Australian Christian College Moreton Ltd & Anor v Taniela [2022] QCATA 118

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Australian Christian College Moreton Ltd & Anor v Taniela [2022] QCATA 118 PARTIES: AUSTRALIAN CHRISTIAN COLLEGE MORETON LIMITED GARY UNDERWOOD (applicants/appellants) v WENDY TANIELA (ON BEHALF OF CYRUS TANIELA) (respondent) APPLICATION NO/S: APL229-20 ORIGINATING APPLICATION NO/S: ADL010-20 MATTER TYPE: Appeals DELIVERED ON: 9 August 2022 HEARING DATE: 14 September 2021 HEARD AT: Brisbane DECISION OF: Senior Member Howard, Presiding Member Member Fitzpatrick ORDERS: The application for leave to appeal is granted in respect of ground 4 of the appeal. The appeal is allowed on grounds 2, 3 and 4. The orders made by the Queensland Civil and Administrative Tribunal on 10 July 2020 are confirmed. CATCHWORDS: APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION - where respondent of Cook Island race – where custom of Cook Island race to cut first born son’s hair at a hair-cutting ceremony to signify coming of age – where respondents’ parents want first born son to undergo hair-cutting ceremony at age seven – where school board notified complainant that it would unenroll him unless he cut his hair by second semester 2020 – where Tribunal below determined the school and its principal had directly and indirectly discriminated against the boy on the basis of -- 1 of 20 -- 2 race – where school and principal filed an application for leave to appeal or appeal alleging errors of law and errors of fact – whether Tribunal formulated the correct comparator – whether Tribunal applied the correct test for direct discrimination – whether respondent could comply with a requirement to cut his hair before 2 nd semester of 2020 consistent with cultural practice – whether the term imposed under the uniform policy was reasonable – where leave to appeal granted – where no direct discrimination – where indirect discrimination - where Tribunal decision confirmed Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 147, s 146 Anti-Discrimination Act 1991 (Qld) (the AD Act) s 7, s 8, s 10, s 11, s 39 Catholic Education Office v Clarke [2004] FCAFC 197 Dovedeen Pty Ltd & Anor v GK [2013] QCA 116 House v The King (1936) 55 CLR 499, 505 Lyons v State of Queensland [2015] QCA 159 Lyons v State of Queensland [2016] 2 Qd R 41 Mandla v Dowell Lee [1983] 2 AC 548 Petrak v Griffith University & Ors [2020] QCAT 351 Pickering v McArthur [2005] QCA 294 Purvis v New South Wales (2003) 217 CLR 92 Tafao v State of Queensland & Ors [2018] QCAT 409 Vale v State of Queensland & Ors [2019] QCAT 290 Waters v Public Transport Commission (1991) 173 CLR 349 Woodforth [2017] QCA 100 Woodforth v State of Queensland [2018] 1 Qd R 289 APPEARANCES & REPRESENTATION: Applicant: Mr C Murdoch QC, instructed by Corney & Lind, solicitors Respondent: Dr C McGrath of Counsel, instructed by Caxton Legal Centre REASONS FOR DECISION Background [1] Cyrus Taniela is a young boy of Cook Islander and Niuean descent. It is a tradition or cultural practice associated with Cook Island/Niuean culture for the eldest son to undergo a hair-cutting ceremony at a time of choosing of the parents, and at the right time for the child. The ceremony generally occurs between the age the boy is about to start school until around 10 years of age. In accordance with the tradition, Cyrus’ hair was not cut since birth. -- 2 of 20 -- 3 [2] At 5 years of age, Cyrus commenced school at the Australian Christian College – Moreton Ltd (the school) in 2020. Shortly afterwards, Cyrus’ mother was informed that his hair was in breach of the school uniform policy, and subsequently that he must cut his hair by second semester 2020 or be ‘unenrolled’ from the school. The school’s uniform policy relevantly provided that ‘Boys’ hair is to be neat, tidy, above the collar and must not hang over the face. Extreme styles, ponytails and buns are not permitted.’ [3] Cyrus’ mother Wendy Taniela made a complaint that Cyrus had been discriminated against by the school and its principal, Mr Underwood. The complaint was referred to the Tribunal. The Tribunal found that the school and its principal had directly and indirectly discriminated against Cyrus on the basis of race in breach of s 39 of the Anti-Discrimination Act 1991 (Qld) (the AD Act). Section 39 provides that an educational authority must not discriminate, relevantly, by excluding a student or by treating a student unfavourably in any way in connection with their training or instruction. [4] The Tribunal made orders dated 10 July 2020 in the following terms: 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. [5] The school and the principal (collectively referred to hereafter in these reasons for decision as ‘the school’) filed an application for leave to appeal or appeal the Tribunal’s decision. [6] For the reasons set out below leave to appeal is allowed in respect of ground of appeal 4 and the appeal is allowed on grounds 2,3 and 4. However, the decision of the Tribunal is confirmed. The grounds of appeal and the procedure on appeal [7] Six grounds of appeal were advanced by the school however at the oral hearing, the school advised that the first ground of appeal was abandoned. Grounds 2, 3, and 4 allege errors of law and errors of fact by the Tribunal in deciding the direct discrimination claim. Grounds 4 and 5 allege errors of law and/or fact by the Tribunal in deciding the claim of indirect discrimination. The grounds are expressed in lengthy terms. They are set out later. [8] In deciding an appeal on a question of law alone, the appeal tribunal must proceed pursuant to s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Such an appeal is an appeal in the strict sense. Leave to appeal is required in respect of alleged errors of mixed law and fact and errors of fact. If leave is granted, the appeal must be determined pursuant to s 147 of the QCAT Act, by way of rehearing. Leave will usually only be granted where there is a reasonable argument -- 3 of 20 -- 4 that there is error to be corrected and an appeal is necessary to correct a substantial injustice.1 Relevant provisions of the AD Act [9] It is useful to here set out the relevant provisions of the AD Act. [10] Section 7 prohibits discrimination on the basis of specified attributes, including in s 7(g) - race. [11] Section 8 provides an extension to a specified attribute, in the following terms: 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. [12] Direct discrimination is provided for in s 10 in the following terms: 10 Meaning of direct discrimination (1) 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. (2) It is not necessary that the person who discriminates considers the treatment is less favourable. (3) The person’s motive for discriminating is irrelevant. (4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. (5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant. [13] Indirect discrimination is provided for in s 11, in the following terms: 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 1 Pickering v McArthur [2005] QCA 294, [3]. -- 4 of 20 -- 5 (b) with which a higher proportion of people without the attribute comply or are able to comply; and (c) that is not reasonable. (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. [14] Discrimination is prohibited in the area of education in respect of students as follows: 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. The Tribunal’s decision [15] It is useful to set out key aspects of the Tribunal’s decision before turning to the grounds of appeal. Statutory Framework [16] The Tribunal set out and discussed provisions in the AD Act. [17] The Tribunal referred to the purposes of the AD Act as including the promotion of equality of opportunity for all by protecting them from unfair discrimination in certain areas of activity, in particular in the provision of education. The Tribunal observed that the AD Act is beneficial and remedial legislation which should generally be given a liberal interpretation, 2 The Tribunal identified grounds upon which it is unlawful to discriminate, including those raised in the proceeding, namely, ‘race’ and ‘sex.’3 [18] The Tribunal referred to s8 of the AD Act as prohibiting discrimination on the basis of a characteristic a person has because of their attribute, 4 noting that discrimination 2 Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249 Reasons for decision (RFD) [32]-[33]. 3 RFD [34]. 4 RFD [35] -- 5 of 20 -- 6 can be direct or indirect.5 The Tribunal stated that direct discrimination is treatment that on its face is less favourable, whereas indirect discrimination would occur when the treatment was on its face neutral but has an adverse impact on a person with the attribute when compared to someone without the attribute.6 [19] In discussing direct discrimination and s 10 of the AD Act, the Tribunal said: [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 [sic] in “circumstances that are the same or not materially different”. If the comparison shows that the person with the impairment [sic] was treated less favourably, the further question must be asked as to whether the impairment [sic] was the “basis” for the less favourable treatment. [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. Nor is a person’s motive for discriminating relevant. [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. Footnotes omitted. [20] In discussing indirect discrimination and s 11 of the AD Act, the Tribunal said: [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. Footnotes omitted. [21] The Tribunal then stated that s39 relevantly makes unlawful in the circumstances provided for, acts amounting to discrimination within s10 and s 11. Findings [22] The Tribunal accepted the evidence of Cyrus’ parents and found their choice of timing for the ceremony is substantially and genuinely motivated by and to further the culture 5 RFD [36]. 6 Ibid. -- 6 of 20 -- 7 they seek to practise.7 The Tribunal found that discrimination on the basis of an attribute pursuant to s 8 of the AD Act includes discriminating on the basis of the characteristic of an attribute. Discriminating on the basis of race includes discrimination on the basis of features of the race, ‘which includes the shared cultural practices, traditions, customs and characteristics of the race.’8 The Tribunal found the cultural practice of the hair-cutting ceremony, and its timing is a characteristic or characteristics of the attribute of race in the circumstances.9 [23] The Tribunal found that the school’s treatment or proposed treatment of Cyrus resulted because he would not comply with the uniform policy by having his hair cut. Further, the Tribunal found that Cyrus would not have his hair cut because his parents elected when he ‘should have the hair-cutting ceremony, that being in September 2021 and not earlier.’10 the Tribunal further found that the threat to unenroll Cyrus amounted to ‘excluding’ him within the meaning of s 39 of the AD Act; or alternatively, treating him unfavourably in connection with his training or instruction; or limiting or denying him access to a benefit of enrolment.11 Direct discrimination [24] The Tribunal found the school directly discriminated against Cyrus on the basis of race.12 [25] The Tribunal found the relevant comparator is ‘a boy whose racial customs or beliefs are not compromised by the uniform policy as applied by the respondents.’13 In doing so, it rejected the respondents’ submissions about the relevant circumstances for the comparison exercise required by s 10. The Tribunal said as follows: [98] 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 s10, the applicant argued that non-compliance with the policy was not a circumstance the Tribunal could take into account for the purposes of s10 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 that 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. [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 7 RFD [86]. 8 RFD [87]. 9 RFD [87]. 10 RFD [89]. 11 RFD [91]. 12 RFD [105]. 13 RFD [97] -- 7 of 20 -- 8 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: [sic] 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, 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. Footnotes omitted. Indirect discrimination [26] The Tribunal observed that for s 11, a term must be imposed which a person with an attribute ‘does not or is not able to comply.’14 It found as a matter of fact that the term imposed was, as submitted by Ms Taniela, that ‘under the uniform policy, boys must not wear buns or their hair long, tucked up braids or alternatively, the requirement 14 RFD [106]. -- 8 of 20 -- 9 imposed … that Cyrus cut his hair or be unenrolled.’15 The Tribunal found these requirements were imposed even although adherence to the uniform policy was a condition of enrolment. [27] The Tribunal rejected the respondent’s argument that Cyrus did not have to be any particular age for the ceremony, and he could comply by second semester 2020. It considered the ‘timing of the ceremony was a matter for Cyrus parents and was an integral part of the hair-cutting ceremony,’16 with the effect that he could not, in keeping with customs and cultural practices of his race, comply with the requirements by that time. [28] In considering the reasonableness of the term, the Tribunal referred to Catholic Education Office v Clarke,17 in which it was held that the test of reasonableness is objective and requires a weighing of the nature and extent of the discriminatory effect, against the reasons for the requirement.18 The Tribunal adopted that approach.19 It considered the effect would be to exclude a young boy from the school because of his and his family’s genuine beliefs and cultural practices, which it found would cause him significant and immediate emotional distress.20 [29] The Tribunal referred to the school’s arguments that the policy was known or knowable by the family when Cyrus joined the school, and it seeks to promote equality and uniformity through its uniform policy, as a means to ensure the school population is ‘disciplined, rule-abiding, well-presented and unified.’21 Further, that it was concerned that a precedent might lead to pressure for relaxation of the underlying principles.22 [30] After the weighing exercise, the Tribunal concluded that the school had not demonstrated that the imposition of the term was reasonable.23 It found there was likely significant impact on Cyrus if excluded. While acknowledging the potential for adverse impact on discipline, the Tribunal was not satisfied that permitting Cyrus to attend school with long hair is likely to cause significant detriment if the reasons for allowing it are properly explained.24 While accepting knowledge, or capacity to know, of the rule may be relevant to reasonableness, ‘it did not prevent …the application of the Act.’25 The Tribunal accepted the importance of uniform policies, but did not consider it reasonable to apply them rigidly without exception when required for reasons of race because exceptions have been imposed by the AD Act.26 [31] The Tribunal found the term was not reasonable, and there had been indirect discrimination on the basis of race.27 15 RFD [107] as accepted in [108]. 16 RFD [110]-[111] 17 [2004] FCAFC 197 referred to at RFD [115]. 18 Ibid. 19 RFD [116]. 20 RFD [117]-[119]. 21 RFD [120]. 22 RFD [122] 23 RFD [123]. 24 RFD [124], [125]. 25 RFD [126]. 26 RFD [127]. 27 RFD [129]-[130]. -- 9 of 20 -- 10 [32] Both the school and its principal were found liable for the contravention of s 39. [33] Other aspects of the Tribunal’s decision are not discussed here as they are not the subject of this appeal. [34] We turn to consider the grounds of appeal. Ground of appeal 2: did the tribunal err in law in finding that because the attribute for the purposes of s 10 of the AD Act included the characteristic of having long hair until the hair-cutting ceremony, the relevant circumstances could not include non-compliance with the uniform policy, where non- compliance with the uniform policy was not a characteristic of Cyrus’ race (but only a consequence of the characteristic)? Ground of appeal 3: did the Tribunal err in law in failing to consider, in applying the test for direct discrimination under s 10 of the AD Act, whether race was the basis for any less favourable treatment? Ground of appeal 4: did the Tribunal err in fact by failing to find, in applying the test for direct discrimination under s 10 of the AD Act, that non-compliance with the school uniform policy was the basis for any less favourable treatment, as opposed to race? [35] It is convenient to deal with grounds 2, 3 and 4 together as the issues raised are closely connected. The error in ground 2 is alleged to be made in paragraphs [97] to [103] of the Tribunal’s reasons for decision set out earlier in this decision. The error in grounds 3 and 4 is alleged to be made in each case in paragraphs [92] to [105] of the Tribunal’s reasons. Ground 2 [36] We consider that the alleged error as set out in ground 2 involves an alleged error of law, although on an alternative analysis may also involve an error of fact. [37] Insofar as leave to appeal may be required, if necessary, we would grant leave on the basis that an important question arises for determination as to how the comparator for the purposes of s10 of the AD Act is formulated. As will become evident from our reasons, if it is necessary, we would also grant leave in order to correct an error in the Tribunal below. [38] The school accepts that a first-born son of Cook Islander/Niuean culture would have, as part of the attribute of race, a characteristic of not cutting his hair until a hair-cutting ceremony had occurred. It submits the comparator was a person who did not have the cultural attribute of not cutting his hair, but whose circumstances are otherwise the same as Cyrus’ circumstances. It submits the circumstances must include non- compliance with the uniform policy. It argues that otherwise the circumstances are different. Relying on Lyons v State of Queensland, 28 it contends that to posit a comparator which disregards the circumstances in which the subject treatment occurred is meaningless. It argues that the Tribunal misconceived the extent of the attribute and that the consequence of non-compliance with the policy ought to have been part of the circumstances. 28 [2016] 2 Qd R 41, [39]. -- 10 of 20 -- 11 [39] Further, the school submits that non-compliance with the school uniform policy was not a characteristic of Cyrus’ race, and that race is disconnected to Cyrus’ non- compliance with the uniform policy. Rather, any male who had hair in a bun would not have complied with the school uniform policy and would have been treated as Cyrus was treated. The school submits that the uniform policy may be contravened without any connection to cultural practices. [40] Accordingly, it contends that non-compliance with the uniform policy was part of the circumstances for comparing Cyrus and a person without his attribute for the purposes of s 10 of the AD Act. In making this submission, it submits Cyrus’ case is distinguishable from Woodforth v State of Queensland. 29 It submits that, had the comparator (a boy who had his hair in a bun/or otherwise did not comply with the uniform policy) and the circumstances (non-compliance with the uniform policy) been properly identified, the direct discrimination claim would be rejected, as the treatment would have been identical. [41] Ms Taniela submits that the Tribunal was correct in finding that the relevant circumstances could not include non-compliance with the school uniform policy, because to do so would circumvent the purpose of s 8 of the AD Act. She says that Lyons cannot be relied upon here to permit all of the surrounding circumstances to be included in defining the comparator and, in essence, that it is impermissible to incorporate the uniform policy into the circumstances in the same manner as a legislative requirement was relevant in Lyons. It submits that the more recent decision in Woodforth is apposite. It was held there that s 8 was important in finding the circumstances under s 10 of the AD Act as to the treatment or proposed treatment of the subject person and the comparator.30 Ms Taniela submits that the Tribunal properly addressed the issue at paragraphs [94]-[103]. [42] Further, Ms Taniela argues that the HR Act 2019, which took effect from 1 January 2020 was not considered in either Lyons or Woodforth, and makes particular human rights a relevant consideration in interpreting the AD Act. In particular, she refers to s 15(2); 15(4); s 26(2) and s 27 of the HR Act. [43] In response, the school submits that Ms Taniela’s HR Act submissions do not undermine its arguments. We accept the school’s submission and conclude that Ms Taniela’s arguments relating to the HR Act do not assist and do not consider them further. [44] Further, it submits that Ms Taniela fails to respond to its contention that non- compliance with the uniform policy is not a characteristic of Cyrus’ race, because it may be contravened without any connection to his cultural practices. [45] As can be seen from the Tribunal’s reasons for decision, the arguments advanced by the school in support of this ground of appeal are essentially as argued unsuccessfully by the school before the Tribunal below. [46] Arriving at the correct comparator for the purpose of applying s10 of the AD Act is difficult. A comparator is fundamental to any determination as to whether direct discrimination has occurred. How the comparator is framed will impact on the success or otherwise of a claim. 29 [2018] 1 Qd R 289, [53]. 30 Ibid, [53], [57]. -- 11 of 20 -- 12 [47] How a comparator may be framed was recently considered by the Queensland Court of Appeal in Woodforth’s case. The case is clear that not only an attribute, but also a characteristic of an attribute as referred to in s8 of the AD Act must be considered when deciding whether a person has been treated “less favourably than another person without the attribute”. [48] Woodforth’s case is less clear about how the “circumstances that are the same or not materially different” are to be described. We do not think Woodforth goes so far as to overturn previous Court of Appeal decisions including Dovedeen Pty Ltd & Anor v GK31 and Lyons v State of Queensland32 in relation to the way in which the “circumstances” are arrived at. The Court of Appeal found in the Dovedeen and Lyons’ cases that the circumstances include ‘all of the objective features which surround the actual or intended treatment’ of the person claiming to be discriminated against. The Court of Appeal has followed the plurality in the High Court decision of Purvis v New South Wales.33 [49] With respect, we consider it an incorrect application of Woodforth to find that if treatment of a complainant occurred in response to a characteristic, then the circumstances of that treatment must be excluded from the description of the “circumstances”. In Woodforth the treatment of the complainant arose from the response of the police to a complaint of criminal conduct. McMurdo JA said that the ‘complication’ did not exist in Woodforth where, as in Purvis, the treatment was a response to the student’s behaviour, which is also an incident of his disability.34 [50] That analysis of Woodforth was made in Tafao v State of Queensland & Ors35 not altered on appeal, and in Vale v State of Queensland & Ors.36 [51] The Tribunal said in Vale’s case: The circumstances referred to in s10 are all of the objective features which surround the actual or intended treatment of the impaired person by the person alleged to be the discriminator. These may include certain consequences of possessing a particular characteristic of an attribute if the impugned treatment occurred in response to an occurrence that resulted from a characteristic of an attribute. If this was not the case, the whole purpose of undertaking a comparison would be lost.37 [52] After those decisions, the Tribunal further considered how to arrive at a comparator in Petrak v Griffith University & Ors.38 The Tribunal arrived at a result compatible with the cases we have been discussing. However, the Tribunal followed a somewhat different methodology, namely: 31 [2013] QCA 116, [27], [30], [31]. 32 [2015] QCA 159, [39]. 33 (2003) 217 CLR 92, 161 [224] (Gummow, Hayne and Heydon JJ). 34 Woodforth [2017] QCA 100, [54]. 35 [2018] QCAT 409. 36 [2019] QCAT 290, [51], [52]. 37 Ibid., [52]. The reasoning is consistent with the statement of Holmes JA in Lyons v State of Queensland [2015] QCA 159, [39] that: ‘to posit a comparator with no further qualification than a desire to perform jury service is meaningless; it is to disregard the circumstances in which the relevant treatment of the applicant occurred.’ 38 [2020] QCAT 351. -- 12 of 20 -- 13 (a) the first step is to make findings of fact including why a person was treated less favourably; (b) relevantly, was the complainant treated unfavourably because of an attribute or section 8 characteristic of that attribute? The exact circumstances which are material to the construction of the comparator to enable that question to be answered may turn on findings of fact; and (c) did a respondent’s explanation for the complainant’s treatment exclude an attribute and any characteristic? Is that accepted? If so the circumstances of the treatment may be included in the description of the circumstances said to be the same or not materially different for the purpose of the comparator.39 [53] The Tribunal in Petrak’s case noted that the approach it adopted is not inconsistent with Purvis. [54] Following the reasoning in Purvis, Dovedeen and Lyons, the evidence before the Tribunal below was that Cyrus was threatened with unenrolment because he would not comply with the uniform policy. The threat of unenrolment because of non- compliance with the uniform policy can be seen as a response to Cyrus’ attribute of race and the characteristic of long hair which will not be cut until his parents decide to do so. Non-compliance with the uniform policy is part of the objective circumstances surrounding Cyrus’ treatment. Consistent with Purvis, Dovedeen and Lyons, this means that non-compliance with the uniform policy should form part of that description of the comparator, which relates to the circumstances which are the same or not materially different from those of Cyrus. [55] Ms Taniela argues that non-compliance with the uniform policy is a characteristic of Cyrus’ attribute of race and that it must be excluded for the purpose of the comparison with another person without the attribute. We do not think, as submitted by Ms Taniela, that it is impermissible to incorporate non-compliance with the uniform policy into the surrounding circumstances. [56] We accept the submission of the school that non-compliance with the uniform policy is not a characteristic of Cyrus’ race and that it may be contravened without any connection to Cyrus’ cultural practices. [57] We accept the submissions of the school that the correctly identified comparator is a boy who had his hair in a bun/or otherwise did not comply with the uniform policy and the circumstances are non-compliance with the uniform policy. [58] We are satisfied that the reasoning of Purvis, Dovedeen and Lyons as to the way in which the surrounding circumstances are arrived at, is the appropriate approach in this case and that is the approach we have followed. [59] However, for completeness, we note that there is an alternative analysis, as used in Petrak’s case, which involves a determination of a question of fact. If that reasoning is adopted, we would accept the unchallenged evidence of the school that the real reason for Cyrus treatment was non-compliance with the uniform policy.40 The result is that the comparator is a boy who had his hair in a bun for reasons other than race 39 Ibid., [48] – [50]. 40 First Affidavit of Mr Underwood at [43]; Affidavit of Mr Fyfe at [21]. -- 13 of 20 -- 14 and cultural practice and the circumstances are the real reason for the treatment, namely non-compliance with the uniform policy. Grounds 3 and 4 [60] We turn to the parties’ submissions in relation to whether discrimination was “on the basis of an attribute”. [61] The school submits that, although the Tribunal said correctly at [39] that if the comparison shows the person with the attribute was treated less favourably, the further question must be asked whether the attribute was the basis for the less favourable treatment. The school submits the Tribunal did not then consider whether race was the basis for any less favourable treatment. It argues that there was no analysis of the basis for the less favourable treatment performed by the Tribunal despite its acknowledgment at [40] that it was necessary to ask ‘why’ the aggrieved person was treated as they were. If the analysis had been undertaken, the school says that it was obvious that Cyrus was treated differently because of his non-compliance with the uniform policy. [62] It submits that, if the Tribunal had made the requisite comparison, the Tribunal would have found on the evidence that the reason for Cyrus’ treatment was his non- compliance with the school uniform policy, not his race. That is, the ‘true basis’ would have been identified as not race, and the direct discrimination argument would have failed. [63] Ms Taniela submits that the uniform policy is an internal document created and administered by the school in respect of which an exemption could have been granted to Cyrus, and the uniform policy was not the basis for the treatment. She submits that, in arguing that the reason for the treatment was Cyrus’ non-compliance with the school uniform policy rather than race, the school conflates the motive for the treatment (namely, enforcement of the uniform policy because of concerns about behavioural management and the school’s reputation) with the actual basis under the AD Act. That is, Cyrus’ race. She submits that although the school adopted a uniform policy, as the Tribunal found, the treatment in proposing to exclude Cyrus was referrable to his attribute. [64] We accept the school’s submissions. We do not accept Ms Taniela’s submissions on the basis of the evidence given, which was unchallenged, that non-compliance with the uniform policy was the reason for Cyrus’ treatment. [65] We find that an error of law occurred in the Tribunal below in its formulation of the comparator whereby the Tribunal excluded non-compliance with the uniform policy from the circumstances said to be the same or not materially different from those in which Cyrus found himself. [66] We find that there has been an error of law in applying the test for direct discrimination under s10 of the AD Act, by the Tribunal failing to consider whether race was the basis for any less favourable treatment. [67] We find that there has been an error of fact by the Tribunal failing to find, in applying the test for direct discrimination under s 10 of the AD Act, that non-compliance with the school uniform policy was the basis for any less favourable treatment, as opposed -- 14 of 20 -- 15 to race. Insofar as leave to appeal is required, leave is granted in order to correct an error in the Tribunal below. [68] We conclude that once the comparator is correctly formulated, there can be no finding of direct discrimination on the basis of the evidence, which is accepted, that the comparator would have been treated in the same way as Cyrus and that there has been no directly discriminatory treatment. [69] We make the observation that the analysis in Petrak’s case deals with that part of the test in s10 of the AD Act which relates to discrimination “on the basis of an attribute” as part of the description of the comparator and the surrounding circumstances. [70] To that extent following the reasoning in Petrak addresses the issues raised in appeal grounds 3 and 4. Ground of appeal 5: did the Tribunal err in law, or in the alternative in fact, in finding that Cyrus could not comply with the requirement to have his hair cut before his 7 th birthday in circumstances that the hair-cutting ceremony was a matter of choice for the parents, and could have occurred consistent with cultural practice, prior to Cyrus attending school or the time of lodgement of the complaint? [71] The error is alleged to be made in paragraphs [111]-[112] of the Tribunal’s decision. They are set out as follows: [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’ 7th 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. [72] The school submits that in considering whether there had been indirect discrimination, the Tribunal had to consider whether the school imposed a term with which Cyrus did not or was not able to comply. It found that he could not, consistently with the customs and cultural practices of his race, comply with a requirement to cut his hair before 2nd semester of 2020. The Tribunal found he could not do so, because the timing of the ceremony was a matter for his parents and that was integral to the hair-cutting ceremony. The school argues that, therefore, he could not comply because of a decision made by his parents as to the timing, not because of the cultural requirement for the hair-cutting ceremony. Further, even if the timing was to be decided by his parents as part of the cultural practice, it did not follow that Cyrus could not comply with the requirement to cut his hair for second semester 2020. [73] Relying on Hurst v State of Queensland,41 the school submits that in considering whether a person is ‘not able to comply’ with a term, it is not required that there be ‘no difficulty, disruption or inconvenience’42 in order to do so: the question is whether serious disadvantage would be suffered by complying. It argues that it was possible for Cyrus to comply, consistent with Cyrus’ cultural practices, without serious 41 (2006) 151 562, [134]. 42 The School’s submissions filed 23 November 2020, [39]. -- 15 of 20 -- 16 disadvantage. Ms Taniela could have arranged for the hair-cutting ceremony to occur prior to Cyrus starting school, at any time after late 2018 when the school uniform policy was knowable by her. The school says this is so having regard to the considerable flexibility in the age when the ceremony occurs – between 4 or 5, to 21, noting that the parents conceded they could have decided to hold it before or after his 7 th birthday; and that the evidence did not establish that an extensive time frame was necessary to organise the ceremony. [74] The school contends that, instead of considering these matters, the Tribunal misdirected itself in focussing on Cyrus’ parents plan to have the ceremony around his 7th birthday, which was a matter of their choice, not an inability to comply. [75] Ms Taniela relies upon Mandla v Dowell Lee,43 as did the Tribunal, to argue that ‘can comply’ is to be interpreted to mean ‘can consistently with the customs and cultural conditions’ of the race, comply. Further, she argues that Hurst, which concerned discrimination on the basis of disability, does not establish the wider principle contended for by the school, but that even if it did, the circumstances of direct and indirect discrimination based on race and culture are different. It says that as the Tribunal found, the question was whether Cyrus could comply with the uniform policy consistently with his race. He could not do so consistently with the cultural traditions of his race. [76] She submits the Tribunal did consider the reasonableness of the term by reference to Catholic Education v Clarke, having regard to the unchallenged evidence of the parents, Mr Atiau, and Ms Toka regarding the importance of the hair-cutting ceremony and the impact on Cyrus. [77] Mr Atieu and Ms Toka, as well as the parents, gave evidence that the hair-cutting ceremony occurs at the time the parents decide is the right time for the child. The Tribunal referred to Ms Toka deposing to the planning taking a couple of years.44 It rejected the school’s contention that the timing is related to considerations of cost and convenience rather than the practice itself.45 It accepted that under the Cook Islands/Niuean culture, the timing of the hair-cutting ceremony is a matter for the parents.46 [78] We consider the school’s contention that the evidence did not establish that an extensive time was necessary to organise the ceremony is not made out. In cross- examination, Ms Toka gave evidence to the effect that although she and her husband had decided the timing of the hair-cutting ceremony when her own son was a baby, she brought it forward by 8 or 9 months on her father’s request, because her father was very unwell.47 She did so, even though she didn’t think it was the right time for her son to have the ceremony. He was 4 or 5 when the ceremony occurred. Further, although the parents had been planning on it since his birth, organising the ceremony itself, that is booking a venue was done six months before the ceremony and family 43 [1983] 2 AC 548, 565-566. 44 RFD [79] and Appeal Book, Ms Toka’s affidavit at pp568-574, at 571, paras 21-23. 45 RFD [86]. 46 RFD [86]. 47 Transcript of hearing, I-42. -- 16 of 20 -- 17 were advised of the date at that stage.48 Then about 3 months before the ceremony, invitations were sent out.49 [79] Cyrus’ parents’ evidence was to the effect that they had decided when he was born to hold the ceremony around his 7th birthday. They had not booked a venue at the time of the hearing and Ms Taniela asserted it would cost about $10,000. 50 She said that more than a couple of months’ notice would need to be given to family members.51 Mr Taniela conceded the parents could decide to have the ceremony earlier than age 7 ‘if the finance was there,’52 but also, that they had not made a booking and did not know what the cost may be for a hall where it was intended to be held.53 [80] Mr Atieu is an expert on Cook Island culture, and the school accepted his expertise. Although Ms Toka gave evidence that in circumstances of her son, the ceremony was brought forward in light of her father’s extreme ill-health on short notice, the independent expert was clear that the ceremony was to occur at the time considered to be the right time by the parents. This was consistent with the evidence of relevant others. The evidence was also to the effect that planning and preparations for the ceremony begin at birth. While it may be that in circumstances of Ms Toka’s father’s illness, a ceremony was able to be organised in a six month time frame, her evidence was that she did not consider it the right time for her son. Based on the evidence, this was not in keeping with the cultural tradition. [81] Hurst v State of Queensland concerned a profoundly deaf child who used sign language in Auslan, but the respondent required that she be taught in signed English without the assistance of an Auslan interpreter. The Full Court of the Federal Court held that in considering whether she was ‘not able to comply’ the real issue was whether the student would suffer serious disadvantage by reason of the requirement or condition imposed. The Court stressed that the case was not a test case; was highly fact-specific; reflects the manner in which the case was conducted; and turned on a narrow question of construction.54 We accept as Ms Taniela argues, that it should not be relied upon as establishing broad matters of principle. We do not consider the Tribunal erred in relying upon Mandla v Dowell Lee as to the general principles to be applied. [82] Further, as set out, the Tribunal found the timing was a matter for Cyrus’ parents and that was integral to the ceremony. Because it was to be held around his 7th birthday, he could not comply with the requirement to have his hair cut earlier and therefore, could not, consistently with the cultural practices of his racial group, comply with the requirement imposed to cut it before semester 2 of 2020. [83] We do not consider an error of law or an error of fact is demonstrated. There is sufficient evidence on which to base a reasonable conclusion that having his hair cut at a time his parents thought appropriate was part of Cyrus’ cultural practice. Leave to appeal is refused. 48 Transcript I – 43. 49 Transcript I-44. 50 Transcript I-20. 51 Transcript I-21. 52 Transcript I 31. 53 Transcript I-32. 54 [2006] FCAFC 100, [131]-[133]. -- 17 of 20 -- 18 Ground of appeal 6: did the Tribunal err in fact in finding that the term imposed under the uniform policy was not reasonable in circumstances where: (i) The appellants presented unchallenged evidence of the deleterious effect on the school of not enforcing its uniform policy; (ii) The uniform policy was knowable to Ms Taniela prior to enrolling Cyrus; and (iii) Any non-compliance was able to be remedied by holding a hair- cutting ceremony at an earlier time. [84] The error is alleged to be made in paragraph [129] of the Tribunal’s reasons for decision. [85] The term found by the Tribunal to have been applied by the school was that ‘under the uniform policy, boys must not wear buns or their hair long, tucked up in braids or, alternatively, the requirement imposed by the school’s conduct that Cyrus cut his hair or be unenrolled.’55 [86] The school contends that the Tribunal erred in finding the term was not reasonable, and that indirect discrimination occurred. In this regard, it submits that Ms Taniela knew or ought reasonably to know of the uniform policy before Cyrus’ enrolment, giving the opportunity for compliance, such that any negative effect was caused by Cyrus’ parents’ decision as to the timing of the ceremony, rather than the policy. Secondly, it says that Ms Taniela in enrolling Cyrus agreed to comply with the school’s policies. Thirdly it argues that the policy is a means for ensuring the school population is disciplined, well-presented and unified. Fourthly, the school is entitled to set rules and standards of appearance and parents have a choice whether to enrol their children or not. Lastly, there is flexibility in when the hair-cutting ceremony can occur. The policy does not thwart any racial or cultural practice. The Tribunal failed to have regard to the flexibility which exists as to when the ceremony can occur. [87] Noting that discretionary decisions are difficult to disturb,56 Ms Taniela says the school seeks to reargue the case it made at first instance and that the learned Member weighed the relevant considerations about what was reasonable. It says that the Tribunal’s finding is rationally supported by the evidence; there is no error in the Tribunal’s exercise of its discretion in making this finding; and the Tribunal did not act on a wrong principle. [88] The school contends that it seeks leave to appeal on a question of fact, that is, the cultural practice enabled the parents to make a decision to hold the hair-cutting ceremony at an earlier time, so as to comply. [89] In considering reasonableness, the Tribunal set out the matters relevant to the reasonableness of the term as explained in Catholic Education v Clarke57 namely, the objective nature of the test, and the requirement to weigh all relevant factors in weighing the nature and extent of the discriminatory effect against the reasons for the requirement. 55 RFD [107]-[108]. 56 House v The King (1936) 55 CLR 499, 505. 57 [2004] FCAFC 197. -- 18 of 20 -- 19 [90] The Tribunal referred to Mr Atieu’s evidence that if Cyrus was forced to have his hair cut earlier without a ceremony, it would cause him to feel disconformity with his cultural heritage. It noted that excluding Cyrus from the school for his cultural practices would be a harsh outcome that may potentially cause immediate and significant and emotional distress and embarrassment, and long-lasting effects on his perception of his place in community. [91] The Tribunal accepted relaxation of the uniform rule may result in further pressure on the underpinning principles for the uniform policy. However, the Tribunal concluded that the school had not discharged the onus of establishing that the imposition of the term is reasonable. Further, the evidence of the school concerning the potential of loss of discipline was not extensive. In any event, it considered the school could explain that the particular circumstances turn on the protected attribute in the AD Act, so that it is unlikely to lead to material adverse consequences for school discipline. While acknowledging the requirement was known or capable of being known to Cyrus and his family before he enrolled, it said that factor may be relevant to reasonableness, but did not prevent the application of the AD Act. It considered it not reasonable for policies to be applied inflexibly where exception was ‘required for reasons based on race’, based on the AD Act. [92] As discussed, the evidence did establish flexibility as to the timing of the hair-cutting ceremony. The Tribunal considered only Mr Atiau’s evidence about the effects of Cyrus’ hair being cut without having a ceremony. It did not, perhaps surprisingly, discuss the requirement to have his hair cutting ceremony before semester 2 of 2020, in effect to bring it forward from the planned timing chosen by his parents around the time he was born, to accommodate the date nominated by the school. [93] Given that the Tribunal hearing occurred on 22 June 2020, it appears that it was, based on the evidence, (and we would suggest, reasonably) inferred by the Tribunal that a ceremony could not be organised in time. Semester 2 would commence only a matter of some two to three weeks after the hearing. Therefore, if Cyrus’ hair was to be cut by then, it would be without a ceremony. The Tribunal could have made its reasons clearer on this point, but given the imminence of the date imposed, we do not consider that the failure to discuss whether the ceremony could be arranged in time to comply by semester 2 2020, has the effect of establishing material error in the exercise of its discretion. [94] The Tribunal weighed the relevant considerations. Although the school’s evidence of potential effect on discipline was not challenged, the Tribunal considered it was ‘not extensive’, and raised no more than the potential for adverse effects, which it found could be overcome. The Tribunal found that while the uniform policy was at least knowable by Ms Taniela prior to enrolling Cyrus, and that ‘may be relevant to reasonableness, but it does not prevent…. the application of the Act.’58 Further, the Tribunal considered, the policy could not be applied without exception and requiring compliance failed to acknowledge the protections afforded by the AD Act.59 [95] In our view, no material error in the exercise of the Tribunal’s discretion is demonstrated. It was open on the evidence for a finding of indirect discrimination to be made. If it was necessary, leave to appeal is refused. 58 RFD [126]. 59 RFD [127]-[128]. -- 19 of 20 -- 20 Disposition and Orders [96] For the reasons explained the appeal is allowed with respect to appeal grounds 2, 3 and 4. However, the appeal is refused with respect to appeal grounds 5 and 6. [97] The Orders made by the Tribunal on 10 July 2020 are confirmed. -- 20 of 20 --