Racial equality re-examined

The introduction of these mechanisms recognises that racial discrimination is a pervasive social problem and that the onus of redressing inequality should be on those who have the greatest power to achieve social change, rather than on those who are most at fault. In comparison to the jurisdictions studied, positive duties in Australia are limited in scope, applying only to employment in the federal public sector, and are not backed-up by effective enforcement mechanisms.

Burden of proof

Another potential direction for legislative reform in Australia is alleviating the burden that plaintiffs have in establishing that the differential treatment that they have been subjected to is “based on” or “by reason of” race.

It has been recognised by a number of commentators that placing the burden of proof entirely on the complainant raises particular difficulties for a complainant in discrimination proceedings. Gaze has noted that:

Proving the reason for an action or decision that exists in another person’s mind, where all the evidence is controlled by the other person and they are not required to give any reason, is very difficult.

In all the jurisdictions studied, except Australia, there is a shift in the allocation of the burden of proof once the complainant has established a prima facie case of racial discrimination.

The Background Paper shows that only in Australia does the entire evidentiary and persuasive burden remain with the plaintiff at every stage of the case. In the US and Canada, the evidentiary burden falls on the defendant. They must “articulate a legitimate explanation” for the less favourable treatment shown by the plaintiff.

In the UK and EU the persuasive burden also shifts once a prima facie case has been established. The defendant must then prove, on the balance of probabilities that discrimination did not occur.

The difficultly for the plaintiff in Australia is compounded by the high standard of evidence required by the court, which has been historically reluctant to find that a respondent has discriminated on the basis of race without clear and cogent evidence (based on the Briginshaw principle). While other jurisdictions also require a similar higher standard of evidence to prove the most serious or damaging of civil claims, this principle is rarely invoked - outside of Australia - with respect to allegations of racial discrimination.

As a result of these two factors - the burden of proof remaining with the plaintiff at every stage of a case and the high standard of proof for racial discrimination matters - there have been very few successful cases in which direct racial discrimination has been proved under Australian federal law.

Standing

A third area that the study points to as requiring consideration is in determining who has standing to initiate a complaint or commence proceedings for racial discrimination.

In all jurisdictions except Australia, there is some capability for the relevant human rights body to initiate complaints in response to more systemic discrimination or legally complex issues.

Most jurisdictions (excluding the UK) also allow other parties to bring a complaint on behalf of the person affected. In Australia, a person or trade union representing the affected person may bring a complaint before the Commission, but only the affected person has standing to bring an action before the court.