Proof and Direct Discrimination

Abstract

Anecdote and impression in Australia is that it is race discrimination complaints in particular that consistently fail because complainants cannot discharge this burden of proof. Based on a text analysis of all reported decisions, since 2000, on race discrimination complaints under the NSW Anti-Discrimination Act, and under the Racial Discrimination Act (Cth), my research will provide an empirical answer to the question: 'To what extent do race discrimination complaints fail in courts and tribunals because of this challenging burden of proof?'. The focus is on matters where a complaint is dismissed because the court cannot say what the basis for the other person's conduct was, or says that the basis for the other person's conduct was a ground other than race. This leads to deliberation on the difference it would make to require an alleged discriminator to show they did not discriminate, that is, to shift the burden of proof to the respondent if and when the complainant can establish that there was less favourable treatment. The possibility and permissibility of shifting the burden during a hearing has not been canvassed in recent reviews of anti-discrimination legislation, but is established in the European Union by way of Directive 2000/43/EC, and is being implemented across Europe, including in the UK the Race Relations Act 1976.