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 or favour, affection or ill will: Oaths Act, Sch 4.

Judicial officers are required to 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), Australian Human Rights 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 and in accordance with their judicial oath.

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 status, disability, socio-economic background and household make up. Based on the last census in 2016 (unless otherwise stated), for example:

  • 2.9% are Aboriginal — see Section 2.

  • 27.6% were born overseas, and 4.5% of NSW residents reported that they spoke English not well or not at all — see Section 3.

  • 75% have a religious affiliation, and while 60.7% 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.

  • 45.7% of family households consist of couple families with children. 36.6% of family households consist of a couple only, and 16% consist of a one parent family. 82.2% of single parents were female. [2] — see Section 6.

  • In 2016, 19.7% of households had a household income of less than $650 per week; the median individual income was $664 per week[3] — see Section 7.

  • In 2014, around 3% of the adult population identified as gay, lesian or “other”[4] — see Section 8.

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

  • In 2016, 16% of the population in NSW, or 1,217,261 people, were aged 65 and older (out of total population of 7,739,274) — see Section 11.

  • More than 888,000 people, or 13% of the NSW population live in poverty, with children, single women, Aboriginal and Torres Strait Islander people and those with a disability the most likely to be living in economic disadvantage.[5]

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.[6]

1.4 Avoiding bias and stereotyping

To ensure equality before the law for all, judicial officers need to be aware of the possibility of conscious and unconscious 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 or appear.

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 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:[7]

  • Three quarters of domestic assault victims were women or children.

  • Indigenous women are vastly over-represented as victims of domestic assault.

  • Older victims, those who were married and victims of assaults that did not involve weapons or serious injury were less likely to report to police.

  • There are higher rates of victims and reporting of domestic assault in the most disadvantaged socio-economic areas, based on income, education and employment characteristics.

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.[8]

1.4.1 Unconscious bias

Unconscious bias is more prevalent than conscious prejudice and often incompatible with one’s conscious values. Certain scenarios can activate unconscious attitudes and beliefs. For example, biases may be more prevalent when multi-tasking or working under time pressure.[9]

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.

The demeanour and appearance of a witness is an aspect of the judicial decision making process of assessing credibility.[10] However, the pitfalls of this process have been noted judicially and extra-judicially.[11] One concern is the impact of unconscious bias in considering a witness’s demeanour. Judicial officers are cautioned “to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events”.[12] In many cultures, eye contact may be considered disrespectful or rude so a witness’s lack of eye contact in proceedings is not a reliable indicator of their credibility.

The application of the rule of law does not accommodate unconscious biases which, by definition, unknowingly, and irrelevantly, affect cognitive processes and decisions. The rule of law assumes, rather, a forensic process, leading to an impartial decision, in which all concerned have recourse to known and impersonal objective standards and criteria for the application of the law and for the decision of a case.[13]

In recent years, there has been significant research into how mental short cuts, known as heuristics, affect the way decisions are made. Researchers have considered how implicit bias (sometimes called unconscious or unintended bias) can affect decision-making. Implicit bias may affect an individual’s understanding, actions and decisions in an unconscious manner, and operate without the individual’s awareness or intentional control. Seminal research by psychologists, Daniel Kahneman and Amos Tversky, identify two systems of thinking (intuitive or fast thinking; and conscious or slow thinking) and examine the biases (or systematic errors) of intuitive thinking. Intuitive thinking suppresses doubt and ambiguity in order to quickly assemble coherent interpretations. Conscious thinking, on the other hand, accommodates doubt and incompatible possibilities in the process of deliberation.[14]

It is important to note that biases, conscious or unconscious, are not limited to ethnicity and race. Though racial bias and discrimination is well documented, biases may exist toward any social group. One’s age, gender, gender identity, physical abilities, religion, sexual orientation, weight, and many other characteristics are subject to bias.

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.[15]

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 2–11 of this Bench Book provide information about community and individual differences and practical examples of how to take appropriate account of these differences.

Sections 2–11 cover the following groups of people:

1.6 Further reading

  • “Implicit Bias”, National domestic and family violence bench book, [5.10] AIJA, 2020, accessed 9 July 2021.

  • G Pagone “Unconscious biases and their impact on decision making” (2018) 30(5) JOB 43.

  • K Mason, “Unconscious judicial prejudice”, (2001) 13(8) JOB 57.

  • AHRC, “Unconscious bias and the bamboo ceiling”, Speeches, June 2014, accessed 9 July 2021.

  • J Elek and A Miller, The evolving science on implicit bias, State Justice Institute and the National Centre for State Courts, Virginia, USA, March 2021.

  • Equality Australia at https://equalityaustralia.org.au/.

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

[2] Australian Bureau of Statistics, Census 2016 at https://quickstats.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/1, accessed 12 August 2019.

[3] ibid.

[4] From General social survey: summary results, Australia, 2014 at www.abs.gov.au/ausstats/abs@.nsf/mf/4159.0, accessed 12 August 2019.

[5] Y Vidyattama, R Tanton and NSW Council of Social Service (NCOSS), Mapping significant economic disadvantage in NSW, National Centre for Economic and Social Modelling, October 2019 at www.ncoss.org.au/sites/default/files/Web%20Version%20Mapping%20%20Economic%20Disadvantage%20%20in%20New%20South%20Wales%20report1.pdf, accessed 1 April 2020.

[6] 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. See also L Snowball & C Jones, “Public Confidence in the New South Wales Criminal Justice System: 2012 update” (2012) No 165, Crime and Justice Bulletin, accessed 9 September 2019.

[7] NSW Bureau of Crime Statistics and Research, “Trends and patterns in domestic violence assaults: 2001 to 2010” (2011) Issue paper no 61, accessed 12 August 2019.

[8] 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.

[9] UCSF, “Unconscious bias” at https://diversity.ucsf.edu/resources/unconscious-bias, accessed 4 September 2019.

[10] CSR Ltd v Della Maddalena (2006) 80 ALJR 458 at [180].

[11] Fox v Percy (2003) 214 CLR 118 at [30]–[31]; Rama Furniture v QBE Insurance (unrep, NSWCA, 20/6/1986); P McClellan, “Who is telling the truth? Psychology, common sense and the law” (2007) 19 (1) JOB 1 at 2.

[12] Fox v Percy (2003) 214 CLR 118 at [31].

[13] G Pagone, “Unconscious biases and their impact on decision making” (2018) 30 (5) JOB 43.

[15] This principle has been referred to as the principle of “substantive equality” — as, for example, cited by McHugh and Kirby JJ in Purvis v NSW (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).