Kuyken v Chief Commissioner of Police

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 00074

MICHAEL KUYKEN	Plaintiff
v
CHIEF COMMISSIONER OF POLICE	Defendant

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JUDGE:	Garde J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2015
DATE OF JUDGMENT:	14 May 2015
CASE MAY BE CITED AS:	Kuyken v Chief Commissioner of Police
MEDIUM NEUTRAL CITATION:	[2015] VSC 204

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CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES – Discrimination in employment – Direct discrimination – Charter right to equal and effective protection against discrimination – Attribute of physical features – Facial hair – Chief Commissioner – New Grooming Standard for members of Victoria Police – Meaning of the expression ‘standards of grooming’ – Meaning of the expression ‘unfavourable treatment’ - Effect of the Police and Emergency Management Legislation Amendment Act 2012 (Vic) s 9 – Police Regulation Act 1958 (Vic) ss 5, 17; Equal Opportunity Act 2010 (Vic) ss 4, 6, 7, 8, 75; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7, 8 (3), 15, 32 – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Gray SC with Mr J McDougall	Peter Hull, Peter Hull and Associates
For the Defendant	Mr R Niall QC with Mr J Tracey	Katherine Francis, Victorian Government Solicitors Office

HIS HONOUR:

Leading Senior Constable Michael Kuyken (‘the plaintiff’) has been a sworn member of Victoria Police since 1996. Since 2004, when the grooming standards were changed to permit beards, he has worn a goatee beard.

On 9 December 2011, Chief Commissioner Ken Lay[1] emailed sworn members of Victoria Police and advised them that the appearance standards of Victoria Police would change (‘the 9 December 2011 email’). New guidelines (‘the new Grooming Standard’) would take effect on 1 January 2012. Goatees and beards would not be permitted.
[1]By consent, the Court will amend the title of the defendant to Chief Commissioner of Police (‘Chief Commissioner’) as Chief Commissioner Lay has retired.

On 29 December 2011, the Chief Commissioner sent a second email to sworn members of Victoria Police. It advised in substance that the new Grooming Standard would become policy on 1 January 2012 (‘the 29 December 2011 email’). There was a requirement to comply with the new Grooming Standard. The new policy would not apply to members who exercised their lawful right to challenge the changes until their matters were determined.

The plaintiff made a complaint concerning the new Grooming Standard to the Victorian Equal Opportunity and Human Rights Commission (‘the Commission’). As a result, he was exempted from compliance with the new Grooming Standard until his complaint was resolved.

On 27 June 2012, the Chief Commissioner sent a third email to all sworn members about the new Grooming Standard. The email explained that the new Grooming Standard would be ratified in law because of an amendment to the Police Regulation Act 1958 (Vic) (‘PR Act’) which would come into effect on 1 July 2012.

The Commission conducted an unsuccessful conciliation of the dispute on 29 June 2012. By an email dated 31 August 2012, Commander Forti, as delegate for the Chief Commissioner, informed the plaintiff and other members who had complained to the Commission that they had either to make an application to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) by 28 September 2012 (‘the 31 August 2012 email’) or comply with the new Grooming Standard.

On 14 September 2012, the plaintiff and fifteen other members of Victoria Police made individual applications to the Tribunal.

Tribunal proceeding

In his application to the Tribunal (‘the application’), the plaintiff alleged direct discrimination in his employment contrary to s 18(d) of the Equal Opportunity Act 2010 (Vic) (‘the EO Act’). He also alleged victimisation under s 104 of the EO Act, and that there had been a breach of s 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’) in respect of his right to freedom of expression under s 15 of the Charter.

The application was heard over five days by the Tribunal. On 29 November 2013, the Tribunal published an order and reasons dismissing the application.[2]
[2]Kuyken v Lay (Human Rights) [2013] VCAT 1972 (‘Reasons’). The fifteen other applications to the Tribunal were also dismissed, and have not been appealed. See: Hunter v Lay [2013] VCAT 1973; Ranik v Lay [2013] VCAT 1974; Garrison v Lay [2013] VCAT 1975; Chrisant v Lay [2013] VCAT 1976; Twining v Lay [2013] VCAT 1977; Downes v Lay [2013] VCAT 1978; Kelly v Lay [2013] VCAT 1979; Lloyd v Lay [2013] VCAT 1980; Smith v Lay [2013] VCAT 1981; Beale v Lay [2013] VCAT 1982; Haines v Lay [2013] VCAT 1983; Greenland v Lay [2013] VCAT 1984; Edwards v Lay [2013] VCAT 1985; Shields v Lay [2013] VCAT 1986; Wise v Lay [2013] VCAT 1987.

The Tribunal held that facial hair was a physical feature, but that the 9 December 2011 email and the 29 December 2011 email did not constitute unfavourable treatment of the plaintiff.[3] However, the Tribunal held that the 31 August 2012 email threatened the plaintiff with disciplinary action because he had a goatee which did not comply with the new Grooming Standard, and constituted discrimination by the Chief Commissioner against the plaintiff.[4]
[3]Reasons [74], [118]-[119].
[4]Ibid [148].

The Tribunal rejected the plaintiff’s claim that facial hair was a form of protected expression under s 15 of the Charter.[5] It was not satisfied that a reasonable member of the public would consider that the plaintiff’s goatee imparts any information or ideas such as his desire to be an individual rather than an automaton.[6] The Tribunal was not satisfied that having a goatee imparts any information or ideas, or conveys any meaning at all.[7] The plaintiff had not established on the facts that he had been prevented from imparting any information or ideas.[8]
[5]Ibid [210].
[6]Ibid [208].
[7]Ibid.
[8]Ibid [208]-[209].

The Chief Commissioner submitted that if there was discrimination after 1 July 2012, it was authorised under s 75 of the EO Act by ss 5(2) and 17 of the PR Act. The Tribunal accepted this submission, and held that the discrimination was permitted under s 75 of the EO Act by s 5(2)(c) of the PR Act which gave the Chief Commissioner power to determine standards of grooming and acceptable clothing accessories for members of Victoria Police, which may differ based on sex, gender identity, physical features or religious belief or activity.[9] The discrimination was also authorised by s 17 of the PR Act which enables the Chief Commissioner to enforce his determinations by embodying them in the Victoria Police Manual.[10] It is a disciplinary breach for members of Victoria Police to fail to comply with a standing order or instruction of the Chief Commissioner.[11]
[9]Ibid [166].
[10]Ibid [167].
[11]PR Act s 69(1)(b).

Finally, the Tribunal held that the victimisation claim under s 103 of the EO Act failed, as the plaintiff was not subjected to any detriment. A direction to conduct the proceeding before the Tribunal while off duty did not amount to a detriment or contravene s 103 of the EO Act.[12]
[12]Reasons [183]-[184].

Amended Draft Notice of Appeal

At the hearing of the appeal, the plaintiff sought to rely on an amended draft notice of appeal dated 22 October 2014 (‘amended draft notice of appeal’). Omitting questions that were abandoned or not pressed, the questions of law that were relied on by the plaintiff are:

[deleted]

3. Whether s32 of the Charter has the effect of limiting the authority given to the Chief Commissioner of Victoria Police under s 5(2)(c) of the Police Regulations Act 1958 (the PRA) to determine standards of grooming only if those standards do not constitute:
a.discrimination that is not lawful under the Equal Opportunity Act2010 (the EOA) …

[deleted]
4.Whether s 5(2)(c) of the PRA authorised the Chief Commissioner of Victoria Police to determine standards of grooming which had the effect of denying or limiting the enjoyment by members of the force of their human rights under the Charter.
4A.Whether the Tribunal, having correctly found that the Grooming Standard and threats of disciplinary action and associated communications discriminated against the Plaintiff/Appellant, erred in finding that such discrimination against the Plaintiff/Appellant was permitted by s75 of the EOA because it was authorised by s5(2) of the PRA, in that:
a.the power of the Defendant/Respondent under s 5(2)(c) of the PRA to determine standards of grooming that may differ based on physical features extended to grooming goatees, beards and other such physical features, but did not extend to requiring the complete removal of goatees, beards and other such physical features; and/or …
[deleted]
c.the Grooming Standard, as the Tribunal correctly concluded, discriminated against the Plaintiff/Appellant under the EOA, and therefore limited the Plaintiff/Appellant’s rights under s8 of the Charter also …
[deleted]

5.Whether, for the purposes of s75 of the EOA, s5(2)(c) of the PRA authorised the Chief Commissioner of Victoria Police to determine standards of grooming that would otherwise constitute unlawful discrimination for the purposes of the EOA.
6.Whether, in order for discrimination to be lawful pursuant to s13 of the EOA because of a general exception to or an exemption from the prohibition of discrimination under s75 of the EOA, the party asserting the general exception or exemption must establish, under s7(2) of the Charter, that the general exception or exemption concerned is nonetheless a permissible limitation on the human right to equal and effective protection against discrimination that is provided under s8(3) of the Charter.
7.Whether, in order to determine if a person has or has proposed to treat another person unfavourably within the meaning of s8(1) of the EOA, it is necessary for information of the proposed treatment to be specifically directed to that other person.
[sic]

The grounds of appeal ultimately relied on by the plaintiff are:

1.Grooming Standard outside the scope of power conferred by section 5(2)(c) of the PRA – Questions 4A(a) …
a.The making of the Grooming Standard and the associated communications that constituted discrimination against the Plaintiff/Appellant were not authorised within the meaning of section 75 of the EOA, because the power of the Defendant/Respondent under s5(2)(c) of the PRA to determine standards of grooming that may differ based on physical features extended to grooming goatees, beards and other such physical features, but did not extend to requiring the complete removal of goatees, beards and other physical features…

[deleted]
2. s 32 of the Charter – Question 3
a.The Tribunal erred in law in failing to find that, in accordance with s32 of the Charter, s 5(2)(c) of the PRA could, consistently with its purpose, be interpreted in a way that is compatible with the human right to equal and effective protection against discrimination recognised in section 8(3) of the Charter …

[deleted]
c.The Tribunal erred in law in failing to find that, pursuant to s32 of the Charter, the Grooming Standards were not compatible with the Plaintiff/Appellant’s right to effective protection against discrimination.

3.s13 & s75 of the EOA and s7(2) of the Charter – Questions 3, 4, 4A(c) …
a.The Tribunal erred in law in finding that, for the purposes of section 75 of the EOA:
i.s5(2)(c) of the PRA authorised the Chief Commissioner to determine grooming standards which had the effect of discriminating, within the meaning of the EOA, against the Plaintiff/Appellant; and
ii.s17 of the PRA authorised the Chief Commissioner to enforce his determination as to grooming standards with the effect of discriminating, within the meaning of the EOA, against the Plaintiff/Appellant; or
iii.that section 17 of the PRA authorised or necessitated the Chief Commissioner to discriminate against the Plaintiff/Appellant.

b.The Tribunal erred in law in that it failed to find:
i.that section 5(2)(c) of the PRA did not authorise or necessitate the Chief Commissioner to determine grooming standards that had the effect of discriminating against the Plaintiff/Appellant; and
ii.that section 17 of the PRA did not authorise or necessitate the Chief Commissioner to make standing orders that had the effect of discriminating against the Plaintiff/Appellant;

c.The Tribunal erred in law in that it failed to find that, in accordance with s32 of the Charter, it was possible to interpret :
i.s5(2)(c) of the PRA in a way that is compatible with human rights; and
ii.s17 of the PRA in a way that is compatible with human rights.

[deleted]

4. S8(1) of the EOA – Question 7
The Tribunal erred in holding that, for the purposes of s8(1) of the EOA, the Defendant/Respondent’s emails of 9 and 29 December 2012 could not amount to unfavourable treatment of the Plaintiff/Appellant because they were in general terms and were not specifically directed as the Plaintiff/Appellant.
[sic]

On 2 April 2014, Derham AsJ granted the plaintiff leave to appeal in relation to Question 5 relating to Ground 3 of the amended draft notice of appeal. The application for leave to appeal relating to all other questions was referred to the Court hearing the appeal.

Although the Commission intervened before the Tribunal, it did not appear before the Court.

There are no findings of fact made by the Tribunal that are challenged before the Court. The plaintiff does not contend that any factual finding made by the Tribunal was not open to the Tribunal on the evidence before it.

The plaintiff does not pursue any question or ground of appeal in relation to:

(1) the Tribunal’s finding that facial hair was not a form of protected expression under s 15 of the Charter;

(2) the Tribunal’s finding that the claim for victimisation under s 104 of the EOA Act should be dismissed; or

(3) the claim made by the plaintiff that the new Grooming Standard was an irrational purported exercise of the power under s 5(2)(c) of the PR Act, and was therefore unauthorised.

As a result, these issues are finally resolved in the manner determined by the Tribunal.

The PR Act and the new Grooming Standard

Section 5 of the PR Act is concerned with the power of the Chief Commissioner for the superintendence and control of the Victorian Police force and states:

(1)The Chief Commissioner shall have, subject to the directions of the Governor in Council, the superintendence and control of the force, and all officers of police shall have the superintendence and control of that portion of the force which is placed under their charge subject to the authority herein conferred upon the Chief Commissioner and to the regulations made or to be made by the Governor in Council as hereinafter provided.
(2)Without limiting the generality of subsection (1), the Chief Commissioner may determine –
(a)the type or design of any uniform or equipment to be worn or carried by members of the force, police recruits, police reservists and protective services officers; and
(b)the conditions under which any uniform or equipment is to be worn or carried; and
(c)standards of grooming and acceptable clothing accessories for members of the force, police recruits, police reservists and protective services officers, which may –
(i)differ based on sex, gender identity, physical features or religious belief or activity; and
(ii)provide for exceptions based on genuine medical, cultural or religious grounds.

(3)For the purposes of subsection (2)(c), acceptable clothing accessories includes but is not limited to jewellery, headgear, sunglasses and makeup. [13]

[13]As amended at 1 July 2012.

Section 17 of the PR Act gives the Chief Commissioner the power to publish standing orders and give instructions. It states:

The Chief Commissioner may from time to time issue, amend and revoke –
(a)orders, to be known as standing orders, for the general administration of the force;
(b)instructions for the effective and efficient conduct of the force’s operations. [14]

[14]See Victoria Police Act 2013 (Vic) s 60.

Sub-sections 5(2)(c) and (3) of the PR Act were introduced by s 9 of the Police and Emergency Management Legislation Amendment Act 2012 (Vic) (‘PR Amendment Act’). In the Second Reading Speech for this Act (‘Second Reading Speech’), the Minister for Police and Emergency Services said:

The Victoria Police “Uniform and appearance’ policy in the Victoria Police manual was recently revised and made a number of changes relating to grooming and accessories. It is extremely important for members of the police force to present a professional and well-groomed appearance to maintain the public’s confidence, trust and respect, and contribute positively to Victoria Police’s image and reputation as an authoritative and disciplined organisation.
The new policy will also improve the safety of members through eliminating physical aspects that could be exploited by others in confrontational situations, such as ponytails or body piercings that could be grabbed by an attacker.
The bill proposes to amend the Police Regulation Act 1958 to put the amended ‘Uniform and appearance’ policy into effect by providing an explicit statutory power for the chief commissioner to issue standards of grooming and acceptable clothing accessories, such as jewellery, headgear, sunglasses and make-up, for members of the police force, police recruits, police reservists and protective services officers. The bill provides that such standards may differ based on sex, gender identity, physical features or religious belief or activity, and provides for exceptions to be granted based on genuine medical, cultural or religious grounds.
This amendment to the Police Regulation Act 1958 is critical to enhance the chief commissioner’s powers to effect improvements in the public perception of the force and for the benefit of the force itself. [15]

[15]Victoria, Parliamentary Debates, Legislative Assembly, 2 May 2012, 2017 (Peter Ryan, Minister for Police and Emergency Services).

The chronology of events relating to s 9 of the PR Amendment Act is significant. The plaintiff’s complaint about the new Grooming Standard and the complaints of other members of Victoria Police were made in December 2011 and January 2012. The Bill for the PR Amendment Act was introduced into the Legislative Assembly on 2 May 2012, and into the Legislative Council on 24 May 2012. On 27 June 2012, the Chief Commissioner advised sworn members of the Victoria Police that it would come into operation on 1 July 2012. The unsuccessful conciliation by the Commissioner of the plaintiff’s complaint was on 29 June 2012. The conciliation was conducted on the eve of the commencement of s 9 of the PR Amendment Act on 1 July 2012.

The Victoria Police Manual – Guidelines (‘the Manual’) as amended at 27 August 2012 provided guidelines as to the allocation and wearing of general issue uniform and protective clothing. Under the heading of ‘Grooming and accessories’, the Manual states:

5. Grooming and accessories
5.1 Application and interpretation
The overarching requirements for uniform and appearance in the Professional and ethical standards apply to the grooming and accessories of all employees.
Additional specific standards apply to members, as outlined below. These standards apply for health and safety reasons and because members, particularly when in uniform, are contributing to Victoria Police’s image and reputation as a professional and disciplined organisation. Members are reminded that when on duty, their responsibility to the organisation’s image has precedence of their need to express their individual style.

5.2      Hair
Males -
·     Hair is to be clean, tidy and neatly trimmed.
·     Hair is not to be extreme in style and colour tones.
·     Hair is not to interfere with wearing of headdress and is not to be visible on the forehead when wearing headdress of any kind.
·     Hair is not to extend below the top of the shirt collar at the back or extend below the top of the ear at the sides. Ponytails, buns or similar styles are not permitted.
Females -
·     Hair is to be clean, tidy and neatly trimmed.
·     Hair is not to be extreme in style and colour tones.
·     Hair is not to interfere with wearing of headdress and is not to be visible on the forehead when wearing headdress of any kind.
·     Hair is not to extend below the top of the shirt collar. Hair that is longer than the top of the shirt collar is to be tied or pinned back and worn close to the head. For neatness and safety reasons, pony tails or similar styles are not to be worn. Hair accessories may be worn if they are of plain design and similar colour to the hair or the uniform.

5.3      Facial hair
·     Sideburns are permitted provided that they:
o   are clean, tidy and neatly trimmed
o   do not extend beyond a horizontal line from the base of the ear lobe
o   do not increase or decrease in width from top to bottom

·     Moustaches are permitted provided that they:
o   are clean, tidy and neatly trimmed
o   do not extend beyond a vertical line from the outer edge of the eye or below the bottom edge of the top lip

· Beards, goatees, soul patches or other forms of facial hair are not permitted.

5.4      Jewellery
·     Members are permitted to wear the following items of jewellery:
o   wrist watches
o   minimal rings of conservative style
o   emergency medical alert bracelets or pendants

· Wearing of other jewellery, ornaments, adornments, or accessories is not permitted. This includes earrings, spacers, or any facial/body piercing jewellery.

5.5      Kirpans
·     A kirpan may be carried by practising Sikhs but is to be concealed under clothing at all times.
·     Kirpan is to be removed in circumstances that warrant removal of a firearm, unless it is concealed under an Integrated Operational Equipment Vest.

5.6 Sunglasses
Members may wear issued or privately owned sunglasses during daylight hours. Privately owned sunglasses should conform to the protective standards of issued sunglasses and not be extreme in colour or style.

5.7 Make up
Make up and nail polish worn by members should be natural looking and in neutral tones.

Does the plaintiff have a right to equal and effective protection under s 8(3) of the Charter?

The plaintiff contends that he had a right to equal and effective protection against discrimination under s 8(3) of the Charter.

Section 8 of the Charter states:

Recognition and equality before the law
(1)Every person has the right to recognition as a person before the law.
(2)Every person has the right to enjoy his or her human rights without discrimination.
(3)Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
(4)Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

Section 8(3) has three limbs:

(1) it provides that every person is equal before the law;

(2) it confers on every person an entitlement to the equal protection of the law without discrimination; and

(3) it confers on every person the right to equal and effective protection against discrimination.

The attributes listed in s 6 of the EO Act include:

…
(d)     gender identity;
…
(j)         physical features;
…
(m)     race;
(n)      religious belief or activity;
(o)        sex;
…

Section 7 of the EO Act defines discrimination:

Meaning of discrimination
(1)Discrimination means—
(a)direct or indirect discrimination on the basis of an attribute; or
(b)a contravention of section 17, 19, 20, 22, 32, 33, 40, 45, 54, 55 or 56.

(2)Discrimination on the basis of an attribute includes discrimination on the basis—
(a)that a person has that attribute or had it at any time, whether or not he or she had it at the time of the discrimination;
(b)of a characteristic that a person with that attribute generally has;
(c)of a characteristic that is generally imputed to a person with that attribute;
(d)that a person is presumed to have that attribute or to have had it at any time.

Section 8(3) of the Charter is derived from Article 26 of the International Covenant on Civil and Political Rights (‘ICCPR’). Article 26 provides:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The Office of the High Commissioner for Human Rights commented in relation to Article 26:

While article 2 limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, article 26 does not specify such limitations. That is to say, article 26 provides that all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protection against discrimination on any of the enumerated grounds. In the view of the Committee, article 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Article 26 is therefore concerned with the obligations imposed on States parties in regard to their legislation and the application thereof. Thus, when legislation is adopted by a State party, it must comply with the requirement of Article 26 that its content should not be discriminatory. In other words, the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant.[16]
Finally, the Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.

[16]Office of the High Commissioner for Human Rights, Human Rights Committee: General Comment No. 18 Non-discrimination (37^th session) (Adopted 10 November 1989) [12]-[13].

In Re Lifestyle Communities Ltd (No 3)[17] President Bell said of Article 26 and s 8(3) of the Charter:

Article 26 is an autonomous human right. It operates independently according to its own terms. It is not a mere accessory to other recognised human rights. The right to equality and protection of the law without and against discrimination in s 8(3) of the Charterof Human Rights and Responsibilities Act is likewise autonomous. It creates that right substantively and independently, not in terms which are purely protective of the other rights in the Charterof Human Rights and Responsibilities Act.
…
As regards these elements, the wording of s 8(3) of the Charterof Human Rights and Responsibilities Act is slightly different to art 26 of the ICCPR. Section 8(3) expressly contains all of the first and second elements, in that order. Thus every person is “equal before the law” (the first) and is “entitled to the equal protection of the law without discrimination” (the second). It goes on to specify the “the right to equal and effective protection against discrimination”, which is the second part of the third element. Section 8(3) does not expressly refer to prohibiting discrimination, which is the first part of the third element. But, as we will see, it is implicitly included so that art 26 and s 8(3) have a co-extensive scope of operation in these respects.
[sic]
…
Article 26 of the ICCPR prohibits “any” discrimination and guarantees protection against discrimination “on any ground such as race, colour, sex ...”. Thus the prohibition and protection are in terms of discrimination as such, of which the attributes in the list are illustrative.[18]

[17][2009] VCAT 1869.

[18]Ibid [126], [129], [131].

Commenting as to the qualifications applicable to the human rights granted by s 8(3), Bell P said:

The first qualification concerns equal protection of the law without and against discrimination. As I have already noted, s 8(3) is expressed in terms of discrimination within the meaning of the Equal Opportunity Act. The protection in art 26 of the ICCPR is expressed in terms of discrimination as such (in respect of equal protection of the law) and discrimination on the enumerated and other grounds (in respect of equal protection against discrimination). The inclusion in the Charterof Human Rights and Responsibilities Act of a closed definition of “discrimination” has the effect of limiting somewhat the relative scope and operation of s 8(3) in this respect, such that the focus must be on discrimination as defined, not on discrimination as it is more widely expressed in art 26.
The second qualification is that the rights of equality before the law and equal protection of the law without and against discrimination in s 8(3) are subject to limitation under s 7(2) of the Charter of Human Rights and Responsibilities Act. Limitations which are under law and demonstrably justified in terms of s 7(2) are compatible with human rights and permissible, even though amounting to statutory discrimination. The ICCPR contains no general limitations provision. On the other hand, very similar principles to those applying under s 7(2) also apply as part of the internal content of the rights in art 26. In particular, art 26 is applied such that distinctions must be objectively and reasonably justifiable and proportionate to their aims. Where the distinction in reasonable, objective and proportionate, it is not discrimination contrary to art 26.[19]

[19]Ibid [163]-[164].

I accept these observations as representing the proper construction of s 8(3) of the Charter and its antecedent - Article 26 of the ICCPR.

One issue before the Court concerned the interpretation of the term ‘discrimination’ defined in s 3 of the Charter to mean:

“discrimination”, in relation to a person, means discrimination (within the meaning of the Equal Opportunity Act 2010) on the basis of an attribute set out in section 6 of that Act.

The issue was in determining whether conduct was discrimination for the purposes of the Charter, by reference to the meaning of discrimination as found in the EO Act, it was necessary to take into account the exceptions found in Parts 4 and 5 of the EO Act. The definition of ‘discrimination’ in s 3 of the Charter refers only to the attributes set out in s 6 of the EO Act, and not to the exceptions. On the other hand, if the exceptions contained in Parts 4 and 5 of the EO Act are disregarded, the concept of ‘discrimination’ in the Charter will assume a much wider scope and application than the concept of prohibited discrimination found in the EO Act. Senior Counsel for the Chief Commissioner described this as the problem of circularity. According to the Chief Commissioner, the plaintiff sought to rely on a human right under s 8(3) of the Charter in the construction of s 5(2) of the PR Act. Discrimination in employment under s 18(d) of the EO Act would be lawful under s 75 of the EO Act if authorised by s 5(2) of the PR Act. Thus, it was contended that the existence of a human right under s 8(3) of the Charter could not be established if the discrimination was authorised by s 5(2) of the PR Act.

By contrast, Senior Counsel for the plaintiff contended that no circularity existed. The definition of ‘discrimination’ in s 3 of the Charter simply refers to discrimination on the basis of an attribute set out in s 6 of the EO Act. The exceptions contained in Parts 4 and 5 of the EO Act are not mentioned in the definition of ‘discrimination’ contained in s 3 of the Charter. The definition related to discrimination on the basis of an attribute set out in s 6 of the EO Act, and not to discrimination prohibited by the EO Act.[20]
[20]The issue is discussed in Alistair Pound and Kylie Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Thomson Lawbook Co., 2008) 86-88 [1110] in the context of the Equal Opportunity Act 1995 (Vic).

The Tribunal accepted that s 8(3) of the Charter was engaged taking specific account of the human right to equal and effective protection against discrimination under s 8(3) of the Charter in the interpretation of the definition of ‘physical features’ in s 4 of the EO Act.[21]
[21]Reasons [71].

As to the interpretation of the expression ‘physical features’, the Tribunal said:

I agree with the Commission’s submission that the Tribunal should prefer a broad and liberal interpretation of physical features that promotes the objects of the EOA 2010 to one that does not. I also consider this interpretation of physical features to be the interpretation that is most compatible with human rights, particularly the right to equal and effective protection against discrimination, as required by section 32 of the Charter.[22]

[22]Ibid.

As the Tribunal accepted that the human right granted by s 8(3) of the Charter was engaged, and as there is no notice of appeal or notice of contention challenging this finding, I will proceed on the same basis. As I will set out later, this is to be done in the circumstances and manner described in the decisions of the High Court and the Court of Appeal to which I will refer.[23]
[23] See below [70]-[82].

Construction of s 5(2) of the PR Act

In the Reasons, the Tribunal noted the Commission’s position as to the construction of s 5(2) of the PR Act in the following paragraphs:

The Commission submitted that in order to determine whether Chief Commissioner Lay can rely on section 75 to defend its conduct, the Tribunal must determine what conduct section 5(2) of the PR Act authorises or necessitates, and whether that conduct is what Mr Kuyken says has resulted in the breach of the EOA. In other words, section 5(2) of the PR Act might authorise Chief Commissioner Lay to issue standards of grooming and acceptable clothing and accessories that discriminate on particular grounds, but may not authorise Chief Commissioner Lay to discriminate when applying that policy.
The Commission submitted that section 5(2) of the PR Act is limited to authorising the determination and issuing of standards relating to uniform, grooming, clothing and accessories (which is defined in section 5(3) of the PR Act to include jewellery, headgear, sunglasses and make-up). It does not authorise Chief Commissioner Lay to otherwise subject Mr Kuyken to detriment.[24]

[24]Ibid [160]-[161].

The Commission also submitted to the Tribunal that it should apply a number of interpretative principles in the construction of s 5(2) of the PR Act:

(1) in interpreting exceptions, the Tribunal must take into account the beneficial nature of Equal Opportunity legislation;[25]

(2) the express objectives of the EO Act included the elimination of discrimination to the greatest possible extent;[26] and

(3) while new rules of statutory interpretation were not needed, discipline was needed when dealing with provisions that remove people’s right to equality.[27]

[25]Reasons [155] referring to Waters v Public Transport Corporation (1991) 173 CLR 349; see also Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217 [75]-[78].

[26]EO Act s 3(a).

[27]Reasons [156].

The Tribunal summarised the submissions made on behalf of the Chief Commissioner to s 5(2) of the PR Act:

Chief Commissioner Lay submitted that determining the content of any grooming standards that must be observed by members involves questions of judgment and degree. That judgment is deliberately given to the Chief Commissioner, as part of his powers of control over the force. There is nothing in the PR Act that requires those grooming standards to be fixed by reference to some objective standard. No such standard exists. The purpose of the power is to allow the Chief Commissioner to make enforceable standards as to the uniform and appearance of members. That grant of power does not assume the existence of a single and appropriate standard of grooming.
Chief Commissioner Lay also submitted that any uniform and grooming standard reduces the area of choice given to members in the field of its operation. He submitted that there is an evident and powerful consideration that mandates the ability to prescribe such standards, that is, the ability to identify a uniform and consistent force. He submitted that the evidence of Mr Forti should be accepted on this issue, which I do.
Chief Commissioner Lay submitted that Mr Kuyken did not dispute the existence of the power, its purpose to foster professional appearance or the desirability of its exercise. Rather, he submitted that the dispute turns on the precise content of one or two aspects of the standard. Mr Kuyken’s evidence confirmed this.[28]

[28]Ibid [163]-[165].

The Tribunal held that the power granted by s 5(2) of the PR Act together with s 75 of the PR Act was sufficient to authorise the discrimination after 1 July 2012 pursuant to s 75 of the EO Act.[29]
[29]Ibid [166]-[167].

Before the Court, the principal submissions of the plaintiff as to the construction of s 5(2)(c) of the PR Act were:

(1) the power in s 5(2)(c) should be interpreted to extend to a determination requiring neatness and cleanliness of facial hair, but not to require the removal or prohibit the wearing of facial hair;

(2) the power in s 5(2)(c) should be limited to the determination of standards of grooming that do not constitute, or result in, discrimination under the EO Act;[30] and

(3) the power in s 5(2)(c) should be limited to the determination of standards of grooming not in breach of human rights under the Charter.

[30]Plaintiff/Appellant’s Outline of Submissions dated 22 October 2014 (‘Plaintiff’s Outline’) [15]-[28].

Additional submissions advanced by Senior Counsel for the plaintiff were:

(1) the verb ‘groom’ in its ordinary meaning is concerned with tending of ‘person and dress’, and making ‘neat and tidy’;

(2) the reference to ‘grooming’ in s 5(2)(c) extends to a requirement that hair be clean and neat – it did not suggest a power to require the removal of goatees, beards or other facial hair; and

(3) section 32 of the Charter required in the event that s 5(2)(c) is ambiguous that the preferred interpretation should be one which preserves the human right and denies power to the Chief Commissioner to determine a standard requiring the removal of physical features such as facial hair.

In oral argument, Senior Counsel for the plaintiff accepted that:

(1) the term ‘grooming’ embraced hair generically including facial hair and beards;[31]

(2) the expression ‘physical features’ referred to in s 5(2)(c)(i) extended to and included facial hair;[32] and

(3) the Chief Commissioner’s power in relation to grooming extended to the exclusion of extreme hairstyles.[33]

[31]Transcript of hearing on 13 April 2015 (‘Transcript’) 8 ln 4-15.

[32]Ibid 39 ln 18-21.

[33]Ibid 11 ln 3-10.

Section 9 of the PR Amendment Act is a provision intended to empower and authorise the Chief Commissioner to determine and enforce the new Grooming Standards. It does this by giving the Chief Commissioner explicit statutory power to determine standards of grooming and acceptable accessories. Express authorisation is given for the standards of grooming and acceptable clothing accessories to differ, including differences based on sex and physical features. This is intended to overcome any objection that the previous statutory power does not extend to standards that might discriminate on the attributes of sex, gender identity, physical features or religious belief or activity.

In ascertaining the extent of the powers given to the Chief Commissioner, the first step is to use the ordinary techniques of statutory construction discussed in Project Sky Blue Inc v Australian Broadcasting Authority[34] to interpret s 5 of the PR Act, particularly s 5(2)(c).
[34](1998) 194 CLR 355.

Section 5(1) of the PR Act is a provision of considerable breadth empowering the Chief Commissioner, subject only to the directions of the Governor in Council, to have ‘the superintendence and control’ of the force under the charge of the Chief Commissioner. Expressions such as ‘superintendence’ and ‘control’ are of very wide scope, giving the Chief Commissioner statutory authority and responsibility for the leadership, direction, management, administration, inspection and oversight of the police force.

The extensive purview of the authority given by Parliament to the Chief Commissioner is confirmed by s 17. This statutory power gives the Chief Commissioner the power from time to time to issue, amend and revoke standing orders. The standing orders may address ‘the general administration of the force’ – another expression of considerable compass. Added to this, s 17(b) authorises the Chief Commissioner to give instructions ‘for the effective and efficient conduct of the force’s operations’. It is abundantly clear that Parliament intended the Chief Commissioner to have extensive command, control and administration powers over the police force.

Section 5(2) is expressed to be ‘without limiting the generality of subsection (1)’. It is intended to confer additional or supplementary powers on the Chief Commissioner, and to identify specific matters which Parliament wishes to make clear, fall within the superintendence and control powers conferred by s 5(1). These powers include express powers under s 5(2)(a) and (b) to determine the type and design of uniforms and equipment to be worn or carried, and the conditions under which any uniform or equipment is to be worn or carried.

In addition, the Chief Commissioner is given power by s 5(2)(c) to determine standards of acceptable clothing accessories. These are defined in s 5(3) by an inclusory definition, to encompass but not be limited to, jewellery, headgear, sunglasses and make up. Having covered matters of clothing and equipment by s 5(2)(a) and (b), s 5(2)(c) and (3) give the Chief Commissioner power to determine the standards that relate to clothing accessories.

Turning now to the ordinary meaning of the expression ‘standards of grooming’, it is notable that the expression ‘standards’ is expressed in the plural with the result that multiple standards, certainly more than one, can be determined by the Chief Commissioner. Secondly, the expression ‘standards’ connotes in its ordinary meaning that the Chief Commissioner was intended to be empowered by Parliament to be able to determine criteria, benchmarks, guidelines, requirements or codes for the grooming of police officers. This would be entirely consistent with the Chief Commissioner’s general role for the superintendence and control of the force.

Thirdly, review of dictionary definitions shows that in addition to the concept of making neat and tidy, the expression ‘groom’ extends to matters of the personal appearance and presentation of members of the police force generally. Thus the Macquarie Dictionary Online[35] gives as the fifth meaning of ‘groom’:
[35]The Macquarie Dictionary Online (May 2015),

to tend carefully as to person and dress; make neat or tidy.

The Oxford English Dictionary Online[36] states as the second meaning of ‘groom’:

to tend or attend to carefully; give a neat, tidy, or ‘smart’ appearance to.

[36]The Oxford English Dictionary Online (May 2015),

Fourthly, s 5(2)(c)(i) makes it clear that the standards of grooming and acceptable clothing accessories for members of the police force may contain differences based on sex, gender identity, physical features, religious belief or activity. These expressions were not chosen by accident. They are all attributes listed in s 6 of the EO Act. Parliament evidently contemplated that the standards of grooming and acceptable clothing accessories might vary depending on, amongst other things, physical features. ‘Physical features’ is defined in s 4 of the EO Act, and means ‘a person’s height, weight, size or other bodily characteristics’. It was common ground that bodily characteristics extend to hair, including facial hair.

Fifthly, it was not ultimately contested that grooming extended to hair generally including facial hair. Facial hair includes moustaches, sideboards, beards, goatees and soul patches.[37] It was accepted that the reference to ‘standards of grooming’ extends to facial hair of all types.[38]
[37]A soul patch (also known as a mouche) is a small patch of facial hair just below the lower lip and above the chin.
[38]See above [48(1)].

Sixthly, after considering the whole of s 5, the inevitable conclusion is that Parliament intended that the Chief Commissioner have superintendence and control over all aspects of police appearance before the public whether by way of uniform, equipment, hair including facial hair, or accessories. Parliament considered that it was for the Chief Commissioner to determine the standards that are to prevail across the police force in all of these matters.

In determining the purpose or policy of s 5 of the PR Act, it is appropriate to have regard to the principles set out in Certain Lloyd’s Underwriters subscribing the Contract No IH00AAQS v Cross[39] where French CJ and Hayne J said:
[39](2012) 248 CLR 378.

It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy."

The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, "[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute" (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision "by reference to the language of the instrument viewed as a whole", and "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed".
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative "intention" is to use a metaphor. Use of that metaphor must not mislead. "[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have" (emphasis added). And as the plurality went on to say in Project Blue Sky:
"Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."

To similar effect, the majority in Lacey v Attorney-General (Qld) said:
"Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts."

The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:
"Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case."

(Emphasis added.)
And as the plurality said in Australian Education Union v Department of Education and Children's Services:
"In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose."[40]
[sic]
[40]Ibid, 388 [23]-390 [26] (citations omitted).

In my view, the statutory intention underlying s 9 of the PR Amendment Act is plain and is to make it clear that the superintendence and control of the police force vested in the Chief Commissioner by s 5(1) does extend to and include all matters affecting the appearance of a police officer in public view including uniform, equipment, hair generally, appearance and accessories.

In the Second Reading Speech for the PR Amendment Act, the Minister for Police and Emergency Management stressed the importance of the maintenance of a professional and well groomed appearance to maintain public confidence, trust and respect in Victoria Police. He considered that such an appearance contributed positively to the image and reputation of Victoria Police as an authoritative and disciplined organisation.[41]
[41]See above [23].

The Minister referred to the amended ‘Uniform and appearance’ policy which he intended that Parliament put into effect by ‘providing an explicit statutory power’ to the Chief Commissioner. Later, the Minister described the amendment as ‘critical to enhance the Chief Commissioner’s powers to effect improvements in the public perception of the force and for the benefit of the force itself’.[42]
[42]Ibid.

Having regard to the chronology that I have set out above,[43] and the statements made in the Second Reading Speech, it is manifest that s 9 of the PR Amendment Act was intended to ratify and validate the Chief Commissioner’s uniform and appearance policy, particularly the new Grooming Standards.
[43]See above [2]-[7], [24].

In my view, the construction of s 5(2) of the PR Act as amended is plain and unambiguous. It is a provision intended to give the Chief Commissioner explicit statutory power to superintend and control matters affecting the appearance of members of the police force. In the case of matters of grooming including facial hair, the Chief Commissioner is to have wide powers to set standards. A standard that hair be neat and tidy is but one standard. There is no reason why the Chief Commissioner cannot set other grooming standards as he has done. Guidelines with respect to facial hair may address the length of sideburns, the extent to which moustaches may be worn, and set out policy concerning beards, goatees and soul patches. The new Grooming Standards provided for hair not to be extreme in style or colour tones, not to interfere with the wearing of headdress, or be visible on the forehead when wearing headdress of any kind. Police officers are not to permit hair to extend below the top of the shirt collar. Ponytails and similar styles are not to be worn. All of these are standards of grooming found in the new Grooming Standards.

The imposition of ‘standards of grooming’ clearly may involve the trimming or removal of hair including facial hair. Removal or reduction of some hair features such as hair that might interfere with headdress, hair below the shirt collar, long sideburns, handlebar style moustaches, beards, goatees, soul patches, ponytails and like styles may all result from the imposition of ‘standards of grooming’ by the Chief Commissioner. This is what Parliament intended. Parliament also clearly intended that the Chief Commissioner’s determination as to these matters may be discriminatory in the sense that standards may differ, or turn, on attributes such as sex, gender, identity, physical features, religious beliefs or activities.

I do not accept the arguments advanced on behalf of the plaintiff as to the construction of s 5(2)(c) of the PR Act for the following additional reasons:

(1) while the verb ‘groom’ as it relates to person or dress embraces the concept of making ‘neat and tidy’, it is much more comprehensive in scope, extending to presentation and appearance generally including matters such as uniform, hairstyles, hair colours, hair length, trimming, brushing, and combing of hair generally, accessories, jewellery, glasses, make-up and nail polish;

(2) the power to impose ‘standards of grooming’ extends to a power to change, modify or remove the appearance or presentation of uniform, equipment, hair including facial hair and accessories generally;

(3) the grant by Parliament of express power to impose ‘standards of grooming’ which differ on matters of sex and physical features (amongst other attributes listed in s 6 of the EO Act) shows a clear intention that standards of grooming could extend to the treatment of physical features and bodily characteristics such as hair, and could require removal of some features or characteristics; and

(4) the plaintiff’s suggested construction of the expression ‘standards of grooming’, which limits the expression to ‘making neat and tidy’, does not give any meaning or work to do to the word ‘standards’ – clearly it cannot be confined in the way suggested by the plaintiff to a single specific standard.

For these reasons, I have come to the conclusion, adopting ordinary principles of statutory construction, that the intention underlying s 5 of the PR Act is clear and unmistakable. It is consistent with the ordinary grammatical understanding and construction of the provision. It is consistent with the statutory purpose and intent of the provisions. It is also consistent with the Minister’s Second Reading Speech.

I have also come to the conclusion that the interpretation ascribed by the plaintiff to the expression ‘standards of grooming’ is not reasonably arguable or open, having regard to the statutory words used – particularly the use of the word ‘standards’. It is not a case of ambiguity. The meaning ascribed by the plaintiff does not give effect to either the ordinary grammatical meaning of the provision or the statutory intention of s 5 of the PR Act .

How should s 5(2) of the PR Act be construed having regard to the plaintiff’s human right to protection against discrimination under s 8(3) of the Charter?

The Chief Commissioner submitted that no submission had been made by the plaintiff to the Tribunal to the effect that the interpretation of s 5(2) of the PR Act should take into account the plaintiff’s human right to protection against discrimination under s 8(3) of the Charter. The submission made by the plaintiff was a new point and should not be considered by the Court.

In Medical Practitioners Board of Victoria v Lal,[44] the Court of Appeal stated the principles to be applied where a party wishes to raise on appeal a ground not raised in the Court or Tribunal at first instance:
[44][2009] VSCA 109 (Maxwell P, Weinberg JA and Kyrou AJA).

It is necessary to restate briefly the principles to be applied in determining whether to permit a party to raise on appeal a ground not raised in the court or tribunal at first instance. They are as follows:
(a) the substantial issues between the parties are ordinarily settled at the trial;
(b) where, had the issue been raised below, evidence could have been given which possibly could have prevented the point from succeeding, the point cannot be taken afterwards;
(c) where all the facts have been established beyond controversy or where the new point is one of construction or of law, it may be expedient and in the interests of justice for an appellate court to entertain the point;
(d) even when no question of further evidence arises, it may still not be in the interests of justice to allow a new point to be raised on appeal; and
(e) where a tribunal is bound to take into account a matter that is material to its decision, but does not do so, that failure may be raised on appeal as a question of law even if it was wrongly conceded before the tribunal that the matter was not relevant and no submissions were directed to the point. [45]

[45]Ibid [41] referring to Coulton v Holcombe (1986) 162 CLR 1, 7-8; Water Board v Moustakas (1988) 180 CLR 491, 497; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, 461 [51]; Transport Accident Commission v Bausch [1998] 4 VR 249, 263; Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45, [40]-[41]; see also Roads Corporation v Jolimont Heights Pty Ltd [2002] VSC 500 [18]-[19]; Melbourne Estate Agents Pty Ltd v Romanos [2005] VSC 408 [21].

In the present case, I am satisfied that it is in the interests of justice for the plaintiff to be permitted to rely on s 8(3) of the Charter in the context of s 5(2) of the PR Act even though submissions to this effect were not made by the plaintiff to the Tribunal. I am satisfied that this is not a case where evidence could have been given which possibly could have affected the matter. If the plaintiff were not permitted to raise the arguments that he wishes to raise, he or another police member would be able to raise the issues again through another complaint to the Commission and proceeding before VCAT. It is desirable for all concerned that certainty and finality be given to the construction of s 5(2) of the PR Act.

Human rights may be subject to reasonable limitation as set out in s 7 of the Charter:

Human rights—what they are and when they may be limited
(1)This Part sets out the human rights that Parliament specifically seeks to protect and promote.
(2)A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a)the nature of the right; and
(b)the importance of the purpose of the limitation; and
(c)the nature and extent of the limitation; and
(d)the relationship between the limitation and its purpose; and
(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

(3)Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

The human right granted by s 8(3) of the Charter is taken into account in the interpretation of s 5(2) of the PR Act in the manner directed by s 32(1) of the Charter. Section 32(1) states:

So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

The Court has considered the operation of the Charter, particularly ss 7 and 32 on a number of occasions.[46]
[46]See Momcilovic v the Queen (2011) 245 CLR 1 (‘Momcilovic’); Slaveski v Smith [2012] VSCA 25; Noone v Operation Smile (Australia) Inc [2012] VSCA 91; WBM v Chief Commissioner of Police [2012] VSCA 159; DPP v Leys & Leys [2012] VSCA 304; Victorian Toll & Anor v Taha & Anor [2013] VSCA 37; Nigro v Secretary to the Department of Justice [2013] VSCA 213; and Director of PublicProsecutions v Kaba [2014] VSC 52.

In Victorian Toll & Anor v Taha & Anor[47] Nettle JA (as he then was) said:

…
As the Commission put it, it is clear from the terms of s 32)(1) of the Charter of Human Rights and Responsibilities Act 2006, as explained by French CJ in Momcilovic, that relevant Charter rights must be taken into account as part of the interpretative process mandated by s 32(1) in determining the proper construction of any enactment and therefore in the interpretation of s 160 as a whole.[48]

[47][2013] VSCA 37 (Nettle, Tate and Osborn JJA).

[48]Ibid [27] (Osborn JA agreeing) referring to Momcilovic.

In Director of PublicProsecutions v Kaba,[49] Bell J helpfully summarises the state of the authorities concerning s 32(1) of the Charter:
[49][2014] VSC 52.

In R v Momcilovic, Maxwell P, Ashley and Neave JJA held that s 32(1) of the Charter was not intended to operate like s 3(1) of the Human Rights Act 1998 (UK) c 42. As illustrated by Ghaidan v Godin-Mendoza, s 3(1) requires justification considerations (such as those specified in s 7(2) of the Charter) to be taken into account when identifying what interpretation was compatible with human rights. This permits the courts in the United Kingdom to adopt a remedial interpretation that, in some circumstances, might be contrary to the intention of the Parliament when originally enacting the provision in question. Maxwell P, Ashley and Neave JJA held that s 32(1) had to be applied without reference to such considerations upon the basis that it was intended to do no more than give express legislative expression to the common law principle of legality.
In Momcilovic, the High Court (by a majority) overruled the judgment of the Court of Appeal, but not upon the ground that it had adopted a mistaken interpretation of s 32(1) of the Charter. In the course of giving judgment all members of the High Court addressed that question. In Slaveski v Smith, Warren CJ, Nettle and Redlich JJA examined these judgments and held that no ratio decidendi was revealed as to whether, when applying s 32(1), s 7(2) of the Charter had a role to play. As explained by their Honours:
· French CJ and Crennan and Kiefel JJ held that s 7(2) did not come into play when interpreting a provision in accordance with s 32(1);
· Gummow J, with whom Hayne J agreed and Bell J held that s 7(2) did come into play in that context; and
· Heydon J (dissenting) held that ss 32(1) and 7(2) were invalid but, if valid, s 7(2) did come into play when interpreting a provision in accordance with s 32(1).
Faced with this unsettled position, Warren CJ, Nettle and Redlich JJA in Slaveski adopted the approach of French CJ to the interpretation of s 32(1). Their Honours cited with approval this passage from the judgment of French CJ:
statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law. Section 32(1) [thus] applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application.

Warren CJ, Nettle and Redlich JJA then explained the application of these principles as follows:
Consequently, if the words of a statue [sic] are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question. Exceptionally, a court may depart from grammatical rules to give an unusual or strained meaning to a provision if the grammatical construction would contradict the apparent purpose of the enactment. Even if, however, it is not otherwise possible to ensure that the enjoyment of the human right in question is not defeated or diminished, it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and apparent purpose of the enactment.

It can be seen that the approach of Warren CJ, Nettle and Redlich JJA was to interpret and apply s 32(1) like the common law principle of legality, but with a wider feel [sic] of application, as had Maxwell P, Ashley and Neave JJA in R v Momcilovic.
In Noone v Operation Smile (Australia) Inc, Warren CJ and Cavanough AJA again discussed the conflicting views expressed by the members of the High Court in Momcilovic. Applying the applicable laws of precedent, their Honours held that the dissenting judgments of Hayne and Heydon JJ could not form part of the ratio decidendi in relation to whether s 7(2) informed the application of s 32(1) and, therefore, there was no ratio on that point. Their Honours left open whether the Court of Appeal was required to follow the decision of Maxwell P and Ashley and Neave JJA in R v Momcilovic in the circumstance that, among others, a majority of the High Court had disagreed with this decision. Nettle JA was of the view that there was no majority position in the High Court in relation to this question; therefore the Court of Appeal should follow its previous decision in R v Momcilovic until the High Court determined otherwise.
In WBM, Warren CJ (Hansen JA agreeing) again expressed the view that there was ‘no obvious ratio from the High Court in Momcilovic v The Queen as to whether s 7(2) should be considered as part of the s 32(1) interpretative exercise’. On the application of s 32(1), the Chief Justice said:
[I]f a statutory provision interferes with an identified human right, then an interpretation must be preferred that does not interfere with that right or least interferes with that right, provided it is not contrary to statutory intent.

The issue concerning the relationship between ss 32(1) and 7(2) was acknowledged and also left open by Redlich and Tate JJA and T Forrest AJA in Director of Public Prosecutions v Leys, and by Tate JA in Taha.
Whether or not s 7(2) informs the application of s 32(1), it appears to be clear that s 32(1) does not permit the adoption of an interpretation that is contrary to the intention of the parliament when it enacted the legislation. As was pointed out by Tate JA in Taha, six members of the High Court so held in Momcilovic. To that extent, the judgment of Maxwell P, Ashley and Neave JJA in R v Momcilovic that, unlike s 3(1) of the Human Rights Act in the United Kingdom, s 32(1) of the Charter did not permit an interpretation to be adopted which was contrary to parliament’s intention when originally enacting the provision in question, has been confirmed. In this respect, the scope of s 32(1) of the Charter is narrower than that of s 3(1) of the Human Rights Act.
In Nigro v Secretary to the Department of Justice, Redlich, Osborn and Priest JJA approached the interpretation and application of s 32(1) on that basis. Their Honours went on to state the applicable principles in the following terms:
Section 32(1) is not to be viewed as establishing a new paradigm of interpretation which requires courts, in the pursuit of human rights compatibility, to depart from the ordinary meaning of the statutory provision and hence from the intention of the parliament which enacted the statute. Accordingly, as was observed in Slaveski v Smith, the court must discern the purpose of the provision in question in accordance with the ordinary techniques of statutory construction essayed in Project Blue Sky. The statute is to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality is applied. The human rights and freedoms set out in the Charter incorporate or enhance rights and freedoms at common law. Section 32(1) thus applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application.

I do not take this statement to be different to what was said by Warren CJ, Nettle and Redlich JJA in Slaveski (see above).[50]

[50]Ibid [210]-[217] (citations omitted), referring to Momcilovic; Ghaidan v Godin-Mendoza [2004] 2 AC 557; Slaveski v Smith [2012] VSCA 25; Noone v Operation Smile (Australia) Inc [2012] VSCA 91; WBM v Chief Commissioner of Police [2012] VSCA 159; DPP v Leys & Leys [2012] VSCA 304; Nigro & Ors v Secretary of the Department of Justice [2013] VSCA 213.

In summary:

(1) s 32(1) does not permit the adoption of an interpretation that is contrary to the intention of the Parliament when it enacted the legislation;[51]
[51]Ibid [216].

(2) s 32(1) does not create a new paradigm of interpretation which requires courts, in the pursuit of human rights compatibility, to depart from the ordinary meaning of the statutory provision and from the intention of Parliament when enacting the statute;[52]
[52]Ibid [217], referring to Nigro & Ors v Secretary of the Department of Justice [2013] VSCA 213.

(3) a statute is constructed against the background of human rights and freedoms set out in the Charter in the same way that the principle of legality is applied;[53]
[53]Ibid [218].

(4) if the words of a statute are capable of more than one meaning, the court should give them whichever of the meanings best accords with the human rights in question;[54] and

(5) it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and the apparent purpose of the enactment.[55]

[54]Ibid [212], referring to Slaveski v Smith [2012] VSCA 25.

[55]Ibid.

As I have said, s 9 of the PR Amendment Act is a validating provision intended to ratify the new Grooming Standards which had been determined by the Chief Commissioner and placed into the Manual six months previously. It is intended to remove any doubt that might have previously existed as to the Chief Commissioner’s power to determine the new Grooming Standards which might otherwise have been discriminatory under the Charter. Section 9 of the PR Amendment Act was passed in the context of an ongoing dispute between the plaintiff and fifteen other members of Victoria Police and the Chief Commissioner.[56] The dispute was before the Commission with the potential to be referred to the Tribunal. It was the intent of Parliament to authorise the imposition of grooming standards even if they were discriminatory as to an attribute under s 6 of the EO Act, or infringed upon the human right to have equal and effective protection against discrimination under s 8(3) of the Charter.
[56]See above n 2.

In view of the reasons of the Court of Appeal in Slaveski v Smith,[57] and in Nigro v Secretary to the Department of Justice,[58] it is not open to a judge sitting in the Trial Division of the Court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and the statutory purpose of the enactment. In these circumstances, the meaning that should be attributed to the expression ‘standards of grooming’ is the grammatical meaning which in turn strongly aligns with the intent and purpose of s 9 of the PR Amendment Act.
[57](2012) 34 VR 206, 215 [24].
[58][2013] VSCA 213 [85].

Even if it is permissible to consider the human right to protection against discrimination under s 8(3) of the Charter, s 32 of the Charter directs that all statutory provisions must be interpreted in a way that is compatible with human rights “so far as it is possible to do so consistently with their purpose”. Having regard to the evident purpose of s 9 of the PR Amendment Act to strengthen and buttress the statutory power of the Chief Commissioner to determine and impose ‘standards of grooming’ for members of Victoria Police, even where those standards may differ based on attributes such as ‘physical features’ listed in s 6 of the EO Act, there is no ambiguity or reasonably available alternative construction of s 5(2) of the PR Act that would be more compatible with the human right set out in s 8(3) of the Charter. The meaning of s 5(2) is clear and s 5(2)(c) expressly permits ‘standards of grooming’ to differ based on sex and physical features.

As to the nature and extent of the limitation imposed by s 5(2) on the human right set out in s 8(3) of the Charter, in this case the limitation on human rights is directed to members of Victoria Police for the purposes stated in the Second Reading Speech, and to the extent specified in the new Grooming Standards. It does not apply to any person who is not a member of Victoria Police. In the context of police officers, in my view, the limitation on human rights must be taken as having been expressly authorised by Parliament having regard to the language of s 9 of the PR Amendment Act, the comprehensive authority given to the Chief Commissioner by the PR Act and the purposes identified in the Second Reading Speech.

Did the Tribunal misdirect itself when it held that the Chief Commissioner’s emails of 9 and 29 December 2011 did not amount to unfavourable treatment of the plaintiff?

The plaintiff contended that the Tribunal misdirected itself when it held that the 9 December 2011 email and the 29 December 2011 email did not amount to unfavourable treatment of the plaintiff.[59]
[59]Plaintiff’s Outline [38]-[46].

The 9 December 2011 email was addressed to all sworn members of Victoria Police. The Chief Commissioner stated:

Our appearance in the community, at courts and in an operational context has been subject to much debate. Over recent years there has been a lot of feedback from both the public and from members that appearance standards need tightening.
I am keen to ensure a more uniform look. I think it sends a powerful message to the community that we are a professional organisation, we are as one, and that we care about ourselves and the community.
After much consultation, the appearance standards of Victoria Police members will change. The new guidelines will take effect on the 1st January 2012. I am keen to ensure that everyone understands these changes so that they can conform on the day of implementation.
These changes include:
·For males, hair is to be clean, tidy and neatly trimmed. It is not to be extreme in style and colour tones. Hair is not to interfere with wearing of headdress and is not to be visible on the forehead when wearing headdress of any kind. It is not to extend below the top of the shirt collar at the back or extend below the top of the ear at the sides. Ponytails, buns or similar styles are not permitted.
·Sideburns are permitted provided that they are clean, tidy and neatly trimmed, do not extend beyond a horizontal line from the base of the ear lobe and do not increase or decrease in width from top to bottom. Moustaches are permitted provided that they are clean, tidy and neatly trimmed and do not extend beyond a vertical line from the outer edge of the eye or below the bottom edge of the top lip.
·For females, hair is to be clean, tidy and neatly trimmed. It is not be extreme in style and colour tones. Hair is not to interfere with wearing of headdress and is not to be visible on the forehead when wearing headdress of any kind. Hair is not to extend below the top of the shirt collar. Hair that is longer than the top of the shirt collar is to be tied or pinned back and worn close to the head. For neatness and safety reasons, pony tails or similar styles are not to be worn. Hair accessories may be worn if they are of plain design and similar colour to the hair or the uniform.
·Except for Practising Sikhs, beards are not permitted. Goatees, soul patches or other forms of facial hair are not permitted.
·Wrist watches and an engagement ring and/or wedding ring may be worn. Wearing of other jewellery, ornaments, adornments, or accessories is not permitted. This includes earrings, spacers, or any facial/body piercing jewellery.
·Make up and nail polish worn by members should be natural looking and in neutral tones.

There is more work to be done in relation to uniform standards but I am not proposing to progress that until the new uniform starts to roll out in 12 months or so. Likewise with the tattoo policy as the new uniform may address many of the concerns that have been raised about visible tattoos.
The Victoria Police Manual – Guidelines – Uniform and Appearance, is being updated to reflect these changes.

The 29 December 2011 email was also sent to all sworn members of Victoria Police. In this email, the Chief Commissioner stated:

Recently I sent an email that outlined a new Grooming & General Appearance Policy. This was after extensive consultation right across the organisation. There was strong support for some fundamental change from all ranks. On 1 January 2012, these changes will become force policy and there is a requirement to comply with the new standards.
If there is any confusion about their interpretation or any genuine requests for an exemption to any part of the policy, please direct any enquiries through your line management to your local superintendent.
Some members have raised concerns about the policy and exercised their lawful right to challenge the changes through the Human Rights and Equal Opportunity Commission (HR & EOC). This new policy will not apply to those members until their matters have been determined by the HR & EOC.
The policy, together with the new police uniform to be rolled out around the end of next year, will build on the image of Victoria Police. It is important to me that we protect and enhance the Victoria Police image, a major component being our consistent and professional appearance.

The plaintiff did not contend that it was not open to the Tribunal to arrive at the conclusion that the 9 December 2011 email and the 29 December 2011 email did not individually or collectively amount to unfavourable treatment. Rather, Senior Counsel for the plaintiff submitted that the Tribunal made an error of law when it did not apply a correct legal basis for dismissing the allegation of unfavourable treatment advanced by the plaintiff.[60]
[60]Transcript 52 ln 12-20; 52 ln 27; 54 ln 3.

Before the Tribunal, it was contended on behalf of the Chief Commissioner that there was no unfavourable treatment or proposed unfavourable treatment of the plaintiff. The Chief Commissioner relied on the fact that the plaintiff was exempt from the new Grooming Standards pending the resolution of his complaint to the Commissioner, and complaint to VCAT. He denied that any email sent by him or on his behalf suggested or implied that the plaintiff was unprofessional, does not take pride in his appearance, is not well groomed, does not care about the community or lacks the public’s confidence, trust or respect.[61]
[61]Reasons [98].

The Tribunal made findings as to the statements in the 9 December 2011 email and in the 29 December 2011 email:

(1) while the plaintiff felt aggrieved by the statements made in the 9 December 2011 email, they were not specifically directed at him;

(2) the comments in the 29 December 2011 email were very general in nature, and not specifically directed to the plaintiff; and

(3) the comments made in the emails did not amount to ‘unfavourable treatment’ of the plaintiff.[62]

[62]Ibid [118], [119].

The test for unfavourable treatment adopted by the Tribunal in the context of the 31 August 2012 email is fully set out in the Reasons.[63] The Tribunal relied on a number of previous Tribunal decisions to determine the test for unfavourable treatment. The first of these was Slattery v Manningham City Council.[64] In this decision, the Tribunal held that what was required was an analysis of the treatment of the person complaining of direct discrimination. While the analysis may be informed by a consideration of the treatment afforded to relevant others, no comparator was required.[65]
[63]See [100]-[105].
[64][2013] VCAT 1869 (DP Nihill).
[65]Ibid [51]-[53]; Reasons [101], [102].

Reliance was also placed by the Tribunal on Drummond v Telstra Corporation Limited[66] where Deputy President Macnamara (as he was then) considered the meaning of the word ‘detriment’.[67] The attribute must be a substantial reason for the detrimental treatment, while the detriment must be something of substance rather than trivial. There must be unfavourable behaviour aimed at, or toward, the person complaining of discrimination because of an attribute.[68]
[66][2008] VCAT 2630.
[67]Under s 15 of the Equal Opportunity Act 1995 (Vic).
[68]Reasons [102]-[103]. Also Fratas v Drake International Ltd t/a Drake Jobseek (2000) EOC 93-038 (DP McKenzie); Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 (Beaumont ACJ).

Next the Tribunal referred to Fratas v Drake International Ltd where Deputy President McKenzie referred to ‘detriment’ as meaning a “disadvantage”.[69]
[69]Reasons [104]–[105]

The Tribunal also referred to the meaning of treatment considered by the Federal Court of Australia in Edgley v Federal Capital Press of Australia Pty Ltd:
There is no special statutory definition of the verb "treat" and it is not a term of art. Its primary dictionary definition is "1. To act or behave towards in some specified way: (e.g.) to treat someone with respect" (Macquarie Dictionary). That definition seems apposite here. Again, as noted in Prezzi, above, the adverb "unfavourably" appears to have its ordinary meaning. The dictionary definitions of the adjective "unfavourable" include "adverse", and this seems appropriate here. In other words, s 8(1)(a) is directed at adverse behaviour towards a person, because of an attribute. I emphasise that the conduct must be aimed at, or towards, the person complaining of discrimination. [70]
[70][2001] FCA 379 [54].
The issue whether the expression ‘unfavourable treatment’ requires a comparator or a comparator group was discussed by the Court of Appeal in Aitken & Ors v State of Victoria - Department of Education and Early Childhood Development.[71] The Court said:

It is more doubtful whether such a comparison was required under the 2010 Act. The Explanatory Memorandum for that Act states that s 8 was intended to replace the ‘comparator test applicable under the 1995 Act with a new test based on unfavourable treatment’.
In Re Prezzi and Discrimination Commissioner and Quest Group, the Australian Capital Territory Administrative Appeals Tribunal held that the Discrimination Act 1991 (ACT) ― s 8 (1)(a) of which is similar to s 8 of the 2010 Act ― does not require a comparison between the treatment of a person who has the relevant attribute with a person who lacks that treatment, but simply a consideration of whether the person has been treated unfavourably because of the relevant attribute. However, that decision is not binding on this Court. We would therefore accept that the question whether a comparator group is required under the 2010 Act remains an unresolved question of law in Victoria.[72]

[71][2013] VSCA 28 (Neave and Priest JJA).

[72]Ibid [45]-[46].

The Tribunal adopted the view that in applying the test for ‘unfavourable treatment’ no comparator or comparator group was necessary.[73] This was consistent with the view arrived at in Slattery v Manningham City Council (Human Rights),[74] and in Re Prezzi and Discrimination Commissioner and Quest Group.[75] What was necessary was that the proposed treatment is ‘not favourable, not propitious, disadvantageous and adverse’.[76] In the case of the 31 August 2012 email, these requirements were met. The treatment afforded by that email was detrimental treatment, placing the plaintiff under a real disadvantage which was a matter of substance and not trivial.[77] The Tribunal came to the view that the 9 December 2011 email and the 29 December 2011 email were not ‘unfavourable treatment’ of the plaintiff. There is no reason to doubt that the Tribunal used the same test based on the same authorities when it considered whether the 9 December 2011 or the 29 December 2011 email constituted ‘unfavourable treatment’.
[73]Reasons [100]-[101].
[74][2013] VCAT 1869 [51], [53].
[75](1996) 39 ALD 729.
[76]Relying on Slattery v Manningham City Council (Human Rights) [2013] VCAT 1869 [57].
[77]Reasons [111]-[113].

It was not submitted by the plaintiff that the test of unfavourable treatment adopted by the Tribunal in the context of the 31 August 2012 email was wrong, that the authorities relied on by the Tribunal as to the test for unfavourable treatment were incorrect, or that the Tribunal had misunderstood or misapplied them. It was not submitted that the Tribunal was wrong when it considered that no comparator or comparator group was required. Rather, it was suggested that the references to the generality of comments and the fact that they were not specifically directed to the plaintiff showed that the wrong test was applied in the context of the 9 December 2011 and 29 December 2011 emails.

The Tribunal did not hold that the Chief Commissioner’s conduct could not amount to unfavourable treatment of the plaintiff because it was in general terms and not directed at the plaintiff. Rather the Tribunal held, on the facts of this case and having regard to the content of the emails, that the conduct did not amount to unfavourable treatment. Those facts included the fact that the emails were in general terms, and were not specifically addressed to the plaintiff. He was one addressee amongst the many sworn members of Victoria Police.

The plaintiff has not shown that there was any misdirection made by the Tribunal when it held that receipt of the two emails by the plaintiff was not unfavourable treatment. The emails gave advance information of the Chief Commissioner’s intentions as to the introduction of the new Grooming Standards and the reasons why the Chief Commissioner considered the new Grooming Standards should be introduced. They were directed to all sworn members of the force in Victoria. It was open to the Tribunal not to be satisfied that the emails constituted unfavourable treatment of the plaintiff.

The plaintiff has not shown any error of law in the test applied by the Tribunal. The test set out in the Reasons as to ‘unfavourable treatment’ is consistent with previous decisions and in my view is correct.

Conclusion

The plaintiff has failed to show that there was any error on a question of law made by the Tribunal. None of the grounds of appeal set out in the Amended Draft Notice of Appeal succeed.

The appeal brought to the Court under Question 5 Ground 3 by leave of Derham AsJ granted on 2 April 2014 must be dismissed. No other ground of appeal sought to be relied on has been established. The proceeding will be dismissed.

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[2015] VSC 204

14 May 2015