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WHAT IS THE LAW?
INTERNATIONAL LAW
Universal Declaration of Human Rights (UDHR)
Article 1 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood
Article 2 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
International Covenant on Civil and Political Rights (ICCPR)
Article 2(1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.
Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
International Covenant on Economic, Social and Cultural Rights (ICESCR)
Article 2(2) The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.
International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
Article 1(1) In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
Article 1 Discrimination against women is any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
Article 2 States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: etc.
Convention on the Rights of Persons with Disabilities (CRPD)
Article 3(b) A principle of the present Convention shall be non-discrimination
Article 4(1) State Parties undertake to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability.
Article 5(1) States Parties recognise that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
Convention on the Rights of the Child (CRC)
Article 2(1) States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
Article 2(2). States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
Prohibited Grounds of discrimination
Article 2(1) ICCPR and Article 2(2) ICESCR
International human rights law expressly prohibits discrimination based on race, colour, sex, language religion, political or other opinion, national or social origin, property, birth, and other status.
International law implicitly prohibits discrimination, due to the inclusion of the ground of “other status”, on many other grounds including age, disability, gender identity, nationality, marital status, pregnancy, sexual orientation.
Types of Discrimination
Direct discrimination arises when a person treats someone with an attribute less favourably than would treat someone without that attribute in the same or similar circumstances. For example, a prohibition on the employment of women in the construction industry would be direct discrimination on the basis of sex.
Indirect discrimination arises when a law or rule looks neutral on its face, but has a disproportionate impact on people with particular attributes. For example, a requirement that all teachers be over six feet tall would indirectly discriminate on the basis of sex as women are less likely than men to be six feet tall.
Limitations on the right to non-discrimination
Reasonable and Objective Distinctions
Discrimination is allowed where it is ‘reasonable and objective’. In other words, the measures are proportionate and are designed to achieve a legitimate objective. For example, discrimination based on gender is normally allowed where a director of a film hires a woman to play a woman
Special Measures
Special measures are an exception to discrimination. These are steps which are taken to achieve equality of opportunity for groups entrenched in disadvantage and inequality. For example, it may be permissible for a political party to discriminate in favour of women by choosing female candidates to improve female numbers in Parliament, if those numbers are low. Special measures must not continue after their objectives have been achieved.
Special measures have been allowed under the ICCPR, and are also allowed under CERD, CEDAW, and the CPRD.
INTERNATIONAL CASES
UN Human Rights Committee
The Human Rights Committee has found state parties to the ICCPR to have engaged in discrimination in a number of cases. These include the following:
Gueye et al v France (1989) saw France in breach of article 26 for paying reduced pensions to retired Senegalese members of the French Army as compared to retired soldiers of French nationality.
Singh Bhinder v Canada (1989) saw the Committee find that the requirement for construction workers to wear hard hats (which prevented Mr Bhinder from wearing a turban in accordance with his Sikh religion) was not a breach of article 26. It was found to be a reasonable and objective safety measure.
Broeks v Netherlands (1990) in which the Netherlands was found to have discriminated against an unemployed married woman who was not entitled to unemployment benefits on the basis of her gender.
Ballantyne v Canada (1993) English speakers had a business located in the French speaking province of Quebec in Canada. Local laws prohibited the use of English on commercial signs outside their business. Ballantyne argued that there had been a breach of article 26 on the grounds of language. The Committee held that there was no violation of Article 26 because the restriction on the use of English applied to both English and French speakers. (It is suggested that this was a case where the Committee missed a potential instance of indirect discrimination).
Adam v Czech Republic (1996)The applicant’s father was a Czech citizen whose property had been confiscated by the Communist government. The father later moved to Australia. The applicant was born without Czech citizenship, and was not eligible for such citizenship. When the Communist government was removed, the new government adopted policies regarding the restitution of confiscated property. The Czech government rejected the applicant’s claim for restitution of the confiscated property on the basis that he was not a Czech citizen. The Committee found that the nationality pre-condition for restitution was not reasonable and that there was a breach of Article 26.
Waldman v Canada (1999) In which the committee found that the Canadian government had breached article 26 of the ICCPR by providing funding to Catholic schools but to no other non-secular schools.
Foin v France (1999) in which France was found to have breached article 26 by requiring 24 months of national alternative service for conscientious objectors compared with 12 months of military service. Doubling the length of national alternative service to test a conscientious objector’s sincerity was not reasonable or objective and was discriminatory.
Young v Australia (2003) where Australia was found to have breached article 26 with respect to the claimant who was denied the state pension paid to the dependants of war veterans who have died of war-related causes when his partner passed away. Young was refused the pension because he was in a same-sex relationship with a war veteran and entitlements were only paid to eligible partners of the opposite sex.
Borzov v Estonia (2004) The applicant’s application for Estonian citizenship was denied because of he was a former officer in a foreign government’s military services (the Russian army). The Committee found that there was no violation of article 26, taking into account the ‘genuine and substantive’ review and national security considerations which informed the decision of Estonian authorities.
Prince v South Africa (2007) The applicant claimed he had been discriminated against by the Law Society of Good Hope which refused to admit him as a lawyer due to his use of the illegal drug, cannabis. The applicant claimed that he used cannabis as it was part of his religious practice as a Rastafarian. The Committee found that there was no violation of Article 26 as the prohibition on cannabis affected people of all religions. (It is suggested that this is a case where the Committee missed a potential instance of indirect discrimination).
Lecraft v Spain (2009) Police stopped the applicant on the platform at train station in Spain to check her identity papers while conducting a search for illegal immigrants, in which they targeted ‘coloured people’. The Committee found that this apparent instanced of racial profiling was a breach of Article 26.
REGIONAL LAW
EUROPE
European Convention on Human Rights (ECHR)
Article 14 The enjoyment of the rights and freedoms set forth in the European Convention on Human Rights and the Human Rights Act shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Protocol 12 to the ECHR prohibits discrimination with regard to any right, rather than only rights otherwise protected in the Convention.
European Social Charter (revised)
Part V Article E The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.
Africa
African Charter on Human and Peoples’ Rights
Article 2 Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status.
America
American Convention on Human Rights
Article 1(1) The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.
Article 24 All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights
Article 3 The State Parties to this Protocol undertake to guarantee the exercise of the rights set forth herein without discrimination of any kind for reasons related to race, colour, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition.
DOMESTIC LAW
Age Discrimination Act 2004
Prohibits discrimination based on age (protects both younger and older Australians).
Disability Discrimination Act 1992
Prohibits discrimination based on: Physical, intellectual, psychiatric, sensory, neurological or learning disability, physical disfigurement, disorders, illness or disease that affects thought processes, perception of reality, emotions or judgement, or results in disturbed behaviour, presence in body of organisms causing or capable of causing disease or illness (e.g. HIV virus).
Racial Discrimination Act 1975 (which aims to give effect to certain provisions in CERD)
Prohibits discrimination based on race, colour, descent or national or ethnic origin, immigrant status (in some circumstances).
Sex Discrimination Act 1984 (which aims to give effect to certain provisions in CEDAW)
Prohibits discrimination based on sex, marital or relationship status, pregnancy or potential pregnancy, breastfeeding, family responsibilities, sexual orientation, gender identity, intersex status.
Fair Work Act 2009
Prohibits discrimination in the workplace based on race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer responsibilities, pregnancy, religion, political opinion, national extraction, social origin.
