• [131] As I have found the treatment of Cyrus constituted direct and indirect discrimination, there has therefore been a contravention of s 39 of the AD Act. I find the school, through its Board, primarily liable for that contravention due to having endorsed the policy in its current form and for instructing Mr Underwood to take the position that he did regarding its application to Cyrus. Insofar as Mr Underwood acted independently of the school, in any event, I find the school vicariously liable for his actions.^[45] I find Mr Underwood directly liable for the contravention of s 39 of the AD Act notwithstanding that, in many respects, he was acting on the instruction of the school’s Board.

Discrimination on the basis of sex

• [132] In its statement of contentions, the applicant argued that the relevant grounds for discrimination are sex and race. One of the particulars was that “Cyrus has been treated less favourably than a female student on the basis of his sex, because a female student with long hair would not have been required to have her hair cut”. The applicant did not expand on this in the written closing submissions and the issue was left effectively unaddressed. During the course of the hearing and in final submissions, the parties’ attention was directed almost solely towards the issue of discrimination based on race.
• [133] Notwithstanding the lack of attention given to the matter by the parties, the allegation remains an issue between them on the applicant’s claim and the response, so it is necessary that I deal with it.
• [134] The claim made is one of direct discrimination, and not indirect discrimination. I have set out s 10 above. In my opinion, the relevant comparator for the purposes of ascertaining whether there has been direct discrimination on the basis of sex is a school-age girl.
• [135] For there to be direct discrimination on the basis of an attribute, a person must treat a person with an attribute “less favourably than another person without the attribute”. The critical words are “less favourably”. It is important to note that the words used are not, simply, “differently”.
• [136] The meaning of “less favourably” was considered by the English Court of Appeal in Smith v Safeway plc.^[46] There, the applicant, a male delicatessen assistant, was dismissed by his employers because he wore his hair in a ponytail style in breach of the employers’ rules for male staff which provided for tidy hair not below collar length and no unconventional hairstyles. The Court of Appeal held that an employers’ code governing the appearance of employees was not, in order to comply with the Sex Discrimination Act 1975 (UK), required to make provisions which applied identically to men and women. The Court of Appeal held that the correct approach was to consider the employers’ code for employees overall, not item by item. If, when looked at as a whole, there was an even-handed approach between men and women then the code was not one which treated either sex “less favourably” when it was enforced.
• [137] Each of the Justices of the Court of Appeal gave separate judgments although their conclusions were the same. Phillips LJ said:

If discrimination is to be established, it is necessary to show not merely that the sexes are treated differently, but that the treatment accorded to one is less favourable than the treatment accorded to the other.^[47]

• [138] Similarly, Peter Gibson LJ said, referring to the decision of the Employment Tribunal in Schmidt v Austicks Bookshops Ltd:^[48]

That case established that rules governing appearance are not to be regarded as discriminatory merely because those rules are not identical in content for both sexes, and that such rules are not discriminatory, if, taken as a whole, and not item by item, the one sex is not less favourably treated than the other.^[49]

• [139] And, Leggatt LJ said:

Discrimination consists, not in failing to treat men and women the same, but in treating those of one sex less favourably than those of the other. That is what is meant by treating them equally. If men and women were all required to wear lipstick, it would be men who would be discriminated against. Provided that an employers’ rules, taken as a whole, do not result in men being treated less favourably than women, or vice versa, there is room for current conventions to operate.^[50]

• [140] Smith v Safeway plc was applied by G (by his litigation friend) v The Head Teacher & Governors of St Gregory’s Catholic Science College.^[51] The circumstances of that case are not dissimilar from the present. The claimant was of African-Caribbean ethnicity. He had not cut his hair since birth and had kept it in cornrows. This was in accordance with his family tradition. Cornrows were prohibited by the uniform policy of the school and the claimant was not permitted to attend the school so long as he kept his cornrow style. The claimant challenged the legality of the rule on the basis that it was unlawful because it was discriminatory on sex and on race grounds. The applicant was successful on the race ground.
• [141] As to the claim on the grounds of sex, it was argued that girls are allowed cornrows, largely because they could wear their hair longer than boys, so there was no good reason why boys should not be allowed to do the same. Collins J said that the correct approach in considering whether uniform policies amounted to sex discrimination had been set out in Smith v Safeway plc. Collins J, with reference to that case, said:^[52]

[54] Discrimination does not necessarily arise from different treatment from sexes. It will only exist if one or other sex is treated less favourably. The court accepted that, as counsel for Safeway had submitted:

“Rules concerning appearances will not be discriminatory because their content is different for men and women if they enforce a common principle of smartness or conventionality and taken as a whole and not garment by garment or item by item neither gender is treated less favourably in enforcing that principle.”

[55] In paragraph 13, Phillips LJ said this:

“In my judgment, a package approach to the effect of an appearance code necessarily follows once one accepts that the code is not required to make provisions which apply identically to men and women. Phillips J held that this was the approach more likely to lead to a sensible result in that case and in cases like it. I agree. This is not to say that when applying the test, the requirement of one particular item of a code may not of itself have the effect that the code treats one sex less favourably than the other. But one has to consider the effect of any such item in the overall context of the code as a whole.”

A code will not be discriminatory if it applies a conventional standard of appearance.

[56] What is to be regarded as conventional may well vary as time goes by and will depend on the facts of a particular case. Smith’s case did depend on a finding of fact by the Tribunal that ponytails for men were not to be regarded as conventional. Whether that may apply in 2011 may be open to doubt, but that does not affect the validity of the approach the law requires.

• [142] These decisions, in my opinion, are informative.
• [143] In my opinion, it is correct that merely to treat boys and girls differently under a uniform policy is not, of itself, sufficient to demonstrate that one or the other has been treated less favourably. I also accept that the correct approach is to look at the policy as a whole in order to determine whether, in this instance, the claimant is treated less favourably than the comparator on the basis of sex.
• [144] The comparator, in my opinion, is a person without the relevant attribute, namely a school-age person who is not a boy.
• [145] Is the claimant, by the uniform policy looked at as a whole, treated less favourably than a person of school-age who is not a boy.
• [146] This is a question of fact.^[53] The uniform guide commences with the following:

We strive to deliver a purposeful education that supports the students’ spiritual, academic, social and physical development. We view uniforms as a key element in fostering a sense of unity and equality among the student body.

• [147] The uniform guide goes on to deal with style of uniforms; the interchanging of uniform items; size and condition of uniform items; hair; hair accessories; hats; earrings; and rings.
• [148] As to “Hair” the uniform guide provides:^[54]

Hair

Students are to wear their hair in a clean, neat and tidy manner.

• Girls’ hair must be tidied up and secured away from the face if it extends beyond the shoulders.
• Boys’ hair is to be neat, tidy, above the collar and must not hang over the face. Extreme styles, pony tails and buns are not permitted.
• Fringes must not extend below the eyebrows.
• Hair that could fall over the face should be tied back securely.
• Extreme hairstyles, including shaved or “number 1s”, mohawks, tracks, etchings, dreadlocks and extreme undercuts are not acceptable.
• Hair should not be coloured to an unnatural colour or pattern.
• Beards and moustaches are not permitted. Students must be clean shaven at all times.

• [149] Mr Fyfe, Chairperson of the Board of Australian Christian College Moreton Ltd, deposed that the Board had adopted the uniform policy for the following reasons:
  1. It provides uniformity throughout the school in all aspects of clothing and presentation, so that parents and students have a clear understanding of what the College expectations are;
  2. It demonstrates to parents, prospective parents, and the community generally, that there is a high level of professionalism and presentation within the College, and that this reflects the quality of the education product that the College delivers to parents and students;
  100. Students are taught, from a young age, the importance of respecting and following rules, regulations and policies, which engenders respect for themselves, the College more broadly and (including other students, parents and staff) and hopefully, translates into their lives generally as they grow;
  4. In my experience, if schools let the uniform and standards of appearance slide (such as by agreeing to excessive numbers of earrings, nose piercings, tattoos etc), it impacts on the College more generally (in the context of students and parents then seeking to challenge other areas of the College policies and rule).
  5. By way of example, I have observed the imposition of uniform guidelines at two schools in close vicinity near where I live. One school has leniently applied its uniform policy, and the other has expected full compliance. In respect of the first school, I have had prospective parents tell me that they have attended open days there, and have formed the view that discipline generally has been negatively impacted. In contrast, these parents have commented that, in the other school, there is evident a greater level of respect towards staff and other students.
  6. Additionally, parents often comment to me on the importance of the College uniform and its implications for the culture of the school. In this respect, we have had various parents indicate to us that they support the position being taken by the College int his matter.
  7. I regard the Uniform Policy as a critical part of the College’s overall suite of policies. While at first glance, a small move away from the Uniform Policy might seem fair and of little effect, it is essentially the “thin edge of the wedge”, and in reality does have a negative effect on the College.
• [150] The applicant bears the onus in demonstrating that the uniform policy constitutes direct discrimination. In my opinion, on the present material, the applicant has failed to demonstrate that Cyrus was discriminated against on the basis of sex. The uniform policy identifies its purpose and then proceeds, in a conventional manner, to articulate the requirements in respect of hairstyle for both boys and girls. There are particular constraints in relation to girls’ hair and in relation to boys’ hair, and there are constraints which apply to both. For example, in relation to girls’ hair there is a requirement that their hair be secured away from the face if it extends beyond the shoulders. In relation to boys’ hair there is a requirement that it is to be neat and tidy, above the collar and must not hang over the face. For both, for example, fringes must not extend below the eyebrows and hair should not be coloured to an unnatural colour or pattern. All these requirements, are, in my opinion, in furtherance of the purpose of the uniform policy. Looked at as a whole, in my opinion, the uniform policy in relation to hair does not treat boys less favourably than girls. Accordingly, I reject the applicant’s arguments that there is sex discrimination.

Human Rights Act

• [151] The applicant submitted that the following human rights as provided for in the Human Rights Act 2019 (Qld) are relevant to the discrimination Cyrus has experienced, namely:
  1. Recognition and equality before the law: every person has the right to enjoy the person’s human rights without discrimination; every person is equal before the law and is entitled to the equal protection of the law without discrimination; and every person has the right to equal and effective protection against discrimination (s 15);
  2. Freedom of thought, conscience, religion and belief: the freedom to demonstrate the person’s religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private (s 20);
  100. Rights as a child: the right, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child (s 26(2));
  4. Cultural rights: the right as a person with a particular cultural, religious, racial or linguistic background not be denied the right, in community with other persons of that background, to enjoy their culture (s 27); and
  5. Right to education: the right as a child to have access to primary education appropriate to the child’s needs (s 36) (noting Cyrus and his family are Christians and wish to have a Christian education).
• [152] The respondents submit that the rights and obligations under the AD Act must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.^[55]
• [153] The decision I have made, that there was a contravention of s 39 of the AD Act, was consistent, in my view, with the plain meaning of the AD Act. I note that s 48 of the Human Rights Act 2019 (Qld) encourages such an outcome, and, while I take note of that, I would have made the same findings based solely upon the proper interpretation of the AD Act alone.

Victimisation

• [154] I do not find that Mr Underwood made the Facebook post for any of the reasons set out in s 130(1) of the AD Act. I accept that Mr Underwood made the post because of, and in response to, negative media attention and public reaction as a result of its position in relation to Cyrus’ hair and was intended to clarify the school’s point of view on matters that had been raised in the media and the negative public reaction to those publications. The evidence given by Mr Underwood to this effect^[56] was not challenged.
• [155] I also accept that the post was not to the detriment of Cyrus. There is no suggestion that this was the reason the broader school community became aware of the issue. Indeed, the evidence was that Mrs Taniela or her relatives had been the persons who had informed the media, and therefore the public, of Cyrus’ case and were, in my view, the people primarily responsible for any detriment caused to him by that publicity.
• [156] Accordingly, I dismiss the complaint of victimisation.

Remedies

• [157] The applicant, in her submissions, seeks “an amount at the discretion of the Tribunal that is not trivial nor a reward to reflect the community’s standards for anti-discrimination in the circumstances”. The respondents submit that the applicant has not led any evidence to support any claim for general damages or economic loss.
• [158] The onus lies upon the applicant to prove its entitlement to a remedy by way of compensation. There is no capacity for the Tribunal to award exemplary damages.^[57] The effect of the evidence is that Cyrus has been protected by his parents from the impacts of the dispute over his hair length and it has been submitted to me, without any suggestion to the contrary, that the school has not directly raised with Cyrus his hair length. I note that the respondents have permitted Cyrus to attend school during the course of the first semester without having his hair cut and note also that the respondents accepted that Cyrus should be permitted to keep his hair long until such time as the matter could be substantially determined.
• [159] There is nothing in the material which demonstrates that Cyrus has suffered any psychiatric injury by reason of the dispute or any emotional distress or anything else which might sound in compensation. To the contrary, and commendably, the burden of the litigation and its surrounding circumstances has been borne by Cyrus’ mother and father. The contentions do not include any claim for compensation in respect of any loss or damage suffered by the parents themselves.
• [160] In the circumstances I do not propose to make an award of compensation in Cyrus’ favour.
• [161] The applicant also seeks an order requiring the respondents to provide to the applicant a private written apology. The respondents maintained a position which, although genuinely held, in my opinion was contrary to the AD Act. It was necessary for Cyrus to bring proceedings in order that he not be excluded from the school. The proceedings have taken some time to reach the point of determination during which time the respondents maintained their position.
• [162] In the circumstances, I order a private written apology be given by the respondents to the applicant for threatening to unenroll Cyrus by reason of his non-compliance with the requirement in the uniform policy that his hair be above the collar and not be worn in a bun.
• [163] The applicant seeks an order requiring the respondents to implement programs to eliminate unlawful discrimination within the school community including implementing a uniform policy that does not discriminate based on race. The applicant did not, in my view, call evidence of a nature sufficient to justify the need for a school to implement any program to eliminate unlawful discrimination within the school community. I am confident that the school will act in accordance with this decision and implement its rules in such a way as to recognise the effect of the AD Act, in particular, that there are circumstances which may justify an exception to the policy.
• [164] The applicant seeks, to the extent that the uniform policy may form part of a contract, an order under s 209(1)(h) declaring void that part of the agreement made in connection with a contravention of the AD Act. The school did, in this proceeding, contend that, at least insofar as the rules concerned Cyrus’ sister, they formed part of the contract with the school. The school went further to allege that the parents knew or ought to have known of the uniform policy and this was relied upon, in part, as to why its conduct was reasonable. In the circumstances, I am prepared to order that, insofar as the uniform policy may form part of a contract, it is void insofar as it purports to impose an obligation on Cyrus in relation to the cutting of his hair which is contrary to the terms of the AD Act.

Costs

• [165] The applicant seeks the costs of this proceeding. The application is made pursuant to the general discretion of the Tribunal to award costs under s 102 of the QCAT Act.
• [166] I will hear the parties further as to costs. I direct that any submissions as to costs be filed in the Tribunal by 4:00pm on 24 February 2020. Those submissions should extend to whether the Tribunal has jurisdiction to make an order as to costs in relation to the QHRC process and, if so, as to whether any such order ought to be made.

Orders

• [167] In the circumstances I make the following orders:
  1. It is declared that the conduct of the respondents in proposing to unenroll Cyrus Taniela from Australian Christian College – Moreton by reason of his failure to comply with the uniform policy in relation to his hair is an act in contravention of s 39 of the Anti-Discrimination Act 1991 (Qld).
  2. The respondents by themselves, their servants or agents be restrained from unenrolling or proposing to unenroll Cyrus Taniela from Australian Christian College – Moreton by reason of his failure to comply with the uniform policy in relation to his hair, in particular, the requirement that hair be above the collar and not be worn in a bun.
  3. The respondents give a private written apology to the applicant for proposing to unenroll Cyrus by reason of his failure to comply with the requirement in the uniform policy that his hair be above the collar and not be worn in a bun.
• [168] The Tribunal directs that:
  4. The parties must file any submissions as to costs in the Tribunal by 4:00pm on 24 July 2020. Those submissions should extend to whether the Tribunal has jurisdiction to make an order as to costs in relation to the Queensland Human Rights Commission process and, if so, as to whether any such order ought to be made.

^[1] In Cyrus’ enrolment application under Ethnic Group, it states: Samoan.

^[2] Exhibit R3: Affidavit of John David Fyfe dated 5 March 2020 at [15].

^[3] Ibid at [16].

^[4] Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 citing Ontario Human Rights Commission v Simpsons-Sears Ltd 1985 CanLII 18 (SCC); [1985] 2 SCR 536, 547; Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461, 566.

^[5] IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1; AB v Western Australia (2011) 281 ALR 694.

^[6] AD Act, s 6(1).

^[7] Ibid, s 6(2).

^[8] Ibid, s 7(g).

^[9] Ibid, s 7(a).

^[10] Ibid, s 9.

^[11] Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, [30].

^[12] AD Act.

^[13] Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92, 158.

^[14] AD Act, s 10(2).

^[15] Ibid, s 10(3).

^[16] Ibid, s 10(4); Lyons v Queensland [2016] HCA 38.

^[17] AD Act, s 11.

^[18] Waters v Public Transport Commission [1991] HCA 49; (1991) 173 CLR 349, 410.

^[19] [1979] 2 NZLR 531.

^[20] Ibid at 542.

^[21] Ibid at 543.

^[22] Exhibit A5: Affidavit of Jason Taniela at [5].

^[23] Ibid at [21].

^[24] Letter from Mr and Mrs Taniela to the Board of Australian Christian College – Moreton dated 11 February 2020.

^[25] Relying on Yildiz (1983) 11 ACrimR 115.

^[26] QCAT Act, s 28(3).

^[27] Woodforth v State of Queensland [2017] QCA 100; [2018] 1 QdR 289.

^[28] cf R (Watkins -Singh) v Aberdare High School [2008] EWHC 1865; [2008] ELR 561, per Silber J at [46].

^[29] First affidavit of Mr Underwood at [43]; Affidavit of Mr Fyfe at [21].

^[30] [2003] HCA 62; 217 CLR 92 at [130].

^[31] [2017] QCA 100; [2018] 1 QdR 289.

^[32] Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 394.

^[33] Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165.

^[34] Ibid at 185; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 393.

^[35] New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 at [208].

^[36] Ibid.

^[37] [1982] UKHL 7; [1983] 2 AC 548 at 565-566.

^[38] AD Act, s 205.

^[39] Ibid, s 11(2).

^[40] Nojin v Commonwealth of Australia [2011] FCA 1066; (2011) 283 ALR 800 at [85].

^[41] [2004] FCAFC 197.

^[42] Ibid at [115], per Sackville and Stone JJ.

^[43] Ibid.

^[44] Mr Fyfe’s affidavit at [13]; Mr Underwood’s affidavit of 28 March 2020 at [42] and [58].

^[45] AD Act, s 133.

^[46] [1996] ICR 868.

^[47] Ibid at 876.

^[48] [1978] ICR 85.

^[49] Ibid at 880.

^[50] Ibid at 881.

^[51] [2011] EWHC 1452 (Admin).

^[52] Ibid at [54].

^[53] Smith v Safeway plc [1996] ICR 868 at 880.

^[54] Australian Christian College, Policies & Procedures, exhibit GU1 to the Affidavit of Gary Underwood dated 5 March 2020.

^[55] Human Rights Act 2019 (Qld), s 48.

^[56] Mr Underwood’s third affidavit dated 3 June 2020 at [8].

^[57] Edwards v Hillier & Educang Ltd t/as Forest Lake College [2006] QADT 34; Wotton v Queensland (No 5) [2016] FCA 1457.