What does equality before the law mean?

Equality before the law means that every person, regardless of their race, religion, gender, social position, wealth, or political connections, is treated equally by the legal system. The principle is fundamental to Australian democracy and the rule of law, and is supported by federal and state anti-discrimination laws, by the way courts operate, and by access-to-justice initiatives that help people who cannot afford a lawyer.

In practice, equality before the law has several concrete elements. The same criminal laws apply to all Australians, and a court must hear a case with the same procedures regardless of who is involved. A serving Prime Minister can be sued, a wealthy person can be prosecuted, and a homeless person has the same right to a fair hearing as anyone else. Witnesses give evidence under the same rules, judges and juries are instructed to consider only the evidence, and appeal courts review decisions for legal error.

The principle has not always operated in practice. Aboriginal and Torres Strait Islander Australians were excluded from the federal franchise until the Commonwealth Electoral Act 1962, were not counted in the census until the 1967 referendum, and faced specific exclusions and restrictions under federal and state Aboriginal protection laws into the 1970s. The Mabo decision of 1992 ended the legal fiction of terra nullius and recognised native title for the first time. The 1975 Racial Discrimination Act made racial discrimination unlawful and is still routinely used to hold government and private parties to account.

Access-to-justice arrangements help close the gap between formal and substantive equality. Legal Aid Commissions in every state and territory provide free legal advice and representation for people who cannot afford a lawyer, particularly in criminal and family law matters. Community Legal Centres, of which there are about 200 across Australia, provide free advice on tenancy, consumer, employment, and discrimination matters. Aboriginal Legal Services and Aboriginal Family Violence Prevention Legal Services provide culturally appropriate help. Free interpreting through TIS National supports people whose first language is not English.