4.2 What the NDP allows

The NDP binds the State, not private people and organisations. A private person remains free to choose whom to associate with, employ, trade with, support, or avoid, provided that choice does not violate the NAP. The State, by contrast, may treat people differently only under an express constitutional exception.

The rule applies throughout the State's activity, including laws, policies, procurement, pricing, fees, charges, and access to services. A distinction does not cease to be discriminatory merely because it is implemented through a contract, an automated system, an eligibility rule, or an intermediary rather than stated as a direct command. Conversely, the NDP does not require equal outcomes. People may make different choices, provide different value, and receive different results under the same non-discriminatory rules.

The express exceptions

The Constitution recognises a small set of distinctions which are sometimes indispensable:

  • Merit-based suitability for a task permits selection according to abilities relevant to the task. A public-service operator may be selected for its capacity to fulfil a contract, and dangerous work such as electrical work may be entrusted to a person with demonstrated competence. Unrelated personal characteristics are not merit for the task.
  • First-come, first-served priority permits scarce capacity to be allocated in chronological order. It applies equally to implementors, proposed services, and users. Public transport, for example, may give priority to the patrons who fill a vehicle first.
  • Citizenship permits the State to distinguish citizens from non-citizens.
  • Residence inside or outside the State Territory permits only that binary territorial distinction. It does not permit the State to distinguish between particular addresses, suburbs, cities, or regions within the State Territory.
  • Violations of the NAP permit the State to distinguish people whose aggression engages the legal and protective functions of the State from people who have not committed that aggression.
  • Separate facilities for men and women permit sex-separated facilities where such separation is chosen.
  • Protection of minors permits distinctions required to protect children who cannot yet exercise the full autonomy or judgment of adults.
  • Minimum age requirements permit a lower age boundary for voting, legal capacity, and other responsibilities even when the purpose is not protecting the minor. The exception does not permit maximum age requirements or the exclusion of elderly people.
  • Services and facilities for people who are pregnant, recovering from childbirth, or have physical or mental illnesses, injuries, infirmities, or disabilities permit services and accommodations directed to the conditions they are designed to address.

An exception permits the stated basis for distinction; it is not a general permission to discriminate by unrelated characteristics. Merit for a task, for example, does not permit selection by race or political belief, and the residency exception does not permit different rules for different neighbourhoods.

Distinctions necessary to provide a public service

Public services may also make distinctions necessary to provide the service they are contracted to provide. This is an operational rule rather than a power to pursue unrelated social policy. An ambulance service may prioritise patients by medical urgency, an emergency service may respond according to the immediacy and severity of danger, scarce opportunities may be allocated by a fair lottery, and transport or dispatch services may operate according to proximity and route.

The distinction must arise from providing the service itself. Writing a discriminatory preference into a contract does not make it necessary. A service contract cannot be used to recreate targeted privileges, penalties, or eligibility categories which the State would otherwise be forbidden to create.

A public school, for example, has a physical location and therefore inherently favours families who happen to live closer to it: reaching the school is easier for them. That practical advantage is not discrimination by the State, because the school applies no different rule to those living farther away. Denying an otherwise eligible applicant admission because of their address, distance from the school, suburb, or local catchment would be different. It would make access depend explicitly on location and would violate the NDP.

A public school for children may also impose a maximum age where the curriculum, teaching methods, facilities, or safeguarding arrangements are designed for that age group. This is covered by the protection of minors and by the distinctions necessary to provide the contracted service; it does not require a separate exception. The minimum-age exception alone would not authorise a maximum age. Nor could a school impose an arbitrary maximum age unrelated to the service it provides.

Procurement

Selecting one service operator necessarily treats that operator differently from unsuccessful candidates. The NDP allows the selection to be based on merit for the task. The tender must therefore define the task and the relevant criteria by which competing operators will be compared. Price, demonstrated capability, reliability, safety, and relevant previous performance may all constitute merit; identity, political influence, personal connections, and criteria contrived to favour a preferred operator do not.

What remains prohibited

Unless one of these exceptions applies, the State cannot make a person's treatment depend on a personal characteristic. It cannot impose different taxes according to income or wealth, provide benefits according to an asset test, grant privileges to selected industries, set different rules by race or religion, restrict occupations to politically approved groups, or vary ordinary legal rights by postcode. Administrative convenience, majority support, good intentions, and an asserted public interest do not create further exceptions.