In a 180° turnaround of discrimination laws, the Federal Government has announced it will overhaul the burden of proof in discrimination cases – it will now be up to the defendant to prove their innocence once a prima facie case has been established.
Announced by Attorney General Nicola Roxon, the changes to the discrimination legislation will expand the protections based on sexual orientation and gender identity. Five current pieces of anti-discrimination legislation will be merged into one, and a single definition of discrimination will be used to cover all areas. Speaking yesterday, Roxon said the overhaul would simplify what standards were required under the law. “It'll make it easier for people who have been treated badly to make a complaint, and indeed it will make it easier for people who have a complaint made against them to be able to have unmeritorious complaints dispensed with,” Roxon said.
The changes are modelled on the UK’s anti-discrimination legislation, and one of the proposed changes involves shifting the so-called ‘burden of proof’. “A person making a complaint has to show a prima facie case – that means they have to be able to first prove the substantial components of discrimination, [and] once that is done, it would then be up to the respondent... to show that it wasn't for the reasons alleged,” she said.
Shadow Attorney General George Brandis voiced concerns about shifting the burden of proof, but agreed there was a strong case for consolidating the anti-discrimination laws. “We think, as a matter of general principle, the reversal of the onus of proof is a bad thing – it violates the whole principle upon which our justice system has always operated,” Brandis told Sky News
. “That is, that if you make an allegation against someone, it's for you to demonstrate that they have done the wrong thing, not for them to prove that they've done the right thing.”
Yet Human Rights Commission president Professor Gillian Triggs said changing the burden of proof was a matter of common sense. “It means that those with the relevant information will be the ones who are required to supply it – this is consistent with other civil claims processes in Australia,” she said. “[The proposed legislation] provides greater certainty for business by clarifying the evidentiary requirements for complaints and providing a streamlined ability to reject complaints.”