Substantive equality
[2][3] Scholars define substantive equality as an output or outcome of the policies, procedures, and practices used by nation states and private actors in addressing and preventing systemic discrimination.
[8] The participative dimension uses Ely's insight[clarification needed] to argue that judicial review must compensate marginalized individuals for their lack of political power.
[8] Fredman advocates for a four-dimensional approach to substantive equality as a way to address the criticisms and limitations it faces due to the lack of agreement on its definition by scholars.
[10] The substantive approach rejects earlier notions that claimed social, political, economic, and historical differences were a legitimate justification for the differential treatment of marginalised and disadvantaged groups in society.
The substantive approach to equality is entrenched in human rights treaties, laws, and jurisprudence, which is then adopted and implemented by nation states and private actors.
This is present in Article 14 of the European Convention on Human Rights (ECHR), which states that: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Although Article 14 fails to mention discrimination on the basis of sexuality, age, and disability, recent developments in case law have shown that these grounds are illustrative but not exhaustive and can extend to include these factors.
[8] Nation states that have signed and ratified the ECHR have an obligation to enact legislation preventing discrimination by using special measures to protect and advance the lives of disadvantaged and marginalized individuals in society.
[13] All Australian states and territories have enacted a statute (variously called the anti-discrimination act) which prohibits all forms of discrimination in public life on the basis of nominated attributes identified in Article 26 of the International Covenant on Civil and Political Rights (ICCPR).
[13] For example, indirect discrimination may occur in the workforce when employees are expected to comply with a condition or requirement of the job (i.e. height restrictions) but are unable to meet them because they are unreasonable or unfair.
Private actors, organizations, and governments use special measures in the form of affirmative action programs to ensure disadvantaged individuals are given the same outcomes as everyone else.
The Australian government has identified women, Aboriginal and Torres Strait Islanders, people with disabilities, and non-English speaking migrants as high-priority groups for the administration of special measures programs.
[17] The Crown dismissed the appeal as under section 15(2) the Government has the power to implement affirmative action programs in order to advance the aboriginal bands access to jobs and resources.
[8] Scholars have argued that the meaning of substantive equality remains elusive, which makes it difficult to implement change due to the lack of consensus.
[13] Welfare and affirmative action programs have been recognized as areas of concern, as the way in which they are delivered can be discriminatory in nature because they can reinforce and perpetuate stigmas that are held within society.
