AustLII Home | Databases | WorldLII | Search | Feedback

Melbourne University Law Review

Melbourne Law School
You are here:  AustLII >> Databases >> Melbourne University Law Review >> 2003 >> [2003] MelbULawRw 13

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

de Plevitz, Loretta --- "Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger'" [2003] MelbULawRw 13; (2003) 27(2) Melbourne University Law Review 308

THE BRIGINSHAW ‘STANDARD OF PROOF’ IN
ANTI-DISCRIMINATION LAW: ‘POINTING WITH A WAVERING FINGER’

LORETTA DE PLEVITZ[*]

[In Briginshaw, the High Court held that where a civil case involves allegations of criminal conduct, fraud or moral wrongdoing which may lead to grave consequences for the defendant, the judicial approach should be a closer scrutiny of the evidence. However, the Briginshaw ‘standard of proof’ has been adopted by all Australian anti-discrimination jurisdictions as a general rule without examining whether it is warranted. This article traces the evolution of the Briginshaw test and argues that its indiscriminate use by tribunals creates confusion, uncertainty and injustice. It suggests ways in which equal opportunity tribunals could conform with appellate court commentary and direction.]



CONTENTS




I INTRODUCTION

Ever since the case of the lift-driver who accused the New South Wales Commissioner for Main Roads of sexually harassing her,[1] Australian anti-discrimination tribunals have demanded that complainants prove their case to the ‘Briginshaw standard of proof’.[2]

In fact, ‘standard’ is a misnomer as in the common law there are only two standards of proof: beyond a reasonable doubt for criminal cases and on the balance of probabilities for civil. As anti-discrimination complaints raise civil issues, the appropriate standard is the balance of probabilities,[3] though what that term means is by no means clear. It is generally accepted that it will require ‘satisfaction on the evidence that the matter found to have occurred is more likely than not to have occurred.’[4] The standard goes to the degree of persuasion of the mind:

No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.[5]

However, the Briginshaw principle recognises that in relation to a civil matter, ‘questions of fact vary greatly in nature and in some cases greater care in scrutinizing the evidence is proper than in others, and a greater clearness of proof may be properly looked for.’[6]

This article examines the scope of the Briginshaw principle both within and outside the anti-discrimination jurisdiction and suggests ways in which equal opportunity tribunals could conform more closely to appellate court commentary and direction.

II BRIGINSHAW

In Briginshaw,[7] Mr Briginshaw sought to divorce his wife on the grounds of her adultery. The only evidence he could produce was Mrs Briginshaw’s admission that she had kissed the co-respondent and hearsay evidence that a friend of Mr Briginshaw’s sister had been told in confidence by the co-respondent that he and Mrs Briginshaw had engaged in sexual intercourse. The judge refused to grant a divorce on the grounds that he was not satisfied beyond reasonable doubt that adultery had taken place. The petitioner appealed to the High Court arguing that the criminal standard of proof should not be applied in divorce cases. The Full Court of the High Court agreed: adultery was not a criminal offence. Nevertheless, as a finding of adultery would have grave consequences for the respondent — intimations of immorality and loss of status as a married woman[8] — the evidence against her should be clear and compelling. On that test, the evidence, even if admissible, lacked cogency. The husband’s petition was rejected.

The circumstances in which the test would be necessary were less clear. Rich J said it depended on ‘common sense and worldly wisdom’:[9]

In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.[10]

Dixon J gave a little more guidance:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.[11]

The Briginshaw approach is based on the principle that a court in a civil action should not lightly find that a party has engaged in criminal conduct.[12] As accusations of wrongdoing usually involve serious consequences for the defendant, justice demands that the accuser, whether in civil or criminal matters, carries the burden of proof to the requisite standard. It is not surprising that this issue was at the forefront of Dixon J’s mind in Briginshaw, as he had but recently commented on it extra-curially in relation to Australian criminal law.[13]

Briginshaw therefore directs a court to proceed cautiously in a civil case where a serious allegation has been made or the facts are improbable. If the finding is likely to produce grave consequences, the evidence should be of high probative value. The Briginshaw test focuses attention on the standard of the evidence required to prove the case to the ordinary civil standard — it is not a change in the standard of proof. There is no third standard of proof in the common law. More proof means nothing more than better evidence.[14]

III HIGH COURT LIMITS ON THE BRIGINSHAW TEST

In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[15] Mason CJ, Brennan, Deane and Gaudron JJ reviewed the authorities to provide a clear statement of the Briginshaw principle:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud.[16] On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear[17] or cogent[18] or strict[19] proof is necessary ‘where so serious a matter as fraud is to be found’.[20] Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct[21] and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

Their Honours warned that indiscriminate generalisations about the need for clear and cogent evidence, even where the standard of proof was correctly understood, were ‘likely to be unhelpful and even misleading’.[22]

A further limitation was expressed in G v H.[23] The issue in this case was whether a man should pay maintenance for the child of a prostitute who had engaged in sexual intercourse with 250 clients during the period under review. While paternity was ‘a serious matter, both for father and for child’,[24] it was a biological fact which could be proved by other means. It was not an allegation of moral or criminal wrongdoing which involved an issue of importance or gravity in the Briginshaw sense.[25]

McHugh J has elsewhere asserted that the Briginshaw test can apply to all causes of civil action, including primary negligence if the situation warrants it.[26] However, in an exchange with the New South Wales Solicitor-General in Witham v Holloway, he was clearly impatient with Briginshaw being invoked at every turn:

there are only two standards of proof: balance of probabilities and proof beyond reasonable doubt. I know Briginshaw is cited like it was some ritual incantation. It has never impressed me too much. I mean, it really means no more than, ‘Oh, we had better look at this a bit more closely than we might otherwise’, but it is still a balance of probabilities in the end.[27]

For her part, Gaudron J observed that this was ‘an ordinary case’.[28] She noted that Briginshaw was only appropriate where there was an allegation of a very serious nature in a civil case and the consequences were such that the standard should be elevated. This did not appear to be such a case.[29]

IV THE SCOPE OF THE BRIGINSHAW PRINCIPLE IN NON-DISCRIMINATION CASES

The routine application of Briginshaw to anti-discrimination cases is misplaced. To illustrate this, I propose to look at its use in other jurisdictions. In these jurisdictions, it is applied only to allegations of serious misconduct made in civil proceedings or where the consequences flowing from a particular finding may be permanent or damaging to parties in civil litigation. In both situations, the underlying rationale is the gravity of the outcome for the defendant.

A Allegations of Serious Misconduct in Civil Proceedings

1 Murder

In a sensational 1940s case, Helton v Allen,[30] Allen alleged that Helton had murdered her daughter Margaret for her money. Margaret Roche had been having an open and scandalous sexual relationship with Helton, who was considerably younger than her. Helton knew the terms of Roche’s recently made will: most of her considerable estate would pass to him. Roche died suddenly and painfully of strychnine poisoning after dining with Helton. Helton was tried twice for murdering Roche. At the first trial, he was found guilty but the conviction was quashed on the ground that there had been a mistrial. On the second occasion, he was acquitted by the jury.

Allen challenged Helton’s right of succession on the grounds that public policy should prevent a person who kills another from taking a benefit under the deceased’s will. The issue was heard by a civil jury which found on the balance of probabilities that Helton had killed Roche and therefore could not inherit. Helton appealed to the High Court. He argued that there was insufficient evidence and that his acquittal meant that the public policy did not apply. The Court rejected these grounds. However, it reluctantly found for Helton on the ground that there had been a misdirection to the jury on the standard of proof. In summing up, the judge had seemed to indicate that if the jury found the probabilities were slightly weighed against Helton then they should find for Allen. Their Honours approved[31] Dixon J’s statements in Briginshaw and ordered a re-trial.

2 Sexual Abuse of Children

In a significant proportion of custody cases in the Family Court one parent will allege that the other, or a step-parent, has sexually abused the children and therefore should be denied custody or access.[32] An incorrect finding against the accused parent will not only have a serious and damaging impact on that parent, but also on the child, who will be both deprived of contact and will suffer guilt and the psychological consequences of having a parent suspected of a heinous crime. In M v M,[33] the wife alleged that the child’s welfare would be put at further risk if the father were to have access. The High Court noted that this was ‘an allegation which is often easy to make, but difficult to refute.’[34] Their Honours directed that ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw’.[35]

Nevertheless, their Honours indicated that, even if the allegation failed to meet the Briginshaw test, the judge may still refuse access if it were not in the best interests of the child.[36] On that basis, the Court upheld the trial judge’s decision to deny the husband access.

3 Gross Medical Negligence

There were elements of both an allegation of grave misconduct and the ‘inherent unlikelihood of an occurrence of a given description’[37] in Hocking v Bell.[38] The plaintiff alleged that a doctor had been grossly negligent in that he had left part of a rubber drainage tube in her neck and that it had passed to her stomach and was expelled some 18 months after the operation. She not only gave an inherently improbable description of the medical equipment but also of the journey of the tube. The High Court applied the Briginshaw test to the evidence and held by a majority that no reasonable jury could have found for the plaintiff.

4 Fraud

In Rejfek v McElroy,[39] the plaintiffs demanded the rescission of a contract on the basis of fraudulent misrepresentation. The trial judge believed that he was obliged to apply the criminal level of proof to the evidence. The High Court, referring to Briginshaw, held that no matter how grave the allegation in a civil case, the mind has only to be satisfied on the balance of probabilities, although

[t]he ‘clarity’ of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved ...[40]

However, there is no call for Briginshaw where the allegation of fraud is trivial[41] or merely involves the judge choosing between one party’s version of the facts and the other’s.[42]

5 Serious and Wilful Conduct Warranting Dismissal

Allegations of murder, sexual abuse of children, gross medical negligence and fraud obviously have no place in the anti-discrimination jurisdiction. Unlawful dismissals, however, are common to both the anti-discrimination and the industrial relations jurisdictions. Both involve tribunals that are not bound by the rules of evidence. Though the examination in one is of the conduct of the employer, and in the other of the conduct of the employee, a comparison of the application of Briginshaw may be useful.

In the anti-discrimination jurisdiction, the onus is on the dismissed employee to prove that a prohibited ground was a reason for the dismissal. Briginshaw is routinely applied because it is said that an allegation of discrimination or harassment is a serious matter.[43] However, this is by no means the same as an allegation with serious consequences for the respondent. Indeed, a survey of outcomes of successful complaints indicates that the most common consequence an employer is likely to face is an order to pay a modest sum in compensatory damages, because it was either personally or vicariously liable for the discriminatory acts of its employees.[44] A survey of compensation awarded by anti-discrimination tribunals in 2001[45] shows a range between $250 and $72 582, both for age discrimination in employment.[46] The total damages for 29 successful cases was less than $600 000, providing an average in the order of $20 000 — in economic terms, hardly a grave consequence. Higher damages may be awarded where there has been physical sexual harassment.[47] As for damage to the respondent’s reputation, it is suggested that it is probably only where the employer has failed to take reasonable steps to prevent sexual harassment that there is a possibility of damage to reputation.[48] It is otherwise suggested that nothing more will attach to the employer’s future reputation than if a finding was made that an employee had driven carelessly and caused a minor accident.

By contrast, in the industrial relations jurisdiction, the onus is on the employee to prove unfair dismissal and on the employer to establish, on the balance of probabilities, that the misconduct, which may fall short of criminal behaviour, was serious and wilful enough to justify refusing to reinstate the employee.[49] The industrial relations tribunal or commission will not lightly uphold the employer’s decision to dismiss because the outcome will be that the employee loses both job and reputation. Nevertheless, Briginshaw is only applied to the most serious allegations, such as that made in the New South Wales Police Royal Commission that a detective senior constable was corrupt,[50] or that an employee stole from his employer on a grand scale so he could set up his own business in competition using the employer’s materials.[51] These accusations were not only of illegal activity but also of undermining the very fabric of the employer’s enterprise.

Briginshaw will not apply where there has been no allegation of misconduct. In Four Sons Pty Ltd v Sakchai Limsiripothong,[52] the Full Bench of the Industrial Relations Commission of New South Wales noted that the tribunal must ‘consider the nature and seriousness of the allegation made before finding it proved at the requisite level.’[53] On that test, the issue of whether the employee had been dismissed because there was a downturn in business or because he was being victimised for supporting a fellow employee who complained of sexual harassment did not require the Briginshaw approach, as there were no allegations of fraud or criminal conduct.

B Where the Outcome of the Decision May Be Irreversible

The second category of non-discrimination cases that enlivens the Briginshaw principle involves the possibility of permanent consequences for the respondent civil party.

1 Loss of Liberty

In R v Schafferius,[54] Schafferius was being held in a security hospital after the Queensland Mental Health Tribunal found him to be of unsound mind and unfit to plead. He claimed this was untrue. The Court of Criminal Appeal upheld the Tribunal’s decision, noting that because the consequence was loss of personal liberty this was a ‘proceeding at the “grave” end of the Briginshaw principle.’[55] The Court held that the Tribunal had correctly made its decision on clear and convincing evidence.

At 21, Derek Percy was put on trial for the rape, mutilation and murder of a child. At trial he was found not fit to plead by reason of insanity. By 1998 he had been held in prison custody for over 29 years and was the only person in Victoria still subject to a ‘Governor’s pleasure’ order. Eames J of the Victorian Supreme Court was appointed to review the case.[56] Because Percy had been found not to be suffering from a mental impairment he could not be transferred to a psychiatric hospital; therefore, Eames J’s choices were release or further incarceration. His Honour held that the relevant legislation required him to be satisfied on the balance of probabilities but ‘with the gloss of Briginshaw[57] that the detainee would pose no risk to the community if he were released. His Honour held that the evidence available was insufficient to reach this degree of satisfaction and so the prisoner would be obliged to remain in custody with periodic reviews.[58]

Personal liberty was also in issue where a man was being held in custody in South Australia awaiting extradition to face criminal charges in Canada.[59] Gary MacDonald denied that he was the wanted man and brought a writ of habeas corpus against the Australian government.[60] Applying the Briginshaw test, Walters J was convinced on the evidence before him — photographs, identical scarring and similarity of fingerprints — that the prisoner could be held awaiting extradition.[61]

2 Sterilisation of Young Women

The Briginshaw test was implicitly approved by Deane J in Secretary, Department of Health and Community Services v J W B and S M B[62] in relation to each of the conditions precedent for the sterilisation of a severely intellectually impaired girl. He held that the judges of the Family Court must have clear and convincing evidence from a multi-disciplinary team that there is severe disability, that the woman would be unable to care for herself or a child, and that the surgery is necessary because there is no other medical alternative.[63]

3 Whether a Person Is of a Particular Race

In Shaw v Wolf,[64] the petitioners alleged that Wolf and 10 others were not entitled to stand as candidates for election to the Regional Council of the Aboriginal and Torres Strait Islander Commission (‘ATSIC’) as they were not Aboriginal. Merkel J of the Federal Court determined that the onus of proof lay on the petitioners and while the ordinary civil standard of proof was appropriate, the Briginshaw principle should apply because of the severe and deeply personal impact which a finding of non-Aboriginality would have on the respondents’ identity, family and communal relationships as well as on any entitlements to participate in programs and organisations for the benefit of Aboriginal people.[65] His Honour noted that the Briginshaw principle might not be appropriate where a respondent had suddenly announced an Aboriginal identity for the purpose of standing in an ATSIC election, but that was not the case here where all respondents had identified as Aboriginal prior to any suggestion that they stand as candidates.[66]

After meticulous analysis of the evidence of self-identification, community identification and Aboriginal descent,[67] his Honour held that the petitioners had proved that two of the respondents were not Aboriginal for the purposes of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth).[68] Like sterilisation, the decision would radically alter those respondents’ lives.

4 Doctors and Lawyers Struck off or Suspended from Their Professional Roll

Even though disciplinary proceedings before a professional tribunal do not require proof beyond reasonable doubt, the Briginshaw test is appropriate in such circumstances because the outcome may end the person’s professional career. In Re a Solicitor; Ex parte The Prothonotary,[69] decided shortly after Briginshaw, a solicitor was asked to show cause why he should not be removed from the roll of solicitors after allegations of fraud and perjury. Jordan CJ held that in determining whether a crime or grave moral delinquency had occurred, circumstantial evidence was not sufficient unless there was no other reasonably probable explanation. His Honour was satisfied on the Briginshaw principle that the preponderance of evidence pointed to the commission of the crimes.[70]

The Briginshaw approach was adopted by Hudson J in Hobart v Medical Board of Victoria[71] in relation to an allegation that a medical practitioner had engaged in an improper relationship with the wife of his medical partner and had supplied her with drugs to kill herself. The doctor was struck off.

In Kerin v Legal Practitioners Complaints Committee,[72] the Full Court of the Supreme Court of South Australia upheld a decision to remove a legal practitioner who had unlawfully imported firearms, failed to advise a client to obtain independent legal advice when there was a conflict of interest and had misled the Legal Practitioners Complaints Committee. Millhouse J unhelpfully added the type of statement which creates confusion in the minds of anti-discrimination tribunal members, stating that ‘[t]he Briginshaw onus is heavier than “on the balance of probabilities” but not as heavy as “beyond reasonable doubt” — where it lies on the scale depends upon the case.’[73]

In sum it can be said that Briginshaw is enlivened where there are serious accusations (murder, sexual abuse of children, corruption, undermining the very business of your employer, adultery prior to the Family Law Act 1975 (Cth), gross medical negligence or fraud) or where the effect of the finding would be permanent and damaging to the respondent’s future (loss of liberty, racial identity, sexual functioning or profession). These are clearly issues of gravity and importance that warrant a closer scrutiny of the evidence before a decision adverse to the respondent is made.

V BRIGINSHAW IN THE ANTI-DISCRIMINATION JURISDICTION

By contrast with the other jurisdictions, anti-discrimination tribunals apply the Briginshaw approach as a matter of course.[74] The ‘standard of proof is the Briginshaw test’.[75] The basis for this approach seems to be the general belief that any allegation of discrimination or harassment is a ‘serious matter’.[76] The following statement provides an example:

It is now clearly established in Australian anti-discrimination law that this burden of proof is subject to the application of the test set out in Briginshaw v Briginshaw ... This means that the more serious the allegations are, it may be reasonable to expect a complainant to prove the case beyond a slight difference in probity when weighing the evidence. Allegations of sexual harassment are serious matters. Therefore, the complainant in this case must establish to the satisfaction of the Tribunal that the events as alleged by her occurred, and at a level greater than the merest difference in the balance of probabilities.[77]

This blanket approach does not allow for the fact that each case should depend on its own facts. It offers no continuum of severity of allegation or gravity of outcome. It implies that any accusation of sexual harassment carries the same consequences as an accusation of a serious crime or will have a permanent and irreversible effect on the respondent’s future. It also suggests that discrimination requires a higher level of proof than the balance of probabilities.

In Four Sons Pty Ltd v Sakchai Limsiripothong[78] the Full Bench of the New South Wales Industrial Relations Commission observed that to apply Briginshaw indiscriminately was to harbour

a fundamental misconception of the test and scheme of the Act relating to unfair dismissals. For example, a conclusion that a dismissal was harsh, unreasonable, or unjust does not necessarily involve any finding of legally or morally reprehensible conduct on the part of the employer. It may be sufficient, for example, to find the test met where the conduct of the employer, or the circumstances of the dismissal, result in a situation where the dismissal viewed objectively can be said to be harsh, unreasonable, or unjust. That does not involve necessarily a finding as to the employer’s intent, or that the employer has acted reprehensibly, illegally, or fraudulently. Indeed, such a finding could arise from mere inadvertence on the employer’s part.[79]

The same observation could equally be applied to the scheme of anti-discrimination legislation.[80] The legislation protects against harassment, vilification and two types of discrimination: direct, where one person treats another less favourably on the basis of a particular attribute, for example, race or gender; and indirect, meant to deal with the adverse impact which certain apparently neutral, but unreasonable, practices or policies may have on particular groups. For example, a requirement to enter a public building by the means of stairs will have an adverse effect on the disabled, the elderly and parents with prams and strollers.[81] Indirect discrimination is usually the result of the unthinking application of set ways of doing things. Nevertheless, the Briginshaw test has been applied to both direct[82] and indirect[83] discrimination. It might be suggested, however, that an allegation of malice as opposed to one of mere inadvertence would go to the seriousness of the consequence for the respondent.[84]

In my view, the blanket Briginshaw approach evolved from the first anti-discrimination cases. They raised issues never before argued in Australia — sexual harassment and systemic discrimination. The respondents were well-known and highly-placed persons whose reputation as fair-minded citizens was at stake. I suggest that these circumstances combined to settle the Briginshaw standard in this jurisdiction.

A Setting the Standard: Early Anti-Discrimination Cases

The sensational nature of the complaint and the difference in status between the parties in O’Callaghan v Loder,[85] the first sexual harassment case reported in Australia, focused public attention on the evidence given to the hearing body, the New South Wales Equal Opportunity Tribunal. What distinguishes sexual harassment is that it is unwelcome: the anti-discrimination legislation does not intend to outlaw consensual sexual conduct.[86] Both parties gave evidence that the employee had visited the Commissioner for Main Roads in his office suite on a number of occasions but there were no other material witnesses to the nature of the relationship. In a delicate area of human interaction, how should the Tribunal find out whether the Commissioner’s admitted conduct was unwelcome to the employee? The answer was, of course, very carefully indeed.

The Commissioner argued that as the employee’s allegation of harassment was tantamount to one of criminal assault, proof should be beyond a reasonable doubt. However, the Tribunal held that although unlawful conduct under the Anti-Discrimination Act 1977 (NSW) may raise the ‘spectre of the criminal law’, the inquiry was of the nature of a civil claim.[87] No sanctions other than awarding damages or issuing injunctions could attach to an adverse finding against a respondent and, therefore, the civil standard of proof on the balance of probabilities should apply to discrimination cases.[88]

As to the nature of that proof, the lawyers for the Commissioner relied on Re a Solicitor; Ex parte The Prothonotary[89] where the solicitor was under threat of being struck off. Implicitly drawing a parallel with their client’s situation where a finding against him would also seriously damage his career and reputation, they submitted that the Briginshaw test was appropriate. The Tribunal agreed:

We accordingly propose to apply the ordinary civil standard of proof in this inquiry, but to take account of the gravity of the allegations and the serious consequences to a respondent following any adverse finding of this Tribunal, when we are determining whether the evidence meets that standard.[90]

Applying this approach to the evidence available, it could be seen that the potentially defamatory accusation of criminal conduct had grave consequences for the Commissioner.[91] The Tribunal should only be convinced by clear and unequivocal evidence, which was lacking in this case. The complainant’s case was dismissed, but not before the parties’ private lives were publicly aired, which as the Tribunal noted was ‘a personal tragedy for both of them.’[92]

In drawing on these principles, the Tribunal was developing a point made the previous year by Hutley JA of the New South Wales Court of Appeal in Director-General of Education v Breen.[93] He had warned of the ‘very serious consequences which can flow from an adverse finding by the Equal Opportunity Tribunal’.[94] However, that case had raised issues of systemic discrimination in the application of departmental polices to women; it was hardly an accusation of misconduct against the Director-General. On appeal to the New South Wales Court of Appeal, the Tribunal’s findings in favour of the complainants were overturned on the basis that the evidence did not meet the standard required to deal with ‘three serious allegations against a high public officer’.[95] Hutley JA held that ‘on no score’ did the findings measure up to the standards laid down by the High Court in Briginshaw.[96] The Tribunal had shown ‘no proper regard to the standards of proof required’:[97] material admitted by the Tribunal did not directly bear on the unlawful act alleged. Therefore, the Tribunal’s finding that the complainants’ argument had sufficient ‘merit’ to find in their favour was an error of law.

Hutley JA’s reference to Briginshaw was taken by the Tribunal in O’Callaghan v Loder to mean that any allegation of discrimination or harassment would be of serious consequence to the respondent.[98] No distinction was made between the nature of the allegations — one where the Director-General was implementing policy in the course of his duties, the other where the Commissioner had engaged in an illicit sexual relationship. Nor was a line drawn between an allegation of less favourable treatment which may have amounted to a criminal assault, and the policy implementation of a sincerely-held departmental belief that women were more suitable for teaching in infants’ schools because of their inherently maternal natures. For both, the weight of evidence required to prove the complaint seemed to be in direct proportion to the status of the respondent. The outcome was that these two cases, O’Callaghan v Loder and Director-General of Education v Breen, set the Briginshaw benchmark that has been the standard applied in anti-discrimination cases ever since.

B ‘No Badge of Honour’: High Profile Respondents

Subsequent cases involving high profile respondents maintained the belief that the Briginshaw standard was the routine test for all cases. In the early period of the legislation’s operation,[99] complaints were common against government or business enterprise, perhaps because the legislation was achieving its objective of educating the public about institutionalised discriminatory practices or, more cynically, because such organisations were perceived to have ‘deep pockets’.

An early and highly influential case was Department of Health v Arumugam,[100] heard by Fullagar J of the Supreme Court of Victoria. The case involved the issue of whether racial discrimination could be inferred from a decision by a selection panel not to appoint as psychiatrist superintendent of a government hospital an Indian-born doctor who had been acting in the position for six months. The gravity of the allegation was increased by the judge’s erroneous belief that the complainant had to prove that the respondent had a conscious intention to discriminate.[101] In an often quoted passage[102] his Honour expanded on the necessity for exercising caution where the respondent is a prominent person or organisation:

the degree of satisfaction must be up to the seriousness of the allegations in all the circumstances: see the oft-cited remarks in Briginshaw ... It is, of course, a serious allegation that two prominent and highly-qualified medical men, in government positions of trust and responsibility, and engaged in the task of selecting the best man for a very important job which involved the highly-skilled care and management of sick people, deliberately rejected the best man and appointed a person known to them to be a far less suitable man, and did that substantially, if not entirely, on the ground that the better qualified professional man belonged to a particular race of human beings. Of course, it may nevertheless happen and, if it happens in the case of intelligent trained minds, one might expect some skilled attempt at concealment as well. But it is not lightly to be inferred.[103]

In Australian Public Service Association v Australian Trade Commission,[104] female public servants complained that a corporation set up by the Commonwealth government had indirectly discriminated against women by permitting only permanent members of staff to belong to a superannuation fund or to access a home loan subsidy scheme. Proportionally more men than women could comply with this requirement because most women were employed on a temporary basis. Though he doubted that the legislation required a strict onus of proof, Einfeld J nevertheless held that Briginshaw was relevant as an allegation against the corporation ‘should not be treated lightly.’[105]

That the Briginshaw standard had become the accepted test by 1992 is clear from the Western Australian case of D L (Representing the Members of People Living with AIDS (WA) Inc) v Perth City Council.[106] An organisation which supported people with HIV applied to the Perth Council Town Planning Committee for approval to use premises in an area zoned for shopping as a daytime drop-in centre. The Committee refused approval by 13 votes to 12, with one councillor abstaining. Of the 12 councillors who rejected the application, six had made their decision based on the HIV status of the organisation’s members. People Living With AIDS (WA) Inc lodged a complaint of unlawful discrimination on the basis of impairment with the Western Australian Equal Opportunity Tribunal. At the hearing, the Council submitted that the Tribunal should pay ‘due regard to the gravity of the allegations and the potentially serious consequences to the Respondents of a finding adverse to them.’[107] Counsel for the complainants ‘argued but faintly against that proposition, frankly acknowledging that ... the standard is the balance of probabilities, as explained by Dixon J in Briginshaw’.[108] No argument against this proposition was presented in the appeals to the Supreme Court of Western Australia[109] or to the High Court.[110] The serious consequences of the outcome to the complainants was not placed in the balance.

Jeff Kennett, then Premier of Victoria, was the respondent in Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission.[111] He had issued a directive to his Ministers that they must refer to the language spoken by people either living in the Former Yugoslav Republic of Macedonia, or originating from it, as Macedonian (Slavonic). The Macedonian Teachers’ Association of Victoria Inc (‘the Association’) took issue with this decision. It argued that nowhere else in the world was the language thus described, that it was linguistically incorrect and that the Victorian Macedonian community found the description deeply offensive and humiliating. The Association complained that the Premier had infringed the Racial Discrimination Act 1975 (Cth) by singling out their language for less favourable treatment. Sir Ronald Wilson, then President of the Human Rights and Equal Opportunity Commission, clearly articulated the nexus between the status of the respondent and the requirement for a higher standard of proof:

Applying the test enunciated in Briginshaw ... if a finding in support of the complainant means that the Government must be found to have deliberately discriminated against one section of the community in order to favour another section and therefore be deserving of wide condemnation for such a lack of probity in office, then such a finding would surely call for proof based on more than a mere balance of probabilities.[112]

This proposition formed one of the grounds of appeal by the Association to the Federal Court. Weinberg J dismissed it. Though it was ‘perhaps infelicitously expressed’, his Honour held that the Commissioner was not proposing a third standard of proof, rather he was giving no more than ‘a convenient shorthand method of articulating the Briginshaw principle’.[113] He endorsed the view of special treatment for the highly placed:

It is no badge of honour for any government to be found to have contravened a provision of an anti-discrimination statute. The fact that such a contravention may be found to have occurred without any intent on the part of that government to discriminate, and for laudatory motives, does not significantly diminish the gravity of any such finding.[114]

On appeal, the Full Federal Court did not agree that the gravity of the accusation was in direct proportion to the status of the respondent:

The mere finding that a government has contravened a provision of an anti-discrimination statute without considering the circumstances in which the contravention occurred is not, in our view, sufficient to attract the Briginshaw test. We disagree with his Honour’s conclusion that the absence of intention to discriminate does not significantly diminish the gravity of any such finding ... there are many examples of governments being held to have discriminated unlawfully against individuals or groups of individuals without resort to the principle in Briginshaw ... [For example] Bacon v Victoria (unreported, Supreme Court of Victoria, 7 November 1997, Beach J) where the issue was whether the education policy of the Victorian government was discriminatory. Beach J held that it was, but his Honour did not invoke the Briginshaw principle. That case was similar, in principle, to this one. No issue of fraud or impropriety was raised or needed to be determined.[115]

The Full Court had apparently put a stop to the special treatment for the highly placed, though a later, differently constituted Full Court in Sharma v Legal Aid Queensland[116] applied Briginshaw without explaining the need for serious consequences. Nor did it refer to the High Court authorities.

C Proof Falls below the Standard

There are not many cases where it is overtly stated that the complainant has failed to establish proof on the Briginshaw test. The most important, both in terms of the number of persons affected and the interpretation of human rights, is Aboriginal Students’ Support and Parents Awareness Committee, Traeger Park Primary School, Alice Springs v Minister for Education, Northern Territory.[117] The Northern Territory Minister for Education had decided to close down Traeger Park School which catered for fringe-dwellers in Alice Springs and to transfer the students to another school. The Minister had two reasons: first, that the school was not economically viable given the small classes, the high degree of absenteeism and the number of late attenders. The second was revealed in a response to an interviewer on the ABC’s 7:30 Report, where he observed that it was a very unsatisfactory situation that all the students, except four, were Aboriginal. He said that it was in the long-term interests of Aboriginal children to learn to compete with white children and to take their place in the wider community.

The School Committee complained under the Racial Discrimination Act 1975 (Cth) alleging both direct and indirect discrimination. Sections 9(1) (direct discrimination) and 9(1A)(c) (indirect) of the Act are drawn from the definition of racial discrimination in art 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination.[118] The elements are notoriously difficult to prove; indeed, in Tocigl v Aitco Pty Ltd, Wilson P referred to the requirement to prove the seven elements of indirect discrimination in s 9(1A) plus ‘race’, field of public life, and the similar impact of the term or condition on persons of the same race, colour, descent, national or ethnic origin as the complainant.[119]

Though Commissioner Carter had misgivings, including that the Northern Territory government had acted as if no anti-discrimination legislation applied there,[120] he decided against the School Committee on the basis that its evidence did not reach the required standard to prove an impairment of the right to education:

It must be borne in mind in this context that the establishment of such a breach [of s 9(1)] represents a finding of unlawfulness and that must be established in accordance with the standard of proof explained by the High Court of Australia in Briginshaw v Briginshaw. ... I have to be satisfied in accordance with the defined standard of proof ... Proof that some children will cope [in another school] and others may not for idiosyncratic reasons does not sufficiently satisfy the standard of proof. ... I cannot be satisfied in accordance with the required standard of proof that the decision itself, although based on race, was unlawful under sub-section 9(1).[121]

The decision was not appealed. It could therefore be suggested that where proof of an element is a matter of degree (in this case to what extent the students’ right to education would be impaired by the act based on race), applying the Briginshaw standard may lead to the plaintiff failing to reach proof of that element.

D Proof of Discrimination Is Largely Based on Inferences

The introduction of anti-discrimination legislation has modified public conduct. There are now fewer overt examples of racism and sexism; instead, discrimination is more subtle and often must be inferred from proven facts. For example, in Maghiar v Western Australia[122] the complainant could prove his ethnicity and disability, and less favourable treatment by the Western Australian Police Service, but could not make the necessary causal connection between the two. At the point of examining whether an inference should be drawn from the facts, anti-discrimination tribunals will often refer to Briginshaw.[123] In Sharma v Legal Aid Queensland,[124] the complainant argued that racial discrimination could be inferred from his failure to secure permanent positions within the organisation. His complaint was rejected at first instance for lack of proof. He appealed to the Full Federal Court.[125] In a joint judgment, the Court dismissed the appeal on the grounds that there were insufficient facts from which inferences of racial discrimination could be drawn — Sharma had not reached the requisite level of proof to the Briginshaw standard. The Court proffered the following information:

It was common ground at first instance that the standard of proof for breaches of the RDA [Racial Discrimination Act 1975 (Cth)] is the higher standard referred to in Briginshaw ... Racial discrimination is a serious matter, which is not lightly to be inferred ... No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature.[126]

But what was the nature of the case? Legal Aid Queensland was apparently going about its ordinary business of assessing job applications. If proved, Sharma’s allegation would be embarrassing for Legal Aid Queensland, but would not necessarily lead to permanent consequences. Similar issues were considered in Dutt v Central Coast Area Health Service.[127] Dr Dutt, a senior specialist radiologist, alleged that he had been racially discriminated against in the workplace and victimised by his employer. The Health Service submitted that Dr Dutt must prove his case to the Briginshaw standard. The Equal Opportunities Division of the New South Wales Administrative Decisions Tribunal commented that

it is commonly accepted, across a wide range of allegations and factual circumstances, that findings should be made according to the evidentiary requirements of Briginshaw. Presumably, but rarely explicitly, this reflects a view that allegations under the ADA [Anti-Discrimination Act 1977 (NSW)] are grave and that there will, for a respondent, be serious consequences of any adverse findings.[128]

To ascertain whether the Briginshaw approach was necessary in this case the Tribunal proposed a simple two-step approach:

  1. Look at the nature of each allegation. Would it have reasonably foreseeable adverse consequences for the livelihood or reputation of the respondent?
  2. If so, then and only then, apply the Briginshaw test.[129]

Applying the test to the facts, the Tribunal found that the case did not raise issues of importance and gravity in the Briginshaw sense. All but one of Dr Dutt’s allegations relied on inferences to be drawn from the conduct of a range of people going about their ordinary duties in the hospital. A finding of unlawful discrimination would be well short of finding that there had been criminal conduct, and would cause no apparent adverse consequence to the people concerned. An allegation that a government agency and its staff in its day-to-day duties had contravened an anti-discrimination statute was not sufficient to attract the Briginshaw approach.

Even where Dr Dutt had alleged that another employee made an explicit reference to his race, the Tribunal held that this was hardly an allegation of criminal conduct. There was no reasonably foreseeable adverse consequence for the alleged perpetrator’s livelihood. A finding against that person might cause him embarrassment and reflect on his personal reputation, but these were not grave consequences which warranted reliance on the Briginshaw standard.

The Dutt test conforms with High Court authority.[130] Its correct application in the anti-discrimination jurisdiction would confine Briginshaw to those cases where proof of the allegation would result in a serious outcome for the respondent.

E ‘Without Regard to Technicalities and Legal Forms’: Preferred Evidentiary Procedures

Given the body of jurisprudence which now clearly states that Briginshaw should only be applied in certain circumstances, why has the test remained as a general rule in the anti-discrimination jurisdiction? In a paper prepared for the twentieth anniversary of the enactment of the Racial Discrimination Act 1975 (Cth), Margaret Thornton claimed that the anti-discrimination tribunals were demanding a standard of proof beyond the civil standard, one which more approximated the criminal burden of proof.[131] She argued that the reason for this extra burden on the complainant is that the tribunal members either ‘are not yet attuned to the meaning of the burden of proof in a non-judicial forum, or they are overly deferential to the hierarchy of appellate courts, ever ready to condemn deviations from legal form.’[132]

Early on in the development of the jurisdiction, the President of the Human Rights and Equal Opportunity Commission, Einfeld J, vigorously argued in three decisions on the Sex Discrimination Act 1984 (Cth)[133] that the hearing process should be inquisitorial rather than adversarial as few complainants would have the experience in finding and presenting their own evidence:

It seems to me unlikely that Parliament had in mind when enacting these provisions the strict imposition by the Commission of an onus of proof on one party, usually the moving party, as applies in true civil litigation. It seems to me more likely that the Commission’s intended task is to try by all reasonable means at its disposal to discover and satisfy itself as to the facts; ie to inform itself on the complaint as fully as possible, perhaps preferably per medium of the parties but if necessary and in appropriate cases, through counsel assisting the Commission, with a view to determining the likely truth.[134]

His Honour’s interpretation was not followed:[135] the jurisdiction is clearly adversarial. However, Einfeld J had a valid point. The anti-discrimination tribunals of the states and the Northern Territory are not bound by the rules of evidence.[136] They may inform themselves on any matter they choose. The aim is to give the parties a reasonable opportunity to establish their cases without legalistic form. This, however, may not be apparent to the parties. Complainants are encouraged by the legislation to draft their own complaint[137] and to proceed to conciliation without legal representation.[138] However, if conciliation fails and they wish to resolve the issue at a public hearing, they are faced with a tribunal that demands the Briginshaw standard, a rule of evidence which is not clearly articulated and is incompletely understood even, as we have seen, by the tribunals themselves. A complainant’s evidence, possibly gathered by himself or herself, is now exposed to unnecessary pedantic legal scrutiny.

That a relaxation of the rules of evidence may have actually reinforced the use of Briginshaw was averted to by Merkel J in Shaw v Wolf.[139] His Honour noted that the law of evidence rests essentially on principles of fairness. Where the parties do not have the protection of the law of evidence, that may be an additional reason for exercising greater care in scrutinising evidence not admissible in a court of law. Nevertheless this provides no general justification for applying Briginshaw, a test created for civil courts where the rules of evidence do apply.

The legislative direction that rules of evidence need not apply in anti-discrimination tribunals does not mean that they might not be useful. This is especially so if there is a grave danger of injustice because some ‘methods of inquiry ... necessarily advantage one party and necessarily disadvantage the opposing party.’[140] In a situation where it could be suggested that respondents are benefiting from the imposition of the Briginshaw standard, the tribunals could adopt[141] a provision such as s 140 of the Evidence Act 1995 (NSW). It is cast in similar terms to the Briginshaw test:

140. Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

The Federal Court and Federal Magistrates Court are required to apply the rules of evidence to federal discrimination matters. With respect, it is suggested that s 140 of the Evidence Act 1995 (Cth), which is cast in identical terms to the New South Wales provision, could be used instead of the Briginshaw test.[142] The general adoption of this provision by all anti-discrimination fora would focus attention on the correct standard of proof and on the gravity of the matter alleged.

F What Sort of Cases Are Likely to Attract the Briginshaw Test?

I suggest that in the anti-discrimination jurisdiction there will be very limited circumstances that will attract the Briginshaw test. One example that comes to mind is McKenna v Victoria.[143] Narelle McKenna, a former police officer, complained that individual police officers had sexually harassed her, discriminated against her on the grounds of sex and marital status and had victimised her when she complained. She alleged that their employer, the State of Victoria, was vicariously liable for the officers’ unlawful conduct. The Tribunal found that the nature of the allegations was such that some of them (including presumably the complaint relating to a fellow officer trying to drag Constable McKenna into a cell for sex) ‘could equally have been brought as criminal prosecutions’.[144] Taking this into account with the probability that an adverse finding would ‘seriously affect the professional reputation and standing in the community of the second respondent and could have consequences for his career with Victoria Police’,[145] the Tribunal applied Briginshaw. It found for McKenna and awarded her compensation of $125 000, the largest sum ever awarded in Australia in a discrimination case.

Naturally the State and the police officers appealed.[146] There were 54 grounds of appeal, including that the Tribunal had not paid sufficient attention to the status and reputation of the respondents and had wrongly applied Briginshaw. The appeal was dismissed. Smith J of the Victorian Supreme Court noted that just because the Tribunal did not expressly mention Briginshaw when discussing each allegation, this did not mean that it had been overlooked. His Honour held that the Tribunal had carefully followed Dixon J’s analysis, paraphrasing and applying each of the principles of Briginshaw to all the allegations. However, with due respect, if Briginshaw had been correctly applied it should have been only to the complaint regarding the use of force against Constable McKenna as this raised an allegation of serious criminal conduct.

Therefore, allegations of sexual harassment that involve physical assault would be relevant, as would the possibility that the respondent might be struck off his or her professional register.[147] Another type of situation might be where an organisation which has been specifically set up to deal with matters of discrimination has been accused of discrimination because, if proved, this would have a devastating effect on its reputation.[148]

G What Are the Consequences of Applying Briginshaw Inappropriately?

It is possible that, in practice, many tribunals do little more than pay lip-service to Briginshaw.[149] However, its continued use is inimical to the spirit and intent of legislation whose aim is to protect from unlawful discrimination and harassment, promote equality of opportunity and provide equality before the law. For the complainant, the misapplication of Briginshaw has a number of adverse consequences.

1 The Parties Are Not Equal before the Law

The evidentiary requirements apparently shift according to the status of the respondent. The high status of the respondent should not be a factor that influences the clarity of evidence required.

2 The Wrong Standard of Proof Applied

By and large the anti-discrimination legislation does not stipulate what standard of proof is required.[150] This is perhaps unfortunate because, as outlined above, even some judges wrongly suggest that the requisite standard of proof lies somewhere between the balance of probabilities and beyond a reasonable doubt.

3 Uncertainty

Far from solving the issue of ‘wavering’ proof, the Briginshaw approach produces uncertainty. In the absence of a clear articulation of the rule, neither tribunals nor parties are sure how much evidence is needed to convince the tribunal. This uncertainty disadvantages the complainant and favours the respondent where the alleged conduct is not grave and serious.

4 Briginshaw Adds to the Impression that the Jurisdiction Is Not ‘User-Friendly’

Australian anti-discrimination legislation purports to offer a jurisdiction which is easy to access and is relatively free of technicalities and legal forms.[151] The very nature of the jurisdiction means that complainants will generally be vulnerable because of disability, race, age, gender or minority status, or because he or she has been harassed, vilified or victimised. To run the gauntlet of lodging a complaint that is not ‘frivolous, vexatious, misconceived or lacking in substance’,[152] and then to meet the bewildering requirement of proof of the elements to the Briginshaw standard, is perhaps more than many complainants would be able to cope with.

5 Stricter than Other Jurisdictions

No other jurisdiction routinely demands the rigorous Briginshaw standard. Even in the situation where a defendant’s negligence may demand millions of dollars in compensation,[153] no greater proof of evidence is demanded than assessment on the balance of probabilities.[154]

6 Against All Authority

The ready acceptance of Briginshaw ‘is apparently at odds with the Full Federal Court in State of Victoria [v Macedonian Teachers’ Association of Victoria Inc], and with the principle stated by the High Court in G v H.’[155]

VI CONCLUSION

According to High Court and other appellate court authority, the trigger for applying the Briginshaw test is the possibility that an adverse finding will produce a grave consequence for the defendant. When that occurs, the tribunal or court must be satisfied with the quality of the evidence to prove the allegation. Unfortunately, this guidance has been misinterpreted in the anti-discrimination jurisdiction to mean that because discrimination and harassment are serious matters Briginshaw must be applied to all cases regardless of the circumstances. The indiscriminate use of the principle has undermined the civil standard of proof in this jurisdiction and created uncertainty and injustice. Testing the nature of the allegation and its possible outcome, as suggested in Dutt v Central Coast Area Health Service, would restore faith in the jurisdiction and fulfil the express objective of the legislation — to provide equality between the parties.


[*] BA (UNSW), LLB (Hons), PhD (QUT); Lecturer, Faculty of Law, Queensland University of Technology.

[1] O’Callaghan v Loder [1984] EOC 92-024.

[2] The ‘Briginshaw standard of proof’ was articulated in the High Court decision of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (‘Briginshaw’). As this article makes clear, the test is more a means of highlighting the standard of required evidence in civil cases than an actual standard of proof.

[3] O’Callaghan v Loder [1984] EOC 92-024, 75 511 (Mathews J, Members Thiering and Swinbourne).

[4] John Dyson Heydon, Cross on Evidence (6th ed, 2000) 247.

[5] Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521–2 (Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ).

[6] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192, 216 (Dixon J).

[7] [1938] HCA 34; (1938) 60 CLR 336.

[8] Ibid 372 (McTiernan J).

[9] Ibid 350.

[10] Ibid.

[11] Ibid 361–2.

[12] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, 449–50 (Mason CJ, Brennan, Deane and Gaudron JJ).

[13] Sir Owen Dixon, ‘The Development of the Law of Homicide’ (Speech delivered at the First Convention of the Law Council of Australia, Melbourne, 31 October 1935). Sir Owen Dixon was discussing the recently decided English case of Woolmington v DPP [1935] AC 462 and Sankey LC’s famous ‘golden thread’ speech (at 481).

[14] Dutt v Central Coast Area Health Service [2002] NSWADT 133 (Unreported, Judicial Member Rice, Members Alt and McDonald, 6 August 2002) [47] (Judicial Member Rice, Members Alt and McDonald).

[15] [1992] HCA 66; (1992) 110 ALR 449, 449–50 (citations in original).

[16] See, eg, Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430, 500 (Dixon J); Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 519–21.

[17] Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J); Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 701 (Starke J); Hocking v Bell [1944] NSWStRp 31; (1944) 44 SR (NSW) 468, 477 (Davidson J); aff’d [1945] HCA 16; (1945) 71 CLR 430, 464 (Latham CJ), 500 (Dixon J); Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521; Wentworth v Rogers [No 5] (1986) 6 NSWLR 534, 539 (Kirby P).

[18] Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521.

[19] Jonesco v Beard [1930] AC 298, 300 (Lord Buckmaster); Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J); Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 711 (Dixon, Evatt and McTiernan JJ); Hocking v Bell [1944] NSWStRp 31; (1944) 44 SR (NSW) 468, 478 (Davidson J); aff’d [1945] HCA 16; (1945) 71 CLR 430, 464 (Latham CJ), 500 (Dixon J); Wentworth v Rogers [No 5] (1986) 6 NSWLR 534, 538 (Kirby P).

[20] Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521.

[21] See, eg, Motchall v Massoud [1926] ArgusLawRp 22; [1926] VLR 273, 276 (Irvine CJ).

[22] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, 450.

[23] [1994] HCA 48; (1994) 181 CLR 387.

[24] Ibid 399 (Deane, Dawson and Gaudron JJ).

[25] Ibid 399–400 (Deane, Dawson and Gaudron JJ).

[26] Transcript of Proceedings, Rosecrance v Rosecrance (High Court of Australia, McHugh J, 18 June 1999).

[27] Transcript of Proceedings, Witham v Holloway (High Court of Australia, McHugh J, 10 February 1995).

[28] Transcript of Proceedings, Witham v Holloway (High Court of Australia, Gaudron J, 10 February 1995).

[29] Ibid.

[30] [1940] HCA 20; (1940) 63 CLR 691.

[31] Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 712 (Dixon, Evatt and McTiernan JJ).

[32] Patrick Parkinson, ‘Family Law and Parent-Child Contact: Assessing the Risk of Sexual Abuse’ [1999] MelbULawRw 15; (1999) 23 Melbourne University Law Review 345. Parkinson estimates that the allegation is made in between one quarter and one half of all contested cases: at 346.

[33] (1988) 166 CLR 69.

[34] Ibid 77 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).

[35] Ibid 76.

[36] Ibid 77.

[37] Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J).

[38] [1945] HCA 16; (1945) 71 CLR 430.

[39] [1965] HCA 46; (1965) 112 CLR 517.

[40] Ibid 521.

[41] Maher v Wall [2000] SASC 176 (Unreported, Duggan J, 23 June 2000) (allegation of forgery of a motor vehicle disposal notice).

[42] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, 450–1 (Mason CJ, Brennan, Deane and Gaudron JJ) (competing and inconsistent financial figures in relation to a business).

[43] See, eg, Smith v Hehir [2001] EOC 93-165, 75 571 (Member Tahmindjis); Menzies v Waycott [2001] EOC 93-129, 75 247 (Senior Member Lyons).

[44] See ‘Resolution of Disputes’ in CCH, Australian and New Zealand Equal Opportunity Law and Practice, vol 1 (at 1 August 2003) 72 273–459.

[45] Ibid.

[46] Bloomfield v Westco Jeans Pty Ltd [2001] EOC 93-161 ($250); Skinner v Lightning Bolt Pty Ltd [2001] EOC 93-167 ($72 582, not altered on appeal).

[47] Shiels v James [2000] FMCA 2 (Unreported, Federal Magistrate Raphael, 13 September 2000).

[48] For an example from the area of the provision of goods and services, see Evans v Lee [1996] HREOCA 8; [1996] EOC 92-822, 79 055–7 (Commissioner Jones).

[49] See, eg, Workplace Relations Act 1996 (Cth) pt VIA; Industrial Relations Act 1999 (Qld) pt 3.

[50] Bigg v NSW Police Service (1998) 80 IR 434, 456 (Bauer and Schmidt JJ and Commissioner Murphy).

[51] Wang v Crestell Industries Pty Ltd (1997) 73 IR 454, 463–4 (Cahill V-P, Hill J and Commissioner French).

[52] [2000] NSWIRComm 38; (2000) 98 IR 1.

[53] Ibid 7 (Wright P, Hungerford J and Commissioner Cambridge).

[54] (1987) 1 Qd R 381.

[55] Ibid 383 (Thomas J).

[56] Re Major Reviews of Percy, Farrell and R J O [1998] VSC 70; (1998) 102 A Crim R 554.

[57] Ibid 567.

[58] Re Major Review of Percy [1998] VSC 90; (1998) 104 A Crim R 29.

[59] MacDonald v A-G (Cth) (1980) 24 SASR 294.

[60] Ibid 308–9.

[61] Ibid 302.

[62] [1992] HCA 15; (1992) 175 CLR 218 (‘Marion’s Case’). Deane J cited (at 305) with approval the application of Briginshaw in Re Jane [1988] FamCA 57; (1988) 94 FLR 1, 20–1 (Nicholson CJ).

[63] Marion’s Case [1992] HCA 15; (1992) 175 CLR 218, 305.

[64] [1998] FCA 389; (1999) 163 ALR 205.

[65] Ibid 216.

[66] Ibid.

[67] This three-part test of Aboriginality was proposed by Deane J in Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1, 273–4 (‘Tasmanian Dams Case’).

[68] One respondent failed to appear or file any pertinent information, while the other unsuccessful respondent failed to provide cogent genealogical evidence linking her to any known Aboriginal family. Even though she identified herself as Aboriginal and there was some community recognition of her status, Merkel J held that the petitioners had discharged their onus of proof: Shaw v Wolf [1998] FCA 389; (1999) 163 ALR 205, 233–9.

[69] (1939) 56 WN (NSW) 53. This case was relied upon by the lawyers for the Commissioner for Main Roads in O’Callaghan v Loder [1984] EOC 92-024, discussed below in Part V(A).

[70] Re a Solicitor; Ex parte The Prothonotary (1939) 56 WN (NSW) 53, 54.

[71] [1966] VicRp 40; [1966] VR 292, 296.

[72] [1996] SASC 5650; (1996) 67 SASR 149.

[73] Ibid 153.

[74] For example, in Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455, Drummond J stated that ‘a finding of unlawful conduct could only be made against the respondents if it was proved to the standard referred to in Briginshaw v Briginshaw’: at 468.

[75] Chris Ronalds, Discrimination Law and Practice (1998) 182.

[76] See, eg, Batzialas v Tony Davies Motors Pty Ltd [2002] FMCA 243 (Unreported, Federal Magistrate McInnes, 7 November 2002) (racial discrimination); Smith v Hehir [2001] EOC

93-165 (sexual harassment).

[77] Smith v Hehir [2001] EOC 93-165, 75 571 (Member Tahmindjis). This statement of law was not challenged on appeal to the Supreme Court of Queensland.

[78] [2000] NSWIRComm 38; (2000) 98 IR 1.

[79] Ibid 8.

[80] See, eg, Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Human Rights and Equal Opportunity Commission Act 1986 (Cth); Disability Discrimination Act 1992 (Cth); Discrimination Act 1991 (ACT); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 1995 (Vic); Equal Opportunity Act 1984 (WA).

[81] Cocks v Queensland [1994] QADT 3; [1994] EOC 92-612.

[82] See, eg, Djokic v Sinclair [1994] HREOCA 16; [1994] EOC 92-643, 77 419 (Wilson P); Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455, 467–8 (Drummond J); Borg v Commissioner, Department of Corrective Services [2002] EOC 93-198, 76 342 (Goode P, Members Nemeth de Bikal and Farmer).

[83] See, eg, Scott v Telstra [1995] EOC 92-717, 78 398 (Wilson P); Tocigl v Aitco Pty Ltd [1996] EOC 92-775, 78 762 (Wilson P); Rhodes v Calendula Pty Ltd [2001] QADT 19; [2002] EOC 93-181, 76 162 (Member Wyvill).

[84] However, there is no need to prove intent or motive in complaints of discrimination. With respect to sexual harassment there is an objective test, except in Queensland, which offers the choice of an objective test or proof of an intention to harass: Anti-Discrimination Act 1991 (Qld) s 119(e).

[85] [1984] EOC 92-024.

[86] Ibid 75 514.

[87] Ibid 75 511.

[88] The first Australian anti-discrimination legislation, the Prohibition of Discrimination Act 1966 (SA), made discrimination a criminal offence. No successful prosecutions were brought under this Act. It was repealed and replaced by the Equal Opportunity Act 1984 (SA) which provides for civil remedies.

[89] (1939) 56 WN (NSW) 53.

[90] O’Callaghan v Loder [1984] EOC 92-024, 75 512.

[91] Ibid.

[92] Ibid 75 517.

[93] [1984] EOC 92-015.

[94] Ibid 75 438.

[95] Ibid 75 439 (emphasis added).

[96] Ibid 75 440.

[97] Ibid 75 444.

[98] [1984] EOC 92-024, 75 512.

[99] The Racial Discrimination Act 1975 (Cth) was the first statute to provide for civil remedies, followed by the Sex Discrimination Act 1975 (SA) and the Anti-Discrimination Act 1977 (NSW).

[100] [1988] VicRp 42; [1988] VR 319.

[101] Ibid 327, corrected by the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349.

[102] See, eg, Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8, 44 (Weinberg J); Sharma v Legal Aid (Qld) [2002] FCAFC 196 (Unreported, Heerey, Mansfield and Hely JJ, 21 June 2002) [40] (Heerey, Mansfield and Hely JJ); Victoria v McKenna [1999] VSC 310 (Unreported, Smith J, 27 August 1999)

[39]–[44].

[103] Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319, 330–1.

[104] [1988] EOC 92-228.

[105] Ibid 77 165.

[106] [1992] EOC 92-422.

[107] Ibid 79 010. The serious consequences of allegations which might impugn the integrity of city councillors were also mentioned in Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701, 78 265 (Judicial Member Bartley, Members Farmer and Luger); Moerjono v Waverley Council [1995] EOC 92-671, 78 127 (Judicial Member Goode, Members Farmer and Toltz); Evershed v City of Geraldton [1995] EOC 92-745, 78 564 (Hasluck P, Member Kean and Deputy Member Jacobs) (‘Evershed’). In Evershed, a further consequence was that the elected councillors would be setting a bad example to the community if it was found that they had infringed the legislation: at 78 564.

[108] D L (Representing the Members of People Living with AIDS (WA) Inc) v Perth City Council [1992] EOC 92-422, 79 010 (Roberts-Smith P).

[109] City of Perth v D L [1994] EOC 92-634; City of Perth v D L (Representing the Members of People Living with AIDS (WA) Inc) [1996] EOC 92-796.

[110] I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1.

[111] [1998] FCA 1650; [1999] EOC 93-009.

[112] Australian Macedonian Human Rights Committee (Inc) v Victoria (Unreported, Human Rights and Equal Opportunity Commission, Wilson P, 8 January 1998) 7, cited in Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8, 23 (Weinberg J).

[113] Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8, 44.

[114] Ibid.

[115] Victoria v Macedonian Teachers’ Association of Victoria Inc [1999] FCA 1287; (1999) 91 FCR 47, 51 (O’Connor, Sundberg and North JJ).

[116] [2002] FCAFC 196 (Unreported, Heerey, Mansfield and Hely JJ, 21 June 2002).

[117] [1992] EOC 92-415 (‘Traeger Park Case’).

[118] Opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).

[119] [1996] EOC 92-775, 78 760–6.

[120] Traeger Park Case [1992] EOC 92-415, 78 969.

[121] Ibid 78 967–8 (emphasis added).

[122] [2001] FMCA 98 (Unreported, Federal Magistrate Raphael, 11 October 2001).

[123] See, eg, Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319, 330–1 (Fullagar J); Djokic v Sinclair [1994] HREOCA 16; [1994] EOC 92-643, 77 419 (Wilson P); Moerjono v Waverley Council [1995] EOC 92-671, 78 127; Sharma v Legal Aid (Qld) [2002] FCAFC 196 (Unreported, Heerey, Mansfield and Hely JJ, 21 June 2002) [40]–[41].

[124] [2001] FCA 1699; (2001) 112 IR 124.

[125] Sharma v Legal Aid (Qld) [2002] FCAFC 196 (Unreported, Heerey, Mansfield and Hely JJ, 21 June 2002).

[126] Ibid [40] (citations omitted).

[127] [2002] NSWADT 133 (Unreported, Judicial Member Rice, Members Alt and McDonald, 6 August 2002).

[128] Ibid [52].

[129] Ibid [55]–[57].

[130] See, eg, Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; G v H [1994] HCA 48; (1994) 181 CLR 387.

[131] Margaret Thornton, ‘Revisiting Race’ in Race Discrimination Commissioner, The Racial Discrimination Act: A Review (1995) 81, 95.

[132] Ibid.

[133] Australian Public Service Association v Australian Trade Commission [1988] EOC 92-228, 77 165 (indirect discrimination); Erbs v Overseas Corporation Pty Ltd [1986] EOC 92-181, 76 721 (direct discrimination); Bennett v Everitt [1988] EOC 92-244, 77 270 (sexual harassment).

[134] Erbs v Overseas Corporation Pty Ltd [1986] EOC 92-181, 76 721.

[135] Indeed, the Human Rights and Equal Opportunity Commission’s hearing role was held to be unconstitutional in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.

[136] Administrative Decisions Tribunal Act 1997 (NSW) s 73(1); Anti-Discrimination Act 1992 (NT) s 90(1)(a); Anti-Discrimination Act 1991 (Qld) s 208(1); Equal Opportunity Act 1984 (SA) s 23(2); Anti-Discrimination Act 1998 (Tas) s 87(4); Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(b); Equal Opportunity Act 1984 (WA) s 120(a). There appears to be no corresponding provision in the Discrimination Act 1991 (ACT). Complaints in the federal jurisdiction are now heard by the federal courts where the rules of evidence do apply.

[137] See, eg, Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46P; Anti-Discrimination Act 1977 (NSW) s 88(1)(a); Anti-Discrimination Act 1991 (Qld) s 136; Equal Opportunity Act 1995 (Vic) s 105.

[138] See, eg, Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PK(5); Anti-Discrimination Act 1977 (NSW) s 93; Anti-Discrimination Act 1991 (Qld) s 163; Equal Opportunity Act 1984 (SA) s 95(6).

[139] [1998] FCA 389; (1999) 163 ALR 205, 216.

[140] R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, 256 (Evatt J).

[141] The provisions in all Australian state anti-discrimination legislation and in the Northern Territory allow tribunals to determine their own procedure; for example, by adopting rules of evidence, practices and procedures: Administrative Decisions Tribunal Act 1997 (NSW) s 73(1); Anti-Discrimination Act 1992 (NT) s 90(1)(a); Anti-Discrimination Act 1991 (Qld) s 208(1); Equal Opportunity Act 1984 (SA) s 23(2); Anti-Discrimination Act 1998 (Tas) s 87(4); Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(b); Equal Opportunity Act 1984 (WA) s 120(a).

[142] The continued use of the Briginshaw test has been noted by the Human Rights and Equal Opportunity Commission on two occasions: Human Rights and Equal Opportunity Commission, Change and Continuity: Review of the Federal Unlawful Discrimination Jurisdiction September 2000–September 2002 (2002) 16–19; Human Rights and Equal Opportunity Commission, Change and Continuity: Review of the Federal Unlawful Discrimination Jurisdiction Supplement September 2002–March 2003 (2003) 1.

[143] [1998] EOC 92-927.

[144] Ibid 78 164 (Wolters D-P, Members Lanteri and McCallum).

[145] Ibid.

[146] Victoria v McKenna [1999] VSC 310 (Unreported, Smith J, 27 August 1999).

[147] For example, the respondent medical practitioners accused of sexual harassment in Hall v Sheiban (1988) HREOCA 5; [1988] EOC 92-227 and Elliott v Nanda [2001] FCA 418; (2001) 111 FCR 240. Briginshaw was applied in the latter case: at 274 (Moore J).

[148] See, eg, Williams v South Australia [1990] EOC 92-283 where racial discrimination was alleged against the South Australian Equal Opportunity Commission; Bell v Aboriginal and Torres Strait Islander Commission [1994] EOC 92-565 which concerned racist remarks against a white employee ‘in the context of an organisation whose entire functioning is the promotion of Australia’s indigenous peoples’: at 77 094 (Commissioner Castan).

[149] See, eg, Kalich v Es [1999] EOC 92-961, 79 073 (Member Laurie); Borg v Commissioner, Department of Corrective Services [2002] EOC 93-198, 76 342; Rhodes v Calendula Pty Ltd [2001] QADT 19; [2002] EOC 93-181, 76 162 (Member Wyvill).

[150] There are some exceptions: see, eg, Anti-Discrimination Act 1991 (Qld) ss 2046.

[151] For example, there are no particular forms and complainants are encouraged to draft their own complaints and even conduct their own cases at the conciliation stage.

[152] Anti-Discrimination Act 1977 (NSW) ss 90(1), 111(1); Equal Opportunity Act 1995 (Vic) ss 108(1), 109(1). See also Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PH(1)(c); Anti-Discrimination Act 1991 (Qld) s 139.

[153] See, eg, Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520.

[154] Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470, 476–7 (Dixon CJ), 481 (Williams, Webb and Taylor JJ), 488 (Kitto J).

[155] Dutt v Central Coast Area Health Service [2002] NSWADT 133 (Unreported, Judicial Member Rice, Members Alt and McDonald, 6 August 2002) [54].


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/MelbULawRw/2003/13.html