‘Onus of proof’ seemingly old-fashioned

The Australian Human Rights Commission’s recommendations for discrimination law reform — which look like they wish to reverse the onus of proof — should concern everyone.

In their pursuit to achieve a society devoid of discrimination, they risk undermining natural justice.

Discrimination laws exist to provide redress for victims of egregious acts of discrimination. Given the potential consequences (stress, loss of time and money) that both a plaintiff and accused endure, the process should be appropriately difficult.

However, according to a recent Australian Human Rights Commission discussion paper, the complaints handling process “…should operate in a manner that ensures the availability and accessibility of the process.”

Seemingly innocuous but — when taken in conjunction with their recommendations in the same discussion paper — it reads as if they want to make it easier for people to bring complaints.

The AHRC believes “Consideration should…be given to whether there should be any change to discrimination laws regarding the evidentiary onus of proof.”

Details on this point are scarce. However, previous attempts to alter Australia’s federal discrimination laws provide an insight into the potential make-up of such changes.

A clause proposed in the Gillard Government’s Human Rights and Anti-Discrimination Bill 2012 was interpreted by many as reversing the onus of proof.

That is, once a prima facie case has been established — although Labor could not say definitively if it was a prima facie test — respondents would need to prove their conduct was not unlawfully discriminatory.

Under this model, those accused of discrimination would be required to prove their innocence. This unacceptable infringement on the presumption of innocence was thankfully avoided at the time.

The aim of discrimination law should not be to make it easier to make complaints.

Any suggestion that the evidentiary burden of proof needs amending should be immediately abandoned.