On 10 July 2020, Member Traves of the Queensland Civil Administrative Tribunal found that the Australian Christian College Moreton Ltd was engaging in both direct and indirect discrimination by proposing to exclude a prep student with long hair from continuing to be enrolled in and attend the school. The decision, Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249 is available online here.
The student, Cyrus, has an Australian Cook Island heritage and the Tribunal found that not cutting the hair of the eldest boy in the family, at an appropriate time chosen by the child’s parent, was a cultural tradition that came within the attribute of race for the purpose of the Anti-Discrimination Act 1991 (Qld) in that it was a characteristic of Cyrus’s cultural group.
In finding that the intention to exclude on the basis of hair longer than that permitted by the College’s uniform policy was not a neutral act simply based on failure to comply with that policy, the Tribunal (at [97]) drew upon (Watkins-Singh) v Aberdare High School [2008] ELR 561 in which it was held that the relevant comparator was a student whose racial customs or beliefs were not compromised by the uniform policy ([103]).
In finding that the same proposed conduct amounted to indirect discrimination, the Tribunal applied the House of Lords decision of Mandla v Dowell Lee [1983] 2 AC 548 in holding that whether a person of a certain culture can comply with a condition or requirement is not simply a question of physical capability but a question of capability in practice, consistent with the customs and cultural traditions of the cultural group ([109]).
The Tribunal rejected a claim of sex discrimination holding that the test for dress codes in respect of the way in which they apply different rules as between males and females is one of less favourable treatment rather than a requirement of uniform treatment. The Tribunal drew upon the way in which that question had been approached in Smith v Safeway plc [1996] ICR 868 (136]).
Broad lesson for schools and the community
The broad lesson from this decision for schools and the community is found in [127] and [128] of the Tribunal’s reasons, where Member Traves stated:
[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.
In short, school uniform policies that require certain standards of dress and appearance be maintained must allow for exceptions, such as race and cultural practices, to avoid unlawful discrimination.
Congratulations to Dr Chris McGrath of Higgins Chambers who appeared for the applicant in the proceedings instructed by Caxton Legal Centre.
Stephen Keim
14 July 2020