XA (BY ZA) v SCHOOL[2024] QCAT 15

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   ZA is the father of a young child ready to commence the preparatory year at the School. The parties’ names have been de-identified in order to protect the privacy of the child in question.^[1]
2. [2]
   ZA seeks an interim order, or injunction, that XA be accepted as enrolled at the School and is able to commence on 22 January 2024 without complying with the School’s hairstyle policy which would require XA to have his hair cut. The order is sought until the complaint of contravention of the Anti-Discrimination Act 1991 (Qld) (“AD Act”), made on XA’s behalf is resolved or determined. It is not clear what the terms of the order might be, but ZA also seeks that it is made clear to students and staff that XA should not be bullied or subjected to negative comments about his hair by students or staff.
3. [3]
   XA is a boy with long hair. The application records that XA “typically” wears his hair in a “neat topknot style”.
4. [4]
   ZA says that he has been told that if XA attends school without cutting his hair in compliance with the School’s policy he will be sent home and not allowed to return until he complies with the policy.
5. [5]
   A Complaint has been filed in the Queensland Human Rights Commission (“QHRC”). The matter is set for a conciliation conference on 8 February 2024. That date is after the first day of school, which has prompted the application for an interim order.

Section 144 AD Act

6. [6]
   Despite the matter not having been referred to the Tribunal by the Human Rights Commissioner, the Tribunal has power to make an interim order under s 144 of the AD Act. The Tribunal may make an order prohibiting a person from doing an act that might prejudice –

   1. the investigation or conciliation of the complaint; or
   2. an order that the tribunal might make after a hearing.
7. [7]
   For an order to be granted XA by ZA must show that:

   1. unless the order is made, sending XA home on the first day of school until his hair is cut in compliance with the School policy might prejudice the investigation or conciliation of the Complaint or any order the Tribunal might ultimately make;
   2. there is a prima facie case of contravention of the AD Act by the School; and
   3. the balance of convenience favours XA.^[2]
8. [8]
   As to the latter two points, it is important that they are considered in the context of the statutory requirements in s 144 of the AD Act. The power in s 144 is given to protect the status quo and to prevent prejudice to the processes and remedies which might flow from a complaint that discrimination has occurred. It is not intended to prevent acts which if performed may found a complaint of discrimination.^[3]
9. [9]
   The latter two points are to be considered as part of a filter to ensure applications which are hopeless or ill-conceived, or in which the disadvantage or harm which might be caused to a respondent if an order is made far outweighs the potential detriment to the applicant if interim relief is refused.^[4]

Nature of the Complaint

10. [10]
    XA’s Complaint to the Queensland Human Rights Commission is framed in terms of gender equality. ZA says that the current hair style guidelines restrict choice and freedom for boys’ appearance in a way based on gender that is more restrictive and therefore disadvantages boys compared to girls. He says that the invasive nature of controlling hair choice extends into a child’s life outside of school and therefore their personal autonomy and human rights in their personal life. ZA says that his complaint is against discrimination by gender, of the hair appearance policies at the School.
11. [11]
    Despite being invited to file further submissions ZA has not done so. Nor has he provided a copy of the School’s relevant policy.
12. [12]
    There is no suggestion of any racial, cultural, religious or gender identity significance to the manner in which XA wears his hair. Given the very young age of XA which I infer to be 4 or 5 years, it is reasonable to assume that XA’s hairstyle is a styling choice made by his parents and that the views set out in the Complaint as to restriction and disadvantage are the views of ZA.
13. [13]
    For the purpose of this decision, I will proceed upon the basis that ZA will assert direct and/or indirect discrimination^[5] in the education area^[6] on the basis of sex.^[7]

The School’s response

14. [14]
    The School has filed submissions and an affidavit by the Principal.
15. [15]
    It is submitted that ZA has a girl and a boy already attending the School. ZA attended a pre-enrolment interview for XA in August 2022, and was told at that time that XA would have to cut his hair before starting school in accordance with the College Code of Behaviour. An Enrolment contract was signed by ZA and XA’s mother and on the same date, 9 September 2022, the Code of Behaviour was signed.
16. [16]
    Subsequently ZA made a proposal to the Principal in relation to changing the Code of Behaviour in relation to hairstyles. The proposal was rejected.
17. [17]
    The School has set out in its submissions an extract from the School’s Code of Behaviour:

Pride in appearance is a measure of self-esteem and loyalty to the College.  Students must wear their full uniform (formal or sporting), without any clothing additions or variations, and ensure it is maintained clean and in good repair.  The formal uniform is to be worn at all College activities, and to and from school, unless otherwise advised.

Hairstyles must be in keeping with the neat and conservative style of the uniform, and as defined by the College.  This means that hair must be a natural colour, and fashion trends or extremes of hair length are not acceptable.  Fringes must be above the eyebrows.  Long fringes swept or held back by hair product are not acceptable. Boys’ hair must be trimmed about the collar and the ears, and must not have any significant difference in length between the side and the top; girls must tie hair back from the face with College approved accessories only. Make up is not permitted (including eyebrow tattooing and false eyelashes), and clear nail polish may be worn on natural nails only.  No artificial nails are to be worn. Boys are to be cleanly shaven.

Jewellery is limited for boys and girls to: a watch, and if desired, a religious medal worn out of sight, on a chain, inside the short or blouse. Girls may wear one set of plain silver or gold studs on the bottom of the earlobe only. Tattoos and other piercings are not acceptable.

Prejudice to the QHRC process and any order the Tribunal might make

18. [18]
    The issues under s 144 of the AD Act are not expressly addressed by either party.
19. [19]
    If the Tribunal does not order that XA be allowed to attend the School on 22 January 2024 and thereafter until final determination of the matter, without cutting his hair, the result will be that XA must cut his hair to attend the School, or, as threatened by ZA he will be sent to a different school and his siblings will be withdrawn from the School.
20. [20]
    In either case the conciliation process conducted by the QHRC can still proceed and outcomes can be sought which meet the circumstances. It may be that an agreement can be reached between the parties at that stage, in which case there has obviously been no prejudice to the QHRC process. If no compromise of the Complaint is reached the matter may be referred to the Tribunal for a determination of the Complaint. A possible order is that XA has been the subject of unlawful discrimination in the terms on which he is admitted as a student^[8] with a consequent order for compensation. That outcome is possible whether XA has his hair cut and attends the School or attends a different school. Obviously if it is found that XA was entitled to wear his hair long he will have been denied that opportunity if he cuts his hair and attends the School. Despite that, I do not think that a failure to make an interim order would render any final order nugatory. Compensation would be an adequate remedy in the circumstances.
21. [21]
    I conclude that there is no prejudice to the QHRC process or any order the Tribunal might make if no interim order is made in the terms sought by ZA.

Prima facie case/Balance of convenience

22. [22]
    Having determined the question of prejudice to QHRC and Tribunal processes in favour of the School, the traditional tests for the grant of an interim injunction assume less importance.
23. [23]
    However, for completeness I will address the issues.
24. [24]
    I have very little information from ZA as to the basis on which it would be argued that XA is the subject of direct discrimination. However, the question of whether direct discrimination may occur as a result of a school dress code requiring different hairstyles for girls and boys has been considered in other cases and provides good guidance at this preliminary stage.
25. [25]
    The School submits that it is not discriminatory to treat girls and boys differently, rather the question is whether the dress code and hairstyle policy looked at as a whole treats a boy with long hair like XA less favourably than a person of school age who is not a boy.
26. [26]
    I accept that submission and rely upon Taniela v Australian Christian College Moreton^[9] and the conclusion unaffected on appeal, that a dress code is not required to make provisions which apply identically to boys and girls. If one looks at the whole of the Code with respect to appearance both boys and girls are subject to hair and personal presentation requirements. The point has been made in another jurisdiction dealing with cognate legislation that:

Rules concerning appearance 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.^[10]

27. [27]
    I conclude on this preliminary assessment and without making any finding, that XA is unlikely to establish a prima facie case of direct discrimination because he is unlikely to establish that different treatment with respect to hair is unfavourable treatment, which is a necessary element of the claim.
28. [28]
    As to a claim of indirect discrimination, there is no submission from XA by ZA. I accept the submission of the School that there is no evidence XA is unable to comply with the requirement that he cut his hair and that XA’s hair length is a matter of personal choice.
29. [29]
    The key aspect of any indirect discrimination claim will be the reasonableness of the requirement. I infer from the application that ZA considers the requirement unreasonable. As against that the School says that its Code was accepted by ZA on enrolment of XA. The Code is intended to encourage the whole School to be disciplined, rule-abiding, well-presented and unified. Relaxation of the rules would undermine the purpose and the expectations of all the parents who enrolled their children at the School because of the ethos reflected in the Code. That is a strongly arguable position.
30. [30]
    In the absence of any attribute such as race, culture, religion or gender identity such that long hair is a relevant characteristic, which would go to the reasonableness of the requirement, I consider on a preliminary assessment and without making any finding, that XA does not demonstrate a prima facie case with respect to a claim of indirect discrimination.
31. [31]
    As to the balance of convenience, ZA says that he will send XA to a different school if XA is required to cut his hair. XA is very young. He has not yet commenced school. Attending a different school is not a detriment to him, although it may be inconvenient to the family. The latter point is not one to which I attach weight. Alternatively, XA could have his hair cut, which may upset ZA’s preference for his child’s hairstyle, but again that is not really a matter of detriment.
32. [32]
    On the other hand, the School says that if XA is permitted to attend school with long hair, the Code will be undermined, others may wish to flout the policy and unnecessary friction in the student body may result. It is also the case that this matter may take years to progress through the Tribunal, including any appeal.
33. [33]
    The balance of convenience favours the School and the application of its Code to all students.
34. [34]
    The School makes the point that no Complaint was filed in the Human Rights Commission until 4 December 2023. The application to this Tribunal was filed on 12 January 2024. The School was not given notice of either matter by ZA until the Tribunal’s directions required service and they became aware of the Complaint on 15 January 2024. The submission is that the timing of the school year should not be a factor which weighs in ZA’s favour, because he is responsible for delay. I accept that submission.
35. [35]
    Finally, I accept that outside the School’s usual duty of care, the Tribunal could not make an effective order whereby XA is given particular supervision to prevent any negative response to his long hair for the duration of any proceedings.

Human Rights Act 2019 (Qld) (“HRA”)

36. [36]
    I turn now to considerations under the HRA.
37. [37]
    An interlocutory injunction is a matter of practice and procedure. It does not finally determine rights between the parties.^[11] In this case I am exercising a discretion conferred by statute. I consider that I am acting in an administrative capacity and that I must make the determination in a way which meets the obligations under s 58 of the HRA.
38. [38]
    I have considered XA’s human rights to recognition and equality before the law including a right to equal and effective protection against discrimination^[12] and the right to a fair hearing.^[13] All XA’s rights under the AD Act remain available to him. He is able to pursue the Complaint without the benefit of the interim order. XA has been given a full opportunity to make submissions to this Tribunal with respect to the interim order. No final determination of his rights has been made. In these circumstances, I do not consider that refusal of an interim order will result in a limitation of XA’s human rights, nor do I consider that such a decision is incompatible with human rights.

Order

39. [39]
    The application for an interim order is refused.