What is formal equality?

Formal equality in Australian law is the principle that everyone should be treated the same way under the law, regardless of their circumstances. It is the older and more familiar form of equality, underpinning the rule of law, the presumption of innocence, equality before the law, and the basic anti-discrimination rule that people should not be treated differently because of protected attributes.

Formal equality has deep roots in Australian law. The rule of law requires that the same laws apply to everyone, including the most powerful. Section 117 of the Constitution prohibits discrimination based on state of residence. Equality before the law has been recognised by the High Court as a fundamental common law principle. The presumption of innocence applies equally to every accused person. Standard Australian principles like open courts and reasoned judicial decisions support formal equality by ensuring that decisions are visible and consistent.

Anti-discrimination laws build on the formal-equality tradition. The Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, and the Age Discrimination Act 2004 all start from the proposition that people with different protected attributes should be treated equally. Direct discrimination is the clearest formal-equality breach: treating someone less favourably than another person in comparable circumstances because of their race, sex, disability, age, or other protected attribute is unlawful.

Formal equality has known limits. It cannot, by itself, address structural disadvantage that arises from differences in starting circumstances. Treating an Indigenous student in a remote community and a non-Indigenous student in a wealthy suburb identically may not produce equal results. Treating a person with a wheelchair and a person who can walk identically may exclude the first from a building without a ramp. These limits are addressed by substantive equality, which complements rather than replaces formal equality. Most Australian anti-discrimination law uses both concepts together, prohibiting both direct discrimination (formal equality breach) and indirect discrimination (substantive equality breach), with reasonable-adjustment and special-measures provisions supporting substantive equality specifically.