Equality under law

Equality before the law is a fundamental cornerstone of the Australian legal system. So how true is it in practice?

The Department of Immigration and Border Protection booklet, Life in Australia: Australian Values and Principles, states “that nobody should be treated differently from anybody else because of their race, ethnicity or country of origin; because of their age, gender, marital status or disability; or because of their political or religious beliefs.”

Australian judicial officials take an oath to “administer the law without fear, favour, affection or ill will.” Judges and magistrates are required to treat all parties fairly, regardless of an individual’s characteristics or background.

However, members of the judiciary must apply the laws as the government has written them, even if they believe certain laws are unfair or discriminatory. It could be said that judges have their hands tied. And despite safeguards like the Racial Discrimination Act 1975, some laws continue to discriminate against certain groups of people either directly or indirectly.

A lack of marriage equality

The Australian public has just completed a postal vote on whether the law should be changed to allow same-sex couple to marry. Under section 5 of the Marriage Act 1961, marriage is defined as “the union of a man and a woman to the exclusion of all others”.

The Act doesn’t establish equal rights for all – it specifically does the opposite. Certain members of the community are prevented from marrying their partners due to their sexual orientation or gender identity.

The funny thing is that prior to 2004, the Marriage Act didn’t define marriage, or restrict it to only mean “between a man and a woman”. It was only in 2004 that the Howard government amended the Act to include a definition of marriage as “between a man and a woman to the exclusion of all others”. This ensured that same-sex marriage was not a legal possibility in Australia, and established that same-sex couples married overseas wouldn’t have their unions recognised in Australia.

Transgender rights

The NSW Transgender Act was passed in state parliament in June 1996. The Act amended the NSW Anti-Discrimination Act 1977 to make discrimination and vilification on transgender grounds unlawful, as well as amending the NSW Births Deaths and Marriages Registration Act 1995 to provide for the recognition of a change of sex. This marked a turning point for the rights of transgender people in NSW.

However, while this Act was ground-breaking in many ways, it only allowed for a change of sex under certain conditions. These include that:

  • an individual’s birth must be registered in NSW
  • they must have undergone sexual reassignment surgery, and
  • they must be single.

For the purpose of the majority of laws in Australia a person is treated as the sex recorded on their birth certificate. However, a married transgender person must either choose to get a divorce or possess a primary identity document that conflicts with their gender identity.

Indigenous Australians

The above are examples of laws that specify exactly what groups of people are refused rights that other Australians have. However, there are other examples of Australian laws that indirectly discriminate against certain members of society. Criminal lawyers see this type of discrimination occurring all the time.

Take the NSW Road Transport Act 2013, for example. It governs the issuing of driver’s licences in this state. While the law says nothing specific to discriminate against Aboriginal and Torres Strait Islander people, a 2013 Auditor-General report found that less than half of the state’s eligible Indigenous people held a licence. The report outlined that Aboriginal people were losing their licences due to unpaid fines at around three times the rate of non-Aboriginal people. And Indigenous people found guilty of a driver’s licence offence were also more likely to be imprisoned than non-Indigenous people.

Indigenous disadvantage and inequality before the law seems clear when you take into account that First Nations peoples are imprisoned at disproportionately higher rates than other Australians. According to the Australian Bureau of Statistics, 27 per cent of the adult prisoner population in Australia is Indigenous, despite the fact they only account for 2.8 per cent of the overall population.

It seems that in some circumstances, equality before the law is a concept that only exists in legal textbooks.