What does it mean for all people to be equal before the law?
In Australia, equality is a core value of our democracy. It is often described as giving
everyone a “fair go.” This means Australians have the same rights to vote, take part in
society, and be treated equally under the law
Equality before the law means that every person is treated the same by the legal system,
regardless of their wealth, age, gender, race, religion, occupation or social status. It ensures that no one is above the law, including government officials, and that all similar cases are treated alike to create consistency in the treatment of parties to a matter before the courts.
To help protect this key aspect of our justice system, when Australian judges take their oath (the promises judges make to the people of the community when they agree to be a judge of the court), they make an undertaking to “do right to all manner of people according to law without fear or favour, affection or ill will”. This promise means that they will try to treat all people equally and make decisions based only on the law, not on their personal beliefs or feelings, or pressure form external groups or the government.
This important principle is symbolised by Lady Justice wearing a blindfold to represent the fairness, impartiality and lack of bias given to all people before the law in our community.
Elements of equality before the law
1. Equal benefit of the Law
Everyone has the right to access
justice and receive the same legal
protections. This includes the right to
bring action to court, give evidence,
have a fair trial, legal representation,
the ability to challenge laws or
decisions in court and the right to
appeal decisions of the court to higher
courts.
2. Equally subject to the law
All individuals, including those in
power, must follow the law. All are
equally accountable for their actions
and are subject to penalties when laws
are broken, just as all are equally
protected by the law.
3. Equal substance of the law
The content of the law itself must be
fair and general, not targeting or
discriminating against individuals or
groups. Laws should be written and
applied in a way that ensures
predictability and fairness for everyone.
These elements of equality support the
achievement of the Principles of Justice
– equality, access and fairness. They
provide the conditions for outcomes in
the justice system to be created in a
way that recognises and balances
individual and collective rights and the
needs of the community.
Checks and Balance to
control the Government
Sometimes, it’s fair for the law to treat
people differently if their situations or
circumstances are truly different.
When the law treats people differently, it
should be for a clear and specific
reason, and only for as long as that
reason applies. The differentiation must
respect and consider the human rights
of all those impacted by the law.
An example of different treatment by the
law in Australia would be child
offenders. Lord Bingham, a judge of
England, wrote in his book on the Rule of
Law: “We would also accept that some
categories of people should be treated
differently because their position is in
some important respects different.
Children are the most obvious example.
Children are, by definition, less mature
than a normal adult, and should not be
treated as a normal adult would expect
to be treated. Thus, they are not liable to
be prosecuted for a crime below a
certain age.”
In most states of Australia, the age of
criminal responsibility is 10, meaning
that children cannot be held criminally
responsible for their actions due to their
limited understanding of right and wrong
(doli incapax) compared to that of an
adult.
Protects the Australian People
The Universal Declaration of Human
Rights affirms that “all human beings
are born free and equal in dignity and
rights.” These rights are not granted by
laws or authorities; they are inherent
to all people simply because we are
human. They are inherent, inalienable
birthrights. While it may seem like
human rights originate from laws,
treaties, or organisations like the UN,
these legal instruments often merely
express and protect rights we already
possess.
Australia’s Constitution does not
explicitly guarantee equality before the
law, nor is there a national law that
directly does so. Instead, equality is
embedded within the broader principle
of the rule of law, the foundation of our
legal system, where no one is above the
law.
Australia is party to international human
rights treaties, such as the International
Covenant on Civil and Political Rights.
However, only some treaty provisions
have been implemented domestically,
for example through the Racial
Discrimination Act 1975 (Cth). Victoria,
the ACT, and Queensland have
introduced their own human rights laws
that explicitly outline rights like equality
before the law.
