Rights to equality and non discrimination

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Introduction

Non-discrimination and equality rights are central features of the major human rights treaties.

Rights of equality and non-discrimination are contained in

the International Covenant on Civil and Political Rights (articles 2.1, 14, 24, 25 and 26)
the International Covenant on Economic, Social and Cultural Rights (article 2.2)
the Convention on the Elimination of All Forms of Racial Discrimination (articles 1, 2, 4 and 5)
the Convention on the Rights of the Child (article 2)
the Convention on the Elimination of All Forms of Discrimination Against Women (articles 2, 3, 4 and 15)
the Convention on the Rights of Persons with Disabilities (articles 3, 4, 5 and 12).
implicitly in the Convention Against Torture (since treatment being discriminatory can also contribute to it being found to be "degrading".)

The main ICCPR provisions are as follows:

Article 2

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 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.

What are Australia's obligations?

The right to equality and non-discrimination includes both positive and negative obligations. Australia's international obligations in this area require that

laws, policies and programs should not be discriminatory
public authorities should not apply or enforce laws, policies and programs in a discriminatory or arbitrary manner
the law should provide protection against discrimination
laws, policies and programs should promote equality.

Article 2.1 of the ICCPR

applies to discrimination affecting the rights set out in the ICCPR itself, and
requires governments to take measures regarding discrimination in society as well as by government itself.

Article 26 on equal protection of the law

applies only to actions by government, but
extends to all laws, policies and programs (including those affecting economic, social and cultural rightts) rather than only those affecting rights set out in other articles of the ICCPR itself.

What does discrimination mean?

Not all different treatment is discrimination | Special measures

The ICCPR itself does not provide a definition of discrimination. However, the Human Rights Committee in its General Comment 18 on Non-Discrimination has advised as follows:

... the Committee believes that the term "discrimination" as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.

This closely reflects the definitions of discrimination which are provided in CERD Article 1.1, CEDAW Article 1, and CRPD Article 2.

Not all different treatment is discrimination

Not all different treatment amounts to discrimination under the human rights treaties.

Under the ICCPR, the UN Human Rights Committee has recognised that 'not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant'.
In determining the 'reasonable and objective' test, the Committee has proceeded on a case-by-case basis.

Special measures

In particular, several of the Conventions on the rights of specific groups recognise the principle that some different treatment can be legitimate and necessary, by providing that "special measures" to promote equal enjoyment of human rights by these groups are not discriminatory.

"Special measures" are expressly recognised

in CERD Article 1.4 (to secure the advancement of certain racial or ethnic groups or individuals where necessary to ensure equal enjoyment of fundamental rights and freedoms)
in CEDAW Article 4 (to accelerate equality between men and women)
in CRPD Article 5 (which also recognises that promoting equality and eliminating discrimination requires parties to take appropriate steps to ensure provision of "reasonable accommodation"), and in the list of positive measures which parties are required to take under CRPD Article 4

These provisions provide confirmation of what discrimination means in international law, rather than being exceptions.

The Commission has published guidelines on special measures which seek to explain what special measures are, including requirements that

special measures should not limit the rights of the group intended to be benefited
special measures regardnig indigenous peoples should be developed with the free prior and informed consent of the people concerned in accordance with the Declaration on the Rights of Indigenous Peoples.

What grounds of discrimination are covered?

ICCPR and ICESCR: Grounds expressly listed | Grounds implicitly covered | ILO Discrimination (Employment and Occupation) Convention

ICCPR and ICESCR: Grounds expressly listed

ICCPR article 2.1 refers to discrimination "of any kind". It goes on to list grounds "such as"

race
colour
sex
language
religion, political or other opinion
national or social origin,
property, birth or other status.

ICESCR Article 2 provides a similar list to that in the ICCPR.

As discussed below, while recognition of some of these grounds in Federal discrimination law would be new, it would be inaccurate to say that these grounds are not based on the ICCPR, or in most cases that they are new in other Australian discrimination laws.

ICCPR and ICESCR: Grounds implicitly covered

In addition to the grounds expressly listed, discrimination on a number of other grounds should also be regarded as covered, due to the reference to "discrimination of any kind" and the reference to "other status".

Some of these grounds have subsequently been expressly included in Australia's obligations through other human rights treaties.

These grounds include

age (See for example Committee on Economic Social and Cultural Rights General Comment number 6 regarding older persons);
disability (See for example Committee on Economic Social and Cultural Rights General Comment number 5 regarding disability; and note that disability is now expressly covered by the CRPD);
gender identity;
nationality (Note that while CERD excludes distinctions made by parties themselves on grounds of citizenship, but does not exclude discrimination by other organisations or individuals);
marital status (Note that marital status is now expressly covered by CEDAW);
sexual orientation (See Toonen v Australia, views of Human Rights Committee under the ICCPR);

Grounds specified by the Discrimination (Employment and Occupation) Convention (ILO 111)

Discrimination in employment is prohibited by the International Labour Organisation's Discrimination (Employment and Occupation) Convention (ILO 111), which was ratified by Australia in 1973. Under this Convention, Australia is required to take steps to remove employment-related discrimination on the grounds of race; colour; sex; religion; political opinion; national extraction, or social origin.

Each of these grounds of discrimination is expressly covered by the ICCPR.

Parties to the Convention are also able (under Article 1(b) to add grounds to their own obligations. In 1989 Australia added the grounds of age; medical record; criminal record; impairment; marital status; mental, intellectual or psychiatric disability; nationality; physical disability; sexual preference, and trade union activity.

Most or all of these additional grounds are likely to be covered by the ICCPR and ICESCR as discussed above.

Complaints about grounds of employment discrimination covered by ILO 111

The Commission can receive complaints of employment discrimination on any of the grounds covered by ILO 111 as it applies to Australia. However, enforceable remedies under the legislatiion administered though the Commission are at present only available for some of these grounds.

Discrimination on grounds of race, colour, nationality or national extraction is covered by the Racial Discrimination Act
Discrimination on grounds of sex, marital status, pregnancy and family responsibilities is covered by the Sex Discrimination Act
All forms of disability discrimination and most discriminatino on grounds of medical record is covered by the Disability Discrimination Act
Age discrimination is covered by the Age Discrimination Act.

This leaves religion, political opinion, social origin, and trade union activity as well as sexual orientation and gender identity.

Complaints about most of these other grounds of discrimination covered by ILO 111 can however be made to the Fair Work Ombudsman and most State and Territory anti dicrimination and equal opportunity bodies.

Access to further information is available through the National Anti-Discrimination Law Gateway.
Amendments to include sexual orientation, gender identity and intersex status within the Sex Discriminatino Act were before the Parliament as at April 2013.

International scrutiny

Human Rights Committee consideration of communications

Young v Australia

The Committee found (PDF) that Mr Young had been discriminated against under Article 26 of the ICCPR and was entitled to an effective remedy, including the reconsideration of his pension application. Australia argued that Mr Young had not exhausted domestic remedies as he had not pursued his claim through the AAT or the courts. The Committee rejected this argument, noting that Australia had no court or tribunal with the capacity to overturn legislation on the grounds of it being in breach of human rights. The Committee reaffirmed its view that Article 26 includes discrimination on grounds of sexual orientation. The Committee noted that the State party [Australia] is obliged to ensure that similar violations of the Covenant do not occur in the future.

See now Commission report on Same Sex: Same Entitlements and government response .

Commission work

See our website sections on

More information

Human Rights Committee General Comment 18
Handbook on European Non-discrimination law (PDF) (2010) with update (PDF) (2011): European Court of Human Rights

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