Reducing the Burden of Proving Discrimination in Australia
Sydney Law Review, Vol. 31, No. 4, p. 579, 2009
28 Pages Posted: 13 Aug 2009 Last revised: 9 Oct 2015
Date Written: August 10, 2009
Complainants face an arduous task in attempting to establish that they were subject to unlawful discrimination. In most instances the complainant bears the entire onus of proof and they are unlikely to have access to the evidence needed to discharge their burden. The difficulties that complainants confront have been acknowledged for the duration of Australian anti-discrimination law and yet they have not been addressed, even though there are useful mechanisms operating in other countries which Australia could adopt. This article examines three mechanisms used in the United Kingdom and Ireland which attempt to overcome the challenges complainants face with proving discrimination. Based on this examination it argues that Australian law should introduce a statutory ‘questionnaire procedure’ through which the complainant can obtain information relevant to the complaint, non-discretionary inferences if the respondent fails to provide an explanation for their behaviour and a shift in the burden of proof once the complainant has established a prima facie case of discrimination.
Keywords: Discrimination, Burden of Proof, Questionnaire, Comparator, Reasonableness
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