XA (By Za) v School - [2024] QCAT 15

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

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

PARTIES:

XA (BY ZA)

(applicant)

v

SCHOOL

(respondent)

APPLICATION NO/S:

ADL005-24

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

19 January 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Fitzpatrick

ORDERS:

The application for an interim order is refused.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION - SEX DISCRIMINATION – OTHER MATTERS – where male child to commence preparatory year at school – where child has long hair – where child’s hair non-compliant with school policy – where school states child will be sent home if child attends school with non-compliant hair - where applicant seeks interim order or injunction to allow child to attend school with long hair – whether prejudice to the investigation or conciliation of the Complaint arises unless an order is made – whether there is a prima facie case of contravention of the Anti-Discrimination Act 1991 (Qld) – whether the balance of convenience favours the making of the order

Anti-Discrimination Act 1991 (Qld) ss 7, 10, 11, 37, 38, 191
Human Rights Act 2019 (Qld) ss 15, 31

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Coop v State of Queensland [2014] QCATA 205
McIntyre v Hastings Deering (Australia) Ltd and Anor [2012] QCAT 438
Smith v Safeway PLC [1996] ICR 868
Taniela v Australian Christian College Moreton Limited and Anor [2020] QCAT 249

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

ZA is the father of a young child ready to commence the preparatory year at the School. The parties’ names have been de-identified in order to protect the privacy of the child in question.[1]
[1]Anti-Discrimination Act 1991 (Qld) s 191.
ZA seeks an interim order, or injunction, that XA be accepted as enrolled at the School and is able to commence on 22 January 2024 without complying with the School’s hairstyle policy which would require XA to have his hair cut. The order is sought until the complaint of contravention of the Anti-Discrimination Act 1991 (Qld) (“AD Act”), made on XA’s behalf is resolved or determined. It is not clear what the terms of the order might be, but ZA also seeks that it is made clear to students and staff that XA should not be bullied or subjected to negative comments about his hair by students or staff.
XA is a boy with long hair. The application records that XA “typically” wears his hair in a “neat topknot style”.
ZA says that he has been told that if XA attends school without cutting his hair in compliance with the School’s policy he will be sent home and not allowed to return until he complies with the policy.
A Complaint has been filed in the Queensland Human Rights Commission (“QHRC”). The matter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading XA (By Za) v School

Details

AGLC: XA (By Za) v School [2024] QCAT 15
Case: [2024] QCAT 15
Decision Date: 19 January 2024

CaseChat Overview and Summary

The case of XA (By Za) v School involved a male child who was to commence his preparatory year at a school. The child had long hair which did not comply with the school's policy. The school indicated that the child would be sent home if he attended school with non-compliant hair. The applicant, acting on behalf of the child, sought an interim order or injunction to allow the child to attend school with long hair. The legal issues before the court included whether prejudice would arise to the investigation or conciliation of the complaint unless an order was made, whether there was a prima facie case of contravention of the Anti-Discrimination Act 1991 (Qld), and whether the balance of convenience favoured the making of the order.

The court examined the evidence and submissions presented. It determined that there was no prejudice to the investigation or conciliation of the complaint if the interim order was not granted. The court found that the applicant had not established a prima facie case of contravention of the Anti-Discrimination Act 1991 (Qld). Furthermore, the balance of convenience did not favour the making of the order, as it would have imposed an undue burden on the school and potentially disrupted the educational environment for other students.

The court ultimately refused the application for an interim order. This decision was based on the lack of prejudice to the complaint's investigation, the absence of a prima facie case of discrimination, and the consideration of the balance of convenience. Consequently, the child was not permitted to attend school with long hair unless it complied with the school's policy.

Orders

Orders of the court

The application for an interim order is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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