What is one of the basic principles of democracy ensuring that all citizens have equality under 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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In this activity you will define some important democratic values and then survey some Australians for their views about the values that your community shares.

In your group, write a definition of the following democratic values and principles. If you are unsure about what any of these mean, read the text box below:

Australian historian Donald Horne put forward the following principles and values that Australians might share. This is taken from An Australian Compact – What Are the Core Values That All Australians Might Respect? (2002), available at http://www.australiaday.com.au/pdfs/compact.pdf.

• To maintain the rule of law
  The rule of law means that each citizen is equal before the law, that laws must be predictable and known to all, that laws must be fair and apply equally to the government as well as all citizens. This includes openness of courts, independence from government and presumption of innocence. Finally laws must be democratic in that ultimately citizens make the law.
• To strengthen Australia as a representative liberal democracy based on universal adult suffrage and on freedom of opinion
  The notion of representation means that Australians delegate power to government through elections. Regular elections ensure that all legal power comes from the people.While Australia does not have a formal statement about rights and freedoms most people believe that freedom of expression, freedom of information, freedom of assembly, freedom to demonstrate and freedom of association are essential for freedom of opinion in a democracy.

  Universal adult suffrage is the right of all citizens to vote. In addition the voting system must be fair.

  
  A liberal democracy encompasses a high level of individual freedom and checks on the power of the government through the independence of the judiciary, a multi-party system, separate Houses of Parliament and a federal system of government.

• To maintain the ideal of equality under the law of all Australians
  As well as equal civic rights and equal rights of legal access and treatment by the courts this encompasses the notion of no discrimination based on race, skin colour, ethnic and national origin, sex, age, place of residence, sexual preference and marital status as well as equality of opportunity.
• To uphold the ideal of Australia as a tolerant and fair society
  Fairness might cover such things as a fair go for minorities, a fair go in expressing opinions and a fair share for the less fortunate, while tolerance encompasses the acceptance of diversity.
• To recognise and celebrate Australia as an inclusive society of multi-national, multi-ethnic and multi-racial origin
  Australia has become a society that has successfully brought together immigrants from many nations, races, religions and ethnic groups. To sustain this society we need to recognise its richness and at the same time encourage the notion of core civic values that all Australian citizens might hold in common.
• To continue to develop Australia as a commonwealth devoted to the wellbeing of its people
  Wellbeing covers issues such as social justice for all Australians which includes areas such as welfare for the disadvantaged and the right to jobs.
• To respect and care for the land we share
  The land we share is a civic idea in that it is a symbol for all Australians and it is in our national interest to sustain it.
• To value the unique status of the Indigenous peoples
  This principle calls for recognition that Australia is the homeland of Indigenous peoples and it was a homeland where they had their own rights and customs. Further, this recognises that Europeans displaced the original inhabitants and these actions disturbed the cultures of Indigenous peoples and their societies.

Democratic Values Survey

Conduct a survey among the members of your family and the people who live in your neighbourhood to find out what values your community shares and which ones are regarded as most important.

• Ask your respondents what they understand by the term ‘democratic values’ and what they see as the most important democratic values. If you wish, ask them to define the meanings of those values.
• When you have gathered your information produce a graph, pie chart or Venn diagram to represent your findings. Using this as visual support, explain orally to the rest of your class what you have discovered through your survey.
• Compare your findings with the rest of the class.
• Produce a poster that explains the values that are most important in your community.

Overview | Notes for teachers 1 | Notes for teachers 2 | Notes for teachers 3 | Notes for teachers 4 | Student handout 1 | Student handout 2 | Student handout 3 | Student handout 4 | Student handout 5 | Student handout 6 | Student handout 7 | Student handout 8 | Student handout 9 | Student handout 10