• The law must recognise that all people have legal rights, but this does not mean that persons who do not otherwise have legal capacity obtain that capacity because of s. 8.
     
  • Public authorities must not discriminate against people when enforcing or applying the law and all people have the right to be protected against discrimination.
     
  • Legislation must not be applied in an arbitrary or discriminatory manner.
     
  • A policy or program will give rise to a prima facie issue of discrimination if it results in direct or indirect discrimination on the basis of one or more of the attributes in the Equal Opportunity Act
     
  • These attributes are currently; age, breastfeeding, gender identity, impairment, industrial activity, lawful sexual activity, marital status, parental status or status as a carer, physical features, political belief or activity, pregnancy, race, religious belief or activity, sex, sexual orientation and personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.
     
  • Discrimination can arise on more than one ground (for example, a policy refusing pregnant employees access to sick leave may involve discrimination on the basis of both sex and pregnancy) and an attribute may be broken up into sub-categories (for example, the provision of different services to people with disabilities based on the nature of their disability may constitute discrimination).50
     
  • Not every form of differential treatment is discriminatory.


Circumstances in which discrimination is permitted

  • The prohibition on discrimination will not apply to:
    • measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination:

      s. 8(4). For example, if you are able to demonstrate that members of a specific group within the community are in need of specific short-term assistance, which is unavailable to others, for the purposes of addressing or alleviating ongoing disadvantage related to their membership of that group, then it is unlikely that such a measure will amount to discrimination.
       
    • measures that can be justified under the general limitations clause in s. 7 of the Charter. That is, if the measures are a ‘reasonable limit as can be demonstrably justified in a free and democratic society’.

 

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50 Note though that any legislation, policy or program making intra-attribute distinctions will need to be carefully assessed under the Charter, in particular under s. 8(4) and s. 7.