Date: 10 July 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Traves
Human Rights Act 2019 (Qld) Sections: ss 15, 20, 26(2), 27, 36, 48
Rights Considered: Right to recognition and equality before the law; Right to freedom of thought, conscience, religion and belief; Right to protection of children; Cultural rights; Right to education
Other Legislation: Anti-Discrimination Act 1991 (Qld) ss 7, 8, 10, 11, 39, 205, 209, Schedule; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 102

Keywords: Race discrimination; Sex discrimination; Education

This case concerned a complaint made on behalf of five-year-old Cyrus Taniela that his school’s decision to discontinue his enrolment for the second semester of 2020, unless he cut his hair to satisfy the school’s uniform policy, amounted to discrimination on the basis of race and sex. The applicant also argued that several human rights provided for in the Human Rights Act 2019 (Qld) were relevant to the discrimination experienced by Cyrus: recognition and equality before the law (section 15); freedom of thought, conscience, religion and belief (section 20); the rights of children (section 26(2)); cultural rights (section 27); and the right to education (section 36). 

This case concerned a complaint made on behalf of a five-year-old boy, Cyrus Taniela, that he had been subjected to discrimination on the basis of race and sex. The matter arose from a decision made by Cyrus’s school, the Australian Christian College Moreton Ltd, and its principal, Gary Underwood, that Cyrus was required to cut his hair before the commencement of the second school semester of 2020 or be ‘unenrolled’. Cyrus was of Cook Island and Niuean descent and in accordance with a Cook Island custom for young boys, his hair had not been cut since birth so he could take part in a hair cutting ceremony around age seven or eight. This ceremony ‘is a male rite-of-passage that symbolises the boy’s transition to manhood’ and was planned to take place on Cyrus’s seventh birthday in September 2021 in Sydney: at [3], [9].

The applicant, Cyrus’s mother, argued that the school’s position amounted to unlawful discrimination under section 39 of the Anti-Discrimination Act 1991 (Qld) on the basis of race and sex. An argument of direct discrimination was made on the basis that ‘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’: at [56]. A argument of indirect discrimination was also made on the basis that the respondents imposed a requirement that Cyrus have short hair, which Cyrus could not comply with on the basis of his race and that a higher proportion of students not of Cook Islands or Niuean heritage could comply with: at [57]. This requirement was not reasonable because, amongst other reasons, ‘it ignores the fact that Cyrus’s 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’: at [57]. The applicant also claimed that a Facebook post made by Mr. Underwood amounted to victimisation within the meaning of section 130(1) of the Anti-Discrimination Act 1991 (Qld). This Facebook post ‘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’ and ‘[t]he 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’: at [58].

The Tribunal found both direct and indirect discrimination on the basis of race: at [105], [130].  However, the Tribunal did not make a finding of discrimination on the basis of sex, as the school’s uniform policy had requirements in respect of hairstyles for both boys and girls and ‘the uniform policy in relation to hair does not treat boys less favourably than girls’:  at [150]. The Tribunal also found that the Facebook post did not amount to victimisation within the meaning of section 130(1) of the Anti-Discrimination Act 1991 (Qld) because it was accepted ‘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’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’ and that the post was not to the detriment of Cyrus: at [154]-[156].

The applicant also argued that several human rights provided for in the Human Rights Act 2019 (Qld) were relevant to the discrimination experienced by Cyrus: recognition and equality before the law (section 15); freedom of thought, conscience, religion and belief (section 20); the rights of children (section 26(2)); cultural rights (section 27); and the right to education (section 36).  The Tribunal did not discuss the Human Rights Act 2019 (Qld), apart from commenting that the finding of discrimination in this case was consistent with the plain meaning of the Anti-Discrimination Act 1991 (Qld). The Tribunal noted that the Anti-Discrimination Act 1991 (Qld) should be interpreted consistently with human rights (section 48) and that this section ‘encourages such an outcome,’ but that the same findings would have been made regardless: at [153].

No award of compensation was made by the Tribunal, but an order for a private written apology by the respondents to Cyrus was made: at [160]-[162]. Further, the Tribunal made an 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’: at [164].

LINK: Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249 (PDF, 473.9 KB)