Freedom from discrimination and cultural rights

The right to equality is fundamental. As a free-standing right it is declared in article 26 of the ICCPR, and as a condition of the enjoyment of all other rights it is enshrined in article 2 of the ICCPR and ICESCR. Equality is both procedural—equality before the law—and substantive—equality under the law. Liberty Victoria supports the right to equality and freedom from discrimination, without the limitation in the Charter to only those attributes mentioned on the Equal Opportunity Act 1995 (EOA). Australia’s obligations under international law are to ensure the right to equality on any attribute, and the EOA and Charter should say likewise. The only limitation on the right to equality should be the inherent limitations known to international law and set out in s.7 of the Charter, namely “such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.” Liberty Victoria supports a view of equality which aims for substantive, rather than merely formal, equality, as this is what is necessary for human dignity. As the Charter rightly acknowledges at s.8(4): “Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.” Cultural rights, as set out in s.19 of the Charter, are another necessary aspect of human dignity. Liberty Victoria supports their full realisation, as part of the balancing of individual and community in a multicultural society. Everyone benefits by acknowledging and celebrating the richness of the cultures of others, while having the reciprocal acknowledgement of their own. People can best participate in and contribute to the life of the community when they can also participate freely in the life of their communities of origin and of choice, safe in the knowledge that they too are respected.