Equality before the law

1.1 Equality before the law and discrimination

Equality before the law is a fundamental concept of our legal system.

All judicial officers take an oath to administer the law without fear, favour, affection or ill will.

Judicial officers must treat all parties fairly regardless of gender, ethnicity, disability, sexuality, age, religious affiliation, socio-economic background, size or nature of family, literacy level or any other such characteristic. Respect and courtesy should be the hallmarks of judicial conduct. Paternalistic or patronising attitudes have no place in the court room.

Equality before the law is sometimes misunderstood. It does not necessarily mean “same treatment”. As McHugh J succinctly explained:

discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different.[1]

Australia is a signatory to a number of UN Conventions relating to human rights, discrimination and the need to treat people fairly. These have been specifically enshrined in the following statutes: the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth), Age Discrimination Act 2004 (Cth), Human Rights and Equal Opportunity Commission Act 1986 (Cth) and the Anti-Discrimination Act 1977 (NSW).

Each of these statutes defines discrimination in similar terms to McHugh J’s definition (although in greater length). Discrimination is defined as including both direct and indirect indiscrimination. In general, the definition of direct discrimination coincides with the latter part of McHugh J’s observation, whereas the definition of indirect discrimination generally coincides with the former part of his comment.

Although these statutes do not apply to judicial officers in court, the professional expectation is that judicial officers will act without discrimination.

1.2 The diversity of the NSW population

The NSW population is one of the most diverse in Australia in relation to such characteristics as ethnicity, religious affiliation, sexuality, transgender(ed) status, disability, socio-economic background and household make up. For example:

  • 2.5% are Aboriginal — see Section 2.

  • 23.8% were born overseas, and 16.8% were born in a non-English speaking country — see Section 3.

  • 75% have a religious affiliation, and while 67.7% practise one of over a dozen different Christian denominations, 7.23% practise a non-Christian religion — see Section 4.

  • 19% have a disability — physical, intellectual, or psychiatric — see Section 5.

  • 15% of those whose first language is English have very poor literacy skills — see Section 5.

  • 46.2% of family households living in occupied “private dwellings” consist of couple families with children. 36% of family households living in private dwellings consist of a couple only, and 16.1% consist of a one parent family. 22.8% of the population lives alone, and 3.5% live in group households[2] — see Section 6.

  • In 2006, 13% of individuals had an income of less than $600 per week, of which 55.6% were women; the median individual income was only $461 per week; and 3.9% of households had an income of less than $500 per week[3] — see Section 7.

  • 8% to 11% are not exclusively heterosexual — see Section 8.

  • A small minority have, or are seen to have, issues with their gender identity — see Section 9.

1.3 The importance of perception

Everyone who comes into contact with the court system (whether represented or self-represented) must not only be treated fairly and without discrimination, but also believe they are being treated fairly and without any form of discrimination — otherwise, public confidence in the judicial system will be compromised.[4]

1.4 Avoiding bias and stereotyping

To ensure equality before the law for all, judicial officers need to be conscious of any possible personal biases or prejudices about people from different backgrounds and actively seek to neutralise these.

Judicial officers need to ensure that they do not treat anyone as a stereotype, and/or make false assumptions about a particular individual based on what they believe most people from that individual’s group value, or based on how they believe most people from that individual’s group behave.

Judicial officers need a reasonable understanding of the range of values, cultures, lifestyles and life experiences of people from different backgrounds, together with an understanding of the potential difficulties, barriers or inequities people from different backgrounds may face in relation to court proceedings.

There is little doubt that Indigenous people, transgender(ed) people, people with a disability, people from a non-English speaking background, lesbians, gay men, and women experience higher rates of social inequity, discrimination and disadvantage — for which see the relevant sections in this Bench Book.

In addition, people from disadvantaged backgrounds (no matter what other group they happen to belong to) have the greatest likelihood of being both a victim of personal crime, and/or of being involved in crime. For example:[5]

  • Single mothers are three times more likely to be victims of personal crime than married mothers.

  • Unemployed women are more likely to be victims of personal crime than employed women.

  • There are higher rates of crime where there are higher rates of family dissolution, unemployment, renting versus home ownership, and/or residential instability.

While it is important to understand which groups are most likely to experience inequity, discrimination and/or disadvantage, every individual is the product of many different influences. Characteristics such as ethnicity, gender, religious affiliation, disability, sexuality and socio-economic background may or may not have a determining influence on any particular individual’s values, life experience or behaviour. However, it is usual for such characteristics to have a compounding effect. For example, an Indigenous female with a disability is more likely to have experienced greater discrimination and disadvantage than a non-Indigenous female without a disability.[6]

1.5 Providing for community and individual difference

All of the above means that judicial officers cannot treat everyone the same way if they wish to ensure equality before the law, as to do so could lead to a perception of unfairness and in some cases a legally wrong outcome.[7]

Rather, judicial officers may need to adapt the conduct of court proceedings to ensure that individuals can give their evidence as effectively as possible, receive a fair hearing and obtain an appropriate outcome, bearing in mind the particular individual’s background and circumstances.

The types of different approaches that might be required range from the more obvious to the less obvious.

The more obvious examples include:

  • Employing a different method and/or style of communication for those who need it — for example, for children and young people, people with no or poor English, people with a communication disability, or for some people who are representing themselves.

  • Using a different form of oath for some people who practise a non-Christian religion.

  • Allowing someone to present their evidence from a stretcher or hospital bed.

Less obvious examples include:

  • Knowing and then using appropriate terminology so as not to cause either offence or the perception of discrimination.

  • Not making false assumptions about the lifestyle of, for example, a lesbian or gay man.

  • Being able to understand and where appropriate take account of the differing circumstances and needs of people with religious affiliations, people with child care responsibilities, children and young people, or people who have a particular type or form of disability — in relation to such matters as the timing and length of court appearances.

  • Being able to understand and take appropriate account of the impact of having a low income and/or a “high cost” disability.

  • Being able to understand and take appropriate account of a culturally-specific practice that might have influenced a particular person’s behaviour in relation to the specific matter(s) before the court — for example, the importance of the concept of kinship in defining or shaping the attitudes, values and behaviour of many Indigenous people.

Sections 2–10 of this Bench Book provide information about community and individual differences and practical examples of how to take appropriate account of these differences.

Sections 2–10 cover the following groups of people:

[1] Waters v Public Transport Corporation (1991) 173 CLR 349 at 402.

[2] Australian Bureau of Statistics, Census 2006, at www.censusdata.abs.gov.au (accessed 8 May 2009).

[3] Australian Bureau of Statistics, Census 2006, 2006 Census Tables: New South Wales, at www.censusdata.abs.gov.au (accessed 8 May 2009).

[4] A survey conducted in 2008 by the NSW Sentencing Council and the Bureau of Crime Statistics and Research found that the majority of NSW residents lack confidence in some aspects of the criminal justice system: see A Butler and K McFarlane, Public Confidence in the NSW Criminal Justice System, NSW Sentencing Council Monograph 2, Sydney, 2009.

[5] NSW Bureau of Crime Statistics and Research, “Trends and patterns in domestic violence assaults” (2005) 89 Crime and Justice Bulletin 8, accessed 29 May 2006.

[6] For an example of a case that examines the interplay of two such characteristics (in this case, age and intellectual disability), see R v AN [2005] NSWCCA 239.

[7] This principle has been referred to as the principle of “substantive equality” — as, for example, cited by McHugh and Kirby JJ in Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92 at [202]: “‘Substantive equality’ directs attention to equality of outcome or to the reduction or elimination of barriers to participation in certain activities. It begins from the premise that ‘in order to treat some persons equally, we must treat them differently’”. See also the discussion in R Graycar and J Morgan, The Hidden Gender of Law, 2nd edn, 2002, The Federation Press, Leichhardt, NSW, pp 28–55; and in Australian Law Reform Commission, Equality before the law: Justice for women, 1994, ALRC Report No 69, Part I and II, Sydney, (accessed 18 July 2016).