You will need to consider section 8 if you are preparing or assessing legislation, or a policy or a program that draws distinctions between people or groups based on one or more of the attributes in the Equal Opportunity Act 2001, where this may result in less favourable treatment to some people or groups. You will also need to consider section 8 if the legislation, policy or program would have a disproportionate impact on a person or group of people with a particular attribute even though no distinction is drawn overtly.

The attributes are 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. As the protection against discrimination under the Charter is linked to the attributes set out in s. 6 of the Equal Opportunity Act, which may change over time, you should check the Equal Opportunity Act to see if any additional attributes have been included.

For example, consideration of s. 8 and the reasonableness of any proposal to limit it may be required if your legislation, policy or program:

  • establishes eligibility criteria for payment plans (for example, under the Infringements Act 2006);
  • contains measures that are attempting to assist persons who have been socially, culturally and/or economically disadvantaged;
  • takes steps to diminish or eliminate conditions that have resulted in specific groups within society being disadvantaged;
  • provides for the delivery of an entitlement or service to some sectors of society and not others;
  • assists or recognises the interests of Aboriginal persons or members of other ethnic groups;
  • is stated in neutral terms but has a disproportionate impact on a sector of the community whose members have one or more of the attributes listed above;
  • deals with any of the human rights set out in the Charter in a discriminatory way: for example, if the legislation curtails freedom of expression if a person has engaged in industrial activity;
  • sets age bands that are expressed as protective measures (for example, for lawful consumption of alcohol); graduated entitlements (for example, driver licensing), or statements of legal capacity
    (for example, voting);
  • establishes eligibility requirements for access to legal aid.

    These policy triggers are not comprehensive48




48 Recall that the policy triggers listed in the Charter Guidelines are not indicative of whether a particular legislative provision infringes the right. Their purpose is rather to draw your attention to whether a provision is likely to have some impact on the right, or ‘interfere’ with, or impose some limit on, a particular right. If a provision does so, it will be necessary to consider whether the interference or limitation imposed on the right is reasonable and justified.