Equality Before The Law And Discrimination
From Human Rights In Australia by LJM Cooray (1985)

Differentiation And Discrimination

The Problem Of Discretion

Discrimination In Private Conduct

Affirmative Action

Discrimination And Commonsense

Meanings Of "Equality" Considered Further

The Moens Affair
And The Human Rights Commission

The New Meritocracy

9.1 Differentiation And Discrimination
Discrimination is an important public issue relevant to any analysis of human rights. There is a great deal of discussion on discrimination (much of it rhetoric) but inadequate rational analysis and understanding of the concept. Discrimination is a problem which arises in relation to equality before the law.

All human beings are not equal in every respect. They are distinguishable not only by physical and mental attributes but also by their particular circumstances. These manifold differences must inevitably lead to acts which involve what appears to be discrimination. Few will disagree with the proposition that a young child cannot be given the same rights or subjected to the same duties as an adult. Likewise there are countless situations where one human being must be treated differently from another. What then is the freedom from discrimination? It is an aspect of equality before the law — and should rightly be viewed in that context.

Legally, in the United States and in countries which have Bills of Rights, this idea is expressed as the right of equality before the law and to equal protection of the law. Equality before the law means that in the making of a law every person is to be treated equally. Equal protection of the law means that in applying or enforcing a law already made, there should be no differentiation except on a rational and justifiable basis. But as indicated above it is impossible to treat everyone as equal. This has been recognised by the courts of countries where this freedom is a fundamental right.

For this reason equality has come to mean not that every person should be treated in the same manner but that every person who is in an equal situation should be treated equally — that those in like situations should be treated alike. Where people are treated differently, .there must exist a rational and justifiable basis.

Will Parliament uphold equality if it imposes the same punishment for murder and for exceeding speed limits on the highway? Obviously not, for the threat to society from murder and speeding are not the same. Thus different penalties should be imposed in proportion to the gravity of the offence. Again, if to be an efficient policeman, certain physical attributes are necessary, would there be discrimination if applicants who do not have such qualities are excluded? The commonsensical answer would be "no" and that is undoubtedly correct. On the other hand if an advertisement says only whites and not blacks need apply, the principle of equality will be violated. What is the difference?

The difference is that in the first case an intelligible differentiation is being made between classes (physically strong persons and others) which also has a rational relation to the overall purpose — which is to maintain an efficient police force. In the second case although the differentiation is intelligible (white as distinguished from black) it has no relation to any rational or lawful object, let alone any relation to having an efficient police force. Therefore the principle is that not only must an actual difference between the two classes be demonstrated, it must also be shown that differentiation is materially necessary and rationally defensible for the realisation of a lawful object. If these two conditions are satisfied there is a non-discriminatory differentiation or classification.

Attempts at classification sometimes give rise to difficult questions. For example should women be debarred from combat duty in the Army? Some persons might argue that there are substantial differences in physical strength between men and women and that the inclusion of women in combat ranks would weaken national defence vis-a-vis the enemy. Others may argue to the contrary and say that the differences are too insubstantial to warrant their exclusion. Others may argue that some women are stronger than others — and if a woman meets existing physical tests she should be included in combat ranks. In the US there is a continuing effort to enact an "Equal Rights Amendment" (ERA) to ensure that women will not be treated differently in any situation on any ground. The amendment has failed as yet to obtain the requisite electoral support. If it is passed it would be a radical change from the hitherto accepted idea of equality. The idea of equality which has remained accepted thus far, and which is challenged by ERA, is that rational differentiation does not create inequality but that on the contrary such differentiation is necessary for the fair application of the principle of equality.

There are many reasons why people demand a change of this concept, particularly with regard to differentiation between sexes. Some persons argue that the differences between sexes are not real but only apparent, and that too only when looked at from a male perspective. Others think that the present notion of equality enables dubious distinctions to be drawn even where they are unnecessary and that such abuse can be eliminated only by prohibiting any kind of differentiation. Others affirm (and common sense is on their side) that men and women are equal but different.

There may remain in society, prejudice against women assuming non-traditional roles even where knowledge and experience indicate that they are in no way unsuited to undertake such activities. Some of the objections are expressed out of concern for the effect such changes can have on the institution of the family, and in particular on the nurturing role of the mother.

As against that objection, it is argued that to restrict women to the nurturing and related roles is to deny women their freedom of choice and that women should be allowed a choice between mother-hood and career/job or a combination of both. Thus far the argument is sound from the point of view of individual freedom. Difficulties, however, arise when the argument is taken a step further and claims are made for substantial publicly funded assistance to enable career inclined women to effectively exercise their choice. Demands are thus made for public child care services and for laws to protect women from employment disadvantages that occur as a result of being also engaged in motherhood and nurturing. If working women are helped by the state and women who stay at home and look after children are not, this too is discrimination. But this factor is often overlooked. These claims raise the question of the justification for affirmative action. However, before considering affirmative action there are two further aspects of discrimination to be examined.

9.2 The Problem Of Discretion
It was stated that if the law differentiates between classes of persons, the differentiation should be clear and should also be for the purpose of a lawful object. However there are situations where the legislature cannot beforehand make a precise determination of the individuals who need special treatment. The laws regarding licences provide an illustration. It is impossible for Parliament to decide who is competent to hold a trading licence and who is not.

In such a case it is unavoidable that some person or authority should be delegated the power to decide individual applications. In other words the discretion to differentiate between individuals has to be left to someone else. Would this violate the principle of equality? Such a grant of discretion would be inherently discriminatory unless Parliament also lays down principles and guidelines according to which the discretion should be exercised. If there are no guidelines for the exercise of discretion, such power is capable of being used arbitrarily or capriciously for the purpose of discriminating against persons.

Vast numbers of laws enacted in Australia contain such inherently discriminatory clauses. Often powers are given to bureaucratic agencies in absolute terms. For examples one need look no further than the Human Rights Commission Act, 1981 the very Act which established a Commission to protect the human rights of Australians.

Section 12(1) of the Act gives the power to the Commission to make an examination or hold an inquiry into an alleged violation of human rights "in such manner as it thinks fit". The only direction given to it is that it is not bound by the rules of evidence! These rules of evidence have been formulated to ensure a fair trial. What it means is that the Commission can conduct inquiries differently in different cases favouring some and not others. It is not necessary to show that the Commission in fact indulges in such discrimination. The fact that it has been given the power to do so makes the law repugnant to the principle of equality.

Again, in Section 10(5) of the Act, the Commission is given power to decide "in its discretion" whether or not a complaint received after 12 months should be investigated. Thus the Commission may accept one belated complaint and refuse another in similar circumstances. This section also violates the equality principle for it is capable of selective application.

9.3 Discrimination In Private Conduct
Another area of controversy relating to discrimination concerns the question whether persons in their private conduct should be required to treat everyone alike without regard to personal preference. The right to equality requires that no government or public institution should indulge in irrational discrimination. It could be argued that there should be no discrimination in privately owned places to which the public is regarded as having access, such as shops, restaurants, theatres and places of worship. Non-discriminatory conduct by private persons in such situations is considered necessary for the peace, harmony and cohesion of society. The ugly face of apartheid in South Africa shows the consequences of segregation in public places.

But should there not be a limit to the requirement of equal treatment in the private lives of citizens? Should a private employer have the right to employ whomsoever he wishes, having regard to his personal likes and dislikes? Would that not be a part of his freedom of association and his freedom to engage in his occupation? There is a strong argument against imposing the requirement of equality on private conduct, particularly where to do so would infringe other fundamental freedoms of individuals. There are and will always be very difficult questions concerning the balance between individual freedom and the public good.

In England for example, there are laws which make it unlawful for a landlord to refuse leasing a house to a coloured person. It has been felt that without such laws coloured people would suffer great hardship. As against that there are those who believe that such laws are seldom, if ever, effective and that in fact they increase racial intolerance. These are indeed difficult questions. However, it is obvious that laws cannot by themselves change the morals or attitudes of people. On the other hand, where individual freedom is allowed to flourish for any length of time it is noticeable that social prejudice tends to break down. The theory that economic freedom is a powerful agent for the emancipation of underprivileged classes is often derided by modern thinkers. Yet those classes of persons who have seized upon opportunities of freedom to enhance their economic worth have invariably found that social barriers can thereby be overcome with no cost to the individual liberty of others.

9.4 Affirmative Action
The phrases "affirmative action" and "reverse discrimination" are not synonymous. Whilst all reverse discrimination amounts to affirmative action the converse is not always the case. Affirmative action includes all positive steps taken to assist persons to overcome the disadvantages of inequality. In this sense affirmative action has always been practised. Most social welfare schemes are theoretically affirmative action programs. However, not all these schemes are identified with reverse discrimination. Affirmative action becomes reverse discrimination when persons who are alleged to have suffered a disadvantage are given special treatment at the expense of those who have done no wrong. Merit and qualifications are bypassed in the process. Quota systems concerning employment and educational opportunities fall within this category.

In the United States, government institutions and other institutions receiving government assistance have at times been asked to employ certain minimum proportions of black people. According to these directions, a black person with less competence could gain an advantage over others with greater qualifications. This was discrimination in reverse. This form of discrimination penalises innocent persons and compromises standards of achievement which are essential for social progress.

There are other forms of assistance to the disadvantaged and the needy which do not directly penalise other members of society. In Australia, for example, special programs have been established to assist aborigines and other disadvantaged groups, and special agencies to help women find careers. Theoretically, it may be argued that each such program is funded out of public revenue and therefore the allocation of such funds to particular groups amounts to the penalising of others. However, it could be argued that a social responsibility exists to render assistance to the genuinely underprivileged sections of the community.

To what extent affirmative action should be pursued is a question which has economic and political ramifications. To most socialist thinkers and politicians, affirmative action is a legitimate strategy for the purpose of reaching the avowed goal of equality of outcome. Within the bounds of socialist philosophy there are few recognised limitations to affirmative action.

But unrestrained affirmative action, aimed at elimination of inequality, comes only at great economic and political cost. Beyond a certain point, affirmative action ceases to be concerned with the genuinely underprivileged and becomes an instrument of compulsory wealth redistribution. It begins to involve high taxation and regulation of economic activity, thus eroding economic freedom. Not only the depressed classes but also the community in general is deprived of opportunity for personal initiative and self reliance.

Affirmative action aimed at providing equal opportunity can promote prosperity not only for the underprivileged but also for the community at large. The benefit of such action should be balanced with the economic, political and social costs. Where equality of outcome becomes the goal, the costs are soon forgotten. The paradox of unrestrained as opposed to essential affirmative action is that it eventually penalises personal effort and rewards apathy and indifference. In the US, growing numbers of black intellectuals are recognising the negative impact of affirmative action programs on the black community. They are realising that the social progress of the black community suffers in comparison to those of other ethnic groups which have not been favoured by affirmative action programs. These intellectuals are now advocating greater self reliance and personal effort as a preferable alternative to forms of public charity — extended in the guise of affirmative action. Thomas Sowell, one of the foremost among these black thinkers, focusses on the salient issues:

One of the things we need to focus on are facts about results — not rhetoric about intentions. We need to look not at the notable preambles of legislation but at the incentives created in that legislation. Very often, legislation intended to help the disadvantaged in fact pays people to stay disadvantaged and penalises them to the extent that they make an effort to rise from disadvantage . . . The issue is not that the government gives too much to the poor. The greatest single loss is that the minimum wage laws promoted by labour unions protect their members by pricing black young people out of the market. T Sowell et al 'The Fairmont Papers Black Alternatives Conference', (1982) Institute for Contemporary Studies, California, p 32.

Sowell's advocacy of incentive as a means to the emancipation of depressed classes is firmly supported by evidence from around the world. However the most impressive illustration of the principle is found within the American black community itself. Two areas in which the blacks in modern times have received no handout but instead have received recognition for individual talent and effort has been in the field of professional sports and entertainment. In the competitive world of professional sport or entertainment there is no substitute for success. This fact has ensured the recognition of the best talents by the coaches and crowds and promoters and audiences irrespective of the colour of the performer's skin. In both these fields the achievements of blacks have been phenomenal. And they have been richly rewarded. The first break in racial prejudice in the deep south was the rise of blacks to wealth and fame through baseball.

In South Africa, where denial of opportunity in the worst form is institutionalised, the competitive sectors of society are showing the greatest promise (albeit slowly) of breaking down racial barriers. Trade is increasing with neighbouring African nations and Asian countries. Changes are taking place in sport.

In Australia, the trend appears to be in the opposite direction. The recent Green Paper on the employment of women is an indication of this direction. The Green Paper, on its face, appears as a relatively harmless package of guidelines meant to eliminate discrimination against women with regard to employment. It is said to be based on an agreement between the government and a number of business and public institutions in terms of which the employers would endeavour to achieve certain predetermined target figures of female employees. The scheme has been presented as a moderate measure and has received wide media acclaim as well as the endorsement of some opposition politicians.

The Green Paper has been defended by its proponents on two grounds. Firstly, it is said that the scheme envisages flexible targets and not inflexible quotas. Secondly, it is maintained, that the scheme is a voluntary arrangement and not a legal obligation. Both arguments, however, miss the point.

When closely examined, the first argument, in effect, amounts to saying: "Since we set targets we will have to compromise the principle of merit less often than if we were to set quotas." It may so happen that there may be fewer violations of the principle under a flexible target than under an inflexible quota. However, the question is one of principle as well as practice. A principle cannot be upheld by pleading infrequent violations of it. In practice, those who fail to achieve the targets will be unfavourably regarded by the omnipotent government and therefore can ill afford failure.

The argument that the scheme is a voluntary arrangement will make some sense only if the focus is on the employers who undertake the program. It is argued that the employers voluntarily surrendered their right to employ whoever they want and agreed to bear the cost of implementing the scheme.

The argument overlooks that, like all costs, this government-induced cost will be passed on to consumers who have had no part in this scheme. More important, however, is the fact that the chief victims of this scheme are not the institutions but those who seek employment and who are otherwise qualified to obtain it. They have not volunteered for the scheme. For them, it makes no difference whether they are victimised by law or by a conspiracy between employer and government.

Even with regard to the institutions themselves the argument is threadbare. There are forms of coercion other than legislation. In the context of modern governmental power, business is very much at the mercy of bureaucrats and politicians. Frequently, business complies with government wishes in order to retain some of its diminishing freedom or to obtain government patronage and benefits. The agreement on affirmative action is another example of private enterprise in Australia compromising a principle for purposes of short term survival and gain. The ultimate victim, as always, is the ordinary citizen.

Reverse discrimination raises another important question which is rarely considered in public debate — the question of cost in relation to benefit. Research conducted by scholars (discussed in chapter 9.8) indicates that the cost

9.5 Discrimination And Commonsense
Commonsense is not always resorted to in this type of analysis. If commonsense is applied it is clear that inequality unavoidably exists in any society. Some of this inequality is caused by active discrimination or human design. In a free society, attempts should be made by education to reduce the incidence of such discrimination. But it is overlooked that these are not the only causes of inequality. Inequality is also caused by differences in aptitude, interest, ability, determination to succeed, education, parental investment, chance and accidents (natural and caused by man). Within the framework of freedom some of these causes can be lessened by positive action, for example by providing subsidised education or disaster relief. However, the object of complete or near equality cannot in practical terms be pursued without significant side effects (costs to freedom, reverse discrimination, wide bureaucratic discretions, financial costs borne by taxpayer, etc).

Efforts to achieve complete equality require coercive distribution of resources and wealth. It is not possible to ensure that all fishermen get equal numbers of fish by providing to each an equally efficient fishing rod. To ensure that, it is necessary to collect all the fish caught and divide them equally between the fishermen. Likewise every citizen can be given an equal income only by the forcible transfer of wealth from some to others. If equality of wealth is achieved it needs further coercive measures to be maintained. The inevitable sacrifice in this exercise is individual freedom. What is more, the economic consequence of coercive distribution is that the incentive to create wealth disappears and the productive tendencies are suppressed. In the result the society as a whole becomes poorer

If freedom and progress are to be valued and safeguarded, the question of equality has to be approached with a good deal of commonsense. Equality of opportunity can largely be achieved by upholding individual freedom and providing assistance to genuinely disadvantaged persons. Equality of outcome can be attempted only at the sacrifice of freedom and other adverse consequences. A balance must therefore be sought between the interests of freedom and the need to eliminate disadvantage. In finding that balance, it is instructive to note that societies which have placed a premium on freedom have achieved greater levels of prosperity for greater numbers than societies which failed to respect freedom. Achievements of freedom in reducing poverty and oppression can be denied only by the most cynical. However, the forces of individual freedom have not been allowed to run their course. Excessive welfarism made possible by the wealth generated by the forces of freedom have in turn weakened those forces. Not only have the forces of individual freedom been weakened, but they have also been blamed for the failures resulting from such weakening. Paradoxically the wheels of progress are being turned in reverse. Only a commonsensical, continuing re-assessment can restore our society to the path of progress.

Discrimination on the basis of sex (or any other basis) cannot be condoned. The law should focus on and provide relief in cases of proved discrimination. A strengthening of the law in this respect is desirable. An open education program to counter discrimination is necessary so that individuals will voluntarily change. However the present policies proceed on the basis that where there is a numerical imbalance, discrimination exists. This overlooks the fact that the numerical imbalance may be a consequence of women or a particular group not seeking the particular employment. The numerical imbalance in relation to women in senior positions is to a very great extent explained by the common sense factor that those who are in senior positions today are those who entered the work force twenty or thirty years ago. Women were not entering the work force in large numbers twenty or thirty years ago. This conclusively explains the imbalance in senior positions. The Sex Discrimination policies as they operate will inevitably tend to deprive the qualified and the able in favour of many less qualified and less able. The financial and other costs of implementing sex discrimination policies are relevant but generally ignored.

The lack of commonsense in the approach to discrimination is outlined by Peter Ritchie, the Chief Executive of McDonald's, with an example which would rank high on any bureaucratic harassment scale.

The following dialogue and comment are an extract from the Institute of Public Affairs Review Summer (1984) pp 170-71:

McDonald's was contacted by the Victorian Equal Opportunity Commission [ECO] and the conversation went along these lines: —

ECO: "Victorian Equal Opportunity Commission here, research officer . . . here"

McDonalds: "Yes?"

ECO: "We are investigating apparent 'age discrimination' in your employment practices in Victoria. It is obvious that you sack people at 20 and replace them with 16 year olds, effectively discriminating against older people".

McDonalds: "We do not discriminate — the type of employment we offer seems to attract and suit young people. If we have any problem with availability of staff, it is 9-5 Monday-Friday when we would expect our jobs to appeal to older people. Have you had a complaint?"

ECO: "No — we are pursuing the apparent discrimination against older people" .
"It seems to me, junior wage rates may be too low, they should be equalised with adult wages, and a 'training' wage introduced for the 'inexperienced' with no age basis."

McDonalds: "That would be fine if adult wages were set at a realistic level. If all wages are increased to the current adult level, that would merely lead to an increase in wage costs."

ECO: "Well, what difference would that make to you?"

McDonalds: "We'd have to increase our prices."

ECO: "Yes, but your sales would increase, no one would stop eating at McDonald's just because the prices went up. It all depends on the elasticity of demand for a Big Mac — do you know how elastic demand is?"

McDonalds: "I don't have such information at my fingertips — I assume it is quite elastic."

ECO: "I would assume it's inelastic, where else would people go? To other fast food establishments?"

McDonalds: "If fast food were more expensive I suppose people would eat less of it, would eat more at home or go to a la carte restaurants more frequently."

ECO: "You could be right — so what would happen if your demand decreased? "

McDonalds: "Our demand for labour would decrease."

ECO: "But you'd be using older people!"

McDonalds: "Yes, no doubt to the considerable detriment of the young unemployed, particularly unskilled school leavers. Explain to me how your theory of 'training wages' would work."

ECO: "How long would it take for you to train someone adequately?"

McDonalds: "About six months."

ECO: "Well then put people on a reduced wage for 6 months, then everyone goes onto the same rate."

McDonalds: "Wouldn't this discriminate against the younger people who are immature and inexperienced. Surely those aged 20 and older would always be preferred given that they're more responsible and do not require constant direction and supervision. Wouldn't this further aggravate youth unemployment? Shouldn't something be done to assist the young?"

ECO: "Yes, I see your point. Could you send me something, some written company policy, to show that you don't terminate people as they grow older?"

McDonalds: "I'm sure I can do that!"

A number of points should be noted. The Victorian Equal Opportunity Commission was not acting on any specific complaint. Part of its objection to McDonald's derived from the company's payment of legally established junior wage rates! This conversation has all the earmarks of "making work" for bureaucrats. It is hard to believe this discussion would have taken place if there had been enough real issues of substance on the Commission's agenda.

There are some further ironies in the attitude of the Commission. Peter Ritchie pointed out in his speech that there are some ten applicants for every McDonald's job. Young people are more than eager for these jobs — and no older person had complained. There is surely a universal consensus that more must be done to assist the employment of young people. Yet the Commission chose to carp at one of this country's major employers of young people. Moreover, it advocates policies which would have the effect of discriminating against the job prospects of a group already victimised by Australia's industrial relations system.

The final irony is that major job losses for young people have occurred in public services around Australia. "Youth Unemployment .. How 50,000 Jobs Were Lost" IPA Review, Spring, 1984 p 37. In Victoria, for example, the teenage share of government employment fell from 8.5 per cent to 5.6 per cent in the decade to 1981. (Other States show similar trends).

Perhaps the apparent discrimination against youth by governments could be the focus of the Victorian Equal Opportunity Commission's next inquiry.

9.6 Meanings Of "Equality" Considered Further
The traditional legal meaning of equality or freedom from discrimination is explained above in this chapter. "Equality before the law" and "equal protection of the law" confer a legal or abstract status of equality. They do not ensure material or concrete equality of persons. It is a negative freedom from purposeful legislative or governmental discrimination which leaves the individual otherwise responsible for his or her own well-being. It is argued that legal equality, though incapable of producing material equality, will in course of time create greater opportunities for persons to overcome disadvantages and to acquire material prosperity. On the other hand, it is argued that the pursuit of material equality as a universal principle reduces the freedom and prosperity of all persons and in the long term does little to emancipate the disadvantaged.

In this section it is intended to explain further the different concepts of equality and the manner in which legal equality came to be re-interpreted and distorted to serve the object of creating material equality.

No society which actively practices discrimination can be considered free. Freedom from official discrimination is the essence of political democracy and economic freedom. Stratification of society according to political and economic roles is a feature of feudalism or fascism. Under communism there is no equality of political rights as political power is the monopoly of the Party. In a communist society, there is a theoretical equality with regard to non-political benefits but in practice political considerations play an important part in the allocation of jobs, careers and privileges. Moreover all opportunities are state provided and the individual cannot create his own.

An indispensable condition of democracy is the equal legal right to seek and gain political office or public employment. People are also granted equal rights of engaging in economic activity for personal reward. Although economic freedom is often restricted it is expected in a democracy that the restrictions will apply equally. The legal concept of equality admits rational classification but prohibits arbitrary exclusion of persons or classes from availing of opportunities. See further chapter 9.1.

The present levels of equality of opportunity were achieved over long periods of political evolution. Even in democratic societies not all legal impediments to equality have disappeared and in many such societies considerable non-legal barriers to equality still remain owing to continuing prejudices. Some of these prejudices are likely to dissipate in course of time but some will remain as incidents of the differences between and the unavoidable imperfections of human beings and of an accident-prone environment.

There are many who deny that equality of opportunity in any sense exists in democratic societies. The increasingly vocal argument is that equality is meaningless to most people because of their unequal economic or social status. It is argued, for example, that the right to seek political office is in fact limited to the wealthy and that likewise, the rich have greater opportunity for educational achievement and employment owing to advantages conferred by wealth. Similarly, it is argued that women and minority racial groups have no equal opportunity owing to disadvantages created by past discrimination or present prejudice.

To the extent that they make the case for helping persons to overcome their disadvantages, these arguments are consistent with the principle of equal opportunity. Such assistance enables disadvantaged persons to compete more fairly for the available opportunities. This type of assistance is supportable on both moral and economic grounds. The economic consideration is that these measures, though costly in the short term, will eventually enrich society by making the disadvantaged groups more productive and competitive. They are also praiseworthy from the moral standpoint as they help the disadvantaged without infringing the right to equality of others.

However, in a society committed to freedom there are two important limitations to the pursuit of equality of opportunity. The first is that complete equality of opportunity is an impossible ideal in an imperfect environment. No amount of assistance can wholly eliminate the causes of inequality of opportunity even among persons of equal abilities. Opportunities in any social system are determined not only by ability, commitment, interest, corruption and luck but also by the unpredictable physical and human environment. Opportunities can be completely equalised only by controlling the physical environment and human behaviour into predictable patterns. This is an impossible task.

The second limitation arises from the fact that, beyond a certain point, attempts to equate opportunities necessarily involves the restriction of personal freedom and the denial of opportunities for some people. Most liberal societies have initially endeavoured to provide equal opportunities by the elimination of discriminatory laws and practices. When these measures failed to provide equal starting conditions to all, further measures were taken to eliminate remaining handicaps.

The failure of each measure to achieve the ideal served only to increase demands for further intervention, including the regulation of individual human conduct. In course of time the realisation dawned that it was impossible not only to place everyone on the same starting line but to expect them to finish together. If by some artificial process the former was achieved, it would not produce equal results. The results would depend on factors internal to the competitors such as will, effort, perseverance and endurance and also a large number of variable circumstances external to them. With this realisation, the attention of reformers moved from the provision of equal starting conditions to the securing of equal results. The objective became the provision of equivalent outcomes irrespective of the differences in ability, performance or achievement.

Communist states have acted on the principle in theory (though not necessarily in practice): from each according to ability and to each according to need. However reformers in liberal democracies have always found it hard to concede that their concern is with equal outcome, as it offends the merit based system of justice prevalent in free societies. As a consequence there are growing efforts to enforce equal outcomes in the guise of providing equal opportunity.

The rationale advanced for this strategy (explained in greater detail in the preceding section) is that equivalent opportunity can be granted only by providing equal outcomes. The economic and political costs of this strategy are discussed elsewhere in this chapter. The further point to be made is that the proposition is in fact a contradiction in terms. Granting a person an opportunity means giving him or her the chance to achieve or produce an outcome. By predetermining the outcome the opportunity is obliterated and replaced by a predetermined entitlement. In this sense, it is even misleading to speak of outcomes as outcomes are associated with individual efforts. What is in fact guaranteed by such schemes is the equality of benefits.

Although it has been argued that absolute equality of opportunity is unattainable and that attempts to achieve it can only be made at the expense of freedom, it is nevertheless important to emphasise that certain minimal levels of opportunity are essential in a free society. As mentioned before, without political opportunities there can be no democracy. Without economic opportunities there will be little wealth creation and less political freedom. The nexus between economic freedom and political freedom is explored in chapter 8 and in chapter 10.2. Within the framework of freedom there is much that can be done and ought to be done to eliminate factors contributing to inequality of opportunity. Discriminatory laws can and should be rescinded. Official discriminatory practices should be terminated and assistance should be extended to the less advantaged without penalising others. Measures taken beyond these limits become a futile exercise in the control of human behaviour and lead to the destruction of freedom and the opportunities of all.

"Equal opportunity" is an attractive slogan. It suggests fair play and just rewards for the deserving. Whatever is presented as an equal opportunity program attracts broad support as the concept is popularly assumed to mean the elimination of unfair disadvantages — an object most people find laudable. It is therefore not surprising that activists who seek affirmative action involving reverse discrimination have preempted the title "equal opportunity" (a subtle change from equality of opportunity) for their programs which are essentially geared to coercive redistribution of material benefits. "Equal opportunity" has therefore become a fraudulent trade name for practices which in fact destroy opportunities based on merit. In societies deeply committed to the merit principle, the label "equal opportunity" becomes a useful form of deception. It is a strategy commonly adopted by modern radicals for the purpose of subverting established institutions. They operate under a phrase (equal opportunity) which is similar in phraseology though different in content from an important liberal value (equality of opportunity) and succeed in convincing the public (including liberals).

A redefinition of "equality of opportunity" has taken place. The primary purpose of this is deception. Reliance on the phrase "equality of opportunity" lulls the public and liberals into the belief that the policy is a liberal one. The supporters of new programs do not have the integrity to point out that they are redefining the phrase. See further on the devious manner in which the modern "coercive utopian" operates, LJM Cooray and J Carlton Socialism in Australia (Sydney, 1985).