What the Act says
This right is based on Articles 16 and 26 of the International Covenant on Civil and Political Rights, which Australia ratified in 1980.
Scope of the right
The right to recognition and equality before the law includes several protections, as follows.
Recognition as a person before the law
This ensures that every human being has the right to be recognised as a person. Without such recognition all other human rights could effectively be denied.
Enjoyment of human rights without discrimination
This ensures that the human rights in the Act are enjoyed by everyone, without discrimination.
Discrimination is defined in the Act as including discrimination that is unlawful under the Anti-Discrimination Act 1991.
Equality before the law
This ensures that:
- laws and policies are applied equally and do not have a discriminatory effect
- public entities, courts, and tribunals treat all people equally when applying the law.
Sometimes treating certain groups differently is necessary to achieve equal protection under the law. This is known as substantive equality.
Equal and effective protection against discrimination
This provides a right to equal and effective protection against discrimination. It gives people a separate and positive right to be effectively protected against discrimination.
In Queensland, the Anti-Discrimination Act 1991 (Qld) protects people from discrimination.
Special measures to address disadvantage
Measures taken to assist people disadvantaged by discrimination are not considered to be discriminatory. These measures aim to achieve substantive equality and are consistent with the special measures exemption in section 104 of the Anti-Discrimination Act 1991.
For example, programs designed to address disadvantage faced by women, Aboriginal peoples and Torres Strait Islander peoples, or people with disabilities are considered special measures and do not limit the right to equality.
Limitation
Government and public entities may limit this right where the limitation is reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
Learn more about justification and other obligations on public entities to respect human rights.
Case examples
Intersection of the right to equality and anti-discrimination law (Victoria)
Lifestyle Communities Ltd, which operated aged care facilities, sought an exemption from the Equal Opportunity Act 1995 (Vic) to provide places only to people aged over 50.
The Victorian Civil and Administrative Tribunal ruled that the exemption was not justified as a reasonable limitation on the right to equality before the law. The Tribunal found that the company’s proposal was based on stereotypes and there was no valid reason to exclude all applicants under 50.
Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869 (22 September 2009)
Special measures to address disadvantage
The Ipswich City Council in Queensland sought an exemption to recruit women exclusively for training as waste truck drivers.
The Queensland Industrial Relations Commission (QIRC) granted the exemption, finding that:
- Women seeking employment in the transport industry were disadvantaged due to discrimination.
- The special measures provision in Section 15(5) applied because the measure aimed to address this disadvantage.
The Tribunal outlined the criteria for the special measures:
- the purpose of the measure must be proven
- the disadvantaged group must be clearly identified
- the disadvantage must be caused by discrimination
- the measure must aim to address the disadvantage
- the groups must be suffering disadvantage from that cause.
Ipswich City Council [2020] QIRC 194 (17 November 2020)
This information is not intended to be a substitute for legal advice