The law is dynamic, constantly evolving to reflect shifting societal values and beliefs. This notion is particularly evident in the field Anti-Discrimination, which continues to develop in response to the growing expectation that the legal system will fiercely protect individual rights. For educational institutions, who are charged with providing learning environments free from discrimination and vilification, this shifting landscape can create many pitfalls in formulating and revising policies and procedures.

These difficulties are highlighted in the recent decision of the Queensland Civil and Administrative Tribunal in TAH v A School [2024] QCAT 434, which considered the requirement imposed by the College’s uniform policy that female students in years 7 to 12 must wear a skirt to formal school occasions. Deciding in favour of the school, the Tribunal found that this requirement constituted neither direct nor indirect discrimination pursuant to the Anti-Discrimination Act 1991 (Qld) (the AD Act).

Background

The complaint was that the school’s uniform policy required female students in years 7 to 12 to wear a skirt to formal school occasions. That would include school outings or excursions, school ceremonies and events, class photographs, awards nights and external events. It was alleged in the complaint that the policy amounted to both direct and indirect discrimination on the basis of the attribute of sex.

Direct Discrimination

With respect to direct discrimination, it was alleged that the complainant was treated less favourably than a male student in the same or not materially different circumstances because she:

    • had purchase two sets of school uniforms (financial burden);
    • had to take greater care to maintain modesty when sitting;
    • would not be as warm in winter (even if wearing stockings);
    • would be restricted in the physical activity she could partaken in during school outings and excursions;
    • faced exclusion or suspension if she failed to comply with the uniform policy; and
    • would suffer detriment to her education, and it would be unfair, if she failed to attend a formal occasion because she did not wish to wear a skirt.

Indirect Discrimination

It was alleged that the uniform policy created an implicit term that students must be male in in order to be permitted to wear shorts or trousers to formal occasions, and that this constituted indirect discrimination because as a female student she would be unable to comply.

Findings

In dismissing each question, the Tribunal had regard to the following:

On the question of financial burden:

(a)     the financial circumstances of the complainant’s family was such that there was no hardship in purchasing a second uniform;

(b)    no concerns had been expressed to the school by other parents;

(c)     skirts were available on loan for formal occasions from the school; and

(d)    second-hand skirts were available at a cheaper price.

On the question of modesty:

(a)     skirts were required to touch the ground when kneeling, and therefore quite long; and

(b)    students could wear shorts or bike shorts under the skirt.

On the question of comfort/warmth:

(a)     there was no explanation whether wearing tights, stockings or knee highs would assist with the cold; and

(b)    in warmer times, it may be preferrable to wear a skirt than trousers.

On the question of physical activity:

(a)     the evidence from the school was that there is no such physical activity at formal school occasions.

On the question of adverse consequences:

(a)     it would be ‘unlikely’ that a female student would be sent home from a formal event if not wearing a skirt;

(b)    any other consequences were just speculation; and

(c)     the student could apply for an exemption from wearing a skirt on formal occasions.

By way of further, general considerations, the Tribunal noted that female students did not have to wear a skirt on ordinary school days. In despite of having that choice, the overwhelming majority of relevant female students chose to wear a skirt and appeared that they were generally content to wear skirts.

Indirect Discrimination

On the question of indirect discrimination, the Tribunal found that the complaint amounted to an allegation that the term in question was “a condition requiring girls to be boys”, and that it would be artificial to try to identify a disparate and adverse impact arising from the different effect of the policy on female and male students. The different effect arose from differences in the policy applying to female and male students. Put simply, the complaint should have been addressed as a direct discrimination issue rather than raised as indirect discrimination.

What Should Schools Consider?

This case illustrates important considerations by educational institutions when developing regulatory frameworks.

Here, the respondent school had implemented a policy that achieved the desired standard of formality while remaining within the bounds of the law. When introducing new policies, schools should assess whether the policy may lead to complaints and take reasonable and practical steps to avoid potential disputes. Regular reviews of existing policies and procedures should also be undertaken to ensure ongoing compliance.

 

Vocare Law is well equipped to assist our Schools & Education clients with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions your current School Policies or whether you would like our office to formally review any policies. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au

 

This article was written by Courtney Linton & Jack Macpherson.

**The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only. 

 

In Queensland, the Anti-Discrimination Act 1991 (Qld) (the Act) establishes two broad classes of prohibited discrimination – direct and indirect. The former is overt and explicit, often involving clear, intentional actions that treat individuals unfavourably because of a protected attribute.

The latter is more subtle, and often unintentional. In accordance with section 11 of the Act, indirect discrimination on the basis of a protected attribute occurs when:

(1) 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.

Pursuant to this definition, an institution which imposes a seemingly neutral policy may nonetheless be in breach of the Act if a disproportionate number of individuals with a protected attribute are unable to comply.

A key question arising from this proposition, is how the terminology “not able to comply” should be construed.

In Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249[1], the Tribunal found that the student could not, in keeping with the customs and cultural practices of his race, comply with a uniform policy that mandated “boys must not wear buns or their hair long”.

Conversely, in refusing an application for an interim order, Senior Member Fitzpatrick held in XA (BY ZA) v School [2024] QCAT 15 that there was no evidence that the complainant child was unable to comply with the requirement that he cut his hair, and that his hair length was a matter of personal choice.

In this article we explore the recent QCAT decision of Kos v Deltapath Pty Ltd [2024] QCAT 107 which helps to shed light on the meaning of “does not or is not able to comply”.

Facts

During the height of the pandemic, a Mitre 10 hardware store imposed a requirement that customers wishing to enter the store had to wear a face mask. The complainant, who suffered chronic anxiety and agoraphobia, alleged that this constituted indirect discrimination pursuant to s 11of the Act.

Principles Considered

Citing Waters v Public Transport Corporation (1991) 173 CLR 349, Member Gordon found that the purpose of section 11 is to eliminate discrimination which arises when:

one person appears to be treated just as another is or would be treated, but the impact of such equal treatment is that the former is in fact treated less favourably than the latter.

Expanding on this point, the Tribunal had recourse to the following cases:

  • Taniela v Australian Christian College Moreton Ltd – the meaning of ‘can comply’ does not mean ‘can physically’ in the sense of being theoretically possible, but as meaning can in practice[2];
  • Hurst v State of Queensland – the real issue was whether the complainant student would suffer serious disadvantage by reason of the requirement or condition imposed[3]; and
  • Hickson-Jamieson v University of the Sunshine Coast ­– an inability to comply must be some incapacity to comply, not merely an unwillingness, or a preference for other outcomes. A claim that the requirement gives rise to an inconvenience, or a person would prefer alternatives, does not satisfy this element[4].

Held

The applicant ultimately failed to provide any real evidence to show that he was medically exempt from wearing a mask. Although Mr Kos may well have found wearing a mask uncomfortable and strange, it was held that he could have worn one without additional difficulty arising from his impairment when entering the store building had he wished to do so. As such, he failed to satisfy the first element of his complaint, and his complaint failed.

Takeaways

  1. The words “not able to comply” should not be interpreted literally, as this would undermine the purpose of the provision; and
  1. A personal preference for an alternate outcome, or a mere unwillingness to comply, will not give rise to a successful claim of indirect discrimination.

 

Vocare Law is well equipped to assist our institutional clients with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on ensuring your business or organisation is able to adequately comply with the Anti-Discrimination Act 1991 (Qld). Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au

This article was written by Jonas Whincop & Courtney Linton.

 

**The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only.

 

Footnotes

[1] A decision subsequently upheld in Australian Christian College Moreton Ltd & Anor v Taniela [2022] QCATA 118.

[2] [2020] QCAT 249.

[3] [2006] FCAFC 100

[4] [2023] QCAT 66.

On 14 June 2024, the Respect at Work and Other Matters Amendment Bill 2024 (the Bill) was introduced into the Queensland Parliament. Among other sweeping changes, the Bill, seeks to amend the Anti-Discrimination Act 1991 (Qld) (the Act) to:

  1. introduce a positive duty to eliminate all forms of unlawful discrimination, vilification and other associated objectionable conduct as far as possible;
  2. empower the Commission to conduct investigations in respect of this; and
  3. update and expand the attributes protected by the Act.

The proposed amendments represent the Queensland government’s initial legislative response to key recommendations of the Queensland Human Rights Commission (QHRC) in its report, Building Belonging – Review of Queensland’s Anti-Discrimination Act 1991.

There is some suggestion that the further recommendations of the Building Belonging Report will be pursued after the October State Election.

In this article we summarise the most pertinent amendments for educational institutions.

The Bill

Positive Duty

The Bill introduces a broad positive duty on certain persons to eliminate, as far as possible, discrimination, sexual harassment, harassment on the basis of sex and certain other objectionable conduct.

The positive duty will apply to all persons—including individuals, corporations and the state—who have an obligation not to engage in discrimination, sexual harassment, harassment on the basis of sex and other unlawful conduct.

However, with respect to individuals, it will only apply in the context of an individual conducting a business or undertaking, a concept which is presently used in work health and safety laws.

In practical terms, the positive duty will mean that, rather than merely waiting for complaints to be made, duty holders will be required to take proactive steps to prevent conduct that would be discrimination, sexual harassment, harassment on the basis of sex or other objectionable conduct in the first place.

What does this look like for educational institutions?

  1. ensuring there are organisational policies in place that address the importance of respectful behaviour in the workplace;
  2. ensuring easily accessible information is available;
  3. conducting workplace surveys to measure knowledge and awareness of unlawful conduct like discrimination or sexual harassment and the extent to which such conduct may have been experienced by members of the workforce;
  4. engaging in informal or formal disciplinary discussions with members of the organisation who are displaying conduct that may be disrespectful and unlawful under the AD Act; and
  5. members of the senior leadership team clearly and regularly articulating expectations of respectful behaviour.

In determining what measures are reasonable and proportionate in the circumstances, the Act prescribes the following factors that must be considered:

  • the size, nature and circumstances of the business operations;
  • the resources of the person, whether financial or otherwise;
  • the practicability and the cost of the measure;
  • the person’s operational priorities; and
  • any other relevant matter.

Accordingly, the extent to which the positive duty is imposed will differ significantly between a Prep to 12 school of 1500 pupils situated in an affluent area, and a small primary school comprised predominately of students from low socioeconomic households.

Compliance and Enforcement

The Bill also introduces new compliance and enforcement functions for the Queensland Human Rights Commission to allow the positive duty to be enforced.

The Bill amends the Act to allow the Commissioner to conduct investigations into person’s compliance with the positive duty if the commissioner suspects that the person is not complying with this duty.

After conducting an investigation, the Commissioner may:

  1. decide to take no further action;
  2. issue a compliance notice; or
  3. help a person prepare and/or accept an undertaking.

Expanding on this final point, where an investigation reveals the person has contravened, is contravening or is likely to contravene the positive duty, the commissioner may enter into a written undertaking with the person that details the actions the person will take to comply with the duty.

If the non-compliance continues, the Commissioner may withdraw acceptance of the undertaking and issue a compliance notice, which requires the person to take specified actions to comply with their obligations.

Failure to comply with a compliance notice may result in the commissioner applying to the Queensland Civil and Administrative Tribunal or the Queensland Industrial Relations Commission for an appropriate order to enforce that compliance.

Review of Compliance Notice

A person who is served with a compliance notice by the Commissioner may apply to the Tribunal (QCAT) or Queensland Industrial Relations Commission for a review of the issuing of the compliance notice or any of the terms of the notice:

  • within 28 days after receiving the notice; and
  • as provided under the relevant tribunal Act and/or Industrial Relations Act 2016.

After a review, the Tribunal or QIRC may either confirm the compliance notice or withdraw the compliance notice. In situations where the compliance notice is confirmed, the Tribunal or QIRC will consider whether the time for compliance should be amended.

Expanding Protected Attributes

Finally, the Bill includes amendments to introduce new attributes on the basis of which discrimination is prohibited and updates some of the existing attributes. With respect to the latter, the attribute ‘sexuality’ has been updated to ‘sexual orientation’, which is defined as:

[a] person’s capacity, or lack of capacity, for emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.

What’s Next?

Interested parties have until 2 July 2024 to make a submission to the parliamentary committee, which will table its report on 2 August 2024.  It is anticipated that the Bill will progress through parliament before the October election.

This article was written by Jonas Whincop, Courtney Linton & Alistair Macpherson.