Role and Impact of the Rules of Equity in Australia’s Legal System

Posted: November 17, 2016


Australia legal system was formed from Britain legal framework. A legal system, by definition, institutions and laws used to control, regulate and organize activities of a state and its citizens (Lowe 2008, p. 2). The major principles that govern Australia legal system include equality before law and justice. The system itself and lawmakers endeavor to achieve equal results for every individual living in Australia.  Also, it focuses on ensuring the protection of all by making just and fair decisions (Lowe 2008, p. 2). In other words, the courts, government and law enforcers as well as individuals work to achieve an ideal sense of justice and fairness. In Australia, legal system equality means treating each person the same. Everyone enjoy the same opportunity and rights, and nobody is disadvantaged. As such, the aim of equity in Australia’s legal system ensures each person is treated in the same way no matter who they are. The system must not come up with a different decision because an individual is poor or rich or because a person comes from a different nation. It means that each person has a right to access the legal system and law equally as no one is above it no matter the position they hold in the society.


According to Lowe (2008), the legal system in Australia is designed and structured in a manner that oversees equality in terms of fairness. The courts and the entire judicial system have an obligation to make decisions based on the established and known rules. For instance, if there are no rules made in the various organizations regarding smoking, no person should be punished unfairly for doing so (Lowe 2008, p. 22). Lowe contends that Australia’s legal system is driven by fairness aimed at achieving an equal outcome for all people. To attain this, individual circumstances are always taken into account. The proceedings are often handled in a particular manner based on the individuals involved, for example, people with disability. Further, Lowe continues to argue that judges have to consider a person’s background and history before making a decision. This is usually done on a fair judgment or punishment (Lowe 2008, p. 22). By doing this, the system focuses on ensuring every individual in Australia has an opportunity to be treated justly according to the underlying facts. According to Australia Law Reform Commission, (2004), all of the above means that the judicial officers cannot treat each person the same way for the system wishes to ensure equality of the legal outcome as doing so lead to a perception of unfairness and legally wrong outcomes. Therefore, under the rule of equity, the judicial system is required to adopt conduct of court proceeding to oversee that individuals present their evidence as effectively as possible, get a fair hearing and obtain suitable outcome bearing in mind particular underlying circumstance and individuals’ background (Australia Law Reform Commission 2004, p. 35).

New Rights and Remedies

Further, According to Michael Kirby (2008, p. 1) and Thampapillai, Tan, Bozzi, and Matthew (2015, p. 127) equity has an important aspect in Australia as it has led to the development of new rights and remedies aimed at benefiting complainants. Michael asserts that endurance vitality of any branch of law depends on its capability to adjust to the changing circumstance of the society (Michael 2008, p. 1). As such, the legal system in Australia provides a different perspective on the issue of equity as there has been creativity and amendments within the early English laws which are the very reason for the genesis of equity. The courts in Australia have made significant contributions to this development. For example, they have spearheaded formulation of the principle of estoppel by conduct and established the notion of unconscionability which forms the foundation for equal relief (Michael 2008, p. 1).

Moreover, Wright (2014) notes that this has been established in several cases where unconscientiousness has been used previously by some parties to disadvantage the opponents rendering them incapable of making an informed assessment of their interest. However, the changes regarding rules of equity before law have allowed use of identical facts in deciding and developing solutions to the cases in the judicial system. In addition to this, the law exists in Australia’s legal system that makes discrimination on the basis of sex, disability, age or races as well other characteristic unlawful (Wright 2014, p. 38). The rules uphold equality before law but also acknowledge the importance of legal process for challenging matters such as those regard discrimination within a community. A crucial part of the equality before law in the legal system in Australia is that if a complaint of discrimination arises, both the alleged discriminator and complainant are entitled to present their side of the story.


Further, Opeskin (2014) hold that equity in Australia’s legal system aims at reaching justice. Specifically, the system strives to do justice between parties, and this is one of the objectives of courts.  Opeskin contends that justice in Australia legal system is a non-negotiable mandate and the rules of equity required that justice is done to all parties involved an act. The judges need to achieve justice using the power that rest upon them to decide each case according to a high standard of morality (Opeskin 2014, p. 133). This is the power of the courts to do justice where equity is a quest for provision of justice solution. As such, it follows that judges are to produce a just and equitable result in all cases before them. By doing observing these premises the Australia’s legal system expects judicial decision-making to be flexible and applied reasonably.

Similarly, the source contends that for judges to be perceived to perform justice and at the same time equity, they may not just base their decision on what they believe is right or wrong. Their consciousness works within but is subordinate to the established rules of equity. The principle operates under the premise that judicial vision of justice in the legal system plays a role inequitable decision-making process. These individuals are not only required to uphold a sense of vision of justice which require equity to be observed but also must be achieved by adhering to the fixed rule of equity (Opeskin 2014, p. 133). Therefore, it is clear that regardless of the equitable remedies sought by the Australia’s legal system, the judicial system is a support to ensure that there is not neglect in following the rules of equity. By doing this, it is not supposed to settle on any specific form of equitable relief without legal justification of the decision made. Application of equity should not justify the means. The courts’ powers in equity are aimed to enable them to offer full effort to ensuring the required justice is reached (Opeskin 2014, p. 133). As such, according to Opeskin, the question is not a matter of applying equity abstractedly. This is a rule of law that itself needs the application of equitable principles.

Provision Equitable Response to Culturally Diverse Clientele

An Australian Government Internet site (2011) notes the need for adopting a method that promotes Access and Equity Strategy. The aim is to acknowledge the crucial need for principles that are non-discriminative and equitable. The strategy has been in existence since the 1980s as a way to inspire the government services and programs to take into consideration all barriers that face individuals’ due to their religion, language, race, and culture (Australian Government 2011, p. 1). Therefore, all organization should respond to the needs of linguistically and culturally diverse communities. Equity means that the three government levels: state, local and commonwealth should intervene to manage diversity in the country in the interest of social justice, cultural tolerance, and economic efficiency.

 Further, the rules of equity in the legal system require formulation of a mechanism that generates a positive change within the various organizations (Australian Government 2011, p. 1). The impact is to make the department in commonwealth responsive to assessing of institutions respond equitable and effectively to all matters that involve culturally diverse communities in Australia. According to the source, Australian Government  has currently adopted several principles to guide the include social Agenda which encompasses reducing disadvantages facing culturally and linguistically different people while at the same time increasing their social, economic and civic participation (Australian Government 2011, p. 1). These aspiration of equity are directly relevant to the addressing the issue of employment barriers experienced by such individuals.

Avoiding Bias and Stereotype and Equal Access to Opportunities

Fred (2007) assert that rules of equity in Australia’s legal system focus on ensuring everyone has the same opportunity to receiving education, employment and live comfortably.  Judicial officers are required to be conscious of any possible personal prejudice or bias about people who are from different background. This is aimed at ensuring equity before the law. Therefore, the judicial system in Australia has a mandate to ensure judges in courts do not treat any person preferentially or make a false assumption about certain individuals in the society. The system uses several ways that oversees that ever person has an opportunity to receiving the same legal outcomes, and judicial officer are needed to understand the range of culture, value, and lifestyles as well as the experience of people from diverse backgrounds (Fred 2007, p. 1).  According to Fred, Australia’s legal system recognizes that Aboriginals are people of diverse culture, gender, disabilities, gender, and disabilities. Also, people living in some of the regions in the country are elderly, and young individuals experience a high rate of social inequity and discrimination (Fred 2007, p. 1). For this reason, it also acknowledges that such people are more likely to be victims of crimes or being involved. Therefore, the rule of equity in Australia aims at taking into account the groups that are most likely to experience inequity and discrimination while at the same time ensuring that they have equal access to the available opportunities.

The common programs that ensure this include anti-discrimination rules, legal aid, affirmative action programs and dispute solution procedures. These are all methods that exist in Australia to create more fair and equal outcomes in the legal system. First, wider access to opportunities such as education impacts the political health of the country positively as voters are able to participate better in community, social and political life as well as make balance and intelligent choices (Fred 2007, p. 1). Similarly, Fred argues that wider access to same opportunities can help to reduce social tension from the perceived inequalities. The trend has been adopted in the legal system triggered by technological changes which require extensive skills. Equal access to education has favored economic activities that need post-school training. At the same time, there has been improved the efficiency of employment participation rate from people all of races and religion and labor market. As such, the source holds that  equal access to opportunities in the country impact productivity potential in the nation as reducing inequalities enable well motivated and intelligent people to realize employment potential and lower crimes incidences.

Further, according to (2016), an Internet site managed by the government of Australia, the rules of equity means having equal employment opportunities and anti-discrimination in the places of work. The state and national laws require that organization creates workplaces that are free from harassment and discrimination. Therefore, it is fundamental for the employers to understand their responsibilities under the anti-discrimination laws as they law require them to have diversity. This is means having workers from a broad range of backgrounds including employees of different gender, sexual orientation, physical ability, educational background, work experience, religion belief, and ethnicity ( 2016, p. 1).  The sire holds that employers have an obligation of hiring people fairly. When hired, organizations need to meet the government requirement that relates to super, leave, pay and tax.

Regulation of Gender Equality in the Workplaces

Malkin and Harding (2012, p. 239) note that gender equity is an area in the Australia’s federal government that has expanded regulation regarding the private sector recently. The legal system enacted the Workplace Gender Equality Amendment Act in 2012 which ensure the provision of maximum standards for gender equity in the private sector.  The law recognizes that women with disabilities are less likely than their counterparts to get senior secondary or tertiary education. Further, Malkin and Harding contend that these individuals earn less than male counterparts and most of the times they do not receive any payment for their work. At the heart of these new rules is that employment should be provided by first making a decision with respect to the merits an individual holds (Malkin and Harding 2012, p. 239). The new rules require that private employers with greater than a hundred workers lodge a report yearly describing their status regarding standards based established gender equality indicators. These include gender composition in the organization, remuneration between men and women, working arrange for all employees and provide evidence of consultation with each employee based on gender equality in the company. The report is to be made available to the shareholders and unions for comments. Further, gender equity indicators force the businesses to examine corporate cultures (Malkin and Harding 2012, p. 239). This makes the human resource managers question the adopted strategies as they must adhere to the new rule of equity. Employers who do not meet these requirements will be named and shamed by workplace gender equity agency which is a body that ensures women receive equal enumeration and entitlement for the same type of job as their counterparts.


Indeed, rules of equity are fundamental concepts under the Australia’s legal system. It has been imperative to focus on role and impact of the rule of equity in the Australia’s legal system drawing information from primary and secondary sources. First, it has been identified that equity aims at reaching fairness. All the judicial officer Australia’s courts are supposed to act and conduct cases before them fairly. As part of its impacts, equity in Australia has led to the development of new rights and remedies for the benefit of plaintiffs. Also, the system focuses at attaining justice for all. The judges need to achieve justice using the power that rests upon them to decide each case according to a high standard of morality. Equity in Australia plays a role in addressing the issues that face diverse cultural people in the country while at the same time preventing propagation of biases and stereotypes about them. Lastly, it desires to achieve gender equality in the places of work where women need to be given equal opportunities as their counterparts in all organizations doing business in Australia.

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