Does the law does apply equally to all?

(b)Substantial inequality

A claim that the Australian legal system treats every person equally – that all are equal before the law – is a simple statement of formal equality: the law assumes that everyone who deals with it does so with the same (and sufficient) understanding, ability and resources. This fails to recognise the substantive inequalities that exist among those who deal with the law, including differences in culture and custom, command of written and spoken English, intellectual capacity and financial resources. These differences are common among people born and raised in Australia, but are obviously more pronounced among people who are born and raised in other countries.

The Australian legal system does not make any formal concession to a person’s inability to deal with it on its own terms. This is true both in theory and in practice.

In its theory, Australian law has no principles that require it to treat people differently because of their subjective circumstances. Australia’s laws are based on the values of a liberal, democratic and Christian tradition. These values underpin a legal system that privileges such things as private property rights, individual autonomy, the ‘nuclear’ family, logical reasoning and the authority of the state. People from other cultural and customary traditions can find themselves at odds with the Australian legal system when it fails to recognise, for example, community and collective interests and responsibility, extended family relationships, subjective perceptions of relevance and challenges or resistance to state authority.

In practice, the Australian legal system makes few efforts to moderate its formal and complex procedures and its technical English language. People from other cultural and customary traditions can find themselves confused, alienated, trapped and disadvantaged simply by the form of law, before even reaching its substance.

For a range of subjective factors, many people are not able to take advantage of the opportunities the law offers (eg documenting transactions, pursuing debts or enforcing wrongful conduct) or are more vulnerable to being exposed to the force or demands of law (eg criminal sanctions, strict liability offences or obligations to comply with contractual terms).

Some of these subjective factors are likely to arise commonly among refugees and migrants, such as ignorance of the law, poor comprehension of written English, ignorance of behavioural expectations in Australia, ignorance of usual commercial practice in Australia, ignorance of available resources in Australia and inadequate means to pay for advice and assistance.

The law in Australia makes limited concessions to these effective inequalities. Some commercial transactions can be undone or revised because the circumstances in which they occurred were unfair (eg under the Trade Practices Act 1974 (Cth) or state and territory fair trading laws) but access to these remedies usually requires knowledge and resources. No concession, however, is made for criminal liability; in sentencing, criminal penalties can be reduced by a court, taking into account subjective considerations (such as the person being a newly-arrived refugee or migrant), but only on a discretionary basis in each case and depending, to some degree, on someone advocating effectively on the person’s behalf.

The unequal effect of law on people in Australia is acknowledged principally through mechanisms that address or compensate for the subjective factors that put people at a disadvantage. State-sponsored measures include legal aid, community legal centres, translated publications and migrant and neighbourhood resource centres. Other mechanisms are charitable and faith-based groups that support people of particular cultures or faiths or with a particular characteristic, such as youth, old age or a form of disability.