On the face of it, discriminating against tā moko is illegal

Several recent incidents in Australia, where Māori have been turned away from entertainment venues because of their tā moko, have raised questions about whether the right to wear moko kanohi and other tā moko is protected by Australian law. Here’s Bridget Burton, a Brisbane-based lawyer, explaining the legal protections.

 

In recent months, there has been a run of stories here in Australia about Māori with tā moko being turned away from venues because of dress codes banning “face and neck tattoos”.

These stories usually describe Australian legal protections for “tattoos” as unclear or unsettled.

But that’s not the case — and as a Brisbane-based lawyer who has worked with Māori and others on cultural rights matters, I believe a better understanding of the legal protections would help everyone.

Fifty years ago, the Australian government passed the Racial Discrimination Act 1975. This legislation gave life to Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. And it did so uniquely, by adopting the somewhat aspirational (for its time) language of the Convention.

Unfortunately, as we’ve seen in Aotearoa recently, the status quo offers powerful resistance when a dominant culture isn’t ready to change. So, for many years, the litigation record was a sorry one. While race discrimination was common in the community in the 1980s and ‘90s, cases were rare, and successes even rarer.

Occasional wins — including the one by Eddie Mabo in the landmark Mabo case, which recognised that Indigenous Australians still held rights to their traditional lands — didn’t change the overall experience of applicants during this period. Most struggled to convince decision makers that what they experienced was unlawful. And even when race discrimination could be established, compensation outcomes were modest.

But over time, and particularly in the 2000s, momentum shifted. Applicants began to win, not always and not easily, but influentially.

As well as federal laws, all Australian states and territories now also protect against racial discrimination in their anti-discrimination or equal opportunity laws, giving double-layer coverage in most places. The duplication of protection across multiple layers of government gives people a choice about how to respond to racial discrimination.

As in Aotearoa, anti-discrimination law in Australia takes many forms, but all versions seek to address two main categories of discrimination. The first is “direct discrimination” where mistreatment is directed at a person because of a protected attribute, where a person without the attribute would not be treated in the same way.

The second is “indirect discrimination”, where the treatment is the same for everyone, but the impact is worse for people with a protected attribute.

Indirect discrimination is the usual way we argue dress code issues. The challenge with indirect discrimination is that, sometimes, standard terms are unavoidable, or are reasonable in the circumstances, especially where a rule is set under another law, like health and safety requirements. Sometimes changing the standard arrangements would be prohibitively expensive for the people involved. Australian law recognises this and allows for exceptions and defences.

This is one reason media reports discrimination law as complex and, unless there has been a case directly addressing the exact issue, they will also report it as unsettled or unclear.

That isn’t quite accurate. Firstly, even an unclear law can be knowable enough to enable general compliance. Secondly, once there have been a couple of court decisions clarifying the general direction on an issue, confidence about the state of the law grows despite complexity.

Although there are no Australian court decisions about tā moko conflicting with dress codes, there have been similar cases.

For instance, baptised Sikhs often have physical attributes that conflict with some dress codes, including that most don’t cut their hair or shave. In a 2017 case, a Sikh boy in Victoria was excluded from a school because its dress code mandated short hair. He successfully argued that the dress code discriminated against him.

Then, in 2020, and again after an appeal in 2022, a Cook Islander and Niuean child won his case against his school over their dress code. His parents wanted to keep his uncut hair and give him a traditional hair-cutting ceremony in the future, but the dress code in his Queensland school required boys to have short hair. He successfully argued that the dress code indirectly discriminated against him.

These cases give us confidence that the Australian anti-discrimination law also protects Māori with tā moko. In fact, it would be surprising to see a case about tā moko come to court.

Typically, once a racial discrimination complaint is raised about a dress code, the respondent must either accept their rule is too rigid and allow a variation, or mount a cogent argument that their inflexibility is reasonable (or, in some states, proportionate) despite the racialised impact. In my experience, the first response is by far the norm, and some stories in the media also reflect this.

The only time a serious argument is expected is when the dress code responds to a genuine safety issue that can’t be handled any other way, or where the alternative would be prohibitively expensive. This would be unexpected in a case about a physical feature, like hair or skin, including tā moko — it’s just not rationally available. It does, however, sometimes arise when the dispute is about dress.

For Māori in Australia, the most likely conflict with a dress code created for safety reasons relates to hei taonga. In 2021, a Northern Territory tribunal considered whether a childcare provider could require a one-year-old pēpi who wore hei taonga to comply with a rule to not have anything around the neck while asleep. No issue was raised about him wearing it at other times.

The childcare provider successfully argued that it would need to provide him with one-to-one supervision during naps to comply with industry standard safe sleeping guidelines, which it couldn’t afford to do, and the family lost their case.

In Aotearoa, protections for taonga are underpinned by Te Tiriti, and it’s unlikely an industry standard would seek to limit those rights. If it did, it would be less likely to hold up under challenge.

Here in Australia, though, safety does carry weight against human rights protections in this and other situations. Even so, it’s not a trump card: courts do not approve discriminatory conduct lightly. In 2023, the Queensland Sikh community successfully overturned a rule that excluded them from school premises if they wore a kirpan. The kirpan is a sheathed knife, worn on the body by baptised Sikhs. Knives are not normally allowed in Queensland schools for safety reasons. The court accepted that the rule could not apply to Sikhs who wore a kirpan for cultural reasons.

In one recent story, a Māori man was refused entry to a venue where the dress code didn’t prohibit face and neck tattoos but instead banned “intimidating, aggressive or offensive tattoos”, a description that it applied to tā moko. It could be argued that this is an example of direct discrimination, where patrons are being singled out for less favourable treatment because of racially motivated perceptions about aggressiveness, due to their distinctly Māori faces. It’s also plainly insulting, and as such may also be caught by the separate legal prohibition on offensive racist conduct.

As Māori cultural practices continue to thrive here in Australia, it’s important to know that, even here, dress codes regulating tattoos should yield to the right of Māori to wear moko kanohi and other tā moko.

Refusing to make an exception for a Māori patron with tā moko is prima facie (on its face) unlawful discrimination. It’s difficult to identify any defence or exception that might convince a court otherwise.

Dress codes should usually also yield to the right of Māori to wear pounamu, hei tiki and other hei taonga — except in very limited circumstances where there is cogent evidence of a genuine and significant risk that can’t be managed effectively by any other reasonable means.

 

Bridget Burton (Ngāpuhi) is a law lecturer at the University of Queensland, and an anti-discrimination and human rights lawyer by trade. She was born in Western Australia on Noongar country, and grew up between Tāmaki Makaurau, Groote Eylandt (NT) on the lands of the Anindilyakwa people, and North Queensland. She now lives in Meanjin (Brisbane) on Yuggera and Turrbul country with her two sons.

Disclaimer: This information is not legal advice and should not be relied on as such. Individuals affected by discrimination in Australia can (and should) get free legal advice and assistance from Legal Aid and Community Legal Centres if financially eligible, as well as private lawyers. Complaints can be made to the Australian Human Rights Commission or the human rights or anti-discrimination commission in the state or territory where the discrimination occurred.

E-Tangata, 2025