Not all differences in treatment are discriminatory – only those that have no objective and reasonable justification. If you think an aspect of your policy, program or legislative provision may not comply with s. 8, you will need to consider whether it is nonetheless permitted under the Charter. This may occur in two ways:

 

  • the provision may come within the exception in s. 8(4) of the Charter;
     
  • like all of the human rights protected in the Charter, s. 8 may also be subject to reasonable limitations that can be demonstrably justified in a democratic society in accordance with s. 7 of the Charter. You should refer to Part 2 of these Charter Guidelines for further information on s. 7.


Section 8(4): express exception

Under this section, measures taken for the purpose of assisting or advancing persons or groups of persons who are disadvantaged because of prior discrimination do not themselves constitute discrimination.

For example, if you are able to demonstrate that a specific group within the community is 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.

Note that s. 8(4) differs considerably from s. 82 of the Equal Opportunity Act which relates to welfare measures and special needs. If your policy or program does not comply with ss. 8(2) or 8(3) of the Charter, you will need to ensure it satisfies s. 8(4) (or section 7) and section 82 of the Equal Opportunity Act.


Section 7: general limitations clause

If the policy gives rise to a prima facie issue of discrimination under s. 8 but does not fall within s. 8(4), you will need to consider whether s. 7 applies. Discrimination will only occur if it cannot be demonstrated that the measures are justified under the general limitations clause outlined 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’ they will not constitute discrimination. You should refer to Part 2 of these Charter Guidelines for more information on s. 7.