An International Comparison of the Racial Discrimination Act 1975 (2008) Chapter 8: The Burden of Proof
An International Comparison of the Racial Discrimination Act 1975
Chapter 8: The Burden of Proof
8.1 The Burden of Proof in Australia
8.2 The Burden of Proof in the European Union
8.3 The Burden of Proof in the United Kingdom
8.3.1 Pre-Directive Judicial Approaches
8.3.2 Implementation of the Racial Equality Directive
8.3.3 Requirements of a Prima Facie Case
8.3.4 The Effect of Shifting - or Failing to Shift - the Burden of Proof
8.3.5 Further Complications: The Relevant Comparator
8.4 The Burden of Proof in the United States and Canada
Stage 1: The Prima Facie Case
Stage 2: The Legitimate Explanation
Stage 3: Proving that Race is the Real Motivation
8.5 Indirect Discrimination
8.6 Standards of Proof and Standards of Evidence
8.6.2 Standards of Proof in Other Jurisdictions
It is a basic principle of many adversarial legal systems that, in civil matters, ‘he who asserts must prove’. That is, it is the person seeking the benefit of the law who bears the burden of persuading the court that it should exercise its authority. Like many general principles, however, this rule has its exceptions, where for reasons of justice or public policy it makes sense to require the respondent to carry the onus of proof, or at least bear the burden of bringing evidence on a particular issue, which the plaintiff must then refute. In Australian tort law, for example, while the burden of proof generally rests on the plaintiff, it has been established that the defendant bears the burden of proving contributory negligence, or proving that the plaintiff failed to take steps to mitigate damages.
Under the Australian Racial Discrimination Act 1975 (Cth), the person alleging racial discrimination is required to establish all the elements of the offence on the balance of probabilities. Where direct discrimination is alleged, for example, the plaintiff is required to prove:
- - that the respondent did an “act involving a distinction, exclusion, restriction or preference... which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life” and;
- - that this act was based on race, colour, descent or national or ethnic origin.
Of these two elements, it is often the second which presents the plaintiff with the greatest difficulty. As Professor Gaze notes: “Proving the reason for an action or decision that exists in another person’s mind, where all the evidence is controlled by the other person and they are not required to give any reason, is very difficult”. The difficultly for the plaintiff is compounded by the high standard of evidence required by the court, which has been historically reluctant to find that a respondent has discriminated on the basis of race without clear and cogent evidence (based on the Briginshaw principle, which will be discussed further at 8.6.1). As a result of these two factors, there have been very few successful cases in which direct racial discrimination has been proved under Australian federal law.
This interpretation of the Racial Discrimination Act 1975 (Cth), which places the entire persuasive and evidentiary burden on the plaintiff at all stages of the case, has been criticised in some quarters. The Committee for the Elimination of All Forms of Racial Discrimination, for example, has urged Australia to “envisage regulating the burden of proof in civil proceedings involving racial discrimination so that once an alleged victim has established a prima facie case that he or she has been a victim of such discrimination, it shall be for the respondent to provide evidence of an objective and reasonable justification for differential treatment.” In light of this, it is useful to consider the alternative approaches taken in each of the other four jurisdictions studied in this paper. In each of these jurisdictions, there is an onus on the defendant to give an explanation for conduct which is prima facie discriminatory, either by proving on the balance of probabilities that their actions were not racially motivated, as in the U.K. and the rest of the European Union, or simply by articulating a legitimate explanation for the apparently discriminatory behaviour, as in the U.S. and Canada.
Interestingly, this concept of a reversed burden of proof in discrimination matters is not entirely alien to Australian federal law. The Workplace Relations Act 1996 (Cth) sets out certain proscribed reasons for terminating the employment of a person covered by the act, one of which is “race, colour... national extraction or social origin”. When an employee seeks to make a claim under this section of the act, “it is not necessary for the employee to prove that the termination was for a proscribed reason”, rather “it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason”. Thus, it appears that the employee need only prove that their employment was terminated, after which the burden of proof falls on the defendant to prove that race was not a reason for the termination. It is unclear why such a different standard of proof should apply only to a limited subset of employees (those covered by federal regulation) and only in the narrow field of employment termination.
The Racial Equality Directive sets out certain minimum standards regarding the burden of proof to be applied in cases of racial discrimination, while noting that it remains open to member states to put in place rules which are more favourable to plaintiffs. Where a person alleging discriminatory treatment manages to establish “facts from which it may be presumed that there has been direct or indirect discrimination” the burden of proof shifts to the respondent to “prove that there has been no breach of the principle of equal treatment.”  This principle applies only to civil, and not criminal proceedings, and need not be applied in cases that are tried under an inquisitorial system, where the court itself is responsible for establishing the facts of the case.
Crucially, the question of what facts will be sufficient to create a presumption of discrimination, and therefore shift the onus on to the respondent, is left to the discretion of national courts. Some guidance may be provided, however, by the approach taken by the European Court of Human Rights (ECHR) and the European Court of Justice (ECJ). When ruling on whether the right to non-discrimination contained within the European Convention on Human Rights has been breached by a state party, the ECHR has stated that the applicant is only required to show evidence of a difference in treatment, after which the onus passes to the state to demonstrate that the difference in treatment can be justified. Thus, the plaintiff must show that they have been treated differently to a (perhaps hypothetical) group of persons in a comparable situation but from a different racial background. Once this has been shown, the respondent is then obliged to provide evidence of a non-discriminatory explanation for such a difference in treatment, in order to displace the assumption that it constitutes unlawful racial discrimination. The rationale for this shift in the burden of proof is that it is very difficult for the plaintiff to prove that any particular treatment is due to the plaintiff’s race, since the facts that go to prove such a matter are likely to be known only to the respondent. Likewise, in cases of indirect discrimination, it is difficult for the plaintiff to prove a negative (that there is no objective justification for the actions which have an adverse effect), but correspondingly easier for the respondent to prove a positive justification where one exists.
Prior to the implementation of the Racial Equality Directive, the courts in the U.K. had already established a practice of requiring the respondent in a racial discrimination case to provide an explanation for actions which appeared prima facie to be discriminatory. In the case of King v Great Britain-China Centre, Lord Justice Neil stated that “a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances, the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds.” This requirement that the respondent provide an adequate explanation was not expressed as a shifting legal burden of proof, since the risk of non-persuasion remains at all times with the plaintiff. Nonetheless, the court described this approach as “almost common sense” given the unlikelihood that any evidence will be available to the plaintiff to directly prove the causal link between the differential treatment and the difference in race.
While it may be ‘legitimate’ for the court to draw an inference of discrimination where the respondent fails to provide an adequate explanation to rebut the plaintiff’s prima facie case, the pre-Directive case law in the U.K. also emphasises that the court is not legally bound to find in the plaintiff’s favour. It will therefore not always be sufficient for the plaintiff to demonstrate differential treatment and difference in race and rely on the absence of an explanation to infer racially discriminatory grounds.
In 2003, several changes were made to the Race Relations Act 1976 (UK) in order to implement the E.U. Racial Equality Directive. These changes included a statutory procedure for shifting the burden of proof from the plaintiff to the defendant once a prima facie case has been established. The new sections of the Act state that:
“Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent... has committed such an act of discrimination or harassment against the complainant... the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.”
This new burden shifting process applies only to those types of discrimination which are covered by the Directive. Non-Directive grounds of discrimination, such as colour or national origin, continue to be governed by the pre-existing judicial approach outlined above.
The new statutory requirements effectively mean that once a plaintiff has established a prima facie case of discrimination or harassment, the burden of proof shifts to the defendant to convince the court that racial discrimination was not a factor in the decision or treatment in question. While it is clear that this section alters the existing law to the extent that a court is now required, rather than simply permitted, to find in favour of the plaintiff when the respondent fails to provide an adequate explanation to rebut the prima facie evidence, there remains a significant degree of confusion as to what facts must be established by the plaintiff before the burden of proof is shifted to the respondent.
In some cases, the British courts have suggested that a prima facie case is only established, and the burden shifted to the defence, once the plaintiff has established all the elements of the offence. In Madarassy v Nomura International, the court stated that merely proving “a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” In addition to proving the plaintiff was treated differently to those of a different race (or, in this case, gender), it is also necessary for the plaintiff to prove that race (or gender) was the reason for the disparate treatment.
In contrast, the court in Igen v Wong described the rationale behind the statutory changes as making ‘good sense’ since “a complainant can be expected to know how he or she has been treated by the respondent whereas the respondent can be expected to explain why the complainant has been so treated.” Such an approach seems to suggest that the plaintiff need only prove the difference in treatment in order to establish a prima facie case, with the reasons for the treatment to be established by the respondent at the second stage. This conclusion is born out by the finding in this case that, where the plaintiff had shown only that they belonged to a racial minority and were treated unreasonably by their white employer, it was open to the court to draw an inference of discrimination, and thus shift the burden of providing an explanation onto the respondent.
The guidelines established in Igen v Wong and affirmed in Madarassy go some way to resolving this confusion. These state that the plaintiff must prove all the elements of the offence, showing “facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the grounds of race” before the burden of proof shifts to the respondent. They thus require the plaintiff to show both less favourable treatment, and facts that would allow the court to conclude that the less favourable treatment was on racial grounds. At the same time, the plaintiff’s prima facie case need not be established by direct proof, which is unlikely to be available, but may depend upon inferences available from the primary facts. Where the plaintiff can show only that they come from a racial minority, and were treated differently, it seems that the pre-amendment case law will continue to apply and, as a matter of ‘common sense’, the court will in some circumstances be able to infer from these facts that the treatment was based on race. At this point, the burden of proof will shift to the respondent to disprove the allegations of racial discrimination.
Once the onus of proof is transferred to the respondent, it imposes quite a heavy burden. The respondent must “prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of (race)”. Moreover, while inferences might be sufficient for the plaintiff at the initial stage, more direct evidence may be expected from the respondent. “Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof”.
Even in cases where the complainant fails to make out a prima facie case, this will not necessarily mean that their claim will not succeed. This is because, when the court is assessing whether a prima facie case has been made out, it is obliged to ignore any explanation offered by the defendant. In some cases, however, if the defendant’s explanation itself reveals a discriminatory line of reasoning or is demonstrably fabricated, the explanation itself will lend weight to the plaintiff’s case. It is possible, therefore, for the plaintiff to fail at the initial stage to shift the burden of proof onto the respondent, but still ultimately succeed in proving discrimination on the balance of probabilities.
Before deciding whether the complainant has established a prima facie case sufficient to shift the burden of proof, the court will consider all the evidence of both parties, excluding only the defendant’s explanation for why the treatment occurred. In some cases, it may be difficult to decide which evidence should be ignored at this stage, since evidence adduced by the respondent to show that the plaintiff was not subject to different treatment may also be evidence of an alternative, non-racial explanation for the respondent’s actions. For example, if the complainant asserts that she is the only racial minority employed by the respondent, and the only employee to be demoted, the respondent may reply that the reason the complainant was demoted was because she frequently failed to show up for shifts. This argument is clearly an explanation, and would be ignored by the court when assessing whether a prima facie case had been made out. The respondent might also claim, however, that the complainant was treated identically to (hypothetical or actual) non-minority employees, who would also be demoted if they failed to show up for shifts. In this case, it is less obvious that the employer is presenting an explanation, since the argument is phrased in terms of denying the complainant was treated differently, and disputing the relevance of the comparator group chosen by the complainant.
Those cases that attempt to distinguish between arguments regarding the appropriate comparator (which may be taken into account at the first stage) and explanations (which are relevant only once the burden of proof has shifted to the respondent) often involve a great deal of highly complex and artificial reasoning. In Laing v Manchester City Council, the court held that, since it was so difficult to distinguish between these two types of evidence, and since the allocation of the burden of proof was really only relevant when the evidence of both parties was exactly matched, it made sense in most cases to abandon the two stage test all together. Perhaps a better solution, and one which seems to have been adopted in Dattani v West Murcia Police, is to exclude at the first stage of decision-making all of the respondent’s evidence which “could properly be described” as explanations, even where such evidence is phrased as a challenge to the complainant’s prima facie case. Such an approach avoids artificial distinctions, and has little risk of causing injustice for the respondent, since their evidence will be given full consideration at the second stage of the decision making process.
Even with a shifting burden of proof, it would still be possible for a respondent to remain silent and refuse to give any explanation for the alleged discriminatory acts, taking the tactical risk that the plaintiff will not be able to establish a prima facie case. To assist claimants to make out their case against such uncommunicative respondents, the U.K. legislature has established a system of questionnaires. Under the Race Relations (Questions and Replies) Order 1977, a complainant may ask the respondent any question relating to the allegation of race discrimination using a prescribed form. The plaintiff may therefore ask the respondent to confirm that a particular event occurred, give an explanation for why they were treated differently, or provide statistical information about the racial makeup of the workforce in order to support a claim of direct or indirect discrimination. Answers to these questions are admissible in court, and a failure to respond or an ambiguous answer may allow the court to draw an adverse inference against the party concerned.
In the United States and Canada, a similar procedure has developed, which requires the person accused of discrimination to explain or justify their conduct once a prima facie case has been established. In cases where direct discrimination is alleged, the deliberative process in both jurisdictions may be divided into three stages:
- The plaintiff establishes a prima facie case of racial discrimination.
- The respondent articulates a legitimate reason for the apparent difference in treatment.
- The plaintiff proves that the reason given by the respondent is a mere pretext, and that the real reason for the disparate treatment is race discrimination.
A prima facie case has been described by the Canadian court as “one which covers the allegations made, and which if believed, is complete and sufficient for a decision in favour of the complainant in the absence of an answer from the respondent.” Thus, as in the United Kingdom, the defendant’s explanation is ignored at this initial stage.
The case of McDonnell Douglas, which has been cited in both U.S. and Canadian jurisprudence, sets out an example of facts that would be sufficient to establish a prima facie case. It is sufficient for the plaintiff to prove:
- (i) that he belongs to a racial minority;
- (ii) that he applied and was qualified for a job for which the employer was seeking applicants;
- (iii) that, despite his qualifications, he was rejected; and
- (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.
The plaintiff is not required, at this stage, to prove that the respondent’s actions were motivated by race, but only to “carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion...”.Thus, in the example above, the plaintiff need not bring direct proof of discrimination, but must “demonstrate at least that his rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought. Elimination of these reasons for the refusal to hire is sufficient, absent other explanations, to create an inference that the decision was a discriminatory one.”
In both the United States and Canada, once the plaintiff has established the prima facie case of discrimination, the onus falls on the defendant to provide a reasonable explanation for why the allegedly discriminatory conduct occurred. The burden, which shifts to the defendant at this stage is, however, only an evidentiary burden. The ultimate burden of persuasion remains at all times with the plaintiff. Thus, the defendant need only ‘articulate a legitimate explanation’ for the act, rather than prove, on the balance of probabilities, that there was no discriminatory motive. This contrasts to the approach in both the Race Relations Act 1976 (UK) and the E.U. Directive, where the risk of non-persuasion shifts to the defendant once the plaintiff’s prima facie case is made out.
This third stage is often described as placing an onus on the plaintiff to rebut the legitimate explanation offered by the defendant. Strictly speaking, however, proving that the defendant’s explanation is false is neither necessary nor sufficient to establish a claim of racial discrimination.
Under both American and Canadian law, an act is unlawful if it is motivated by race, regardless of whether other factors also motivated the practice. Thus, even where the explanation offered by the employer is true, and the act in question was partly motivated by a non-discriminatory cause, the plaintiff may still succeed if they can obtain evidence showing that race was also a factor in the decision-making process. In many cases, however, such direct evidence is unavailable, and it is easier for the plaintiff to establish that the defendant has given a false explanation in order to indirectly infer that the real reason for the difference in treatment was racial discrimination.
There has been some debate, particularly within the United States, over whether a plaintiff who establishes a prima facie case and then proves that the defendant’s explanation is false is therefore automatically entitled to succeed, or whether the plaintiff must also provide direct evidence of racial bias. In the Supreme Court case of Reeves, the court held that “a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”At the same time, such evidence will not always be sufficient, since there may be instances where the evidence reveals a different, non-discriminatory reason for the employer’s decision, which is more probable than the discrimination alleged by the plaintiff or the explanation given by the defendant. The tribunal could conclude, for example, that the plaintiff was fired due to personal animosity or incompetence, even where these explanations are not put forward by the defence. Nonetheless, the court also emphasised that “once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.”
The burden of proof with regards to indirect discrimination often follows from the way in which the test for such discrimination in constructed. In the United Kingdom, for example, the statutory test is as follows:
(1A) A person also discriminates against another if... he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but -
(b) which puts that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim.
Similarly, the Civil Rights Act of 1991 in the United States provides that:
An unlawful employment practice based on disparate impact is established... only if:
- (i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race... and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity...
In both cases, the statute makes clear that the onus rests on the complainant to prove that a condition has been imposed, which has a disproportionate impact on a particular racial group. Once that has been established, the onus shifts to the respondent to show that the condition is “consistent with business necessity” or “a proportionate means of achieving a legitimate aim”.
Similarly, in the Canadian context, once the claimant has shown that a particular policy or condition has a disparate impact upon a particular racial group, the onus falls on the respondent to prove, on the balance of probabilities, that the policy is a bona fide occupational requirement or that there is a bona fide justification for imposing that condition. This will require the respondent to bring evidence to show that getting rid of the condition would cause the respondent undue hardship, because of the financial costs or health and safety implications involved.
The approach taken in each of these three jurisdictions seems to be based on the principle that it is the respondent, rather than the plaintiff, who is best placed to provide evidence of the conditions or policies necessary to achieve the respondent’s legitimate aims or fulfil their business requirements. This approach also avoids placing an obligation on the plaintiff to prove a negative fact – that there is no reason why such a condition is necessary – placing the onus on the respondent to prove a positive justification where one exists. As stated in the Canadian case of O’Malley: “it is the employer who will be in possession of the necessary information to show undue hardship, and the employee will rarely, if ever, be in a position to show its absence”.
In contrast, in a complaint of indirect discrimination under the Australian Racial Discrimination Act 1975 (Cth), the burden of proof remains on the plaintiff at every stage. Thus, even once the claimant has shown that the respondent has imposed a condition that has an adverse effect upon people of the complainant’s race or ethnic origin (and thereby affects their equal enjoyment of human rights and fundamental freedoms), the complainant must also prove that this condition is, in the circumstances, unreasonable. To do so, the complainant must prove that the term or condition is “not rational, logical or understandable”. Merely proving that an alternative, less discriminatory approach exists, which would achieve the same effect, is not sufficient if both means could be considered rational approaches to achieving the goal in question.
The ease with which a plaintiff alleging race discrimination will be able to make out their case depends not only on which party bears the onus of proof, but also on what standard of evidence will be considered sufficient by the courts to discharge that burden.
The general standard of proof applicable to civil cases in Common Law jurisdictions is usually described as ‘the balance of probabilities’, and requires the tribunal of fact to be satisfied that it is more likely than not that a particular fact occurred. This is in contrast to the more stringent criminal standard of ‘beyond a reasonable doubt’. In Australia, while the courts have continually emphasised that there is ‘no third standard of proof’, it is generally accepted that the strength of evidence required to satisfy a court as to the existence of a given fact may vary depending on the nature of what is to be proved.
In the often cited case of Briginshaw v Briginshaw, Justice Dixon stated that:
“when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. ...(R)easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences 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.”
This relationship between the nature of what is to be proved, and the standard of evidence required, has also been codified in the Evidence Act, which states that:
(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 Briginshaw test has been interpreted as requiring a particularly high standard of evidence where the plaintiff seeks to prove that the defendant has engaged in serious misconduct or where the consequences for the defendant of a finding in the plaintiff’s favour would be particularly grave. It has been applied “where there are serious accusations (murder, sexual abuse of children, corruption... 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).”
The Briginshaw test has also been frequently invoked in discrimination proceedings. As Hunyor notes: “(t)he courts have generally regarded allegations of racial discrimination as being of such seriousness that they require a higher standard of evidence... to reach a state of ‘reasonable satisfaction’”. This is understandable in cases where the respondent is alleged to have deliberately and maliciously discriminated against the complainant on the grounds of race, as this sort of accusation of racism might be thought to carry a certain amount of social stigma. What remains unclear, however, is whether the Briginshaw higher standard of evidence will also be required even in those cases which only raise issues of unconscious or systematic discrimination, and do not accuse the respondent of deliberate misconduct.
In several instances, it appears that the Briginshaw higher standard of evidence has been automatically required whenever racial discrimination is alleged, regardless of any analysis of the seriousness of the allegation or the consequences involved. Thus, for instance, in Sharma v Legal Aid Queensland it was accepted without argument that “the standard of proof for breaches of the Racial Discrimination Act 1975 is the higher standard referred to in Briginshaw v Briginshaw (1938)”.
On the other hand, at least one Federal Court case has distinguished between claims of racial discrimination that involve serious allegations of misconduct, and those that should be treated according to the normal standards of evidence. In the case of Macedonian Teachers Association of Victoria Inc v HREOC, the court held that “(t)he 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”. In this case, the state government was accused of having unintentionally, and while acting according to the best of intentions, discriminated against a particular ethnic group. In this case, the court held, “(n)o issue of fraud or impropriety was raised or needed to be determined”, and the more stringent standards of evidence described in Briginshaw were therefore not appropriate.
While this approach has been largely ignored in subsequent racial discrimination cases (of which Sharma v Legal Aid Queensland is an example), recent cases concerning sex and disability discrimination have drawn a similar distinction between ‘serious’ allegations to which the Briginshaw test applies and other discrimination claims, which do not warrant such a higher evidentiary standard. This approach also accords with the way in which the Briginshaw standard has been applied outside of the discrimination field. As De Plevitz notes in her article analysing the application of this test, only in the area of discrimination law has the Briginshaw test been applied as a matter of course. In all other areas of law, the demand for a higher standard of evidence has been reserved for the most serious of accusations or where the potential consequences for the defendant are permanent or severe.
The idea that the amount of evidence required to satisfy a tribunal of a given fact may depend on the nature and seriousness of the fact alleged is not unique to Australia. In Canada, the Supreme Court has adopted the comments of Justice Dixon in Briginshaw, stating that, in a civil action: “before the tribunal can safely find the affirmative of an issue of fact required to be proved it must be reasonably satisfied, and... whether or not it will be so satisfied must depend upon the totality of the circumstances on which its judgement is formed including the gravity of the consequences of the finding.”
In the United Kingdom, and to a limited extent in Canada, there has been some debate over whether it is the degree of probability which changes according to the gravity of the offence (requiring proof to a higher standard than the balance of probabilities), or whether a more serious allegation simply requires more convincing evidence in order to satisfy the court on the ordinary standard. Setting aside these somewhat semantic distinctions, however, the U.K. courts have confirmed that: “the essential point that runs through the authorities is that the civil standard of proof is flexible in its application and enables proper account to be taken of the seriousness of the allegations to be proved and of the consequences of proving them.”
In Canada, this heightened standard of evidence has been referred to in cases where sexual assault, insurance fraud and other charges of criminal misconduct are alleged. Similarly, in the U.K., it has been invoked in civil cases, which involve allegations of serious crimes such as sexual abuse or murder, and where the state is seeking to significantly restrict the rights of an individual, by detaining them as an illegal immigrant or placing them under an antisocial behaviour order or sexual offender order.
Both Canada and the United Kingdom thus possess a test for establishing the standard of evidence which closely resembles, in function if not always in form, the test described in Briginshaw, and is applied in similar circumstances. Significantly, however, neither the Canadian nor the U.K. courts have regularly invoked this standard with respect to allegations of racial discrimination. Instead, both jurisdictions have obliged victims of discrimination to prove their allegation according to the ordinary standard of proof, and have accepted that such allegations will normally rely on indirect inference, as direct evidence of discrimination is unlikely to be available. Indeed, in the United Kingdom, it may be the defendant, rather than the plaintiff in a discrimination case, who is expected to meet a higher standard of evidence once the plaintiff has provided a prima facie case and shifted the onus of proof. As set out in the Igen v Wong guidelines: “Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof.”
The situation in the United States is slightly different due to that fact that the U.S. has expressly adopted a third standard of proof, rather than relying on a shifting standard of evidence. This ‘middle standard’, which falls between the normal civil standard of balance of probabilities and the criminal standard of beyond a reasonable doubt, is described as a standard of ‘clear and convincing evidence’. It has been applied in cases where “the government seeks to take unusual coercive action – action more dramatic than entering an award of money damages or other conventional relief – against an individual.” This may include cases where the government seeks to have an individual committed for mental illness, to remove an individual’s parenting rights, or take away citizenship. Like the higher standard of evidence referred to in Briginshaw , it may also apply in cases where fraud or other quasi-criminal wrongdoing is alleged, so as to reduce the possibility of wrongfully tarnishing the defendant’s reputation. This higher standard of proof may also be expressly required by statute.
Once again, while this higher standard of proof exists, it has not been generally applied to discrimination cases. As stated by the U.S. Supreme Court in Price Waterhouse v Hopkins: “Conventional rules of civil litigation generally apply in Title VII cases... and one of these rules is that parties to civil litigation only need to prove their case by a preponderance of evidence.” Thus, once again, in contrast to the approach taken by the Australian courts, the standard of evidence required to establish a claim of race discrimination is the ordinary civil standard.
While all four of the national jurisdictions considered in this paper apply a higher standard of evidence (or require a higher standard of proof) for the most serious of civil claims, this higher standard is not commonly applied outside of Australia, to allegations of racial discrimination. The practical effect of this difference is hard to quantify. Since most discrimination cases involve complex issues of credibility and evidence, it is hard to compare outcomes across jurisdictions, and state with any degree of certainty that a case decided one way in a particular court would have been decided differently in another. Nonetheless, it seems clear that the Australian courts are alone amongst the jurisdictions considered in expressly applying a higher standard of evidence to some, if perhaps not all, allegations of racial discrimination. When this is combined with the inflexible nature of the burden of proof, which remains on the plaintiff throughout, it is unsurprising that claims of discrimination have proved difficult to establish.
 Examples taken from: Williams C
R, ‘Burdens and Standards in Civil Litigation’ (2003) 25(2) Sydney Law Review 165.
Racial Discrimination Act 1975 (Cth) s 9(1).
 Gaze B, ‘Has the Racial Discrimination Act contributed to eliminating racial discrimination? Analysing the litigation track record 2000-2004’ (2005) 11(1) Australian Journal of Human Rights 171 at paragraph 50.
 See discussion of successful race discrimination cases in Hunyor J, ‘Skin-deep: Proof and Inferences of Racial Discrimination in Employment’ (2003) 25(4) Sydney Law Review 535 at 535; and Gaze B, ‘Has the Racial Discrimination Act contributed to eliminating racial discrimination? Analysing the litigation track record 2000-2004’ (2005) 11(1) Australian Journal of Human Rights 171.
Concluding Observations of the Committee for the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/14 (14 April 2005) at 15.
Workplace Relations Act 1996 (Cth) s 659(2)(f).
Workplace Relations Act 1996 (Cth) s 664.
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective or racial or ethnic origin  OJ L180/22, art 8(2).
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective or racial or ethnic origin  OJ L180/22, art 8(1).
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective or racial or ethnic origin  OJ L180/22, art 8(3) and (5).
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective or racial or ethnic origin  OJ L180/22, cl 15.
 For a history of how the burden shifting principle has developed in ECJ jurisprudence, particularly arising out of sex discrimination and equal pay cases, see: Houtzager D, Shifting Perspectives: Changing the Burden of Proof in Racial Equality Cases (2006).
Timishev v Russia (2005) Eur Court HR 55762/00 and 55954/00, at para 57.
 Espin E ‘Burden of Proof in Council Directives 2000/43/EC and 2000/78/EC on equal treatment’ (Working Paper, Academy of European Law, 2005) at 3.
http://www.era.int/web/en/resources/5_2341_2279_file_en.3066.pdf (accessed 12/11/07).
 Neil LJ King v Great Britain-China Centre  IRLR 513 at 518 as cited in Strathclyde Regional Council v Zafar  UKHL 54.
 Neil LJ King v Great Britain-China Centre  IRLR 513 at 518 as cited in Strathclyde Regional Council v Zafar  UKHL 54.
Strathclyde Regional Council v Zafar  UKHL 54.
Race Relations Act 1976 (Amendment) Regulations 2003 SI 2003/1626.
Race Relations Act 1976 (UK) c 74 ss 54A and 57ZA, which apply respectively to discrimination claims before employment tribunals and county or sheriff courts.
 For a description of Directive and non-Directive grounds of discrimination, see above at 3.1.
Madarassy v Nomura International Plc  EWCA Civ 33 at 60.
 See Igen v Wong  ICR 931 at paras 49-51.
Igen v Wong  ICR 931 at annex cl 9.
Igen v Wong  ICR 931 at annex cls 3 and 4.
 See above note 15:“a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination”.
Igen v Wong  ICR 931 at annex cl 11.
Igen v Wong  ICR 931 at annex cl 13.
 Laing v Manchester City Council  IRLR 748 at para 77.
Laing v Manchester City Council  IRLR 748 at para 59.
Laing v Manchester City Council  IRLR 748 at paras 73-75.
 See Dattani v Chief Constable of West Mercia Police  IRLR 327 at para 40 for an example which suggests this approach.
Race Relations (Questions and Replies) Order 1977 SI 1977/842 as cited in Galbraith-Marten J ‘The Fight Against Discrimination in Practice: Shifting the Burden of Proof and Access to Evidence’ (Working Paper, Academy of European Law, 2005) at 36.
http://www.era.int/web/en/resources/5_1095_4982_file_en.7063.pdf (accessed 12/11/07).
Race Relations Act 1976 (UK) c 74 s 65(2)(b) as cited in Galbraith-Marten J ‘The Fight Against Discrimination in Practice: Shifting the Burden of Proof and Access to Evidence’ (Working Paper, Academy of European Law, 2005) at 37.
http://www.era.int/web/en/resources/5_1095_4982_file_en.7063.pdf (accessed 12/11/07).
 Indirect discrimination will be discussed below at 8.5.
 See eg McDonnell Douglas Corp v Green 411 US 792 (1973), discussed in Whitman R S, ‘Clearing the Mixed-Motive Smokescreen: An Approach to Disparate Treatment under Title VII’ (1989) 87(4) Michigan Law Review 863 at 867-868.
Lincoln v Bay Ferries Ltd 2004 FCA 204 (CanLII) at 17.
McDonnell Douglas Corp v Green 411 US 792 (1973).
 See eg Israeli v Canada (Canadian Human Rights Commission) 1983 CanLII 5 (CHRT).
McDonnell Douglas Corp v Green 411 US 792 (1973) at 12.
Teamsters v United States 431 US 324 (1977) at II A.
Teamsters v United States 431 US 324 (1977) at footnote 44.
Texas Department of Community Affairs v Burdine 450 US 248 (1981) as cited in; Green T K, ‘Making Sense of the McDonnell Douglas Framework: Circumstantial Evidence and Proof of Disparate Treatment under Title VII’ (1999) 87(4) California Law Review 983 at 987-988. See also (in the Canadian context) Basi v Canadian National Railway 1988 CanLII 108 (CHRT) at V; “there is an evidentiary onus on the Respondent to provide an explanation of events...”.
 Whitman R S, ‘Clearing the Mixed-Motive Smokescreen: An Approach to Disparate Treatment under Title VII’ (1989) 87(4) Michigan Law Review 863 at 868.
 42 USC s 2000e-2(m). In the Canadian context, see Almeida v Chubb Fire Security Division of Chubb Industries Ltd (1984) 5 CHRR D/2104 at 2105 as cited in Basi v Canadian National Railway 1988 CanLII 108 (CHRT) at IX.
 But note that, in the United States, the court may not find in favour of the plaintiff, or may not order relief, if the defendant can establish that they would have made the same decision even if an impermissible factor such as race had not been taken into account. See discussion of Mt Healthy City School District Board of Education v Doyle 429 US 274 (1977) in Whitman R S, ‘Clearing the Mixed-Motive Smokescreen: An Approach to Disparate Treatment under Title VII’ (1989) 87(4) Michigan Law Review 863 at 875-877.
 O’Connor J, Reeves v Sanderson Plumbing Products Inc 530 US 133 (2000) at paragraph 15.
 For an example of this kind of finding in the Canadian jurisdiction, see the dissenting judgement of Norton QC, Chandler and Joshi v Department of National Health and Welfare (unreported) TD 16/95, Decision rendered December 13 1995, Human Rights Tribunal.
http://www.chrt-tcdp.gc.ca/search/view_html.asp?doid=225&lg=_e&isruling=0 (accessed 5/11/07).
 O’Connor J, Reeves v Sanderson Plumbing Products Inc 530 US 133 (2000) at paragraph 15.
Race Relations Act 1976 (UK) c 74 s 1(1A). Note that this section applies only to directive grounds, however the non-directive definition (s 1(1)(b)) similarly requires the respondent to show that the provision is justified on non-racial grounds.
 42 USC s 2000e-2 (k)(1)(A)(i).
B.C. (Superintendent of Motor Vehicles) v B.C.(Council of Human Rights)  3 SCR 868 at para 20.
 Canadian Human Rights Act, RS 1985, c H-6, ss 15(1)(a), 15(1)(g) and 15(2).
Ontario Human Rights Commission v Simpson-Sears 1985 CanLII 18 (SCC) at 28.
Australian Medical Council v Wilson (1996) 68 FCR 46 at 62; cited in Human Rights and Equal Opportunity Commission Federal Discrimination Law (2005) at 3.2.3 (d).
 See eg Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-50, as cited in De Plevitz L ‘The Briginshaw Standard of Proof in Anti-Discrimination Law: Pointing With a Wavering Finger’ (2003) 27(2) Melbourne University Law Review 308.
Briginshaw v Briginshaw (1938) 60 CLR 336.
Evidence Act 1995 (Cth) s 140A.
 De Plevitz L ‘The Briginshaw Standard of Proof in Anti-Discrimination Law: Pointing With a Wavering Finger’ (2003) 27(2) Melbourne University Law Review 308 at IV.
 Hunyor J, ‘Skin-deep: Proof and Inferences of Racial Discrimination in Employment’ (2003) 25(4) Sydney Law Review 535 at 540.
Sharma v Legal Aid Queensland  FCA 1699 at 62. See also the discussion of cases in the Human Rights and Equal Opportunity Commission, Federal Discrimination Law 2005 (2005) at 6.15.1.
 Macedonian Teachers Association of Victoria Inc v HREOC (1999) 91 FCR 47 at 50-51; as cited in Hunyor J, ‘Skin-deep: Proof and Inferences of Racial Discrimination in Employment’ (2003) 25(4) Sydney Law Review 535 at 550.
Sharma v Legal Aid Queensland  FCA 1699.
 See discussion of cases in Human Rights and Equal Opportunity Commission, Federal Discrimination Law 2005: Supplement 1 March 2005 – 1 July 2007 (2007) at 6.15.
 De Plevitz L ‘The Briginshaw Standard of Proof in Anti-Discrimination Law: Pointing With a Wavering Finger’ (2003) 27(2) Melbourne University Law Review 308.
Smith v Smith  2 SCR 312 at 331.
 See particularly R v Oakes 1986 CanLII 46 (SCC) at 67 which has been cited in support of the argument that there are “different degrees of probability depending on the nature of the case”.
 See discussion of caselaw in An, R (on the application of) & Anor v Secretary of State for the Home Department & Ors  EWCA Civ 1605 (on the application of) at 36 et seq.
 Ibid at 59.
 See eg Kruska v Manufacturers Life Insurance Company (1984) 54 BCLR 343 at 353-54; B(D) v Canada (Attorney General) 2000 SKQB (CanLII) at 17; and PL v College of Physicians and Surgeons of the Province of Alberta 1999 ABCA 126 (CanLII).
 See eg Dellow’s Will Trusts  1 WLR 451.
 See eg R v Secretary of State for the Home Department, ex p Khawaja  AC 74 at 113F-114C as cited in An, R (on the application of) & Anor v Secretary of State for the Home Department & Ors  EWCA Civ 1605; and Gough v Chief Constable of the Derbyshire Constabulary  QB 1213.
 See for example Basi v Canadian National Railway 1988 CanLII 108 (CHRT) at VI where it was stated that “an inference of discrimination may be drawn where the evidence offered in support of it renders such as inference more probable than the other possible inferences or hypotheses”.
Igen v Wong  ICR 931 at annex cl 13.
 Despite this, the standard itself ‘clear and convincing evidence’ sounds more like a standard of evidence than a standard of proof, if a meaningful distinction could be drawn between the two. It is unlike the Briginshaw standard, however, in the sense that it is not a flexible test that might be applied to all decisions in civil cases, but rather a set standard which will be applied in particular circumstances.
Addington v Texas 441 US 418 (1979) at 424.
Price Waterhouse v Hopkins 490 US 228 (1989) at 253.
 See eg Addington v Texas 441 US 418 (1979); Santosky v Kramer 455 US 745 (1982); Schneidrman v United States 320 US 118 (1943).
Addington v Texas 441 US 418 (1979) at 424.
 See eg Antiterrorism and Effective Death Penalty Act of 1996 28 USC 2254 (e)(1).
 For a case in which the plaintiff alleging discrimination has been held to this higher standard see Miller-El v Dretke 545 US 231 (2005), which involved a convicted prisoner attempting to secure a new trial by proving that their original trial was marred by discrimination in the jury selection process. In this cases, the Antiterrorism and Effective Death Penalty Act of 1996 stated that any factual finding made by a State court would be assumed to be correct, and the plaintiffs were required to produce clear and convincing evidence to overturn this assumption.
Price Waterhouse v Hopkins 490 US 228 at 253.