The Victorian Supreme Court has recently dismissed a challenge to an amendment to the Victoria Police Manual Uniform and Appearance Standards, which was made more restrictive by Chief Commissioner Ken Lay in December 2011.

The new standards banned ponytails, buns, beards, goatees, “soul patches” and other facial hair, except for “clean, tidy and neatly trimmed sideburns and moustaches”. Under the Police Regulation Act 1958 (Vic), the Chief Commissioner has the power to determine standards of grooming.

In January 2012, 16 Victoria Police officers filed complaints to the Victorian Civil & Administrative Tribunal (VCAT), claiming they had been discriminated against when threatened with disciplinary action if they failed to comply with the new standards. The officers also alleged victimisation and an infringement of their right to freedom of expression under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).

The Victorian Equal Opportunity and Human Rights Commission intervened in the case before VCAT to support the officers’ claims that they had been unlawfully discriminated against.

All 16 complaints were dismissed at first instance by VCAT, which found that the new standards were not discriminatory because the Chief Commissioner’s conduct was “authorised” by the Police Regulation Act and the Equal Opportunity Act 2010 (Vic).

One officer, Mr Kuyken, challenged this finding in the Supreme Court of Victoria. Justice Garde of the Supreme Court upheld VCAT’s decision, finding that Mr Kuyken failed to establish any errors of law in the original judgment.

Supreme Court decision

Mr Kuyken argued that the Chief Commissioner’s power under the Police Regulation Act extended to a determination requiring neatness and cleanliness, but not requiring the removal of facial hair. He asserted that the new standards went beyond the Chief Commissioner’s powers, and therefore that the discrimination (being the threatened disciplinary action) was not “authorised” under the Equal Opportunity Act.

Justice Garde rejected this interpretation of the Police Regulation Act, finding that the relevant provision intended to give the Chief Commissioner “explicit statutory power to superintend and control matters affecting the appearance of members of the police force.” His Honour found that the power to impose “standards of grooming” was a wide power, which extended to the removal of facial hair, and that this power could not be confined in the way suggested by Mr Kuyken.1

Mr Kuyken further argued that VCAT was incorrect in finding that the Police Regulation Act could be interpreted in a way that was both consistent with its purpose and compatible with human rights, as is provided under the Charter.

Justice Garde also rejected this argument, and held that the Court cannot, under the Charter, depart from the ordinary, grammatical meaning of the statutory provision and from the intention of Parliament, when considering compatibility with human rights. His Honour found that in this case, the intention of Parliament was to authorise the imposition of grooming standards for police officers, even if those standards are discriminatory or infringe on human rights.2

Bottom line for employers

Unfavourable treatment on the basis of physical features must be aimed or directed at the applicant personally. This means that the mere introduction of a policy regarding physical appearances will not amount to unfavourable treatment. However, the manner which such a policy is enforced may amount to a detriment or unfavourable treatment, in contravention of equal opportunity legislation. Accordingly, generally speaking, employers should be careful in the way they implement and enforce policies regarding physical appearance.

The Kuyken decision makes it clear that, when interpreting statutory provisions, the Court will consider both the ordinary grammatical meaning of the words and the intention of Parliament at the time of enacting the legislation. Discrimination which would otherwise be in breach of equal opportunity legislation can be lawful if it can be established that Parliament intended to authorise such discrimination when enacting the relevant legislation.

If the words of a statutory provision are capable of having more than one meaning, decision makers should interpret the words in accordance with whichever meaning best accords with human rights. However, as seen in Kuyken, such a meaning cannot be inconsistent with the grammatical meaning of the words of the statute or the intention of Parliament.