Laws that reverse the legal burden

11.35   A range of Commonwealth laws place a legal burden on the defendant in respect of particular issues.

Criminal Code

11.36   There are a number of provisions in the Criminal Code that place a legal burden on the defendant. These include terrorism offences, drug offences, child sex offences, and offence relating to unmarked plastic explosives.

Terrorism offences

11.37   Some terrorism offences impose a legal burden on the defendant. For the  offence of membership of a terrorist organisation, it is a defence to prove that the defendant took reasonable steps to cease to be a member of a terrorist organisation as soon as practicable after the person knew that the organisation was a terrorist organisation.^[54]

11.38   Section 102.6 creates the offence of getting funds to, from, or for a terrorist organisation. A person will not commit an offence if he or she proves that the funds were received solely for the purpose of the provision of legal representation for a person in proceedings relating to terrorist organisation offences, or assisting the organisation to comply with Australian law.^[55] The Law Council of Australia submitted that it was unclear why the defendant should bear the legal and not the evidential burden on this issue, observing that ‘the justification for the departure is unclear in this case and may be unjustified’.^[56]

11.39   A number of stakeholders to this Inquiry raised concerns with the evidential burden placed on the defendant in the offence of entering, or remaining in, a declared area.^[57] Entering a ‘declared area’ is an offence unless the defendant can provide evidence that the area was entered solely for one or more legitimate purposes.^[58]

11.40   The Gilbert and Tobin Centre for Public Law submitted that ‘[t]he offence does not technically reverse the onus of proof, and it is not an offence of strict or absolute liability. However, it has essentially the same effect, as criminal liability will be prima facie established wherever a person enters or remains in a declared area’.^[59] Australian Lawyers for Human Rights submitted that the effect of the provision is ‘clearly to place the burden of proving their innocence upon the defendant’.^[60]

11.41   The Human Rights Committee noted that

in addition to proving that they entered into or remained in the declared area solely for one of the prescribed legitimate purposes, they would also need to provide factual evidence that they did not enter into or remain in the declared area solely or in part for an illegitimate purpose.^[61]

11.42   It concluded that the declared area offence was likely to be incompatible with the right to a fair trial and the presumption of innocence.^[62]

Drug offences

11.43   The Criminal Code contains a series of deeming provisions in relation to the requisite intention for a number of drug offences. For example, when the defendant is found to be dealing with a threshold ‘trafficable’ quantity of a controlled drug, the person is deemed or presumed to have either: the intention to traffic;^[63] the intention to cultivate for a commercial purpose;^[64] or the intention to manufacture for a commercial purpose.^[65]

11.44   The legal onus lies on the defendant to defeat these presumptions—that is, the defendant must prove, on the balance of probabilities, that he or she did not have the requisite intention for the offence.

11.45   The drug offences in the Criminal Code were introduced in 2005,^[66] and were based on the Model Criminal Code, developed by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General (MCCOC) after nationwide consultation.^[67]

11.46   However, the MCCOC did not recommend that presumptions placing the legal burden on the defendant be included in the Criminal Code. The MCCOC instead recommended that the defendant bear only an evidential burden in relation to the requisite intention. In making its recommendation, the Committee considered that

[t]he task of the prosecution is eased to the extent that guilt is presumed in the absence of evidence to the contrary. But testimony from the accused, other evidence or circumstances inconsistent with the inference of intent to traffic in the drug, will displace the presumption and require the prosecution to prove guilt beyond reasonable doubt.^[68]

11.47   It considered that a presumption placing an evidential burden on the defendant was an appropriate compromise between the needs of effective law enforcement and the presumption of innocence. The MCCOC observed:

Compromises which weaken or abandon the principle that individuals are innocent until proved guilty require compelling justification when the consequences of conviction are severely punitive, as they are in the trafficking offences … Though acceptance of the need for trafficable quantity presumptions involves a compromise, it is a compromise which preserves the principle that the prosecution must prove guilt whenever there is evidence which contradicts the presumption. There are compelling reasons against further dilution of the rule that individuals accused of crime are innocent until they are proved to be guilty.^[69]

11.48   Commentators have noted that such presumptions are ‘unique relative to most other drug trafficking threshold systems across the world, where deemed supply laws are explicitly avoided’.^[70] Such provisions have been justified ‘under goals of delivering proportionality and effective responses to those who inflict widespread suffering—drug traffickers’.^[71] However, the proportionality of this response has been questioned:

the drug users who find themselves at the margins of the drug trafficking thresholds are most likely to be the more marginalised users (eg more unemployed and socially disadvantaged) … which reduces their capacity to successfully prevent an unjust sanction. … [I]t is known that an ‘unjustified conviction for dealing will often impose social and individual harms which far exceed the harm associated with the drug in question’.^[72]

11.49   Heydon J in Momcilovic commented on the placement of the legal burden of proof on the defendant in relation to possession in the Drugs, Poisons and Controlled Substances Act 1981 (Vic). He noted that, while ‘unpalatable’, such placement facilitates

proof of possession much more than a simple placement of the evidential burden on the accused would. It increases the likelihood of the accused entering the witness box more than a reverse evidential burden would. That is because there is a radical difference between the two burdens. A legal burden of proof on the accused requires the accused to disprove possession on a preponderance of probabilities. An evidential burden of proof on the accused requires only a showing that there is sufficient evidence to raise an issue as to the non-existence of possession. The legal burden of proving something which the accused is best placed to prove like non-possession is much more likely to influence the accused to testify than an evidential burden, capable of being met by pointing to some piece of evidence tendered by other means and perhaps by the prosecution.^[73]

Child sex offences outside Australia

11.50   The defendant bears a legal burden in relation to a number of defences to sexual offences against children outside Australia.^[74] Section 272.9(5) imposes a legal burden on a defendant to prove that they did not intend to derive gratification from a child being present during sexual activity. The Law Council of Australia submitted in relation to this offence that

[t]he gravity of the subject matter of the offence, coupled with the serious penalty it attracts, could have very serious consequences for a person charged with this offence. In such circumstances, it may not be appropriate that the only recourse available to a defendant is to discharge a legal burden.^[75]

Plastic explosives

11.51   The Criminal Code creates a number of offences in relation to trafficking in,^[76] importing or exporting,^[77] manufacturing^[78] or possessing^[79] unmarked plastic explosives. If no detection agent (a marking requirement for plastic explosives)^[80] is detected in a sample of an explosive when tested, a legal burden lies on the defendant to disprove that the plastic explosive breaches a marking requirement.^[81]

11.52   A legal burden is also placed on the defendant to establish a defence to charges relating to unmarked plastic explosives, including that he or she had no reasonable grounds for suspecting that the plastic explosive breached that marking requirement.^[82]

Taxation

11.53   The Taxation Administration Act 1953 (Cth) contains a number of provisions that reverse the burden of proof. The legal burden lies on the defendant to establish defences to the charges of making false or misleading statements,^[83] and incorrectly keeping records.^[84]

11.54   Additionally, s 8Y provides that when a corporation commits a taxation offence, a person who is concerned in, or takes part in the management of a corporation shall be deemed to have committed the taxation offence. It is a defence to prove that the person did not aid, abet, counsel or procure the act or omission of the corporation concerned, and was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission of the corporation. The legal burden lies on the defendant to establish this defence.^[85]

11.55   The Australian Institute of Company Directors (AICD) expressed concern about this provision, arguing that the legal burden on the defendant should be removed and ‘the normal principles of justice and fairness that apply to all other citizens prosecuted for criminal offences’ restored.^[86]

11.56   In 2009, the Council of Australian Governments (COAG) agreed to a set of principles relating to personal liability for corporate fault and developed guidelines for their application.^[87] The Principles provided that provisions that place an evidential or legal onus on a director to establish a defence that he or she is not liable for corporate fault (for example, a defence to show that reasonable steps were taken to avoid committing the contravention) ‘must be supported by rigorous and transparent analysis and assessment, so as to clearly demonstrate why it is considered that such a provision is justified from a public policy perspective’.^[88] Relevant considerations for justification include where:

• there is a serious risk of potential significant public harm resulting from the offence;

• the size and nature of the penalties indicate a very serious offence; and

• the offence is a core element of the relevant regulatory regime.^[89]

11.57   The onus of proof on defendants in s 8Y of the Taxation Administration Act was not amended in the legislative response to the COAG principles, the Personal Liability for Corporate Fault Reform Act 2012 (Cth). Explanatory notes accompanying the Exposure Draft of the amending Bill elaborated on this decision:

the Government has taken into account a range of factors outlined in the COAG guidelines, including the magnitude of harm that the offending conduct would likely cause, the effectiveness of corporate penalties in preventing this conduct and the availability of evidence to the prosecution and the director.

Section 8Y provides a defence to directors who can show, on the balance of probabilities, that they were not involved in the company’s offending. As such, section 8Y operates, in substance, as an accessorial liability provision. It would not be feasible to shift the burden and require the prosecution to prove a director’s involvement in the company’s offence, especially as such information could be peculiarly within the knowledge of the director.

As a matter of practicality a director would be in a significantly better position to be able to adduce evidence that shows they were not involved in the company’s offending rather than explicitly require the prosecution to establish their involvement.

The ATO relies on section 8Y to prosecute those directors who repeatedly and seriously neglect their company’s tax obligations. If the ATO is unable to prosecute these individuals, it could significantly undermine the public’s confidence in the fairness of the tax system and the ATO’s ability to enforce the law.^[90]

11.58   The AICD submitted that the ‘retention of this provision has not been sufficiently justified pursuant to the COAG approach. Further, and more importantly, no justification has been provided as to why it is appropriate to undermine the Rule of Law by deciding to retain this provision’.^[91]

Copyright

11.59   The Copyright Act 1968 (Cth) contains a number of criminal offences in relation to copyright infringement.^[92]

11.60   The Act creates a presumption in relation to proof of subsistence and ownership of copyright, providing that statements contained on the labels, marks, certificates or chain of ownership documents are presumed to be as stated, unless the contrary is established.^[93] It also includes presumptions relating to computer programs,^[94] sound recordings^[95] and films.^[96]

11.61   A presumption is a statement of facts that are taken to exist unless proven otherwise. A presumption that a matter exists unless the contrary is proved places a legal burden on the defendant.^[97] A defendant must rebut such a presumption on the balance of probabilities.

11.62   The presumptions relating to criminal offences in the Copyright Act were introduced by the Copyright Amendment Act 2006 (Cth). Provisions in the Copyright Act that provided that statements made on certificates and other documents were admissible in a prosecution as ‘prima facie evidence’ of the facts so stated were amended by the 2006 Act, and new presumptions relating to films and computer programs added.^[98]

11.63   The Explanatory Memorandum stated that amendments were intended to ‘strengthen’ the presumptions in the Act, and to ‘assist copyright owners and reduce costs in the litigation process’.^[99] The Explanatory Memorandum also stated that the aim was to introduce consistency with other, civil, presumptions in the Act. The Australian Digital Alliance and the Australian Libraries Copyright Committee submitted that

[p]resumptions in the context of criminal cases circumvent a key safeguard in our justice system: that the onus is on the prosecutor or plaintiff to prove the liability of the accused or defendant to the relevant standard of proof. This principle is a key protection against unjustified incursions on personal liberty. It is troubling that the reason given for the introduction of some of the presumptions was ‘to assist copyright owners in the litigation process’. Provisions which make criminal liability for copyright infringement easier to prove act as deterrents to the use of copyright material, conceivably leading to self-censorship of what may very well be a legal use of material in given case. The result is a net loss of creative expression.^[100]

11.64   Commenting on similarly worded presumptions relating to civil copyright infringement proceedings, Luke Pallaras observed that

in some instances, a shift in the evidential burden may be sufficient to fulfil the policy goals of the presumption; but in other cases only a shift in the legal burden would suffice. For instance, where the purpose of a presumption is to prevent time and delay caused by establishing issues that are probabilistically likely to be the case (such as copyright subsisting in an alleged work, or the plaintiff’s ownership of copyright), only a shift in the evidential burden appears justified.^[101]

11.65   By contrast, the Commonwealth Director of Public Prosecutions supported a reversal of the legal burden, submitting in an Inquiry into the amending Bill that the ‘presumption recognises that copyright is a highly technical area and marshalling the evidence necessary to prosecute matters is a difficult and lengthy process’.^[102]

11.66   The Guide to Framing Commonwealth Offences states that ‘presumptions have a similar effect to defences, and are only appropriate in certain circumstances’.^[103] The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) has stated that presumptions should be kept to a minimum and justification for them provided in the Explanatory Memorandum.^[104]

Other laws

11.67   A number of other laws reverse the legal burden of proof. For example, the defendant bears a legal burden to establish defences to a number of offences in the Migration Act 1958 (Cth). For the offence of arranging marriage between other persons to assist a person to obtain permanent residence, it is a defence if the defendant proves he or she believed on reasonable grounds that the marriage would result in a genuine and continuing marital relationship.^[105]

11.68   Under the Great Barrier Reef Marine Park Act 1975 (Cth) the defendant bears the legal burden of proving that entry into a compulsory pilotage area was unavoidable.^[106] For the offence of an unauthorised vessel entering an area to be avoided under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth), the defendant bears a legal burden to establish a defence of unforseen emergency.^[107]

11.69   The Work Health and Safety Act 2011 (Cth) prohibits a person from being subjected to discriminatory treatment for exercising a function or right under the legislation, such as serving as a health and safety representative or raising a concern about work health and safety.^[108] The defendant bears the legal burden of proving that a prohibited reason was not the dominant reason for engaging in discriminatory conduct.^[109] This reversal of the burden of proof has been justified on the basis that ‘it will often be extremely difficult, if not impossible, for the prosecution to prove that the person engaged in discriminatory conduct for a prohibited reason’.^[110]

Bail

11.70   The presumption of innocence may be understood in both a broad and narrow sense.^[111] In its broader sense the presumption of innocence encompasses the criminal process more generally, including the notion that ‘pre-trial procedures should be conducted, so far as possible, as if the defendant were innocent’.^[112] The narrower sense of the presumption of innocence refers to the principle that the prosecution should bear the burden of proof of guilt,^[113] and is the focus of this chapter.

11.71   Procedures relating to bail engage the presumption of innocence in its wider sense. The NSW Law Reform Commission has distinguished the use of the language of ‘presumption’ in the bail context from other criminal law contexts. It notes that ‘when the law speaks of a presumption, it is usually in relation to an issue of fact’. By contrast, presumptions relating to bail ‘do not concern proof of facts, but decision-making and the burden of persuasion’.^[114]

11.72   The Law Council of Australia submitted that Commonwealth laws that reverse the presumption in favour of bail ‘may undermine the presumption of innocence, as a key component of a fair trial’.^[115]

11.73   Examples of such laws include s 15(6) of the Extradition Act 1988 (Cth) (Extradition Act) which requires that special circumstances must be established before a person remanded under the Extradition Act can be granted bail; and s 15AAof the Crimes Act 1914 (Cth) (Crimes Act) which reverses for terrorism offences the presumption in favour of bail.

11.74   In explaining the necessity for a presumption against bail in the Extradition Act,the Attorney-General’s Department stated:

The current presumption against bail for persons sought for extradition is appropriate given the serious flight risk posed by the person in extradition matters, and Australia’s international obligations to secure the return of alleged offenders to face justice in the requesting country. … The removal or substantial qualification of the existing presumption (which has been a feature of Australia’s extradition regime since the mid-1980s) may impede Australia’s ability to meet our extradition treaty obligation to return the person to the requesting country to face criminal charges or serve a sentence.^[116]

11.75   The Independent National Security Legislation Monitor has noted the ‘extreme unlikelihood of a person charged with a terrorism offence being released on bail (in almost all cases the accused will be detained for the protection of the community).^[117]

11.76   Reversing the presumption in favour of bail has been subject to criticism. In relation to the Extradition Act, the House of Representatives Standing Committee on Social Policy and Legal Affairs has observed:

The Committee expresses its concern regarding the presumption against bail, and notes that the Explanatory Memorandum to the Bill and the evidence provided by the Attorney-General’s Department fail to provide adequate justification on this point. The Committee does not doubt that bail is likely and rightly to be refused in the majority of extradition cases, and considers that this amendment will have little effect on the outcome of bail application in such cases. However, as a matter of principle, the Committee notes that it has not been convinced of the need for the Bill to prescribe a presumption either against or in favour of bail.^[118]

11.77   The Australian Human Rights Commission identified the reversal of the presumption of bail for terrorism offences ‘as a disproportionate interference with the right to liberty under art 9 of the ICCPR as well as the presumption of innocence under art 14(2) of the ICCPR’.^[119]

Civil laws

11.78   The ‘cardinal’^[120] common law principle examined in this chapter is that the prosecution should bear the onus of proof in criminal proceedings. Accordingly, this chapter focuses on criminal laws that reverse the legal burden of proof.

11.79   In a civil claim, the burden of proof will generally lie on the plaintiff on all essential elements. As Walsh JA in Currie v Dempsey explained:

The burden of proof in the sense of establishing a case, lies on a plaintiff if the fact alleged … is an essential element of his cause of action, eg, if its existence is a condition precedent to his right to maintain the action.^[121]

11.80   The distinction between civil and criminal proceedings may not always be clear. The ALRC’s 2003 report on civil and administrative penalties noted that

[t]he traditional dichotomy between criminal and non-criminal procedures no longer accurately describes the modern position, if it ever did. The functions and purposes of civil, administrative and criminal penalties overlap in several respects. Even some procedural aspects, such as the different standards of proof for civil and criminal sanctions, are not always clearly distinguishable.^[122]

11.81   The Institute of Public Affairs, in its submission, observed that ‘[g]overnments increasingly regulate behaviour through the civil law, rather than the criminal law’.^[123] Professor Anthony Gray has noted the existence of ‘a broader debate regarding the ongoing utility of such a distinction, whether there should be recognised a “third category” of proceedings that are properly neither civil nor criminal, and the essence of what is and should be considered to be a crime’.^[124]

11.82   The Human Rights Committee has noted that civil penalty provisions

may engage the criminal process rights under articles 14 and 15 of the ICCPR where the penalty may be regarded as ‘criminal’ for the purpose of international human rights law. The term ‘criminal’ has an ‘autonomous’ meaning in human rights law. In other words, a penalty or other sanction may be ‘criminal’ for the purposes of the ICCPR even though it is considered to be ‘civil’ under Australian domestic law.^[125]

11.83   Matters to consider in assessing whether a civil penalty is ‘criminal in nature’ include the classification of the penalty; the nature of the penalty, including whether it is intended to be punitive or deterrent in nature, and whether the proceedings are instituted by a public authority with statutory powers of enforcement; and the severity of the penalty.^[126]

11.84   The ALRC has not undertaken a comprehensive survey or review of provisions that shift the burden in civil proceedings. However, submissions to this Inquiry discussed the reversal of the burden of proof in a number of civil provisions.^[127] These are discussed briefly below.

Proceeds of crime

11.85   The Proceeds of Crime Act 2002 (Cth) (Proceeds of Crime Act)establishes a scheme to confiscate the proceeds of crime.^[128]

11.86   The Act provides for the making of an ‘unexplained wealth order’: an order requiring the person to pay an amount equal to so much of the person’s total wealth as the person cannot satisfy the court is not derived from certain offences.^[129] A court may make an unexplained wealth order if a preliminary unexplained wealth order^[130] has been made, and the court is not satisfied that the person’s wealth was not derived from an offence.^[131]

11.87   The burden of proving that the person’s wealth is not derived from an offence lies on that person.^[132] The person need not have been charged or convicted of any offence.

11.88   Gray has argued that civil forfeiture regimes are criminal in nature:^[133]

Such provisions typically allow forfeiture of the asset although the person who owns the asset has not been proven at the criminal standard to have committed a crime by which the asset was directly or indirectly obtained.^[134]

11.89   Section 179E was added to the Proceeds of Crime Act in 2010,^[135] with the rationale that,

[w]hile the Act contains existing confiscation mechanisms, these are not always effective in relation to those who remain at arm’s length from the commission of offences, as most of the other confiscation mechanisms require a link to the commission of an offence. Senior organised crime figures who fund and support organised crime, but seldom carry out the physical elements of crimes, are not always able to be directly linked to specific offences.^[136]

11.90   The reversal of the onus of proof in unexplained wealth orders has been said to be appropriate because ‘[d]etails of the source of a person’s wealth will be peculiarly within his or her knowledge’.^[137] However, the Scrutiny of Bills Committee was concerned about the ‘potential impact of such an onerous provision on a person’s civil liberties’.^[138]

11.91   The operation of the unexplained wealth provisions is subject to the oversight of the Parliamentary Joint Committee on Law Enforcement.^[139] That Committee may require law enforcement bodies to appear before it to give evidence.^[140] Additionally, the Commissioner of the Australian Federal Police must report to the Committee each financial year.^[141]

11.92   An independent review of the Proceeds of Crime Act in 2006 found that, while there was consensus among international law enforcement bodies about the appropriateness of a reversal of the burden of proof in unexplained wealth provisions,

it falls short of the wider consensus I believe is necessary to support the introduction of unexplained wealth provisions. Unexplained wealth provisions are no doubt effective but the question is, are they appropriate considering the current tension between the rights of the individual and the interests of the community? … On balance I believe it would be inappropriate at this stage to recommend the introduction of these provisions.^[142]

11.93   By contrast, in 2012, a Parliamentary Joint Committee on Law Enforcement inquiry into unexplained wealth legislation concluded that:

in practice, it is difficult to conceive of scenarios by which an individual had significant amounts of unexplained wealth with no way of accounting for their legitimate accumulation, if that was in fact what had occurred … The committee is therefore of the view that, with appropriate safeguards, unexplained wealth laws represent a reasonable, and proportionate response to the threat of serious and organised crime in Australia.^[143]

11.94   The Law Council of Australia submitted to this Inquiry that traditional criminal court processes should apply in civil confiscation proceedings, ‘whereby the onus remains with the prosecution to establish that the property was unlawfully acquired’.^[144]

Fair Work Act 2009 (Cth)

11.95   The General Protections in the Fair Work Act 2009 (Cth) (Fair Work Act)prohibit an employer from taking adverse action^[145] against an employee because an employee has exercised a workplace right;^[146] has temporarily been absent from work due to illness or injury;^[147] has participated or not participated in industrial activity;^[148] or because of an employee’s protected attribute.^[149]

11.96   Under s 361, adverse action taken against an employee will be presumed to be action taken for a prohibited reason unless the employer responsible for taking the adverse action proves otherwise. This placement of the burden of proof on an employer is not novel: the first industrial relations statute, the Commonwealth Conciliation and Arbitration Act 1904 (Cth), placed the onus on an employer to show that an employee was dismissed for some reason other than membership of a trade union or entitlement to the benefit of an industrial agreement or award.^[150]

11.97   The National Farmers’ Federation submitted that the reverse onus of proof in the Fair Work Act ‘offends the common law presumption of innocence and undermines confidence in the judicial process’. It argued that the ‘common law presumption of innocence should be restored’.^[151] The Institute of Public Affairs also criticised this provision, arguing that it is ‘unsatisfactory to expect the employer to rely on their own records to defend themselves from a claim, while the plaintiff carries little of the burden’.^[152]

11.98   On the other hand, a number of stakeholders argued that the reversal of the burden of proof in the Fair Work Act was justified.^[153] The Australian Council of Trade Unions (ACTU) argued that the reverse onus was essential ‘because it is difficult for an applicant to prove the reason for the respondent’s action’.^[154] Jobwatch argued that employers have a monopoly on knowledge in these circumstances:

Employee claims should not be open to defeat by a mere denial by the employer, as it is more difficult for employees to procure the necessary evidence. Section 361 helps to rectify this unequal access to evidence which stems largely from the power imbalance that exists between the parties.^[155]

11.99   A number of judicial decisions have addressed the rationale for a reversal of the burden of proof, summarised by the ACTU’s submission:

In Bowling v General Motors-Holden Pty Ltd, Smithers and Evatt JJ noted that ‘the real reason for a dismissal may well be locked up in the employer’s breast and impossible, or nearly impossible, of demonstration through forensic purposes’. Northrop J of the Federal Court came to a similar conclusion in Heidt Chrysler Australia Ltd. He acknowledged that ‘the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly within the knowledge of the employer’. … In Australasian Meat Industry Employees’ Union v Belandra Pty Ltd, North J stated, ‘A reverse onus on the issue of the reason for conduct makes good sense because the reason for the conduct is a matter peculiarly within the knowledge of the respondent’. This passage was quoted with approval by Ryan J in a 2008 case: Police Federation of Australia v Nixon.^[156]

Discrimination laws

11.100         With the exception of the Racial Discrimination Act 1975 (Cth), Commonwealth anti-discrimination laws contain a reverse legal burden of proof with respect to ‘indirect discrimination’—an ‘unreasonable rule or policy that is the same for everyone but has an unfair effect on people who share a particular attribute’.^[157] If a defendant is shown to have imposed a condition, requirement or practice that has a disadvantaging effect on persons with a relevant attribute, they may avoid liability by establishing that the condition, requirement or practice is reasonable in all the circumstances.

11.101         A number of submissions considered the reversal of the burden of proof in anti-discrimination laws to be unjustified.^[158] The Church and Nation Committee, Presbyterian Church of Australia submitted that there were a number of problems with this reversal:

Firstly, the person accused of discrimination is called ‘the discriminator’ ie the title itself proceeds from an assumption of guilt rather than innocence. Secondly, the alleged discriminator must prove—in the first instance—that s/he did not discriminate. This is a reversal of the procedure in criminal law where the burden of proof rests on the prosecution to ‘make a case’ that the defendant committed the act. The alleged discriminator should not have to prove—in the first instance—that they did not commit the act. The burden of proof should rest on the person bringing the claim of discrimination. Otherwise … the process itself becomes the punishment and vexatious litigation ensues.^[159]

11.102         The ACTU argued that the reversal of the burden of proof in anti-discrimination law was justified. It contended that such a reversal was supported by a clear policy rationale:

Power imbalance—There is a significant imbalance in resources and expertise between complainants and respondents

Information asymmetry—The respondent has access to information and evidence that the complainant does not e.g. statistics

Practicality—The respondent is in the best position to explain the reason for the requirement. The complainant may not know the reason behind it

Reality—Use of the reverse onus reflects the realities of the situation because in practice the burden usually falls on the respondent anyway

Access to justice—It is ‘notoriously difficult’ for complainants to prove indirect discrimination has occurred.^[160]