Rights to Recognition, Equality and Non-Discrimination

Rights to Recognition, Equality and Non-Discrimination

Section 8 of the Human Rights Act 2004 says that:

  1. Everyone has the right to recognition as a person before the law.
  2. Everyone has the right to enjoy their human rights without distinction or discrimination of any kind.
  3. Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.

Section 8 is based on several different articles of the International Covenant on Civil and Political Rights, a human rights treaty to which Australia is a party. Section 8(1) is based on article 16, section 8(2) is based on article 2(1) and section 8(3) is based on article 26.

Scope of the rights

Section 8 of the Human Rights Act protects several different but related rights, being:

  1. the right to recognition as a person before the law;
  2. the right to enjoy other human rights without distinction or discrimination; and
  3. the right to equality before the law and equal protection of the law without discrimination.

The essence of the right to recognition as a person before the law, stated in section 8(1), is recognising that every human being has legal personality. To have “legal personality” is to be able to have entitlements and obligations under the law, for example the ability to access government services or – if competent to do so – to enter into contracts. In some countries, this ability is denied to certain groups, such as women or particular ethnic minorities. In recent times, some countries have also violated people’s right to recognition as a person before the law by forcibly “disappearing” those people, and systematically impeding relatives’ efforts to locate them and obtain other remedies for their disappearance.

The right to recognition as a person before the law is an absolute right. This means that it is unlawful to limit it under any circumstances.

However, this does not mean that a person’s legal competence or legal capacity can never be limited. The concepts of legal “competence” and “capacity” concern a person’s capability to act and make decisions for themselves, not whether they have “legal personality” as described above. While every person always has legal personality, their competence or capacity can vary. Therefore, for instance, governments may make laws that limit children’s or mentally disabled people’s competence to enter into contracts, without breaching their absolute right to recognition as a person before the law.

The right to enjoy human rights without “distinction or discrimination of any kind”, stated in section 8(2), prohibits discrimination that affects one or more of a person’s other human rights. For this reason, it is sometimes described as a “subordinate” right rather than an autonomous or independent one.

The right to equality before the law and equal protection of the law without discrimination, stated in section 8(3), prohibits discrimination “in any field regulated and protected by public authorities” (United Nations (UN) Human Rights Committee General Comment 18, “Non-discrimination”, paragraph 12). It also guarantees to everyone equality before the law and the equal protection of the law. These three elements, non-discrimination, equality before the law and equal protection of the law, are “basic and general principles relating to the protection of human rights” (UN Human Rights Committee General Comment 18, paragraph 1).

Public authorities in the ACT include all ACT Government agencies, their employees, police officers (when they are exercising functions under ACT laws) and private and community organisations with public functions. The rights in sections 8(2) and 8(3) prohibit these authorities both from adopting laws, policies and programs that are discriminatory, and from applying or enforcing those laws, policies and programs in a discriminatory way. This does not mean that public authorities must always treat all people identically. To fulfil these rights, public authorities may need to adopt measures specifically to assist or protect groups of people who are disadvantaged, or have particular vulnerabilities or needs.

The Human Rights Act does not define “discrimination”. However, the UN Human Rights Committee has explained that in the International Covenant on Civil and Political Rights – the treaty that is the primary source of section 8 of the Act – the word “discrimination” means:

"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."

(UN Human Rights Committee General Comment 18, paragraph 7.)

The note to section 8 of the Human Rights Act lists examples of discrimination. They are: discrimination on each of the grounds mentioned in the Committee’s definition above; discrimination because of sexual orientation; and discrimination because of disability.

Several other laws besides the Human Rights Act address discrimination in the ACT. They include the ACT’s Discrimination Act 1991 and the Commonwealth Racial, Sex, Disability and Age Discrimination Acts. This broader framework of anti-discrimination law complements the human rights in section 8. It includes obligations known as “positive duties”, imposed on ACT government directorates and some other entities, to:

  • make reasonable adjustments to accommodate the needs of a person with an attribute protected by these laws, such as sex, race or disability (a “protected attribute”); and
  • take steps to eliminate discrimination, sexual harassment and unlawful vilification.

For more information on this body of law, see the web page “Discrimination - HRC”.

The ACT Human Rights Commission has the power to investigate complaints from people in the ACT about breaches of the Discrimination Act 1991, as well as complaints about breaches of their human rights. For more information, see our complaints web page.

When could these rights be relevant?

The actions of government agencies and other public authorities can both promote and limit human rights. Among other examples, section 8 may be relevant to:

  • delivering an entitlement or service to some groups but not others;
  • recognising the interests of Aboriginal people or members of other ethnic, religious or linguistic minorities;
  • laws or policies or procedures that are stated in neutral terms but have a disproportionate impact on a sector of the community whose members have one or more protected attributes under the ACT’s Discrimination Act (for example, sex, race, age or disability);
  • limiting any of the human rights set out in the Human Rights Act in a discriminatory way: for example, where legislation curtails the freedom of expression of certain people or groups;
  • setting age brackets that are expressed as protective measures, graduated entitlements (for example, driver licensing), or statements of legal capacity (for example, voting);
  • eligibility requirements for access to services or assistance (such as legal aid);
  • measures that aim to assist people or groups who are socially, culturally or economically disadvantaged, including positive discrimination measures to diminish or eliminate conditions that have led to their being disadvantaged;
  • regulating access to infrastructure and public facilities including building, roads, transport, schools, housing and hospitals;
  • regulating information and communications services including electronic services;
  • regulating access to public services including education, healthcare, the justice system and voting;
  • providing for mobility aids, assistive devices and technologies designed for people with disabilities;
  • setting standards or guidelines for access to facilities and services to ensure that businesses that provide public services take into account access for people with disabilities.

Cases

Cases on these rights have included:

R v Watson[2017] ACTSC 311

Ms Watson was an unsentenced female prisoner at the ACT’s jail who had pleaded guilty to drug-related offences and had been offered a place in a 12-week residential rehabilitation program outside the jail. Unsentenced men had access to such a program inside the jail but women did not. Because of the type of offences involved, the Bail Act prohibited granting Ms Watson bail unless there were “special or exceptional circumstances”.

The ACT Supreme Court noted that section 30 of the Human Rights Act required it to interpret ACT laws, including the Bail Act, compatibly with human rights. It found that the distinction between men and women in the availability of residential rehabilitation programs appeared to be inconsistent with Ms Watson’s right to equal protection of the law without discrimination, under section 8(3) of the Human Rights Act. Accordingly, there were “special or exceptional circumstances”, enabling the Court to further consider her bail application. After that consideration, the Court granted her bail.

Islam v Director-General Justice and Community Safety Directorate (No 3) [2016] ACTSC 27

In this case, a Muslim prisoner claimed that, among other human rights breaches, prison officers breached his right to protection against discrimination, by not taking action when fellow prisoners ridiculed him about his religion. The ACT Supreme Court disagreed, stating that in the context of the operation of a prison, that right is not contravened merely because the prison authority fails to prevent any adverse comment by another detainee. The Court also discussed the scope of this right beyond religion-based discrimination, although it made no finding on this. It observed that that scope is potentially very broad, given that section 8(3) of the Human Rights Act refers to discrimination “on any ground” and – unlike the equivalent section in Victoria’s human rights charter – is not defined as limited to discrimination based on attributes set out in anti-discrimination legislation.

UN Human Rights Committee, Toonen v Australia (Communication No. 488/1992) and other cases on sexuality and gender identity

The Toonen case is a well-known example of the operation of the right to enjoy one’s human rights without distinction or discrimination, under article 2(1) of the International Covenant on Civil and Political Rights – the treaty provision that is the basis of section 8(2) of the Human Rights Act. Mr Toonen was an activist who complained to the UN Human Rights Committee about Tasmanian laws that, at the time, criminalised sex between men. The Committee found that the laws violated his right not to have his privacy interfered with arbitrarily under article 17 of the treaty (the equivalent of section 12 of the Human Rights Act ), in conjunction with the right under article 2(1). A few years later, Tasmania repealed these discriminatory laws.

The Committee has made a number of decisions about discrimination on the grounds of sexuality and gender identity in the decades since Toonen. They have included decisions finding that Australia breached the provision in the International Covenant on Civil and Political Rights that is equivalent to section 8(3) of the Human Rights Act, on equality before the law and equal protection of the law without discrimination (article 26), for:

Note:

This factsheet is not intended to be a substitute for legal advice.

Last updated January 2026.