Your right to recognition and equality before the law

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Section 15 of the Human Rights Act 2019 says that:
  1. Every person has the right to recognition as a person before the law.
  2. Every person has the right to enjoy the person’s human rights without discrimination.
  3. Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
  4. Every person has the right to equal and effective protection against discrimination.
  5. Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

This right is based on Articles 16 and 26 of the International Covenant on Civil and Political Rights. Australia became a party to this treaty in 1980.

Note: Under the Act, all rights may be subject to reasonable and justifiable limitations (section 13). The nature of the right is relevant when considering whether a limitation is reasonable and justifiable.

Scope of the right

The rights to equality and freedom from discrimination in section 15 stand alone, and are also part of all of the other human rights in the Act.

Subsection 1 recognises that humanity means that every individual has a legal personality.  It means that everyone has legal ability, for example, to enter into transactions to buy and sell, to operate a bank account, and to access government services.  It can be limited by laws that protect people who do not have capacity due to a mental condition or being a minor.

Subsection 2 ensures that the human rights in the Act are enjoyed by everyone without discrimination.

Discrimination of a person is defined in the Act as including discrimination that is unlawful under the Anti-Discrimination Act 1991.  This means there is greater equality because it prevents discrimination in the enjoyment of the human rights on a broader range of grounds than those under the Anti-Discrimination Act 1991.  

Subsection 3 is known as the right to equality.  It ensures that all laws and policies are applied equally, and do not have a discriminatory effect.  Public entities, as well as courts and tribunals, are required to treat all people equally when applying the law.  It also requires that the laws themselves provide equal protection for everyone. Sometimes it will be necessary for certain groups to be treated differently in order to have equal protection of the law.  This is known as substantive equality.

Subsection 4 provides a right to equal and effective protection against discrimination.  It gives people a separate and positive right to be effectively protected against discrimination.

Subsection 5 makes it clear that where measures are taken to assist people who have been disadvantaged because of discrimination, the measures are not taken to be discrimination. The purpose is to achieve substantive equality.  This is known as the ‘special measures’ provision, and is consistent with the exemption for welfare measures in section 104 of the Anti-Discrimination Act 1991.

The special measures provision is an internal limitation on the rights under subsections 2, 3, and 4. Where it applies, there is no need to consider the test for justification under section 13 of the Act, because the rights are not limited.

Case examples

These rights have been considered by Queensland tribunals on applications for exemptions from the operation of the Anti-Discrimination Act 1991, and by the Victorian tribunal in similar applications for exemptions from the operation of the Victorian Equal Opportunity Act.

Intersection of the right to equality and anti-discrimination law

Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869 (22 September 2009)

Lifestyle Communities Ltd runs aged care facilities. It sought an exemption from the Equal Opportunity Act 1995 (Vic) to enable it to provide places only to people aged over 50. The Victorian Civil and Administrative Tribunal (VCAT) ruled that the exemption was not justified as a reasonable limitation on the right to equality before the law. VCAT's ruling found there was no reason to exclude all applicants under 50, and that the company’s proposal was based on stereotypes.

Measures to advance people disadvantaged by discrimination does not limit the right to equality

Re: Ipswich City Council [2020] QIRC 194 (17 November 2020)

The Ipswich City Council was granted an exemption to allow it to recruit females only to be trained to work as waste truck drivers.  The tribunal held that for the special measures provision in section 15(5) to apply:

  • the purpose of the measure must be proved
  • the person or groups must be properly identified
  • the cause of the disadvantage must be discrimination
  • the measure must be for the purpose of ameliorating disadvantage caused by discrimination
  • the persons or groups to be assisted or advanced must be suffering disadvantage from that cause.

The tribunal was satisfied that women who wished to be employed in the transport industry were disadvantage because of discrimination.

Examples of when this right might be relevant in practice

The actions and decisions of public entities might limit human rights, or they might promote or protect human rights.

Section 15 might be relevant to acts or decisions that:

  • provide for the delivery of an entitlement or service to some groups but not others;
  • assist or recognise the interests of Aboriginal and Torres Strait Islander persons or members of other ethnic groups;
  • have a disproportionate impact on people who have an attribute or characteristic (for example, sex, race, age, disability, location);
  • deal with any of the human rights set out in the Act in a discriminatory way (for example, limits to freedom of expression if people have engaged in trade union activity);
  • set age brackets that are expressed as protective measures, graduated entitlements (for example, driver licensing), or statements of legal capacity (for example, voting);
  • establish eligibility requirements for access to services or support (such as legal aid);
  • contain measures which aim to assist people who have been socially, culturally or economically disadvantaged;
  • take steps to lessen or remove conditions that have disadvantaged specific groups within society (sometimes called positive discrimination);
  • regulate access to building, roads, transport, schools, housing and hospitals;
  • affect information and communications services including electronic services;
  • regulate access to education, healthcare, the justice system, courts, or voting;
  • provide for mobility aids, assistive devices and technologies designed for people with disabilities;
  • set standards or guidelines for access to facilities and services to ensure access for people with disabilities.

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