Promotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]

Part two deals with the following matters:

·The Preamble and objects of the Act.

·Definitions: Marital status

·The application of the Act.

·The interpretation of the Act, especially with regard to the position of international law.
The fact that we focus on the overall framework of unfair discrimination and a few additional issues does not mean that we believe that the rest of the Bill is without problems. On the contrary, we think the entire Bill needs careful and critical reading and amendment. In particular, the sectors raise serious problems at several levels, both in their relationship to the general provisions of the Bill and in themselves.
PART ONE -THE DEFINITION AND APPLICATION OF UNFAIR DISCRIMINATION
INTRODUCTION

The Equality Bill currently envisages a two stage enquiry into ‘unfair discrimination’. Thus if a magistrate or judge has to decide whether a claimant can succeed in a claim for ‘unfair discrimination’; firstly he has to decide if there is unfair discrimination (as defined in section 1), and, secondly, if it is justified (in accordance with section 45). The Bill also includes five additional definitions of unfair discrimination in sections 1 (‘disability discrimination’), 7(1) (a) and (b) (race) and 10(a) and (b) (gender). This is confusing, not always internally coherent and can undermine more complex forms of unfair discrimination based on, for example, race, gender and disability. In this part of the submission we suggest that:

· The two stage enquiry be changed to a three stage enquiry by distinguishing between a finding of ‘discrimination’ and a finding of ‘unfair’, followed by the justification enquiry. This not only makes the whole procedure more user friendly, but also follows the constitutional court’s equality jurisprudence.

· The six definitions should be streamlined into a single definition and procedure on unfair discrimination. The particular issues relating to race, gender and disability can be captured within this overall framework by giving examples of discrimination on these grounds and the kind of concerns that could guide the unfair enquiry. (The sectors also need attention in this respect)

Before addressing these two issues in detail- we set out a summary of the Constitutional Court’s interpretation of the equality right in the Constitution (s 9). We use this as a basis for developing the three stage test in the Equality Bill.
THE EQUALITY JURISPRUDENCE OF THE CONSTITUTIONAL COURT.

There are currently two broad frameworks on equality and unfair discrimination within our law. The first derives from the Constitution and the Constitutional Court’s interpretation of the equality clause. The second derives from labour law and the history of the unfair labour practice, now entrenched as unfair discrimination in the Employment Equity Act. By including defences to unfair discrimination, the Bill has followed the constitutional framework rather than the labour framework (which only works with the concept of unfair discrimination). This is appropriate in giving a broad conceptual consistency to the application of the right at constitutional and legislative levels. It also ensures a conceptual and practical separation between the ‘unfair’ enquiry focussing on the impact of the discrimination on the complainant and the justifications/defences enquiry that looks at the reasons given by the respondent and weighs them against the nature of the impact. Finally, the three stage enquiry is more user friendly and workable at a practical level.

The Constitution has developed an equality jurisprudence based on unfair discrimination. In this, a three stage enquiry takes place in determining a claim of unfair discrimination:

· Has there been discrimination on a listed ground or on an additional ground recognised by the Court?

· Is this discrimination unfair?

· If the discrimination is unfair, (and it emerges from a law of general application) is the limitation of the right to equality nevertheless reasonable and justifiable in a democratic society based on human dignity, freedom and equality.1

At each stage of the enquiry, different considerations are taken into account. These are as follows.
STEP ONE - Is there discrimination?

In determining whether discrimination has occurred, the court asks whether there has been ‘unequal treatment’ on the basis of a listed or unlisted ground. This ‘unequal treatment’ will usually arise from a distinction, differentiation of exclusion in any rule, policy or practice or from the differential impact of an apparently neutral criterion or same treatment.2

The Constitutional Court has not provided a definitive understanding of ‘unequal treatment’, however it is clear that some harm must flow from the act of differentiation or failure to differentiate. This harm may be the loss of a promotion, refusal of a mortgage bond or insurance policy, denial of accommodation or losing a particular good or service.
If the complainant seeks to allege discrimination on an unlisted ground, then he or she must show that the ground is worthy of constitutional protection. According to the Constitutional Court, this enquiry involves an assessment of whether the differentiation impairs fundamental human dignity or affects the complainant in a comparably serious manner.3 It also considers whether the ‘new’ ground is one that may have resulted in the construction of patterns of disadvantage. However the Constitutional Court specifically leaves the test open to include further criteria in the future.4
STEP TWO - Is the discrimination unfair?

The issue of unfairness is determined by looking at the impact of the discriminatory act on the complainant and his or her group.5 The Court has found the following criteria to be important, but not exhaustive.

· The person/group suffering the discrimination and whether they are members of a disadvantaged group.6

· The nature of the power in terms of which the discrimination was effected 7

· The effects of the discrimination on the interests of the group, including the invasion of dignity.

By considering the impact of the discriminatory act on the person or groups complaining of the discrimination, this stage of the enquiry focuses on the complainant rather than on the reasons/justifications/defences of the respondent. Most importantly, in the final analysis it is the impact of the discrimination on the complainant that is the determining factor regarding the unfairness of the discrimination. 8 As the approach is ‘comprehensive and nuanced’,9 all factors have to be considered in relation to this. It is this enquiry that allows for a careful contextual analysis that is able to uncover and address systemic discrimination.

Most importantly – this is the stage of contextual analysis that looks at the overall impact of the discriminatory action in the context of people’s lives. This can only be achieved through proper attention to the group and individual analysis as set out below.
The group and patterns of disadvantage:

In Harksen the Court identified the position of the complainant and whether he or she is a member of a group that has suffered in the past from patterns of disadvantage, including whether discrimination is on a specified ground.10 The more vulnerable or disadvantaged the group, the more likely the discrimination is found to be unfair. 11

This is a group based enquiry as found in Hugo (mothers as a disadvantaged group), Harksen (solvent spouse not a disadvantaged group) and NCGLE (gays and lesbians a disadvantaged group). This aspect of the test allows a enquiry into the history and context of the group.
For example, in NCGLE the Court looked at gays and lesbians as a permanent and political minority reliant of the bill of rights for protection, who had suffered past patterns of disadvantage at many levels.12
Nature of the power and purpose of the act:

This section looks at the nature of the power and the purpose sought to be achieved by it. This step in the enquiry seems to focus particularly on whether the act complained of was directed at a worthy goal, eg. of remedying past disadvantage or of furthering equality. In Hugo, Goldstone, J located this aspect of the unfair enquiry within a broad consideration of the impact of the discriminatory act to see whether it furthers constitutional goal of equality or not.13 In Hugo the president’s purpose of benefitting vulnerable groups was important in determining unfairness. In NCGLE, the fact that the purpose of the act was to criminalise conduct that failed to conform to moral or religious beliefs was noted as part of the unfair enquiry.14

The Court seems to use this aspect of the enquiry to measure the purpose of the act against the (constitutional) values underlying the equality right.15 However, this overlaps with the limitations enquiry and is better placed at that stage. The problem originated in the case Hugo where issues of purpose and reasons for the act were explored as part of the ‘unfair enquiry’.16 This was because the limitations clause did not apply in this case (the exercise of a prerogative is not a law of general application). Kriegler, J criticised the Court for this is his minority judgement in that case.17
Rights and interests:

The extent to which the discrimination has affected the rights and interests of complainants and whether it has led to an impairment of their fundamental human dignity or an impairment of a comparably serious nature is the third criterion. The more invasive of interests, the more likely the discrimination will be unfair.

This is not a closed list and it is the cumulative effect of these factors that must be examined.18 For example, in the NCGLE case, the Court considered the impact on the group in some detail, including the impact of the criminalisation of gay sexual conduct on the identity of the group and its members, the psychological integrity of the members of the group and on their dignity and self-esteem.19
The presumption:

A presumption operates within the enquiry into whether discrimination is unfair.

If the discrimination is based on a listed ground, then it is presumed to be unfair and the respondent has to prove that it was not unfair discrimination. However, if discrimination is alleged on an unlisted ground, then the onus of proving unfairness lies with the applicant.
STEP THREE - is the unfair discrimination justified?

The Constitutional Court has stated that this involves a weighing up of competing values, an assessment of proportionality and a balancing of different interests. The relevant considerations to the balancing process are set out in section 36. In NCGLE, Ackerman J said:

On the one hand there is the right infringed, its nature; its importance in an open and democratic society based on human dignity, equality and freedom; and the nature and extent of the limitation. On the other hand there is the importance of the purpose of the limitation. In the balancing process and in the evaluation of proportionality one is enjoined to consider the relation between the limitation and the purpose as well as the existence of less restrictive means to achieve this purpose. (paragraph 35)
The limitations analysis in NCGLE shows that the consideration of the right and its limitation involves weighing some of the findings of ‘impact’ in the unfair enquiry against the purpose of, and reasons for, the limitation. Thus it is here that the purpose of, and reasons and justifications for the impugned law/act are considered.
The enquiry may also consider the situation in foreign jurisdictions.
A THREE STAGE TEST FOR UNFAIR DISCRIMINATION IN THE BILL

1. In this submission we propose a three stage test for unfair discrimination, following the constitutional equality jurisprudence. We also suggest amendments to the current draft to accommodate this.

Problems with the way in which unfair discrimination is defined and applied in the Bill.
Stage 1 – defining Discrimination

1. The definition of ‘unfair discrimination’ as a single concept raises problems of meaning and creating an accessible and user friendly law. We suggest that discrimination be defined separately from unfair and very simply. This will solve a number of problems. Firstly, it will allow for a more workable two-step definition of unfair discrimination as a whole. Secondly, it will conform to the constitutional jurisprudence. Thirdly, it will mean that the complainant has to prove ‘discrimination’ rather than ‘unfair discrimination’. This will be easier and create less of a burden of proof for complainants that the current draft in the Bill.

1 (xxvi) ‘discrimination' means -

(i) a direct or indirect act or omission, including any condition, requirement, policy, rule, situation or practice, that results in the unequal treatment of a person or group of persons on the basis of -

(a) one or more of the prohibited grounds;

(b) that person's or that group's actual or presumed association with another person who or group which may be identified by any of the prohibited grounds;

(c) a characteristic that applies generally to persons who are identified by any of the prohibited grounds;

(d) a characteristic that is generally attributed to persons who are identified by any of the prohibited grounds.

· This definition captures the direct and indirect nature of discrimination, as well as a notion of harm that distinguishes discrimination from differentiation. The use of ‘unequal treatment’ is taken from the language of the Constitutional Court.

· We have deleted the reference to the duty to accommodate or to take positive measures. We believe that this is already captured within the meaning of ‘omission’ and to include it at this or the unfair stage may result in a court incorrectly getting into questions of the reasonableness of the accommodation or the measures. (See further paragraph 17 below).

· We have deleted the reference to racism, racial and gender discrimination as this is unnecessary in view of the fact that we suggest that there should not be a multiplicity of definitions of discrimination. (See paragraph 19 below).

· We have deleted the reference to sexual and racial harassment as this is unfair discrimination, rather than merely discrimination. It is dealt with later. (See paragraph 22 below)

· We have deleted the reference to unfair discrimination and affirmative action for the reasons set out in paragraph 17 below.

· We have deleted the reference to ‘inherent requirement of a job’ [s. (bb)] as this an employment specific defence and should be located in that section. (But see the submission of the CALS Labour Project).

Definition of Prohibited Grounds

1. The definition of prohibited grounds needs to be amended to allow the court to distinguish between a listed and an unlisted ground, and to establish the criteria for recognising an unlisted ground. This is also important for the issue of burden of proof during the unfair enquiry.

1 (xvii) 'prohibited grounds' include one or more of the following listed grounds of discrimination:

race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth

or any additional ground that

(a) causes or perpetuates disadvantage;

(b) undermines human dignity;

( c) affects persons or groups of persons in a comparably serious manner.

· The Constitutional Court has said that this is an open ended enquiry as we do not know what grounds will occur in the future. Provision (c ) allows for the addition of other considerations. Again the language and criteria are based on those of the Constitutional Court.
Stage two – dealing with unfair discrimination
1. Chapter Two deals with the prohibition of unfair discrimination. This chapter should be reworked to take account of the distinction between discrimination and unfair discrimination, as well as to separate unfair discrimination from the promotion of equality which should all be dealt with in one chapter.
2. Section 6 is amended to make it clear that both the State and all persons are bound by the Act. The current draft only refers to persons. We do not agree with the inclusion of the references to publication and dissemination in 6(2) and recommend their deletion. It is not clear how this is a form of unfair discrimination as defined in the this act – as it merely refers to an intention to discriminate it flies in the face of our jurisprudence which looks at impact, effects and results. Issues of publication and broadcasting may require separate considerations that should be dealt with in the proper place (either in this or another Act). It is bad law to deal with such issues ‘through the back door’. Finally the reference to criminal prosecution (with amendments) should be moved to a section dealing specifically with the application of unfair discrimination in the criminal law. See paragraph 29 below.
3. We suggest the addition of a new section 7 to deal with the application of the two stages, and the criteria for the unfair enquiry. This is the centre of the enquiry, requiring careful contextual analysis and the point at which systemic discrimination can be uncovered. Courts must be guided in the criteria for doing this. We provide an open ended list – derived from constitutional jurisprudence and practice and feminist writing on the issue.
Prohibition of Unfair Discrimination

6.(1) The State may not unfairly discriminate directly or indirectly against any person or group of persons.

(2) No person may unfairly discriminate directly or indirectly against any person or group of persons.
Unfair discrimination

7(1) In determining whether the state or any person has unfairly discriminated against any person or group of persons, a court shall establish that:

(a) there has been discrimination on a prohibited ground; and

(b) this discrimination is unfair.

(3) In determining whether the discrimination is unfair, a court shall consider the impact of the discrimination on the complainant and his or her group, including:

(a) The historic and socio-economic context in which the discrimination occurred or occurs;

(b) The position of the complainant in society and whether he or she is a member of a group that has suffered in the past from patterns of disadvantage;

( c)The disadvantage suffered by the complainant, including the extent to which the discrimination has affected his or her rights and interests;

(d) The relationship between, and the effects of, discrimination on more than one prohibited ground;

(e) Additional criteria set out in sections ….. below.. [Here one would have to list all the sector specific sections that add criteria to the unfair enquiry – note also that the sectoral criteria would have to refer back to this section]

Defences

1. In order to provide a clear and logical flow and understanding to the three stage test and to the process of determining unfair discrimination, and whether it is justified, we suggest that chapter 3 dealing with defences, burden of proof etc. be moved to follow directly after the description of the unfair enquiry in section 7.

2. The section on defences complies with the constitutional framework and maintains the integrity of the unfair enquiry as an enquiry only about the impact of the discrimination on the complainant. Questions of justifications and defences raised by the respondent are determined separately. However, we suggest some amendments to section 43.

· The constitutional language of ‘reasonable and justifiable in a democratic society based on human dignity, freedom and equality’ should be used rather than ‘in the circumstances’.

· All references to discrimination should be references to unfair discrimination.

· The enquiry into accommodation short of unjustifiable hardship should be reworded to make it easier to understand.

· Section 44 (Acts done for more than one reason) is unnecessary, somewhat of a red herring and could be deleted.

· The section on burden of proof (s 45) is reworked to take into account the differential burden on those claiming discrimination on listed or unlisted grounds.

· The requirements of a prima facie case (s.45(2)) are unnecessary (wrong in the current draft – why should you have to prove a violation of a right?) and should be deleted.
Defence to claim of unfair discrimination

8. (1) It is a defence to a claim finding of unfair discrimination that the act or omission is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

(2) The factors to be taken into account in deciding whether the act or omission is reasonable and justifiable in the circumstances include-

(a) the purpose of the unfair discrimination;

(b) the nature and extent of the unfair discrimination, including the nature and extent of the resultant disadvantage;

(c) the relationship between the unfair discrimination, including the resultant disadvantage, and its purpose; and

(d) whether there are less restrictive and disadvantageous means to achieve the purpose.

(3) For the purposes of 8(1) and (2), there shall be no finding that the act or omission was reasonable and justifiable in the circumstances, unless it is established that the person or group affected by the unfair discrimination cannot be accommodated to the point of undue hardship.

(4) In determining whether there has been the term "unjustifiable hardship" all relevant circumstances must be taken into account, including -

(a) the nature of the benefit accruing to, or disadvantage suffered by any person;

(b) the effect of the disadvantage suffered by the person unfairly discriminated against;

(a) the financial circumstances of the person who has a duty not to discriminate unfairly in the particular circumstances;

(b) the estimated costs involved in addressing the unfair discrimination;

( c) any plan of action.

Burden of proof

(9) (1) If the complainant alleges discrimination on one or more of the listed grounds and makes out a prima facie case of such discrimination in terms of this Act, the respondent must

(a) prove that the discrimination is not based on one or more of the listed listed grounds; or

(b) if it is proved that the discrimination is based on one or more of the listed grounds, prove that the unfair discrimination is not unfair.

(2) If the complainant alleges discrimination on an additional ground, then the complainant must

(a) prove discrimination on that additional ground; and

(b) prove that the discrimination is unfair.
(4) If the discrimination is proved to be unfair, then the respondent must prove that the unfair discrimination is reasonable and justifiable in terms of section 8.
1. Given the removal of any reference to accommodation or reasonable accommodation in the sections on discrimination and unfair discrimination, the definition of reasonable accommodation in s 1(xviii) would need to be changed to one of accommodation.
(xviii) ‘Accommodation' means any modification, adjustment, change or action that may enable any person or group of persons who is or who are identified by one or more of the prohibited grounds to enjoy full and equal access to, or to participate or advance equally in any areas or sectors
How to deal with a duty to accommodate or other positive duties.

2. The Bills’ definition of discrimination is innovative and progressive in that it includes within the meaning of discrimination an omission or failure to act. This imposes a duty to act in order to accommodate or enact positive measures to incorporate persons and groups identified by a prohibited ground. The challenge for the drafters of the Bill is how to include this in the Act. We have opted for a minimalist approach that does not elaborate on the meaning of ‘omission’ within the sections of discrimination or unfair discrimination. The issue is only raised at the defences stage when a respondent has to show that it was unable to accommodate short of unjustifiable hardship. In reaching this conclusion, we considered the advantage of including it earlier – mainly to indicate to judicial officers that discrimination includes a failure to act. Against this possible benefit is the very real disadvantage that the introduction of a provision on positive measures or accommodation will be used as an excuse to confuse the clear and separate steps of the three stage enquiry. We are concerned that such a provision will provide a point at which lawyers or judicial officers embark upon issues of reasonableness at stages 1 or 2. This is not unprecedented in constitutional jurisprudence and the case of Hugo v The President is a good example of the introduction of limitations considerations into the unfair enquiry (see above at paragraph 7). However – we are considering an appropriate wording for the previous sections on unfair discrimination and will present it, if necessary, at the oral hearing.

HOW TO ADDRESS RACE, GENDER AND DISABILITY IN THE BILL

3. We agree that it is useful to highlight forms of unfair discrimination based on race, gender and disability. However, we disagree partly with the manner in which it has been done. In particular, we think that the multiplicity of definitions is confusing and unwieldy. Firstly not all conform to the main definition. Secondly, it is not clear which definition gives rise to a claim in what circumstances. Thirdly, the definition of race, gender and disability jurisprudence as discreet categories goes against an understanding of the intersectional nature of discrimination based on , for example, race and gender or gender and disability.

4. We suggest that there be only one definition relating to discrimination that applies to all forms. We further suggest that race, gender and disability be dealt with in an annexure that sets out general and specific examples of unfair discrimination on these grounds and any additional considerations. These will serve to guide and educate those who use and apply the act.
5. We have attempted to provide a draft of the section on unfair gender discrimination, and we make some comments about the section on race. We suggest that the section on disability be similarly reworked.
Race Discrimination.

6. The current draft deals with a variety of different and over lapping forms of issues relating to race discrimination, racial harassment, racism and race hate speech. The conceptual and practical differences between these are not always clear. It seems as if there are at least three forms of offensive behaviours and practices that this Bill seeks to address:

· (Unfair) race discrimination – direct or indirect unequal treatment on the basis of race that has a negative and disadvantageous impact on a person or group of persons.

· Harassment on the grounds of race – verbal or physical conduct that demeans, humiliates, ridicules, stigmatises (etc.) a person or group of person on the basis of race.

· Hate Speech – language that constitutes incitement to cause harm, ie. The element of incitement takes it beyond harassment.
These boundaries are not clearly maintained in the act. For example, the definition of harassment on the grounds of race is too strongly worded and takes it closer to an understanding of hate speech (‘inciting hatred towards’). The definition of race discrimination also includes examples that seem to fall more properly under harassment or hate speech. For example, 8(e) is more probably an example of harassment and 8(a) appears to be hate speech.
We suggest that:

· The act clearly demarcates the boundaries between race discrimination, harassment and hate speech and deal with them in separate sections.

· Harassment on the basis of race does not need to be defined as the definition of ‘harassment’ is sufficient. (See also paragraph 22 below)

· If race hate speech is to be dealt with in this Bill, it requires much more attention to definition, application and enforcement.

· The section on race discrimination is amended in line with the section on gender discrimination set out below. This seeks to provide both claimants and judicial officers with examples of discrimination and considerations to take into account in determining unfair discrimination.

· The section on positive measures is moved to that chapter.

Gender discrimination

The section on gender discrimination (to be placed in an annexure) should not attempt to define unfair discrimination on the basis of gender, but rather guide complainants and magistrates through an understanding of how to apply the act in relation to gender. This annexure could include some examples of unfair discrimination and additional criteria for the unfair enquiry. The section on positive measure (s 12) can be moved to that chapter (chapter 5 on Promotion of Equality).

Annexure – Gender Equality and unfair discrimination on the basis of gender.

Examples of unfair discrimination on the basis of gender include, but are not limited to, the following:

(1) Unfair discrimination on the basis of sex, pregnancy, marital status, domestic or family responsibilities or sexual in the domestic, political, economic, social, cultural, civil or any other field.
(2) Gender-based violence, including witchcraft or ritual related violence.
(3) Any system, law, policy or practice that prevents or excludes women from inheriting family property;
(4) Female genital mutilation and other violations of bodily integrity;
(5) Sexual harassment;
(6) Any law or practice, including traditional, customary or religious practices, that disadvantages women;
(7) Any law, policy or practice that disadvantages a girl under the age of 18;
(8) Any law, policy or practice that specifically results in women having unequal access to, or enjoyment of, land, finance and other resources;
(9) Any law, policy or practice that prevents or excludes women from accessing reproductive health care services.
Additional criteria for determining whether gender discrimination is unfair.

In determining whether a claim of discrimination based on gender is unfair, a court may consider whether:

(1) the act or omission has, or is likely to have, the effect of creating or sustaining systemic forms of domination and disadvantage which perpetuate and re-enforce unequal gender relations and prevent women from being able to develop to their full human potential and participate fully in society;

(1) the impact of the sexual division of labour; and

(2) the impact of gender discrimination is increased by the impact of other prohibited grounds.
HARASSMENT

1. The Bill defines three forms of harassment – a general definition and racial and sexual harassment. It does not deal with how a claim for harassment should be dealt with by the courts. While we believe that harassment falls generally within a meaning of unfair discrimination, we do not think that the three stage enquiry applies to it. In particular, we do not think that harassment can ever be justified. We therefore recommend a separate section dealing with harassment that:

· Defines harassment

· Sets out how to deal with a claim

1. We are not able to produce a draft of this, but will attempt to bring one to the oral submission.
USE OF TERMINOLOGY RE EQUALITY AND DISCRIMINATION

1. The use of terminology relating to equality, discrimination and unfair discrimination is inconsistent throughout the Bill and needs to be carefully edited to ensure that each term if used correctly.

2. We note that ‘substantive equality’ has been defined. We disagree with this for two reasons:

· The content of the definition

· The desirability of a definition.
1. Substantive equality is generally understood to entail both a principle or objective and to describe a method of achieving this objective. As a principle/objective, substantive equality has been defined in several ways to describe real legal, social and economic equality. In a recent constitutional case, Ackermen J described it as ‘remedial or restitutionary equality’ which seeks to eliminate and remedy the injustices of the past.20 Others have referred to it as ‘equality of outcomes’ which seeks to ensure that equality addresses actual socio-economic inequalities. This meaning is not captured in the current definition.
2. Substantive equality also refers to a method of interpreting and applying the equality right, namely, a contextual analysis that seeks to take into account the actual historical, social and economic conditions in which the rights violation occurs. This meaning of substantive equality has been written into the Act, and our reworking of sections of the Act.
3. By seeking to define substantive equality, the Bill sets up a distinction between equality and substantive equality. This is extremely dangerous. It has always been argued and accepted (by the Constitutional Court) that equality is substantive equality. If this Bill were suddenly to create distinctions, these distinctions could be used to reintroduce a concept of formal equality into our law. We urge that the definition of substantive equality be deleted.

THE CRIMINAL LAW AND UNFAIR DISCRIMINATION

4. Several sections deal with the application of unfair discrimination to the criminal law, including sections 6(3), 9(1) and 12(1). If they are to remain in this Act, these sections should be placed in a single section that is more explicit on the content and application of the sections. We suggest that it is preferable, however, that they be developed for incorporation in the criminal procedure act.
5. We do not provide a suggested rewording of these provisions. However, the current wording is far too loosely constructed and is not clearly linked to a criminal notion of intent. The current wording would potentially allow an innocent and unintentional act to be criminalised. That cannot be the purpose of the provision.