Section 8 - Recognition and equality before the law


(1) Every person has the right to recognition as a person before the law.

(2) Every person has the right to enjoy his or her human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

 

Section 8 establishes a series of recognition and equality rights.
 

Recognition before the Law

The right to recognition as a person before the law means that the law must recognise that all people have legal rights. However, this right does not mean that persons who do not otherwise have legal capacity, for example, to enter a contract, have such capacity. Whether a person has legal capacity is determined by separate rules not contained in the Charter. In the same way, this right does not confer ‘standing’ upon a person to bring proceedings in a court; the rules relating to legal standing are not contained in the Charter.


Equal Protection against discrimination

The right of every person to be equal before the law and to be entitled to the equal protection of the law without discrimination ‘prohibits discrimination in law or in fact in any field regulated and protected by public authorities.’1 This means that the government ought not to discriminate against any person, and the content of all legislation ought not to be discriminatory. For example, when the government regulates the provision of education services it should legislate and deliver those services in a non-discriminatory way. It also means that public authorities must not discriminate against people when enforcing the law and they must not apply legislation in an arbitrary or discriminatory manner. However, this is not to say that the Charter guarantees or seeks to give effect to the International Covenant on Economic, Social and Cultural Rights, for it does not. Rather, the Charter requires that if a public authority decides to offer a social service or government program, it must not discriminate in the way the service is provided.
 

What is Discrimination?

Discrimination is already prohibited under Victorian law. Discrimination, in relation to a person, is defined in s. 3 (1) of the Charter to mean: ‘discrimination (within the meaning of the Equal Opportunity Act) on the basis of an attribute set out in section 6 of that Act’. Legal and policy officers should apply this definition when examining s. 8, and, in particular, they should refer to ss. 7 – 9 of the Equal Opportunity Act for guidance.

Discrimination is an impermissible differential treatment that results in less favourable treatment, based on one or more of the attributes listed in the Act. The Equal Opportunity Act prohibits direct discrimination: that is, a law or policy that expressly treats people differently on the basis of a particular characteristic. It also prohibits indirect discrimination: for example, an apparently general law or policy that, although it appears neutral on its face, impacts differently on different groups in its effect. For example:
 

  • a policy that requires a person to be over fifty years old to work as a judge. This is direct discrimination on the basis of age.
     
  • a law that required all employees of a public authority to be clean shaven. This is an example of indirect discrimination on the basis of religious belief or activity. It discriminates against those men whose religion requires them to grow a beard.


The discrimination must relate to one of the attributes listed in the Equal Opportunity Act 1995. These are listed above.

Human rights law recognises that formal equality can lead to unequal outcomes. To achieve substantive equality, differences of treatment may be necessary. Section 8(4) recognises this and provides that certain differential measures do not constitute discrimination, namely, measures ‘taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination’. This sub-section ensures that such measures do not breach the Charter.

Differentiation will also be justified if the criteria for differentiation are reasonable and objective and the aim is to achieve a legitimate purpose. This is discussed in Section 8 - Reasonable Limits.

The case law from other jurisdictions suggests that differentiation on the basis on the basis of inherent, Immutable characteristics such as race, sex and sexual orientation will be especially difficult to justify.2


Enjoyment of Rights without Discrimination

This provision ensures that every person should be able to enjoy the human rights that are set out in the Charter, without discrimination. For example, as all people have the right to peaceful assembly, this right should not be restricted to only people who possess particular political beliefs. This section is limited to the right to enjoy the human rights that are set out in the Charter, as the term ‘human rights’ is defined in s. 3(1) to mean the civil and political rights set out in Part 2 of the Charter.

 

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1 United Nations Human Rights Committee, General Comment 18, Non-discrimination (Thirty-seventh session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1 at 26 (1994) [12].

2 See Ghaidan v Godin-Mendoza [2004] UKHL 30; Quilter v Attorney-General [1998] NZLR 523.