Benign Discrimination and the Right to Equality

Abstract

Governments have been increasingly preoccupied with the task of reconciling claims to preferential treatment with the principle of equality. The social and philosophical issues raised by this apparent paradox are considered, and the compatibility of benign discrimination with the concept of equality demonstrated by developing a complex normative notion of equality. An analysis is then undertaken of the various attempts made by lawyers, in nearly one hundred existing bills of rights, to give formal expression to these principles. Ultimately the problem of benign discrimination falls for resolution by the courts, and the jurisprudence developed in this respect by the Supreme Courts of Canada and the United States is critically discussed and compared. Having exhaustively developed an appreciation of world experience regarding the interaction of bills of rights equality clauses and benign discrimination, consideration is given to the formulation of the Australian Human Rights Bill—a bill of which Gareth Evans was one of the principal draftsmen.