Rights of equality and non-discrimination

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What are the rights of equality and non-discrimination?

Equality affirms that all human beings are born free and equal. Equality presupposes that all individuals have the same rights and deserve the same level of respect. All people have the right to be treated equally. This means that laws, policies and programs should not be discriminatory, and also that public authorities should not apply or enforce laws, policies and programs in a discriminatory or arbitrary manner.

Non-discrimination is an integral part of the principle of equality. It ensures that no one is denied their rights because of factors such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or birth. In addition to those grounds, discrimination on certain other grounds may also be prohibited. These grounds include age, nationality, marital status, disability, place of residence within a country and sexual orientation.

Sometimes it may be necessary to treat people differently to achieve equality. This is because differences between people may make it difficult for them to enjoy their rights without support. Different treatment may not amount to prohibited discrimination if the criteria for the differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the International Covenant on Civil and Political Rights.

The right to equality and non-discrimination encompasses both positive and negative obligations - the obligation to refrain from discriminating or eroding equality and the obligation to protect and advance the fulfilment and enjoyment of the rights to equality and non-discrimination for all people.

Where do rights of equality and non-discrimination come from?

Australia is a party to seven core international human rights treaties. The rights of equality and non-discrimination are contained in articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR) .

See also article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), articles 1, 2, 4 and 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), article 2 of the Convention on the Rights of the Child (CRC), articles 2, 3, 4 and 15 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and articles 3, 4, 5 and 12 of the Convention on the Rights of Persons with Disabilities (CRPD).

When do I need to consider the rights of equality and non-discrimination?

You will need to consider the rights of equality and non-discrimination whenever you are working on legislation, a policy or a program that draws distinctions between people or groups based on any of the following grounds:

  • race
  • sex
  • disability, or
  • age.

You will also need to consider the rights of equality and non-discrimination whenever you are working on legislation, a policy or a program that draws distinctions between people or groups based on:

  • colour
  • language
  • religion
  • political or other opinion
  • national or social origin
  • property
  • birth
  • nationality
  • marital status
  • place of residence within a country, or
  • sexual orientation.

This includes direct or indirect distinctions and those that may have unintended consequences.

For example, you will need to consider the rights if you are working on eligibility criteria governing financial benefits that differ according to sex or age. You should ask yourself whether your legislation, policy or program provides for different treatment and, if so, whether the difference can be justified as reasonable and objective. Can the objective be achieved by non-discriminatory measures?

You will also need to consider the rights if you are working on a measure that assists or recognises the interests of particular groups in the community who may be disadvantaged, such as Indigenous Australians. For example, measures to close the gap in life expectancy and opportunities between Indigenous and non-Indigenous Australians, including addressing the over-representation of Indigenous Australians in the criminal justice system.

What is the scope of the rights of equality and non-discrimination?

Discrimination is impermissible differential treatment among persons or groups that result in a person or a group being treated less favourably than others, based on one of the prohibited grounds for discrimination. In addition to the grounds specifically enumerated in articles 2 and 26, discrimination is prohibited on 'other status'. The UN Human Rights Committee has not attempted to define this term, but has decided it on a case-by-case basis. Among others, the following statuses have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation.

Not all treatment that differs among individuals or groups on any of the grounds mentioned above will amount to prohibited discrimination. The UN Human Rights Committee has recognised that 'not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant'. In determining the 'reasonable and objective' test, the Committee has proceeded on a case-by-case basis. For example, in a case involving Australia, the Committee stated that the institution of a compulsory retiring age of 60 for airline pilots, in the interests of maximising public safety, was a legitimate purpose under the ICCPR.

Indirect discrimination

Discrimination may be either direct (as described above) or indirect. Indirect discrimination could occur when a requirement or condition is neutral on its face but has a disproportionate or unintended negative impact on particular groups. For example, a requirement for all employees to be over six feet tall before being employed in a particular industry, where there is no cogent evidence that a minimum height requirement is justified by the conditions in the industry, is not discriminatory on its face, but it would have a disproportionate impact on women, who are less likely to meet the height requirement than men, and may therefore constitute discrimination on the basis of sex.

Prohibited grounds for discrimination

Under Commonwealth law, the prohibited grounds for discrimination are set out in the Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992 and the Age Discrimination Act 2004. Each Act contains provisions setting out what constitutes prohibited discrimination. For example, the Racial Discrimination Act provides that it is unlawful to do any act 'involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life'. This formulation is drawn from the definition of 'racial discrimination' in the CERD.

The other Acts contain different tests for what constitutes discrimination, and also prohibit other conduct. For example, the Disability Discrimination Act enables the making of Disability Standards in relation to areas in which it is unlawful to discriminate, and provides that contravention of a Disability Standard is unlawful.

Legal recognition

Article 16 of the ICCPR protects the right to be recognised everywhere as a person before the law. The UN Human Rights Committee has stated that the right in article 16 is particularly pertinent for women. It protects their capacity to own property, to enter into a contract and to exercise other civil rights without discrimination.

While article 16 entitles a person to legal recognition, it does not extend to legal capacity to act in all circumstances. Limitations on the legal capacities to act of children or mentally ill persons would not violate article 16.

Complaints

Complaints made under these laws may be investigated and conciliated by the Australian Human Rights Commission. If the complaint is not resolved before the Commission, the complainant may apply to a federal court.

In addition to these powers, the Commission also has the power under the Australian Human Rights Commission Act 1986 to investigate complaints about certain other matters. Unlike complaints made under the Racial Discrimination Act, Sex Discrimination Act, Disability Discrimination Act and Age Discrimination Act, complainants about these matters are not able to apply to federal courts. These matters are:

  • breaches of the rights under the ICCPR, CRC, CRPD and a number of other Declarations and international instruments declared by the Attorney-General
  • discrimination in employment on the basis of race, colour, sex, religion, political opinion, national extraction, social origin, sexual orientation, age, criminal record, trade union activity, medical record, marital status, disability or impairment.

The Fair Work Act 2009 contains numerous provisions protecting employees against discrimination in the workplace.

The Act prohibits the inclusion in a modern award or an enterprise agreement of terms that discriminate against an employee because of, or for reasons including, the employee's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin, unless the discriminatory term:

  • is due to the inherent requirements of a particular position
  • is due to the employment of an employee as a member of the staff of an institution conducted in accordance with a particular religion or creed and is taken in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed, or
  • relates to minimum wages for junior employees, employees with a disability or employees to whom training arrangements apply.

The Act provides for review of a modern award or an enterprise agreement referred to Fair Work Australia by the Australian Human Rights Commission.

The General Protection provisions in the Act prohibit an employer from taking adverse action, which includes discriminatory action, against an employee or prospective employee based on the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin, unless the action is:

  • not unlawful under any anti-discrimination law in force in the place where the action is taken
  • taken because of the inherent requirements of the particular position concerned, or
  • taken against a staff member of a religion or creed institution in good faith and to avoid injury to the religious susceptibilities of adherents of that religion or creed.

For those employees not covered by the General Protections, the Act also prohibits an employer from terminating an employee's employment for reasons of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin, unless the action is:

  • not unlawful under any anti-discrimination law in force in the place where the action is taken
  • taken because of the inherent requirements of the particular position, or
  • taken against a staff member of a religion or creed institution in good faith and to avoid injury to the religious susceptibilities of adherents of that religion or creed.

Other conduct

Some Commonwealth anti-discrimination legislation also prohibits other types of conduct. For example, the Racial Discrimination Act prohibits acts that are likely to offend, insult, humiliate or intimidate another person where the act is done because of the race, colour or national or ethnic origin of the other person.

Exemptions

Some Commonwealth laws specifically exempt some measures from the prohibition on discrimination. For example, the Age Discrimination Act exempts direct compliance with Commonwealth laws regarding taxation, social security, superannuation and migration, some health programs and youth wages. The Disability Discrimination Act contains an exemption from the prohibition of discrimination in employment and in the other areas prohibited under Division 2 of Part 2 of the Act, if avoiding the discrimination would impose unjustifiable hardship on the person doing the discriminating. There is also an exemption in relation to discrimination in employment if a person would be unable to carry out the inherent requirements of the work because of the person's disability.

Special measures

In some circumstances it is legitimate to take measures that assist or recognise the interests of particular groups in the community who may be disadvantaged. These measures may seek to eliminate or diminish conditions which serve to perpetuate discrimination prohibited in the ICCPR and other human rights treaties. Such measures, sometimes called 'special measures', are specifically recognised in CERD (to secure the advancement of certain racial or ethnic groups or individuals) and CEDAW (to accelerate equality between men and women). Generally, such measures must be ended after the objectives for which they were taken have been achieved. For example, numerous Indigenous-specific programs, which are aimed at addressing the underlying disadvantage confronting many Indigenous Australians, would qualify as special measures.

Can the rights of equality and non-discrimination be limited?

Limitation

The right to recognition as a person before the law in article 16 of the ICCPR is an absolute right. This means that it cannot be limited or qualified under any circumstances. For further information see the information sheet on Absolute Rights.

As indicated above in the section on the scope of the rights of equality and non-discrimination, some Commonwealth laws specifically exempt some measures from the prohibition on discrimination. Not all treatment that differs among individuals or groups will amount to prohibited discrimination. Measures that are necessary to assist or recognise the interests of particular disadvantaged groups in the community ('special measures') will not be regarded as prohibited discrimination provided that they do not lead to the maintenance of separate rights for different racial groups and that they are not continued after the objectives for which they were taken have been achieved.

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.'

Although articles 2 and 26 are not listed among the obligations from which derogation is prohibited, it is clear from the terms of article 4 that measures of derogation must not discriminate on the basis of any of the grounds listed in it.

Derogation from article 16 of the ICCPR is not permitted.

Which domestic laws relate to rights of equality and non-discrimination?

Racial Discrimination Act 1975; Sex Discrimination Act 1984; Disability Discrimination Act 1992; Age Discrimination Act 2004; Australian Human Rights Commission Act 1986; Fair Work Act 2009; Australian Human Rights Commission Regulations 1989

What other rights and freedoms relate to rights of equality and non-discrimination?

The rights of equality and non-discrimination are an essential component of almost all other rights and freedoms. It would generally be prohibited to discriminate on the basis of any of the grounds enumerated in article 26 of the ICCPR in laws, policies and programs that give effect to other rights.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 2

  1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
  2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

See also: ICCPR article 16; ICESCR article 2(2); CRC article 2; CEDAW articles 2, 3, 4, 15; CERD articles 1, 2, 4, 5; CRPD articles 3, 4, 5, 12.

Where can I read more about rights of equality and non-discrimination?

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