1. MCC is an independent Christian school, which was established by Simon Liefting in 1985. The school has around 714 students from prep to year 12. MCC is overseen by a board of directors, which appoints the school council. The board of directors has three members and the school council has five members.
2. Sidhak's cousins attend MCC, which was one of the reasons why his parents wanted him to also attend MCC.
3. On 10 March 2016, Mr and Mrs Arora met with Mr Gleeson, to discuss Sidhak's enrolment application. During this meeting, Mr and Mrs Arora told Mr Gleeson that Sidhak was a Sikh, did not cut his hair and wore a patka. Mr Gleeson informed Mr and Mrs Arora that the school's uniform policy may not allow Sidhak to have uncut hair and wear his patka, that he would discuss this matter with the school council and let Mr and Mrs Arora know the outcome. Mr Gleeson also encouraged Mr and Mrs Arora to apply to enrol Sidhak at the school and Mr and Mrs Arora signed the enrolment application that day. Two days later, Mr and Mrs Arora submitted Sidhak's enrolment application to MCC and paid the enrolment fee.
4. On 17 March 2016, Mr Gleeson telephoned Mr Arora and informed him that Sidhak could not have long hair or wear his patka at the school because this would breach the uniform policy, which stated at that time:

Boys' hair must be short, off the eyebrows, ears and shirt collar with obvious facial hair removed. Head and/or face coverings that are related to faith-practices of faiths other than the Christian faith are not part of the Melton Christian College so may not be worn to school.

1. Mr Gleeson also told Mr Arora that the school council had decided not to change the uniform policy for Sidhak.
2. On 25 March 2016, MCC's registrar, Liz Micallef, telephoned Mrs Arora to arrange for her and husband to attend an enrolment interview with Mr Gleeson on 5 April 2016.
3. On 3 April 2016, Mrs Arora telephoned Ms Micallef to confirm the enrolment interview details. Mrs Arora's evidence was that after Mrs Arora told Ms Micallef that Mr Gleeson had informed them that Sidhak could not wear his patka at the school, Ms Micallef told her that the enrolment application would be rejected in due course and cancelled the interview. Mr Gleeson gave evidence that he had been informed by his staff that the interview was cancelled because Mrs Arora withdrew the enrolment application.
4. In any event, Sidhak's application to attend MCC did not proceed any further.

SUMMARY OF MR ARORA'S CLAIM UNDER THE EQUAL OPPORTUNITY ACT 2010

16 The EO Act prohibits discrimination in certain areas of activity against people who have, or are presumed to have, specified attributes. Religious belief or activity[1] is one of the protected attributes,[2] and education is one of the areas of activity.[3]

1. The EO Act prohibits direct discrimination - treating or proposing to treat a person with an attribute unfavourably because of that attribute.[4]
2. The EO Act also prohibits indirect discrimination - imposing or proposing to impose a requirement, condition or practice:

(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and

1. The EO Act also sets out some general exceptions and exemptions from the prohibition against discrimination.
2. Mr Arora alleges of behalf of Sidhak that MCC's requirement that Sidhak comply with the uniform policy constituted indirect discriminated in contravention of s 38(1) the EO Act, which provides that an educational authority must not discriminate against a person:

(a) in deciding who should be admitted as a student; or

(b) by refusing, or failing to accept, the person's application for admission as a student; or

(c) in the terms on which the authority admits the person as a student.

1. Mr Arora alleges that MCC indirectly discriminated against Sidhak because:
   • (a) MCC imposed or proposed to impose a requirement or condition that Sidhak comply with the conditions contained in the uniform policy,
   • (b) the requirement or condition disadvantaged or was likely to have disadvantaged Sidhak, on the basis of his religious belief or activities, and
   • (c) the requirement or condition was not reasonable.
2. Mr Arora submits that the disadvantage suffered by Sidhak is that he cannot attend MCC.
3. Mr Arora also submits that there is a causal link between the requirement to comply with the uniform policy, Sidhak's religious belief or activities and the alleged disadvantage[6] because MCC's uniform policy specifically prohibits head coverings that are related to non-Christian faiths.
4. Mr Arora also alleges that MCC contravened s 38(1) of the EO Act because:
   • (a) between 10 and 17 March 2016, MCC discriminated against Sidhak when it made a decision not to admit him as a student,[7]
   • (b) on 17 March 2016, and again on 3 April 2016, MCC discriminated against Sidhak, as it refused, or failed to accept, his application for admission as a student, and
   • (c) on 17 March 2016, MCC discriminated against Sidhak in the terms on which it proposed to admit him as a student, being that he comply with the conditions in its uniform policy.

1. The educational authority that administers MCC is its school council.[8]
2. MCC denies that it indirectly discriminated against Sidhak and that it contravened s 38(1) of the EO Act.
3. MCC claims that:
   • (a) Sidhak was not disadvantaged by not being able to attend MCC,
   • (b) even if Sidhak was disadvantaged, the requirement that he comply with MCC's uniform policy was reasonable,
   • (c) whilst MCC decided it would not make an exception to its uniform policy for Sidhak, it did not make a decision about whether to admit Sidhak on the basis of him wearing a patka,
   • (d) MCC did not refuse or fail to admit Sidhak on the basis of him wearing a patka because (amongst other reasons) Mrs Arora withdrew Sidhak's enrolment application, and
   • (e) MCC did not discriminate in the terms on which it would enrol Sidhak because it did not decide to enrol Sidhak.
4. In the alternative, that is, if the Tribunal finds that MCC did contravene s 38(1) of the EO Act, MCC relies on:
   • (a) the exception set out in s 39 of the EO Act, which allows an educational authority that operates a school for students of a particular religious belief to exclude students who are not of that particular religious belief, and
   • (b) the exception set out in s 42 of the EO Act, which allows an educational authority to set and enforce reasonable standards of dress, appearance and behaviour for students.
5. Mr Arora denies that either of these exceptions apply in this case.

1. The EO Act prohibits discrimination on the basis of the attributes set out in s 6 of the Act.
2. In this case, the relevant attributes are Sidhak's religious beliefs and activities,[9] specifically his religious belief that as a Sikh, he should have uncut hair (kesh) and his religious activities, being wearing his hair uncut (or alternatively, not cutting his hair) and wearing a patka.
3. Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with an attribute, and that is not reasonable.[10]
4. To succeed in his claim, Mr Arora must initially satisfy the Tribunal that:
   • (a) a requirement, condition or practice has been imposed on Sidhak,
   • (b) the requirement, condition or practice caused, or was likely to cause Sidhak disadvantage,[11] and
   • (c) there is a causal link between the requirement, condition or practice, Sidhak's religious belief or activities and the alleged disadvantage.[12]
5. If Mr Arora can show that a requirement, condition or practice was imposed which causes, or is likely to cause Sidhak disadvantage, MCC has the burden of proving that it was reasonable.[13]

What was the requirement, condition or practice that MCC imposed or proposed to impose on Sidhak?

1. The requirement, condition or practice that MCC imposed or proposed to impose on Sidhak was the requirement that Sidhak comply with its uniform policy, specifically the requirement to have short hair and not wear any head coverings related to a non-Christian faith.

Was Sidhak disadvantaged by not being able to attend MCC?

1. Counsel for Mr Arora, Ms Holt submitted that Sidhak was disadvantaged because he was unable to attend MCC, which was his, Mrs Arora and Sidhak's first choice of school.
2. Mr and Mrs Arora gave evidence about the advantages associated with sending Sidhak to MCC.
3. Mr and Mrs Arora gave evidence that they believed that MCC offered superior education and facilities to other schools in the area.
4. Sidhak's cousins also attend MCC and Mrs Arora gave evidence that Sidhak was very excited to join his cousins at school. She also gave evidence that Sidhak's aunt and uncle, who live next door to Mr and Mrs Arora, would have been able to assist with dropping Sidhak off at school in the mornings and picking him up at the end of the school day.
5. Mrs Arora also gave evidence that MCC's location is convenient for her because it is close to their home and located between their home and the train station, where she catches the train to and from her workplace in the city.
6. Ms Holt also submitted that, as recent immigrants to Australia, the family support network available to Sidhak and his family was of real and practical importance.

1. Counsel for MCC, Ms Knowles, submitted that Mr Arora had not provided the Tribunal with any evidence that Sidhak was disadvantaged because he was unable to attend MCC.
2. Ms Knowles submitted that the evidence established that:
   • (a) MCC has slightly higher NAPLAN results for Grade 3 (the earliest that tests are recorded) in numeracy and literacy than Sidhak's current primary school, Wedge Park Primary School (Wedge Park) but both schools are in Band 4, where the bands range from 1 to 6 at this testing level.
   • (b) Both schools are very close to the Arora family's residence and are only a short drive away.
   • (c) Whilst MCC is close to the station where Mrs Arora catches the train to work, Wedge Park is close to Sidhak's sister's child care centre.
   • (d) Mr Arora is happy with Sidhak's progress at Wedge Park.
   • (e) Whilst Mr Arora gave evidence that Wedge Park's facilities were lacking when compared to MCC, he could not explain what this meant in oral evidence.
3. Ms Knowles also submitted that:
   • (a) Mr Gleeson's evidence that MCC's facilities were not outstanding and not the school's strong point, but adequate for conventional mainstream education should be preferred given his knowledge of MCC's facilities.
   • (b) Mr Arora's perception that MCC's facilities are better than Wedge Park's facility is not a disadvantage.
   • (c) Whilst Sidhak's cousins attend MCC, it was not explained how not attending MCC resulted in this being a disadvantage, as opposed to a personal preference.

Findings in relation to whether Sidhak was disadvantaged by not being able to attend MCC

1. Whilst Mr Arora asserted that MCC's facilities were better than Wedge Park's facilities, he did not provide me with specific evidence in support of this claim. Nor did Mr Arora provide me with any specific evidence in support of his claim that MCC offers students a superior education to that offered by Wedge Park. I agree with Mr Knowles' submission that Mr Arora's perception that MCC is a better school for these reasons is not evidence of disadvantage. Accordingly, Mr Arora has not satisfied me that Sidhak has been disadvantaged by not being able to attend MCC for these reasons.
2. However, I accept Mrs Arora's evidence about MCC's convenient location and the advantages associated with Sidhak being able to attend a school that his cousins also attend. In particular, I am satisfied that as both of Sidhak's parents work, a school that is located between the family home and the train station where his mother travels to and from work is advantageous because Sidhak can be dropped off and collected closer to school starting and finishing times. Similarly, I am satisfied that it would have been advantageous for Sidhak to attend a school where his aunt and uncle could have helped with dropping him off and picking him up, particularly given that the families live next door to each other. I do not agree that this is simply a matter of 'personal preference' as submitted by Ms Knowles.
3. In addition, whilst I agree that Mr and Mrs Aurora did not give any evidence in support of Ms Holt's submission that, as recent immigrants to Australia, the family support network available to Sidhak and his family was of real and practical importance, I am satisfied that this is likely to be the case given that Mr and Mrs Arora only moved to Australia in June 2014 and that they chose to live next door to Mr Arora's brother and his family. I also accept Mrs Arora's evidence that Sidhak was very excited to join his cousins at MCC and I am satisfied that Sidhak would have benefited emotionally and socially from being able to attend the same school as his older cousins.
4. For these reasons, I am satisfied that Sidhak was disadvantaged by not being able to attend MCC.

Is there is a causal link between the requirement that Sidhak comply with MCC's uniform policy should he become a student, Sidhak's religious belief and activity and the disadvantage?

1. Ms Holt submitted that there is a clear causal link between the requirement that Sidhak comply with MCC's uniform policy, Sidhak's religious belief that as a Sikh, he should have uncut hair and wear a patka and his inability to attend MCC, which I have found disadvantages Sidhak.
2. This was not disputed by MCC.
3. I also agree that there is a clear causal link between the requirement that Sidhak comply with MCC's uniform policy, Sidhak's religious belief that as a Sikh, he should have uncut hair and wear a patka and his inability to attend MCC.

1. Section 9(3) of the EO Act sets out a non-exhaustive list of factors to be taken into account in determining whether a requirement, condition or practice is reasonable. Section 9(3) of the EO Act provides:

Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including the following -

(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice;

(b) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice;

(c) the cost of any alternative requirement, condition or practice;

(d) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice;

(e) whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.

1. As MCC has imposed the uniform policy, it has the burden of proving that the uniform policy is reasonable.[14]
2. Reasonableness is a question of fact and requires an objective assessment and weight of all relevant factors.[15]
3. In Turner,[16] the Supreme Court held that the test of reasonableness is less demanding than one of necessity, but more demanding than one of convenience. The Supreme Court held that the criterion is an objective one, requiring the Tribunal to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement on the other. The Tribunal must consider all the circumstances of the case in determining the reasonableness of the condition.[17]

1. In her written submissions, Ms Knowles submitted that the Tribunal should find that MCC's uniform policy is reasonable, taking into account the nature and extent of the disadvantage suffered by Sidhak as a result of the imposition of the uniform policy and whether the disadvantage is proportionate to the result sought by MCC through its imposition of the uniform policy on Sidhak.
2. Specifically, Ms Knowles submitted that:
   • (a) the nature and extent of the disadvantage resulting from the imposition of the uniform policy is that Sidhak cannot go to the school that was his parents' first choice, and
   • (b) the disadvantage is proportionate to the result sought by the school in imposing its uniform policy.
3. MCC relied on the evidence of Mr Gleeson and Mr Liefting in relation to the purpose of the uniform policy.
4. Mr Gleeson's evidence included that:
   • (a) the uniform represents being part of MCC's community,
   • (b) the unifying effect of the uniform enables freedom because of the resulting equality that the uniform's sameness provides,
   • (c) the uniform policy is not a randomly determined standard but has a clear connection to the school's ethos and seeks to create a 'level playing field' through the equality it gently imposes,
   • (d) the absence of external religious symbols is deliberate and important because the Christian faith, as expressed by MCC, is not expressed in highly visible external symbols,
   • (e) a noticeably visible, external demonstration of a non-Christian faith is inconsistent with the philosophy of the Christian faith as expressed by MCC, and
   • (f) the uniform policy protects students from inadvertent discrimination by other students or teachers.
5. Mr Liefting's evidence included that:
   • (a) the uniform policy was drafted in 1985 and its purpose and intent was also to exclude the wearing of head coverings,
   • (b) the uniform policy was informed by initial community and public meetings and informal surveying that Mr Liefting and MCC staff undertook in 1985,
   • (c) over time, the MCC community reaffirmed its views that the policy was appropriate and reflected their vision for the school,
   • (d) to confirm its intent and purpose, the MCC school council endorsed and agreed to inserting specific wording about the prohibition on non-Christian head coverings in 2014,
   • (e) MCC school council minutes in 2014 came about because the members of the school council had discussed what the overall school community believed so they could then determine the matter with that background,
   • (f) he rejected that the community's views needed to be documented but noted that they had been considered and taken into account because parents are a fundamental part of the MCC community,
   • (g) changes to the uniform policy's wording in MCC's 2016 handbook would have been made by the previous principal and did not require the school council's approval, as the intent of the uniform policy was not being changed,
   • (h) there are no minutes of subsequent school council discussions on the issue, despite the fact that such discussions took place,
   • (i) all students, regardless of faith, are required to comply with the uniform policy and prospective students and their parents have to agree to the uniform policy,
   • (j) MCC has many students of different faiths who understand and agree to the uniform policy,
   • (k) the uniform policy is not unthinking and not one of practical considerations - it is a principled position to assist MCC in its education and practice of Christianity,
   • (l) the uniform policy gives students a sense of identity, belonging and purpose,
   • (m) the uniform policy has been adopted to promote inclusivity in line with the final report of the Victorian government's Education and Training Committee's 'Inquiry into Dress Codes and School Uniforms in Victorian Schools'[18] (Inquiry into Dress Codes and School Uniforms), which recognises the legitimacy of promoting inclusivity through adopting a uniform,
   • (n) the uniform policy is part of the values that MCC stands for, reinforcing the values by adherence to the policies,
   • (o) changing the policy would detract from MCC's values, and
   • (p) MCC has students from a vast range of belief systems that comply with the uniform policy.
6. Ms Knowles also submitted that:

(a) the requirement in the uniform policy was reasonable having regard to the House of Lords' decision in R (on the application of Begum) v Headteacher and Governor of Denbeigh High School [2006] UKHL 15 (Begum),[19]

(b) Begum is relevant to this proceeding and the Tribunal's consideration of ss 9 and 42 of the Act (relying on the Court of Appeal decision in Christian Youth Camps Ltd v Cobaw Community Health Services Ltd[20] (Cobaw)), as it is the decision the Attorney-General referred to in his Statement of Compatibility for the Equal Opportunity Amendment Bill 2011, with respect to s 42 of the Act,[21]

(c) in Begum, the House of Lords determined that schools may prevent certain types of religious dress in order to promote a sense of school community and cohesion even where that infringes on a person's right to manifest their religion,

(d) in Begum, the relevant government school had a diverse student population, with around 79% of its students being Muslim. It was not a faith-based school and was open to children of all faiths and none.[22] As in the case of MCC's uniform policy, its uniform policy was explained to prospective students and their families, including the applicant and her family.[23] The school had engaged in community consultation in drafting its uniform policy.[24] The head-teacher's evidence, which was accepted, was that the uniform played an integral part in securing high and improving standards, serving the needs of the diverse community, promoting a positive sense of communal identity and avoiding manifest disparities of wealth and style.[25] She felt that adherence to the policy promoted inclusion and social cohesion and feared that new variants would encourage the formation of groups or cliques identified by their clothing, which the policy aimed to avoid.[26]

1. At the end of the hearing, Ms Knowles also made some oral submissions. Ms Knowles reiterated the conclusion of the Inquiry into Dress Codes and School Uniforms that there are legitimate lines of argument on both sides in relation to whether or not a uniform policy promotes inclusivity and identity.
2. Ms Knowles also conceded on behalf of MCC that there were no practical reasons why a student could not wear a patka at school.[27] Ms Knowles reiterated that the uniform policy banned the wearing of head coverings of a non-Christian faith on principle.

1. In her written submissions, Ms Holt submitted that the uniform policy is not reasonable and that MCC has failed to discharge the onus of proof.
2. Specifically, Ms Holt submitted that the uniform policy is not reasonable because:
   • (a) of the nature and extent of the disadvantage resulting from the uniform policy, that is, that Sidhak was unable to attend MCC as a prep student,[28]
   • (b) the disadvantage suffered by Sidhak was not, and is not, proportionate to the result sought by MCC by enforcing compliance with the uniform policy,[29] and
   • (c) there was an available alternative requirement or condition, namely that Sidhak wear a patka in the same colour of the school uniform,[30] which would have achieved the result of uniformity and have imposed less disadvantage upon Sidhak.
3. In relation to evidence given in support of the matters raised in MCC's amended defence, Ms Holt made the following submissions:
   • (a) there is no evidence that the school community was consulted and their views taken into account in 2014 and again in 2016, when MCC amended the uniform policy to include a prohibition of head coverings,
   • (b) even if the survey undertaken by the school in 2017 could be considered a survey of the 'school community' in circumstances where parents and students were not surveyed, the results of the survey cannot be used to retrospectively justify the 2016 uniform policy as reasonable,
   • (c) there is no evidence to substantiate that the prohibition on head coverings created a 'sense of belonging' or 'identity and pride in the College' or that looking the same encouraged 'belonging and integration as a form of equalisation',
   • (d) there is no evidence that the prohibition on head coverings and the requirement to cut hair reduced the prospects of teasing, bullying or inadvertent discrimination if a student looks 'different' and MCC has a bullying policy that prohibits bullying on the basis of religion in any event,[31]
   • (e) there is no evidence that supports the contention that 'if one student wears a head covering, others might try to 'out do' each other',
   • (f) Mr Liefting's evidence under cross-examination was that 'safety considerations' were not considered or relevant to the insertion of the prohibition of head coverings into the uniform policy,
   • (g) Mr Gleeson's evidence under cross-examination was that there were no practical reasons, such as 'safety considerations' for the prohibition of head coverings in the uniform policy,
   • (h) the school community would include students, parents, staff, teachers, members of school committees and school councils,[32]
   • (i) under cross-examination, Mr Gleeson accepted that parents, students, teachers, staff and members of the school council formed the school community,
   • (j) under cross-examination, Mr Liefting accepted that:
     1. the uniform policy was drafted in 1985 and that the uniform policy did not specifically include a prohibition on head coverings until September 2014,
     2. the school council was required to endorse any amendments to policies, including the uniform policy,
     3. the school council discussed any amendments to policies and adopted any amendments at its meetings, which were held on a regular, monthly basis,
     4. the school council meetings were recorded in minutes,
     5. there was no evidence of any consultation with all of the parents at the school or that their views were taken into account in the minutes of the school council meeting in September 2014 when the school council adopted the relevant amendment to the uniform policy,
   • (k) under cross-examination, MCC's witnesses gave the following examples of behaviour by students that they believed was analogous to wearing religious head coverings:
     1. Mr Gleeson gave an example of a boy who had long hair when he was admitted, who still has long hair and remains a student at the school. Ms Holt noted that the hair is not kept long because of a religious belief or activity and that Mr Gleeson's evidence was that he remains a student at the school.
     2. Mr Gleeson gave an example of a boy who wears a baseball cap at the school and that he remains a student at the school. Ms Holt submitted that this is not head coverings that is worn on the basis of a religious belief or activity and that Mr Gleeson's evidence is that the student remains a student at the school.
     3. Mr Liefting gave a hypothetical example of a female student dying her hair red. Mr Liefting stated that it was not allowed as it would make her stand out. Ms Holt noted that this is not based upon a religious belief or activity.
   • (l) in relation to the uniform policy contained in the 2016 handbook, under cross-examination Mr Liefting:
     1. initially stated that he could not recall any changes being made to the policy after 2014,
     2. when the 2016 handbook was put to him, agreed that the wording of the policy had changed,
     3. stated that the change must have been endorsed by the school council and that it would have been made at a school council meeting,
     4. stated that the author of the 2016 handbook was Rebekah Alexander, the previous principal at MCC,
   • (m) Mr Gleeson gave evidence that no minutes of any school council meeting that discussed the amendment of the 2016 Policy had been found,
   • (n) Mr Liefting and Mr Gleeson both agreed under cross-examination that there was no documentary evidence of any consultation with the school community in relation to the amendment to the 2016 handbook,
   • (o) the absence of any evidence from Ms Alexander has not been explained by MCC and that her evidence was relevant to issues in the proceeding,
   • (p) an inference may be drawn from the absence of any evidence of Ms Alexander that she would have given evidence confirming that:
     1. there was no consultation with the school community in relation to the 2016 handbook and that the views of the school community were not taken into account, and
     2. the 2016 handbook was not endorsed by the school council,
   • (q) the absence of this evidence is relevant, as it further demonstrates the unreasonableness of prohibition of head coverings in the uniform policy,
   • (r) Mr Gleeson's evidence that the school conducted a survey about the school uniform policy in 2017 cannot be used to retrospectively justify the 2016 uniform policy as reasonable,
   • (s) whilst Mr Gleeson gave evidence under cross-examination that there were approximately 300 parents and 712 students at the school, Mr Gleeson's evidence that the 2017 survey did not survey the school's students or their parents, demonstrates that the school did not take into account the views of the 'school community' at this time,
   • (t) whilst the evidence of both Mr Gleeson and Mr Liefting is that the uniform policy is based on 'inclusivity', the uniform policy in fact operates to exclude persons with a religious belief or activity that includes wearing religious head coverings and this is not reasonable, as it is obvious and clear differential treatment based upon a religious belief or activity,
   • (u) the purpose of the uniform policy is to not allow non-Christians, whose religious beliefs or activities involve wearing, for example, a head covering, to practice their religious beliefs or activities, which is not reasonable,
   • (v) the evidence of Mr Gleeson that exceptions from the uniform policy may be granted to students for medical reasons, but not for religious reasons, demonstrates the inherent unreasonableness of the policy,
   • (w) Mr Liefting agreed under cross-examination, it was ok for a student not be Christian, so long as the student did not look like they were not a Christian, which is not reasonable, and
   • (x) Whilst Mr Liefting's evidence in relation to reasonableness was that wearing a patka makes 'a significant religious statement' and that 'uniform promotes inclusivity', in fact the uniform policy promotes exclusivity because persons who hold a religious belief or activity that includes wearing a head covering are excluded from attending the school and that this is not reasonable.
4. At the end of the hearing, Ms Holt also submitted that the disadvantage suffered by Sidhak was not, and is not, proportionate to the result sought by MCC by enforcing compliance with the uniform policy to the extent that MCC's uniform policy requires its students to look the same in order to promote inclusivity.
5. She also informed the Tribunal that Mr Arora agreed with and relied on the Commission's submissions.

1. The Commission confined its submissions to:
   • (a) the operation of the EO Act, and in particular the relevant exceptions raised by MCC, and
   • (b) the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) to the interpretative task of the Tribunal by the operation of s 32(1) of the Charter, which requires the Tribunal to interpret the provisions of the EO Act in a way that is compatible with human rights so far as it is possible to do so consistent with the purpose of the provisions.
2. In her written submissions, counsel for the Commission, Ms Bennett submitted that the cases from the United Kingdom or the European Court of Human Rights that consider whether the application of a uniform policy constituted a breach of the right to freedom of religion or expression are of limited assistance to the Tribunal's task under s 32 of the Charter.[33]
3. Ms Bennett submitted that this is because, in general, the approach in those jurisdictions is to consider whether the conduct in the circumstances of that case constituted a breach of the relevant human rights legislation, which means that the availability of alternative means of religious observance was often considered.
4. Ms Bennett also submitted that the Tribunal's task under s 32 of the Charter is only to consider whether one interpretation of the relevant provision of the EO Act is likely to infringe upon a particular right as against another, also available interpretation and that because a statute is construed generally, rather than by reference to the facts of one case, much of the international jurisprudence (which turn on their own facts) do not assist.
5. However, Ms Bennett also submitted that the genuineness and depth of community consultation was given particular significance in some UK decisions under the Human Rights Act and that while those cases arise in distinct factual and legal frameworks, the importance of consultation in identifying whether there had been a reasonable limitation on the right to freedom of religion is instructive.[34]
6. At the end of the hearing, Ms Bennett also made some oral submissions. Ms Bennett submitted that Begum, the decision relied on by MCC, is not relevant to the Tribunal's consideration of whether MCC's uniform policy is reasonable under s 9 of the EO Act. Ms Bennett submitted that Begum is only relevant to the Tribunal's consideration of s 42 of the EO Act if the Tribunal considers that this section applies in the facts of this case.
7. Ms Bennett also submitted that the questions for the Tribunal in considering the reasonableness of the uniform policy include 'what is a reasonable standard of dress' and 'how hard would it be not to do this'?
8. Finally, Ms Bennett submitted that any uniform policy that conveyed a message that a school was happy to accept Sikh students as long as they did not look like Sikh students was unreasonable.

Discussion in relation to whether the uniform policy is reasonable

1. I agree with Ms Bennett's submission, which Ms Holt agreed with, that the House of Lords' decision in Begum is not relevant to my consideration of whether MCC's uniform policy is reasonable under s 9(2) of the EO Act. The decision in Begum was only referred to by then Attorney-General Robert Clarke in his Statement of Compatibility for the Equal Opportunity Amendment Bill 2011 with respect to s 42 of the Act. Further, the House of Lords in Begum was considering whether there had been a reasonable limitation on the right to freedom of religion, not whether a requirement is reasonable having weighed the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement on the other.

78 In addition, the question of whether the uniform policy is reasonable is a question of fact, not a question of legislative construction.[35]

1. That being said, I consider that Mr Gleeson and Mr Liefting's evidence about the nature and extent of the consultation undertaken by MCC before it amended its uniform policy in 2016, which is relevant to s 42 of the EO Act, is also relevant to my consideration of whether the uniform policy is reasonable under s 9(2) of the EO Act, amongst other things.

The nature and extent of the disadvantage resulting from the imposition of the uniform policy

1. I do not agree with Ms Knowles' submission that the nature and extent of the disadvantage resulting from the imposition of the uniform policy is merely that Sidhak cannot go to the school that was his parents' first choice.
2. Rather, the nature and extent of the disadvantage suffered by Sidhak is that he could not access the emotional and social advantages associated with attending a school that his cousins also attended and the practical advantages associated with attending a school that is close to his home and between the family home and the closest train station.
3. However, Mr Arora's evidence that Sidhak was only 'a little disappointed' he could not attend MCC with his cousins and that he is happy with Sidhak's progress at Wedge Park is also relevant.
4. Taking these matters into account, I find that the disadvantage suffered by Sidhak is reasonably significant.

Whether the disadvantage is proportionate to the result sought by MCC by imposing the uniform policy

1. I accept the evidence of Mr Gleeson and Mr Liefting in relation to what result MCC is seeking to achieve through the imposition of its uniform policy, such as:
   • (a) giving students a sense of identity, belonging and purpose,
   • (b) ensuring its students feel part of MCC's community,
   • (c) creating a level playing field for its students,
   • (d) promoting inclusivity,
   • (e) promoting unity, equality and freedom through the uniform's sameness,
   • (f) protecting students from inadvertent discrimination, and
   • (g) assisting MCC in its education and practice of Christianity.
2. However, there are a myriad of ways to achieve such results in addition to, or instead of having a uniform policy that does not make exceptions for students who wear head coverings associated with non-Christian religious beliefs.
3. I also agree with Ms Holt's submission that the school did not provide any evidence that the prohibition on head coverings of a non-Christian faith and the requirement for boys to have short hair has in fact helped to achieve the results it was seeking or that it has protected students who look different from inadvertent discrimination, particularly where MCC has a bullying policy that prohibits bullying on the basis of religion and the school expects its teachers to treat all students equally.
4. In addition, whilst I accept that, broadly speaking, having a school uniform is likely to help MCC to engender a sense of pride and belonging in the school and to promote feelings of equality as noted by the committee in the report on the Inquiry into Dress Codes and School Uniforms,[36] the report also sets out the benefits of not having a school uniform, which include supporting inclusion by encouraging diversity, teaching students not to make judgements on the basis of clothing, improving students' engagement with school and supporting a student-centred school environment.[37]
5. The committee also observed in the report that:
   • (a) anti-discrimination law rests on a tension between two understandings of equality: 'as sameness...or as allowing difference',[38]
   • (b) while the wording of ss 37 and 40(1) of the Equal Opportunity Act 1995,[39] 'may be imprecise, the Committee believes it is unlikely to extend to policies that are openly discriminatory',[40]
   • (c) direct discrimination can be avoided by making rules that 'apply consistently to all students' and indirect discrimination can be avoided 'through the use of individual exemptions',[41]
   • (d) the Victorian Department of Education and Early Childhood Development's guidelines state that exemptions to dress codes in school uniform policies must be provided where a student's religious, ethnic and cultural background may be compromised,[42] and
   • (e) most Victorian schools recognise the importance of equality and anti-discrimination issues in their dress codes and school uniform policies,[43]
   • (f) most schools develop policies that apply to all students in consultation with their communities, and then work with individuals and families to negotiate exemptions on a case-by-case basis where necessary.[44]
6. Whilst the observations contained in the report on the Inquiry into Dress Codes and School Uniforms are not binding on MCC, and Mr Arora did not make a claim of direct discrimination, I consider that MCC's uniform policy, in so far as it prohibits head gear of a non-Christian faith, could be described as 'openly discriminatory'. In addition, the school's refusal to grant Sidhak an exemption in relation to the requirement that boys have short hair is inconsistent with the Department's guidelines at that time.
7. I also agree with Ms Holt's submission that rather than promoting inclusivity, MCC's prohibition on head coverings of a non-Christian faith and the requirement for boys to have short hair promotes exclusivity by, in this case, excluding a potential student who wears a patka because of his religious belief or activity from attending the school.
8. Nor am I satisfied based on Mr Liefting's evidence that the amendment of uniform policy in September 2014, which inserted the express prohibition on students wearing head coverings of a non-Christian faith, reflected the views of the school community at that time.
9. Mr Liefting's evidence was there were community and public meetings and informal surveys undertaken by him and school staff in 1985 and that over time, the MCC community reaffirmed its views that the policy was appropriate and reflected their vision for the school. Mr Liefting also gave evidence that due to his 30 year involvement with the school, he has a certain relationship and rapport with parents, teachers and friends, who have shared their views with him over the years.
10. However, no formal survey was conducted any time between when the school was established in 1985 and the amendment to the uniform policy in September 2014, nearly 30 years later. Mr Liefting also gave evidence that at no time before the amendment to the uniform policy in September 2014 has MCC documented the views of the school community on MCC's uniform policy.
11. In addition, whilst Mr Liefting and Mr Gleeson agreed in cross-examination that the school community included the school's 712 students, Mr Gleeson gave evidence that at no time has the school sought the views of its students in relation to its uniform policy.
12. Further, Mr Liefting did not provide any evidence in relation to how many members of the school community provided their views over the years, whether those people were parents, teachers or staff, when and how they provided their views and whether the people from the school community who provided their views were people who are Christians, people with other religious beliefs or people with no religious beliefs. Anecdotal evidence of conversations with parents over many years is not sufficient to support a finding that the uniform policy reflected the views of the school community at the time.
13. Finally, even if evidence of the results of the 2017 survey in relation to the school's uniform policy could be used to support a finding that the 2016 uniform policy was reasonable, I agree with Ms Holt's submission that the survey undertaken by the school in 2017 was not a survey of the 'school community' given that the school's students and their parents were not surveyed.
14. Accordingly, taking into account:
    • (a) the nature and extent of the disadvantage suffered by Sidhak as a result of MCC's imposition of its uniform policy,
    • (b) my finding that the disadvantage is reasonably significant,
    • (c) my finding in relation to the lack of evidence that the uniform policy when amended in September 2014 reflected the views of the school community at the time, and
    • (d) my finding in relation to the lack of evidence that MCC's prohibition on head coverings of a non-Christian faith and the requirement for boys to have short hair in fact achieves the results sought by the school (set out at paragraph 84 above) such as inclusivity, unity, equality, freedom and protecting students from inadvertent discrimination,

I find that the disadvantage suffered by Sidhak is not proportionate to the results sought by MCC by the imposition of the uniform policy.

The cost of any alternative uniform policy and MCC's financial circumstances

1. Neither party submitted that either of these factors were relevant to the Tribunal's decision as to whether the uniform policy is reasonable.

Whether reasonable adjustments or reasonable accommodation could be made to the uniform policy to reduce the disadvantage caused, including the availability of an alternative requirement, condition or practice that would achieve the result sought by MCC but would result in less disadvantage

1. Ms Holt submitted that there was an available alternative requirement or condition, namely that Sidhak wear a patka in the same colour of the school uniform,[45] which would achieve the result of uniformity and have imposed less disadvantage upon Sidhak.
2. Similarly, Ms Bennett submitted that one of the questions for the Tribunal in considering the reasonableness of the uniform policy is 'how hard would it be not to do this?'.
3. MCC did not make any submissions about this.
4. I agree with Ms Holt's submission and I am satisfied that allowing Sidhak to wear a patka in the same colour of the school uniform is a reasonable adjustment or a reasonable accommodation.
5. I also agree with Ms Bennett's submission. It would not be difficult to make an exception to the uniform policy to enable Sidhak to wear a patka at the school - it would be a reasonable adjustment.

1. Ms Holt submitted that Mr Gleeson's evidence that exceptions to the uniform policy may be granted to students for medical reasons, but not for religious reasons, demonstrates the inherent unreasonableness of the policy. I agree with this submission.
2. Ms Holt also submitted that it is not reasonable for MCC to impose a uniform policy, the effect of which is that MCC will accept non-Christian students, so long as they did not look like they were non-Christians, as Mr Liefting agreed under cross-examination.
3. Similarly, Ms Bennett submitted that any uniform policy that conveyed a message that a school was happy to accept Sikh students as long as they did not look like Sikh students was unreasonable.
4. I agree with these submissions, particularly taking into account Mr Gleeson's evidence that whilst MCC is a Christian school, it has an open enrolment policy which means that it accepts enrolments of students from other faiths, that a little over 50% of the school community does not identify explicitly as Christian and that many families at the school have no religious beliefs. It is not reasonable to accept enrolments from non-Christian students on condition that they do not look like non-Christians.

Findings in relation to whether the uniform policy is reasonable

1. Ms Bennett submitted that one of the questions for the Tribunal in considering the reasonableness of the uniform policy is 'what is a reasonable standard of dress?'. I agree with this submission.
2. Taking into account all of the matters outlined above, including my findings that:
   • (a) the disadvantage suffered by Sidhak is not proportionate to the results sought by MCC by the imposition of the uniform policy,
   • (b) the school could make a reasonable adjustment to the uniform policy by allowing Sidhak to wear a patka in the same colour of the school uniform,
   • (c) it is not reasonable to accept enrolment applications from students of non-Christian faiths only on condition that do not look like they practice a non-Christian religion, and
   • (d) it is not reasonable to exclude a potential student who wears a patka because of his religious belief or activity from attending the school,

I am not satisfied that MCC's uniform policy is reasonable in so far as it prohibits students from wearing patkas and requires boys to have short hair, which a Sikh student who has uncut hair cannot comply with.

Conclusion in relation to whether there has been indirect discrimination

1. In light of my findings set out above, I am satisfied that in imposing its uniform policy on Sidhak, MCC has indirectly discriminated against him.
2. However, to succeed in his claim, Mr Arora must also satisfy the Tribunal that MCC has contravened s 38(1) of the EO Act.

DID MCC CONTRAVENE SECTION 38(1) OF THE EO ACT?

1. Section 38(1) of the EO Act provides that an educational authority must not discriminate against a person:
   • (a) in deciding who should be admitted as a student; or
   • (b) by refusing, or failing to accept, the person's application for admission as a student; or
   • (c) in the terms on which the authority admits the person as a student.
2. MCC's school council is the educational authority[46] that administers the school.

1. Ms Holt submitted that between 10 and 17 March 2016, MCC contravened s 38(1)(a) because it discriminated against Sidhak when it made a decision who should be admitted as a student. Ms Holt submitted that between 10 and 17 March 2016, the school council made a decision:
   • (a) not to grant an exception to the uniform policy, and
   • (b) to require Sidhak to comply with the conditions contained in the uniform policy.
2. Ms Holt relied on the parties' evidence that:
   • (a) at the meeting on 10 March 2016, Mr Gleeson was made aware of Sidhak's religious belief and activities, namely that he wore a patka and did not cut his hair,
   • (b) sometime between 10 and 17 March 2016, Mr Gleeson telephoned Mr Liefting and asked if an exception could be made to the uniform policy to allow Sidhak to wear his patka and not cut his hair,
   • (c) Mr Liefting told Mr Gleeson that no exception would be granted and that should Sidhak become a student at MCC, he would be required to comply with the uniform policy,
   • (d) Mr Gleeson informed Mr Arora of MCC's decision.
3. Ms Holt submitted that the decision to enforce the uniform policy effectively prevented Sidhak, a practicing Sikh from applying to be admitted as a student, or, required him to not wear his patka, as a part of his religious belief and activity, in order to be admitted as a student. Ms Holt submitted that it necessarily follows that MCC made a decision in relation to who should be admitted as a student.
4. In relation to s 38(1)(b), Ms Holt for Mr Arora submitted that on 17 March 2016 and on 3 April 2016, MCC discriminated against Sidhak, as it refused, or failed to accept, his application for admission as a student.
5. Ms Holt relied on Mr Arora's evidence that in the telephone conversation on 17 March 2016, Mr Gleeson informed Mr Arora that MCC had decided that an exception to the uniform policy would not be made for Sidhak and that his enrolment application was rejected. Ms Holt submitted that Mr Arora's evidence must be preferred over Mr Gleeson's evidence that MCC did not refuse or fail to accept Mr and Mrs Arora's application to enrol Sidhak, as Mr Arora's evidence was not disturbed under cross-examination. Ms Holt submitted that if the Tribunal accepts Mr Arora's evidence, this is clearly a refusal to accept Sidhak's enrolment application.
6. Ms Holt also submitted that even if Mr Gleeson's evidence was accepted, Mr Gleeson agrees that:
   • (a) he informed Mr Arora that the school would not grant an exception to its uniform policy for Sidhak,
   • (b) when he did so, he started the conversation with 'unfortunately',
   • (c) he acknowledged that it was disappointing news for Mr Arora because he was aware that Mr and Mrs Arora had made the enrolment application and that Sidhak wore the patka.
7. Ms Holt submitted that this amounted to a refusal of the application for admission as a student, or, in the alternative, a failure to accept the enrolment for admission as a student.
8. Ms Holt also relied on Mrs Arora's evidence that during her telephone conversation with Liz Micallef on 3 April 2016, after Mrs Arora told her that Mr Gleeson had informed them that Sidhak could not wear his patka at the school, Ms Micallef told her that the enrolment application would be rejected in due course and cancelled the interview. Ms Holt submitted that MCC refused Mr and Mrs Arora's application for enrolment by cancelling the enrolment interview, which is part of the enrolment process.
9. Ms Holt submitted that Mrs Arora's evidence in relation to the telephone conversation on 3 April 2016 should be accepted, as it was not disturbed under cross-examination. Further, MCC failed to call Liz Micallef to give evidence to contradict Mrs Arora's evidence. Ms Holt submitted that the Tribunal should draw the inference that Ms Micallef would have agreed with the evidence of Mrs Arora in relation to the content of that conversation. Ms Holt also relied on the fact that Mr Gleeson accepted under cross-examination that he was not a party to the conversation on 3 April 2016 and submitted that his evidence on the issue must not be given any weight.
10. Finally, Ms Holt submitted that on 17 March 2016, MCC discriminated against Sidhak in the terms on which it proposed to admit him as a student in contravention of s 38(1)(c), that is, that he comply with the conditions in the uniform policy. Ms Holt relied on the evidence that Mr Gleeson informed Mr Arora that Sidhak would have to comply with the uniform policy if he was admitted as a student.
11. Ms Holt submitted that in doing so, MCC imposed a requirement or condition that had the effect of disadvantaging Sidhak, as an essential part of his religious belief and activity was wearing his patka and not cutting his hair.
12. Ms Holt also submitted that at all relevant times, Mr Gleeson was acting in his capacity as the school principal and with the authority of his employer.[47]

1. Ms Knowles submitted that there is insufficient evidence for the Tribunal to find that MCC contravened s 38(1)(a), (b) or (c) of the EO Act.
2. In relation to s 38(1)(a), Ms Knowles submitted that Mr Gleeson's and Mr Liefting's evidence shows that the school council did not make a decision about whether or not to admit Sidhak. Rather, the school council decided that it would not make an exception to its uniform policy for Sidhak and that, should Sidhak attend school, he would be required to comply with the uniform policy.
3. Similarly, Ms Knowles submitted that Mr Gleeson's and Mr Liefting's evidence shows that the school council did not refuse or fail to accept Mr and Mrs Arora's application to enrol Sidhak in contravention of s 38(1)(b) because this was a matter which was within the authority of Mr Gleeson, as principal. Ms Knowles submitted that the evidence shows that Mr Gleeson, not the school council, determines whether to accept enrolments and that he does so on the basis of whether a family has a capacity to pay MCC's fees and, in the case of senior students only, whether there is any school report history of concerning behaviour. Ms Knowles relied on Mr Gleeson's evidence that enrolment decisions, which he makes as principal, are not made on the basis of not complying with policies and that he does not refuse enrolments on the basis of the uniform policy. Ms Knowles relied on Mr Gleeson's evidence that another student was enrolled at MCC despite his hair not complying with the policy at the time.
4. In relation to Mr Arora's submission that the Tribunal should find that MCC refused Mr and Mrs Arora's application for enrolment because Liz Micallef cancelled the enrolment interview, Ms Knowles submitted that Ms Micallef's contemporaneous notes of her conversation with Mrs Arora in April 2016 should be accepted, along with Mr Gleeson's evidence on this issue and that the Tribunal should find that Mr and Mrs Arora withdrew Sidhak's enrolment application.
5. Ms Knowles also submitted that Mr Gleeson's evidence about the way in which he conveyed the school council's decision to Mr Arora should also be accepted. Ms Knowles relied on Mr Gleeson's evidence that he did not say that Sidhak's enrolment application had been rejected or was unsuccessful, nor did he tell Mr Arora that Sidhak would have to cut his hair or remove his patka.
6. Finally, Ms Knowles submitted that because Mr Gleeson, not the school council determines whether or not to accept enrolment applications, Mr Arora has not been able to satisfy the Tribunal that MCC engaged in conduct necessary to establish that it contravened s 38(1)(c). Ms Knowles submitted that the school council, as the educational authority, does not make decisions about enrolment and therefore does not make decisions about the terms on which a specific enrolment will be granted. Ms Knowles submitted that the school council, in its governance capacity, determines the uniform policy for students and that the school principal, as a manager, determines how best to implement such policies, including where they are not being complied.
7. Ms Knowles submitted that the only relevant decision the school council made was to not make an exception to its uniform policy for Sidhak and that this decision is the only decision that is relevant to the Tribunal's consideration of whether s 38(1) has been contravened by MCC.
8. Ms Knowles again relied on the decision of the House of Lords in Begum. Specifically, Ms Knowles relied on Lord Scott's finding that the school's requirement that the student comply with its uniform policy, where to do so was inconsistent with the student's religious beliefs, was not an 'exclusion' because the student was welcomed and encouraged to return to the school, should she be able to comply with its policy.[48]
9. Ms Knowles also relied on Lord Bingham's decision that the school did not intend to exclude the student, in the statutory sense.[49] Lord Bingham held that the case was analogous to that considered in Spiers v Warrington Corporation where Lord Goddard CJ said:

The headmistress did not suspend this child at all. She was always perfectly willing to take her in; all that she wanted was that she should be properly dressed. Suspending is refusing to admit to the school; in this case the headmistress was perfectly willing to admit the girl but was insisting that she be properly dressed.[50]

135 Lord Bingham agreed, however, that to the student, she appeared to be effectively shut out from the school's insistence on a rule she felt she could not comply with. This was also adverted to in R (on the application of Watkins-Singh) v Aberdare Girls' High School[51] where the UK High Court ruled that excluding a student who insisted on wearing her kara (a metal bangle worn by Sikhs) amounted to indirect discrimination. This decision was decided on race relations provisions of the Race Relations Act 1976 (UK) which are different to the provisions in issue in this proceeding. It followed Begum and other decisions in which school girls unsuccessfully challenged rules preventing them from wearing items of religious significance[52] decided on (more relevant) provisions of the UK Human Rights Act 1998.

Discussion in relation to section 38 of the EO Act

1. Ms Bennett provided the Tribunal with comprehensive and helpful submissions in relation to how the Tribunal should interpret s 38 of the EO Act. I agree with all of the Commission's submissions in respect of s 38, particularly that:
   • (a) discrimination legislation should be interpreted beneficially,[53]
   • (b) the prohibition on discrimination in s 38 of the EO Act is directed to an 'educational authority' and is expressed in mandatory terms: 'must not'. This, together with its beneficial purpose, suggests a broad construction of s 38 is appropriate,
   • (c) the general prohibition on discrimination in s 38 of the EO Act is to be read in a broad and beneficial manner, so as to broaden the protection afforded to individuals seeking to access education in Victorian schools on an equal footing,
   • (d) when adopting a beneficial and purposive approach, a court or tribunal may give such legislation 'the widest interpretation that its language will permit',[54]
   • (e) s 38(1) is the appropriate section that applies in this case as Sidhak is a 'person' not a 'student', and
   • (f) whilst s 32 of the Charter requires the Tribunal to adopt an interpretation that does not limit or least limits human rights where a choice of construction is available, no ambiguity or constructional choice is available on a proper reading of s 38.
2. Taking Ms Bennett's submissions into account, reading s 38(1) as a whole and considering the context in which each of the sub-sections of s 38(1) appear,[55] it is my view that on a proper reading of s 38(1) of the EO Act, discrimination by educational authorities is prohibited when:
   • (a) an educational authority decides who the school should admit as students in the broadest possible sense, for example, whether the school should be co-educational or single sex, whether the school should admit only students from a particular geographic area, whether the school should admit students of all ages or only primary school aged children or only secondary school aged children or whether the school should only admit students with particular religious beliefs or from a particular racial background - s 38(1)(a),
   • (b) an education authority decides whether or not to admit a prospective student in the narrow sense, that is, after a person has applied to be admitted as a student - s 38(1)(b), and
   • (c) an educational authority imposes terms when or after it accepts a person's application but before that person becomes a student - s 38(1)(c).
3. Once the person becomes a student, the prohibition against discrimination by educational authorities set out in s 38(2) applies.

Findings in relation to whether MCC contravened section 38(1) of the EO Act

1. Mr Liefting gave evidence that:
   • (a) when MCC was established in 1985, the school council[56] decided that it wanted to have an open enrolment policy, so they could reach the wider community,
   • (b) when MCC was established in 1985, the school council also decided to implement a uniform policy,
   • (c) MCC's uniform policy has never allowed non-Christian head coverings,
   • (d) when the school council amended the uniform policy in September 2014, it simply clarified and confirmed the intention of the policy,
   • (e) MCC is 100% transparent about what it expects from students and families, which is that its ethos and standards, including the dress code (the uniform policy) must be maintained,
   • (f) this is what parents agree to on the enrolment of their child and when they join MCC,
   • (g) this has always been a part of acceptance into MCC,
   • (h) MCC's values and standards are critical to MCC,
   • (i) people need to abide by these rules as part of attending MCC,
   • (j) the uniform policy, like behaviour and other policies, is reinforced and there are consequences for when policies are not followed, and
   • (k) when Mr Arora showed an interest in enrolling Sidhak into MCC, the school council decided[57] to maintain the uniform policy.
2. Mr Liefting's witness statement attached a copy of MCC's Student Enrolment Application form. The form contains the following paragraph directly above the place where parents and guardians are asked to sign and date the application:

Having read the current Melton Christian College Prospectus, Fee Table and other material supplied, should my child be offered a place at the College I agree to comply with the College processes and actively support the full program of the College with my child. I further confirm that the information given in this application is true and correct and I consent to the College's privacy provisions in the collection and use of this information.

1. Mr Liefting's witness statement also attached a copy of the MCC Prospectus and pages 24 to 27 of the school handbook which contain the school's uniform policy.
2. The Prospectus sets out the school's vision and values, statement of faith, mission, history, philosophy of education, the benefits of the school, its aims and objectives, curriculum, student responsibilities, parent responsibilities, and its admission, acceptance and enrolment application procedure.
3. Uniforms, attendance and discipline are discussed under the heading Student Responsibilities, and Christian focus, fees and policy support are discussed under the heading Parent Responsibilities. The Prospectus states students are required to comply with uniform policy, which is set out in the MCC handbook, attend regularly and be punctual, cooperate with the school's discipline policy, respect and uphold the Christian focus of the school and respect all MCC staff and personnel. Parents are required to cooperate with the school's discipline policy, respect and uphold the Christian focus of the school, keep accounts up-to-date, provide their children with the correct uniform in accordance with the MCC uniform policy and respect all MCC staff and personnel.
4. Under the heading Admission and Acceptance, the Prospectus states that:

Where vacancies exist, students may be accepted into the College after:

1. a satisfactory parent interview and review of background material;
2. parental agreement to support the College and its policies and payment of all required fees

1. an acknowledgement by the student (appropriate to their age) that he/she is willing to conform to the standards, rules and requirements of the College through the signing of the Code of Conduct form.

1. Each of these documents also makes it clear that potential students and their families must agree to comply with MCC's uniform policy if they want to attend the school.
2. I am satisfied based on the evidence set out above, that MCC has made a decision about who should be admitted as a student for the purposes of s 38(1)(a). MCC has decided that where a vacancy exists, it will admit a person:
   • (a) who is male or female,
   • (b) who has Christian or non-Christian beliefs or who has no religious beliefs,
   • (c) who has attended a satisfactory interview with their parents,
   • (d) whose background materials have been satisfactorily reviewed,
   • (e) whose parents have agreed to support MCC and its policies, including the uniform policy,
   • (f) whose parents have agreed to pay all required fees, and
   • (g) depending on the age of the person, who has acknowledged that he or she is willing to conform to the standards, rules and requirements of MCC, including its uniform policy through the signing of the Code of Conduct form.
3. This decision was initially made in 1985, when the school was established.
4. I am also satisfied that MCC made a decision about who should be admitted as a student for the purposes of s 38(1)(a) when it amended the uniform policy in September 2014 and when the school council decided to maintain the uniform policy and not make an exception for Sidhak in March 2016 after Mr Liefting learnt from Mr Gleeson that Mr Arora was interested in enrolling Sidhak as a student at MCC and that Sidhak had uncut hair and wore a patka.
5. Having also found that MCC's uniform policy indirectly discriminated against Sidhak, I am satisfied that MCC has contravened s 38(1)(a) of the EO Act. Accordingly, I do not need to decide whether or not MCC refused or failed to accept Sidhak's application for admission as a student in contravention of s 38(1)(b). I am satisfied that regardless of who cancelled the interview with Mr Gleeson, Sidhak's application to enrol as a student did not proceed because MCC decided in the broad sense, only to admit students who agreed to comply with its uniform policy (amongst other things), the school council decided not to make an exception to the uniform policy for Sidhak and because Sidhak could not comply with the uniform policy because of his religious belief and activity. Further, given that the school did not accept Sidhak's application, I am satisfied that s 38(1)(c) does not apply.

1. Section 13(1)(a) of the EO Act provides that discrimination in breach of a provision contained in Part 4 of the EO Act is not prohibited if an exception set out in that part applies. The effect of this section is that, if an exception applies, the otherwise discriminatory conduct is not prohibited.
2. Accordingly, having found that MCC has discriminated against Sidhak and contravened s 38(1) of the EO Act, I must next consider whether either of the exceptions relied on by MCC apply.

An educational authority that operates an educational institution or program wholly or mainly for students of a particular sex, race, religious belief, age or age group or students with a general or particular disability may exclude from that institution or program-

(a) people who are not of the particular sex, race, religious belief, age or age group; or

(b) people who do not have a general, or the particular, disability.

1. MCC bears the onus of establishing that the exception applies based on the evidence.[58]
2. The parties also agreed that it is only necessary for the Tribunal to consider the scope and effect of s 39 of the EO Act if I find that MCC has discriminated against Sidhak by excluding him from the school.

1. MCC denied that it excluded Sidhak from MCC. However, Ms Knowles did not make any submissions about how the Tribunal should interpret the reference to 'exclude' in s 39.
2. Similarly, Ms Holt did not make any submissions about how the Tribunal should interpret the reference to 'exclude' in s 39.
3. Ms Bennett submitted that exceptions in discrimination legislation should generally be construed strictly, or in accordance with the ordinary meaning of the words.[59]
4. Ms Bennett also submitted that as the prohibition against discrimination contained in s 38(1) prohibits discrimination in a number of ways and is not limited to the exclusion of the person, s 39 operates as an exception to only part of the operation on the prohibition on discrimination in s 38.
5. I agree with Ms Bennett's submission that s 39 should be construed strictly or in accordance with the ordinary meaning of the words.
6. Arguably, if s 39 were construed strictly, the meaning of 'exclude' might be limited to decisions made by educational authorities to exclude individual potential students who have applied for admission to a school, that is, where an educational authority has refused or failed to accept the person's application for admission as a student under s 38(1)(b).
7. However, in my view, again considering the context in which 'exclude' is used in s 39, particularly that is it used together with the word 'people' in subparagraphs (a) and (b), on a proper reading of s 39 'exclude' should be interpreted as relating to decisions of educational authorities to exclude particular groups of people when making decisions about who, broadly speaking, to admit as students under s 38(1)(a). That is, if, for example, an educational authority decides for the purposes of s 38(1)(a) to only admit girls as students, s 39 provides it may exclude boys if it can show that the school is wholly or mainly for students who are girls.
8. Accordingly, I am satisfied that MCC excluded Sidhak for the purposes of s 39 of the EO Act when it decided to only admit persons who would comply with its uniform policy (amongst other things).
9. It is therefore necessary for me to consider the scope and effect of s 39 of the EO Act.

Mr Arora's submissions in relation to submissions in relation to the scope and effect of section 39 of the EO Act

1. Ms Holt submitted that the purpose of s 39 of the EO Act is 'to allow schools to provide educational settings targeted towards the needs of particular groups'[60] and that '[e]xcluding students who are not of that group allows resources to be concentrated on the needs of the target group.'[61]
2. Ms Holt informed the Tribunal that Mr Arora agreed with the Commission's submissions (which are set out in more detail below), specifically, that s 39 of the EO Act:
   • (a) operates to exclude people who lack the particular attribute, in this case, the particular religious belief, but it does not authorise the exclusion of people who have a particular religious belief,
   • (b) does not allow the exclusion of people with some religious beliefs and the inclusion of people with other religious beliefs,
   • (c) does not allow the exclusion of some people from a group with a religious belief and the inclusion of others from a group with the same religious belief, and
   • (d) allows the exclusion of people who do not have a particular religious belief but does not allow the exclusion of students on the basis of a religious activity, such as the wearing of the patka or having kesh.
3. Ms Holt for Mr Arora also submitted that:
   • (a) MCC has failed to establish that the school is operated 'mainly' for students of a 'particular religious belief', and
   • (b) even if MCC were able to establish this, s 39 would only allow MCC to exclude students who were not Christian. Section 39 does not authorise or permit MCC to discriminate between other, different religious faiths or allow MCC to include some students of the Sikh faith, and not others.

The Commission's submissions in relation to the scope and effect of section 39 of the EO Act

1. Ms Bennett submitted that, even if the Tribunal was satisfied that MCC had excluded Sidhak from the school, s 39 has no application to the circumstances of this case for the following reasons:
   • (a) s 39 is a provision that is intended to serve the welfare and advancement of particular groups where discrimination would otherwise be the by-product of that advancement.[62] It is not intended to provide a sphere within which discrimination law has no effect. It is through this lens that the exception must be examined,
   • (b) s 39 permits the exclusion of people of a particular religious belief but does not authorise the exclusion of a person for a particular religious activity, and
   • (c) the exception does not permit the exclusion of non-Christians in a selective or discriminatory way.
2. In relation to paragraph 167(b) above, Ms Bennett relied on the evidence of Mr Liefting that MCC:
   • (a) does not exclude people with non-Christian religious beliefs, and
   • (b) does not exclude people with Sikh religious beliefs.
3. Ms Bennett submitted that Mr Arora's case, if proved, would establish that Sidhak's religious activity (not cutting his hair and wearing a patka) is the reason that he cannot attend the school and that excluding a person on the basis of their religious activity falls outside the scope of section 39.
4. In relation to paragraph 167(c) above, Ms Bennett submitted that, relevantly, s 39 identifies two groups:
   • (a) students of a 'particular religious belief' for which the education institution is operated (the included group), and
   • (b) people who are not of the 'particular religious belief' for which the education institution is operated (the excluded group).
5. Ms Bennett submitted that the included group in this case are said to be Christian students. Assuming MCC can establish that it operates the school for wholly or mainly for Christian students, then under s 39 of the EO Act, it may exclude from the school the excluded group, people who are not Christian.
6. Ms Bennett went on to submit that the words of s 39 do not, however, permit the school to discriminate within the excluded group, people who are non-Christians, or to put it another way, s 39 does not create a veil behind which the school may discriminate as it sees fit. That is, it is not open to the school to:
   • (a) discriminate within the excluded group, being the group of people who are non-Christians, so that some people who are Sikh are included whilst other people who are Sikh are excluded, or
   • (b) discriminate within the excluded group so that some people who are non-Christians are included whilst other people who are non-Christians are excluded. For example, excluding people who are Sikhs but not people who are Hindus would be an impermissible expansion of the terms of the exception.
7. Ms Bennett submitted that this construction of s 39 is supported by the words of s 39 itself. Section 39 permits exclusion of people who lack a particular religious belief but it does not authorise the exclusion of people who have a particular religious belief.
8. Ms Bennett submitted that the approach advanced above is consistent with the clear words of the statute, even absent the strict approach that is generally applied to the construction of exceptions. Such a construction is all the more appropriate in light of the central intention of the provision being to promote advancement and welfare rather than to facilitate exclusion.
9. In response to the submissions made on behalf of MCC (set out below), Ms Bennett submitted that the construction advanced by the school is one that is broad and inconsistent with the words of the provision, in particular:
   • (a) s 39 does not provide that an exception applies to the manifestation of a religious belief, and
   • (b) where the criteria for the provision are met, s 39 does no more than permit Christians to exclude non-Christians. It does not authorise or permit the school to discriminate between categories of non-Christians. Such an approach could entrench disadvantage in particular communities and does nothing to advance the purposes of the EO Act.
10. In addition, Ms Bennett submitted that MCC's construction sits uncomfortably with its positive obligations to eliminate discrimination[63] and with Mr Gleeson's evidence that MCC has a majority of students who are non-Christian, who pay fees and who facilitate the operation of the school as a whole.

MCC's submissions in relation to the scope and effect of section 39 of the EO Act

1. Ms Knowles submitted that:
   • (a) the evidence shows that MCC was established and continues to operate mainly for the education of Christian students, being students of a particular religious belief,
   • (b) s 39 of the EO Act allows educational institutions, such as MCC, that operate wholly or mainly for students of a particular sex, race, religious belief, age or age group to exclude students without one of those particular attributes,
   • (c) the purpose of the limitation is to allow schools to provide educational settings that are targeted towards the needs of particular groups,[64] and
   • (d) even if the wearing of a patka is a religious activity, it is also a religious belief (relying on Mr Arora's evidence that wearing a patka is part of the Sikh belief system and an essential part of the Sikh religion, and that he told Mr Gleeson that 'Sidhak has to wear his patka because of his religious belief').
2. In relation to the submissions made by Ms Bennett, Ms Knowles submitted that such an interpretation is inconsistent with the purpose of the provision, as expressed in the Statement of Compatibility to the Equal Opportunity Bill 2010, in which the Attorney-General stated:[65]

Clause 39 allows educational institutions that operate wholly or mainly for students of a particular sex, race, religious belief, age or age group or students with a general or particular impairment to exclude students without the particular attribute from the school or an educational program. This exception limits the right to equality (section 8(3)) for students who do not have the particular attribute for whom the school or program was designed. However, in relation to many of the groups, the exception may also promote freedom of thought, conscience religion and belief (section 14), facilitate the protection of families and children, where limiting the provision of educational services to persons of particular attributes is in the best interests of children (section 17) and facilitates the protection and promotion of cultural rights (section 19).

The purpose of this limitation is to allow schools to provide educational settings that are targeted towards the needs of particular groups. Excluding students who are not of that group allows resources to be concentrated on the needs of the target group.

As the exception applies to five grounds only - sex, race, religious belief, age and impairment - the right to equality is only limited in restricted circumstances. In the great majority of instances, alternate schools or programs that cater for the students who are excluded from a particular school or program exist (for example schools for boys and schools for girls). In these circumstances, the extent of the limitation will be minimal as those students who are excluded from one particular school or program will be able to access similar educational facilities and programs elsewhere. Further, the extent of the limitation is balanced by the other rights promoted by the exception.

The relationship between the limitation and its purpose

Due to limited resources, all schools must have the ability to restrict eligibility to enrol in the school or to access particular programs within the school. Usually eligibility criteria for enrolment relate to geographical distance from the school, or priority being given to siblings of existing students. Eligibility for particular programs is often restricted to those with particular needs. This exception allows schools to take sex, race, religious belief, age and impairment into account when setting eligibility criteria for access to enrolment or particular programs. As its purpose is to provide educational settings targeted towards the needs of particular groups, and the limitation is restricted as other options will be available in the great majority of cases, the limitation is reasonable and rational.

Any less restrictive means reasonably available to achieve its purpose

If schools do not have the ability to exclude students from enrolment or programs targeted towards the needs of students with particular attributes, students with those attributes may miss out on receiving targeted educational opportunities.

1. Ms Knowles also submitted that:
   • (a) MCC has chosen to manifest its Christianity through expressions of conduct and behaviour rather than external symbols,
   • (b) the school has done this deliberately and as a result has adopted a uniform policy that is consistent with this belief system, and
   • (c) to the extent that the Tribunal finds that Sidhak was 'excluded', he was excluded because he does not have the same belief system as the school.

Does the exception in section 39 of the EO Act apply?

1. I am satisfied based on the evidence of Mr Liefting that MCC:
   • (a) does not exclude people with non-Christian religious beliefs, and
   • (b) does not exclude people with Sikh religious beliefs.
2. Further, I am also satisfied that:
   • (a) as set out at paragraph 162 above, Sidhak was excluded from MCC,
   • (b) Sidhak was excluded because of his religious belief that he should have uncut hair and his religious activity, being not cutting his hair and wearing a patka, which prevented him from being able to comply with the uniform policy, and
   • (c) Sidhak was not excluded because he is not a Christian.
3. I agree with the submissions of Ms Holt and Ms Bennett in relation to the scope and effect of s 39 of the EO Act, particularly that s 39 of the EO Act:
   • (a) only allows the exclusion of people who lack the particular attribute, in this case, non-Christians,
   • (b) does not allow the exclusion of people with some religious beliefs, and not others,
   • (c) does not allow the exclusion of people who have a particular religious belief, in this case, Sikhs who wear a patkas,
   • (d) does not allow the exclusion of some people who hold a particular religious belief and the inclusion of others who hold the same religious belief, and
   • (e) does not allow the exclusion of people on the basis of a religious activity, such as the wearing of the patka or having kesh.
4. Accordingly, the exception in s 39 of the EO Act does not apply to Sidhak's exclusion from MCC. Sidhak was not excluded because he is not a Christian, Sidhak was excluded because he is a Sikh who wears a patka, and this is not allowed by s 39 of the EO Act.

1. Ms Knowles submitted that if the Tribunal is satisfied that MCC had indirectly discriminated against Sidhak, the discrimination is not prohibited because the exception set out in s 42 of the EO Act applies.
2. Section 42(1) of the EO Act provides:

An educational authority may set and enforce reasonable standards of dress, appearance and behaviour for students.

In relation to a school, without limiting the generality of what constitutes a reasonable standard of dress, appearance or behaviour, a standard must be taken to be reasonable if the educational authority administering the school has taken into account the views of the school community in setting the standard.

1. Ms Holt submitted that:
   • (a) the exception in s 42 does not apply where an educational authority has discriminated against a 'person' in breach of s 38(1) of the EO Act, and
   • (b) if the Tribunal disagrees with this submission, MCC has failed to establish that the uniform policy is reasonable.
2. Mr Arora also adopted the submissions of the Commission in relation to s 42.
3. In relation to the interpretation of s 42 of the EO Act, Ms Bennett submitted that:
   • (a) consistent with general principles, exceptions or defences in discrimination legislation should be construed strictly,[66]
   • (b) the exception is to be read in a narrow and confined way, having regard to the circumstances in which it is intended to have operation,
   • (c) as a matter of general principle, where human rights are limited, 'courts should not impute into the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language',[67]
   • (d) that interpretation is informed by the interpretive obligation in s 32 of the Charter, and
   • (e) s 42 of the EO Act should be read strictly in accordance with its terms.
4. Ms Bennett also submitted that, on a proper reading of ss 38 and 42 of the EO Act:
   • (a) there is no ambiguity as to its application nor is a constructional choice available to the Tribunal, and
   • (b) whilst s 42(1) of the EO Act provides an exception in relation to the operation of s 38(2), it does not provide an exception to the discrimination prohibited by s 38(1).
5. Specifically, Ms Bennett submitted that on a proper reading of ss 38 and 42 of the EO Act, s 42(1) of the EO Act does not provide an exception to the discrimination prohibited by s 38(1) because:
   • (a) s 42 permits an educational authority to either set or enforce a 'reasonable standard of dress, appearance and behaviour for students',
   • (b) a plain reading of the text of s 42(1) makes clear that the exception applies only to students. In this sense, it is an exception that only operates in respect of the prohibition on discrimination against students contained in s 38(2) of the EO Act,
   • (c) in contrast, s 38(1) prohibits discrimination 'against a person' and operates, in its terms, prior to that person's admission to the school,
   • (d) there is therefore a question as to whether or not s 42(1) operates in the context of a claim of discrimination under s 38(1), and
   • (e) as a matter of construction, it does not.
6. Ms Bennett also submitted that if the Tribunal concludes that a constructional choice is available, then it should favour the interpretation identified by the Commission above because this interpretation is the most compatible with the rights protected by the Charter.
7. Finally, Ms Bennett submitted that if the Tribunal finds that s 42 operates as an exception to what would otherwise be unlawful discrimination under s 38(1), the exception must be interpreted narrowly and in accordance with human rights under the Charter.

1. Ms Knowles submitted that the plain wording of s 42 makes clear that it applies to s 38(1) conduct and the interpretation advanced by Ms Holt and Ms Bennett strains such language and is wrong.
2. Ms Knowles submitted that the Tribunal must start with the words Parliament has used to give effect to its intention.
3. Ms Knowles again relied on the decision of Cobaw, where the Court of Appeal considered exemptions relating to religious schools in the Equal Opportunity Act 1995 (the 1995 Act).[68] In that case, Maxwell P identified the following principles relevant to interpreting exceptions which protect a human right:[69]
   • (a) being beneficial and remedial legislation, the Act is to be given a liberal construction, rather than one which is 'literal or technical';[70]
   • (b) since the Act is intended to eliminate discrimination 'as far as possible', the provisions of the Act should as far as possible be construed so as to eliminate discrimination;[71]
   • (c) aids to construction - such as the principle of liberal interpretation of remedial provisions - are generally invoked when there is some ambiguity on the face of the particular statutory provision.[72]
4. His Honour also held:

[c]onsideration must begin, and end, with the words which Parliament used to give effect to its intention. Parliament has carefully defined in ss 75-77 the scope of the protection to be afforded to religious freedom within the framework of legislation established to ensure freedom from discrimination. Those provisions should be interpreted according to the ordinary meaning of the words used.[73]

1. Ms Knowles acknowledged that s 38(1) provides that an educational authority must not discriminate against 'a person'. However, she emphasised that each sub-section goes onto refer to 'a student', that is, the educational authority must not discriminate against 'a person':
   • (a) in deciding who should be admitted as a student (s 38(1)(a)),
   • (b) by refusing, or failing to accept, the person's application for admission as a student (s 38(1)(b)), and
   • (c) in the terms on which the authority admits the person as a student (s 38(1)(c)).
2. Ms Knowles submitted that s 38(1) responds to discrimination of persons before they become a student but in the expectation that they will become a student. It responds to the present circumstances where Mr and Mrs Arora have sought to enrol Sidhak as a student and MCC have told them that Sidhak will have to comply with its uniform policy.
3. Mr Arora's case was that in so doing, MCC discriminated against Sidhak in deciding whether he could be admitted as a student, or by refusing or failing to accept Mr and Mrs Arora's application to enrol him as a student or by requiring him to agree to the uniform policy as a student.
4. Ms Knowles submitted that s 38 contemplates the present scenario, when a person changes character, from being a 'person' to being a 'student' and it is in both characters that that s 42 will apply.
5. Ms Knowles also submitted that, by way of example, s 39 creates an exception for educational institutions excluding 'people' who do not have particular attributes. Ms Knowles also relied on the fact that the EO Act's Statement of Compatibility in relation to clause 39 refers to 'person', 'people' and 'student' interchangeably when referring to persons who are not yet enrolled at the relevant educational institution[74] and submitted that this is unsurprising and supportive of MCC's submissions on this issue.
6. In response to the submission made by Ms Holt, Ms Knowles submitted that Mr Arora's interpretation of s 42 is inconsistent with the purpose of the EO Act and the purpose of s 42.
7. Ms Knowles again relied on the Court of Appeal's decision in Cobaw, where Maxwell P accepted the Tribunal's approach that the exemptions were to be interpreted according to their purposes and that neither one of the 'co-existing' rights was to be privileged over the other.[75] This accepted the judge's reliance on Justice French's decision in Bropho,[76] that there was nothing in the Explanatory Memorandum or Second Reading Speech to the Racial Discrimination Act to suggest that the exemption provisions, which applied in that case, should be read other than in a way which gives full force and effect to them.[77] Ms Knowles submitted that there is similarly nothing in the second reading speeches to the EO Act (or the Amendment Act) which suggests that s 42 should be read other than in a way which gives the provision full force and effect.
8. President Maxwell noted in Cobaw the Attorney-General's second reading speech to the 1995 Act:

This bill attempts to strike a balance between the rights and freedoms of individuals by providing for limited exceptions where discrimination in the circumstances specified in the bill will not be unlawful.... These exceptions balance the aims of equal opportunity and the elimination of discrimination and a number of competing considerations, such as the desire to infringe as little as possible on private spheres of activity.[78]

1. This sentiment is echoed in the Attorney-General's second reading speech to the 2010 Act.[79]
2. Redlich JA held in Cobaw (in relation to the 1995 Act):

The manner in which freedom of religion and freedom from discrimination are to interact is provided for by the exemptions and the specific discriminatory conduct prohibited in Part 3 of the Act to which the exemptions relate. The extent to which religious freedom may impinge upon the right not to be discriminated against has been addressed by the legislature. Parliament has made its judgment as to how these potentially conflicting rights are to be balanced.[80]

1. Ms Knowles submitted that in formulating the exceptions, the Victorian legislature has weighed the competing interests and made a judgment as to the correct balance in the EO Act.[81] Sections 39 and 42 reflect the legislature's judgement as to how to balance two very important and sometimes conflicting rights, the right to freedom of religion and the right to be free from discrimination.[82]
2. Ms Knowles submitted that by passing s 42 in its form, the Victorian Parliament has determined the balance that is to be struck between the right to manifest one's religion and be free from discrimination, with the rights of schools to determine uniform policies that best serve their educational purposes.
3. Ms Knowles also relied on the legislative history of s 42:
   • (a) In the 1995 Act, s 40(2) provided:

(2) In relation to a school, without limiting the generality of what constitutes a reasonable standard of dress, appearance or behaviour, a standard must be taken to be reasonable if the educational authority administering the school has taken into account the views of the school community in setting the standard.

(b) This is identical to the present s 42(2).

(c) When the EO Act was first enacted in 2010, s 42(2) provided:

(2) In relation to a school, without limiting the generality of what constitutes a reasonable standard of dress, appearance or behaviour, the views of the school community are a relevant factor in assessing the reasonableness of the standard.

(d) This was amended very shortly after the EO Act came into force, in June 2011, by s 11 of the Equal Opportunity Amendment Act 2011.[83] The Statement of Compatibility for the Equal Opportunity Amendment Bill 2011,[84] is relevant to the Tribunal's interpretative task. The Statement of Compatibility states (followed by Ms Knowles's submissions):

1. 'The purpose of the amendment is to give greater scope for schools to adopt standards of dress, appearance and behaviour that reflect the standards and values of the school community.'

Such a standard would not meet this purpose if were not capable of application to s 38(1) conduct, in deciding, for example, who could be admitted as a student.

1. '... the provision represents an appropriate balance to enable the right of a school community to set standards of dress, appearance and behaviour for students attending the school.'

Here, Parliament has determined the appropriate balance to be struck between the right to equality and the right to manifest one's religious beliefs.

1. 'In the case of private schools, individuals and their families have capacity to make a choice about whether or not to attend a particular school.'

This necessarily includes a family's choice to enrol a person to become a student at a school, as is the case in this matter.

1. 'To the extent, if any, that the provisions may result in a limit on rights, I consider the limits are reasonably justified. The amendment restores the balance in favour of schools and the school community when determining appropriate standards of dress and behaviour.'

Again, this expresses Parliament's intention as to the appropriate balance.

1. 'Standards of dress and behaviour contribute to the tone of a school and the ability of students to learn free of disruptive behaviour by other students, and reflect the school's culture and values. Clause 11 recognises that the views of school communities about appropriate standards of dress and behaviour may differ and it allows for schools to decide what is reasonable in consultation with their communities.'

This intention would be thwarted if the operation of s 42 were limited to s 38(2) conduct and not also s 38(1) conduct. The school's decision about what is reasonable for its own community can only be given effect to if it can attract the operation of s 42 to s 38(1) conduct.[85]

1. Ms Knowles also submitted:
   • (a) that it is clear that Parliament intended that schools, not just 'educational authorities', be able to determine for their own, specific school community, the standards of dress and behaviour that are appropriate to that school and that the exception in s 42 would apply to s 38(1) conduct, and
   • (b) the exclusion of the application of s 42 to s 38(1) but not to s 38(2) would have the result that an education authority would be prevented from conduct which is otherwise discriminatory in relation to persons before they become a student, but would then be able to lawfully engage in that same conduct once the person became a student. For example, a school could admit a person as a student knowing that he or she would not be able to comply with its policies and would be exposed to the consequences of the lawful application of such policies.
2. Ms Knowles also submitted that the Victorian Government Education and Training Committee Report resulting from its 2007 Inquiry into Dress Codes and School Uniforms in Victorian Schools can also inform the interpretation of s 42, particularly because parliament used the report to inform the way in which s 42 should articulate the balance between competing rights that uniform standards might engage.[86]
3. The committee noted:
   • (a) the inquiry attracted an unprecedented level of interest from diverse stakeholders and the highest number of written submissions ever received by the Committee,[87]
   • (b) dress codes and school uniform policies can have a significant impact on the relationship between schools and their communities,[88]
   • (c) the key finding was that one size does not fit all when it comes to dress codes and school uniforms; parents, teachers, students and others can have passionate views on the topic that can reflect deeper perspectives on schooling and education and so the Committee therefore supported the right of Victorian school communities to choose the most appropriate dress code or school uniform policies,[89]
   • (d) the benefits having a school uniform can create include:
     1. engendering a sense of pride and belonging in the school,
     2. creating an atmosphere conducive to learning,
     3. reduces competition between students and bullying on the basis of clothing or appearance, and
     4. all students feel equal.[90]
4. The committee recommended that:
   • (a) decisions regarding dress codes and school uniform policies remain the responsibility of school councils, in consultation with school communities (recommendation 2.1), which was accepted by the Victorian government, and
   • (b) the Department of Education and Early Childhood Development require all Victorian schools to accommodate clothing and other items with religious significance where appropriate (recommendation 4.3), which, relevantly, the Victorian government did not support.[91]
5. Ms Knowles submitted that instead, the Government determined in 2007, and then by the EO Act as first passed in 2010, and then further by the Amendment Act 2011, to deem school uniform standards to be reasonable, for the purposes of the prohibition on discrimination in s 38(1), including in relation to the wearing of items of religious significance, where they have taken into account the school community's views. This determination can only be given effect to if s 42(1) has operation with respect to s 38(1) conduct.
6. Lastly, Ms Knowles submitted that in none of the many official documents examining the EO Act has the interpretation advanced by Ms Holt and Ms Bennett ever been expressed (such as in the Second Reading Speeches, the Statements of Compatibility for either the 2010 Bill or the 2011 Bill or the Dress Codes Report) and that there is no authority cited in support of the interpretation, which, in Ms Knowles's submission, is novel and illogical and ought be rejected for the reasons set out above.

Does the exception in section 42 of the EO Act apply?

1. I agree with Ms Bennett's submissions in relation to how s 42 should be construed, particularly that:
   • (a) consistent with general principles, s 42, being an exception in the EO Act, should be construed strictly,
   • (b) s 42 should also be read in a narrow and confined way, having regard to the circumstances in which it is intended to have operation,
   • (c) as a matter of general principle, where human rights are limited, courts and tribunals should not impute into the legislature an intention to interfere with fundamental rights in the absence of unmistakable and unambiguous language, and
   • (d) s 42 of the EO Act should be read strictly in accordance with its terms.
2. I also agree with the submissions of Ms Holt and Ms Bennett that, taking the above general principles into account, on a proper reading of s 42, it does not apply where an educational authority has discriminated against a 'person' in breach of s 38(1) of the EO Act. The language used in s 42(1) is clear and unambiguous. It allows an educational authority to set and enforce reasonable standards of dress, appearance and behaviour for students. It does not allow educational authorities to exclude persons seeking to be admitted as students from schools where they are unable to comply with a uniform policy due to their religious belief or activity.
3. Further, whilst I have carefully considered Mr Knowles extensive submissions, I am not persuaded that any of those submissions overcome what I consider to be the clear wording of s 42 and its reference to 'students'. In particular, I do not agree that the wording of s 42 contemplates the present scenario where a school has decided not to admit a person as a student because he cannot comply with a uniform policy because of his religious belief and activity. In my view, it is this interpretation that is strained, not the interpretation advanced by Ms Holt and Ms Bennett.
4. In any event, for the reasons set out at paragraphs 91 to 96 above, I am not satisfied that MCC took into account the views of the school community in setting the uniform policy in 1985 or when it was amended in 2014 and 2016. In particular, the 2017 survey was not a survey of the 'school community' given that the school parents and students were not surveyed. In addition, evidence of the results of a survey that took place after the uniform policy was amended in 2014 and 2016 could not reasonably be considered evidence that the school took into account the views of the school community in 2014 and 2016.
5. Accordingly, having been satisfied that MCC has contravened s 38(1) of the EO Act, the exception in s 42(1) does not arise.

1. For the reasons set out above, I am satisfied that:
   • (a) MCC has contravened s 38(1) of the EO Act,
   • (b) the exception in s 39 does not arise, and
   • (c) the exception in s 42(1) does not arise.

MR ARORA'S APPLICATION FOR ORDERS UNDER SECTION 125 OF THE EO ACT

1. Section 125(a) provides that if the Tribunal find that a person has contravened a provision of Part 4 of the act, the Tribunal can order that:
   • (a) the person refrain from committing any further contravention of the EO Act,
   • (b) the person pay to the applicant an amount the Tribunal thinks fit to compensate the applicant for loss, damage or injury suffered in consequence of the contravention,
   • (c) the person do anything specified in the order with a view to redressing any loss, damage or injury suffered by the applicant as a result of the contravention, or
   • (d) decline to take any further action.[92]
2. The parties agreed at the hearing that in the event that the Tribunal found that MCC has contravened a provision of Part 4 of the EO Act, namely s 38(1) of the EO Act, the proceeding should be set down for a further compulsory conference to enable the parties to attempt to reach an agreement in relation to what orders, if any, the Tribunal should make under s 125 of the EO Act.
3. Accordingly, I direct the principal registrar to list the proceeding for a compulsory conference on a date and time to be fixed to be conducted by any member of the Victorian Civil and Administrative Tribunal other than J. Grainger, Member.

[1] Section 4 of the Equal Opportunity Act 2010 (Vic) (the EO Act) defines religious belief or activity to mean holding or not holding a lawful religious belief or view and engaging in, not engaging in or refusing to engage in a lawful religious activity.

[6] See Lomax v National Australia Bank Ltd [2014] VCAT 348 (Lomax) at [45]-[46] (Member Dea, as she was then).

[7] See s 9(1)(a) and (b) of the EO Act.

[8] Section 4(1) of the EO Act defines 'educational authority' to mean 'the person or body administering an educational institution'.

[11] Pham v Drakopoulos & Ors [2012] VCAT 1198 at [19] (Coghlan DP, as she was then).

[13] EO Act s 9(2); see also Lomax at [44].

[15] Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at [115]; Victoria v Turner [2009] VSC 66; (2009) 23 VR 110 at [100] (Turner).

[17] Turner was decided under the Equal Opportunity Act 1995 (Vic) but continues to apply.

[18] Parliament of Victoria, Education and Training Committee_, Inquiry into Dress Codes and School Uniforms in Victorian Schools_ - Final Report, published December 2007 (available at https://www.parliament.vic.gov.au/images/stories/committees/etc/Dress\_Code\_Report/schooluniform\_full\_report.pdf) (Inquiry into Dress Codes and School Uniforms).

[19] [2006] EWHC 298. Begum was applied and followed in R (on the application of X) v Head teachers of Y School and Governors of Y School [2007] EWHC 298 where the High Court of Wales upheld a school uniform policy that prohibited the niqab.

[20] (2014) 50 VR 256. In Cobaw, Maxwell P found that as a matter of established principle, courts should favour a construction of legislation which accords with Australia's obligations in international law, at [192] citing Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 287; See also Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at [19], Royal Women's Hospital v Medical Practitioners Board [2006] VSCA 85; (2006) 15 VR 22 at [75].

[21] Victoria, Parliamentary Debates, Legislative Assembly, 5 May 2011, 1361 (Attorney-General).

[22] Begum [3], [4] (Lord Bingham).

[24] Ibid [7] and [9] (Lord Bingham of Cornhill) and [44] (Lord Hoffman).

[25] Ibid [6] and [18] (Lord Bingham), see also [75] (Lord Scott).

[27] Paragraph 13(b) of MCC's amended defence referred to 'safety considerations' associated with the wearing of faith-based head coverings.

[29] See s 9(3)(b) of the EO Act. See also Watkins v Singh v Aberdare Girls' High School [2008] EWHC 1865.

[32] See for example, in relation to the exception in s 42, cl 11 of the Explanatory Memorandum to the Equal Opportunity Amendment Bill 2011 (Vic); cl 40 of the Explanatory Memorandum of the Equal Opportunity Bill 1995 (Vic).

[33] For example: Begum where the House of Lords considered a uniform policy that permitted a head scarf but excluded the Jilbab; X v Head Teacher and Governors of Y School [2002] 2 All ER 249 where the court considered a uniform policy that excluded the niqab was considered; Sahin v Turkey (Application No 44774/98) 29 June 2004 where the European Court of Human Rights considered and upheld a Constitutional ban on religious dress in secular institutions.

[34] In Begum at [33]-[34], the long and detailed consultation with (among others) the Muslim community was part of the Court's determination that a refusal to permit the Jilbab at school was proportionate, particularly where provision was made for a headscarf as part of the uniform.

[35] This was the case in Cobaw, which was also relied on MCC.

[38] At p 45 quoting B. Gaze 1999, 'The Ambiguity of Affirmative Action in Australia, Law in Context' Vol.15, No. 2, p.145.

[39] The equivalent provisions to ss 38 and 42 of the EO Act.

[46] As defined by s 4(1) of the EO Act.

[50] [1954] 1 QB 61 at [66].

[51] [2008] EWHC 1865 at [143]- [153].

[52] Noted in Watkins-Singh at [2], decisions of governors have been upheld which prevented pupils in certain schools wearing the jihab, which is a long coat-like garment (Begum), the wearing of the niqab veil (R (on the application of X) v Head Teacher and Governors of Y School [2007] EWHC 2394; [2008] 2 All ER 249) and a silver ring thing purity ring (R (on the application of Playfoot) v Governing Body of Millais School [2007] ELR 484).

[53] IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 14 (Brennan CJ and McHugh J), 22-23 (Gaudron J), 27 (Toohey), 39 and 41-42 (Gummow J), 58 (Kirby J) (IW), Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J) and Qantas Airways Limited v Christie (1998) 193 CLR 280, 332 (Kirby J).

[54]Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231, 260-261 (McHugh J), Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 20 applying Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, 423, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408, Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 112-113 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381, 384.

[55] In accordance with the principle of statutory interpretation, noscitur a sociis, where the meaning of a word or phrase is to be derived from it context. See DC Pearce and RS Geddes, Statutory Interpretation in Australia, 8th Edition, LexisNexis Butterworths Australia, 2014, at [4.23] to [4.24].

[56] I have inferred from Mr Liefting's evidence that each time he states 'we' in his witness statement dated 2 June 2017, he is referring to MCC's school council, which he chaired from 1985 to the end of 2016.

[57] Mr Gleeson gave evidence that the decision of the school council was conveyed to him by Mr Liefting, who, as chairperson of the school council, is authorised to speak on behalf its behalf.

[59] X v Commonwealth (1999) 200 CLR 177, 223 (Kirby J) and Qantas Airways Limited v Christie (1998) 193 CLR 280, 333 and footnotes 168-169 (Kirby J). If an exception exists to protect an identifiable right, it might be appropriate to give the words their ordinary meaning, rather than to construe them narrowly: Aitken v State of Victoria [2012] VCAT [539]-[540] per Judge Ginnane (as his Honour then was). The Commission submits that this is not such a case.

[60] Explanatory Memorandum, Equal Opportunity Bill 2010 (Vic) 29, cl 39.

[61] Equal Opportunity Bill, Statement of Compatibility, 10 March 2010.

[62] The Explanatory Memorandum accompanying the introduction of this provision states that: 'The purpose of this limitation is to allow schools to provide educational settings targeted towards the needs of particular groups' (emphasis added): Explanatory Memorandum Equal Opportunity Bill 2010 (Vic) 29, cl 39.

[64] Equal Opportunity Bill 2010 (Vic), Statement of Compatibility, Parliamentary Debates, Legislative Assembly, 10 March 2010, p 766 (Attorney-General).

[66] X v Commonwealth (1999) 200 CLR 177, 223 (Kirby J) and Qantas Airways Limited v Christie (1998) 193 CLR 280, 333 and footnotes 168-169 (Kirby J). If an exception exists to protect an identifiable right, it might be appropriate to give the words their ordinary meaning, rather than to construe them narrowly: Aitken & Ors v State of Victoria [2012] VCAT per Judge Ginnane (as his Honour then was) [539] - [540]. The Commission submitted that this is not such a case.

[67] Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 at 591-92 [43], South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 at [53] (French CJ), K-Generation Pty Limited v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 at [47] (French CJ), Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492 [29] (Gleeson CJ) citing Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437 (Mason CJ, Brennan, Gaudron and McHugh JJ), R v Home Secretary; Ex parte Simms [1999] UKHL 33; [2000] 2 AC 115 at 131 and Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598 (Mason CJ, Deane and McHugh JJ). See also Dover v Doyle & Anor [2012] VSC 117 at [44]- [45].

[68] Now found in ss 81-83 of the EO Act.

[70] Citing IW [1997] HCA 30; (1997) 191 CLR 1, 12, 39.

[72] Citing Rose v Department of Social Security [1990] FCA 59; (1990) 21 FCR 241, 244 (Rose).

[73] Cobaw at [181] citing IW [1997] HCA 30; (1997) 191 CLR 1, 12; Rose [1990] FCA 59; (1990) 21 FCR 241, 244.

[74] Equal Opportunity Bill 2010 (Vic), Statement of Compatibility, p 766, stating, 'clause 39 allows educational institutions that operate wholly or mainly for students of a particular sex... to exclude students ... This exception limits the right to equality... for students who do not have the particular attribute. ... Excluding students who are not of that particular group allows resources to be targeted on the needs of the target group'.

[76] Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 (Bropho).

[77] Cobaw at [187]-[188] referring to Bropho.

[79] Victoria, Parliamentary Debates, Legislative Assembly, 10 March 2010 (Rob Hulls, Attorney-General), 787 and 788, 'Each example I have cited tonight illustrates the way in which the government has taken a measured approach and, step by step, struck the right balance. We have sought the views of the community we have carefully considered the recommendations both of the independent reviewer Julian Gardner, and those of SARC in relation to the exceptions and exemptions...'.

[82] Cobaw at [548] in relation to s 77 of the 1995 Act.

[83] It is this Explanatory Memorandum that is relevant to the Tribunal's interpretation and consideration of s 42, not the Explanatory Memorandum for the 2010 Act in respect of cl 42, and identified by the Commission, because it considered the different, earlier iteration of the provision.

[84] Victoria, Parliamentary Debates, Legislative Assembly 5 May 2011, (Attorney-General Clark), Statement of Compatibility (EO Amendment Bill 2011 Statement of Compatibility), pp 1361-1362.

[86] Equal Opportunity Bill 2010 (Vic), Victoria, Parliamentary Debates, Legislative Assembly, (Rob Hulls, Attorney-General) 10 March 2010.

[91] Victorian Government response to Chapter 4 - Anti-discrimination issues found at https://www.parliament.vic.gov.au/images/stories/committees/etc/Dress_Code_Report/govresponse.pdf.