.HUMAN RI H T S

Full Federal Court lightens the load for standardof proof in discrimination claims

ENDNOTES

1. See, generally, Jonathon Hunyor,"Skin-Deep: Proof and Inferencesof Racial Discrimination in Employ­ment" (2003) 25 Sydney Law Review535; Katherine Lindsay, Neil Rees andSimon Rice. Australian Anti-Discrimi­nation Law Text, Cases and Materials(2008),69,93.2. (1938) 60 CLR 336.3. [2008] FCAFC 69.4. G v H (1994) 181 CLR 387, 399(Deane, Dawson and Gaudron ]]).5. The most frequently quoted pas­sage to this effect comes from tllejudgment of Dixon J at 361-2. Thecomments are now reflected in s.140of the Evidence Act 1995 (Cth); seeCEEEJPPAS Union of Austraila vACCC [2007] FCAFC 132, [31].6, Neat Holdings Ply Ltd v KarajanHoldings Pty Ltd (1992) 110 ALR 449,449-50 (Mason C], Brennan. Deane.Gaudron]]) .7. Ibid. See also G v H (1994) 181 CLR387, 399·400 (Deane, Dawson andGaudron ]J).8, See, generally, Loretta De Plevitz,'The Briginshaw 'st.~ndard of proof'in anti-diso"imination law: Pointingwith a wavering finger," «2003) 25Sydney Law Review 308; Hunyor.(above n 1).9. [19881 VR 319.10. Ibid 331.11. See, for example, Ebber 1) HumanRights and Equal OPPortunity Com­mission (1995) 129 ALR 455, 467-68(Drummond J). For a detailed cri­tique of the application of Briginshawin discrimination claims, see DePlevitz (above n 8).12. See the ohservations to this effectin Victoria v Macedonian TeachersAssociation of Victoria Inc atld Anor(1998) 91 FCR47, 51 (O'Connor, Sun­dberg and North ]]). See also Hol­lingdale v North Coast Area Health

that Raphael FM had takenan incorrect approach to thedrawing of inferences and thestandard of proof. While allthese appeal grounds failed,they provided an opportunityfor the full court to review theapplication of Briginshaw indiscrimination claims.

Consistent with the submis­sions ofHREOC as intervener,22the full court accepted thatdiscrimination proceedingsshould be approached like anyother type of civil claim, ratherthan from a starting point ofpresumed 'seriousness' in theBriginshaw sense. Branscfn J,who delivered the lead judg­ment on the Briginshaw issue,observed: "references to, forexample, 'theBriginshaw stand­ard' or 'the onerous Erigin-

Gama

Mr Gama, an engineer fromGoa, made a variety of allega­tions of race and disabilitydiscrimination against Qantas.

opment. As discussed below,the court clarified that dis­crimination claims should beapproached like any othercivil claim when assessing thestandard of proof.

These included employeesmaking derogatory remarks(such as, "you look like aBombay taxi driver" and refer­ences to him walking up stairs"like a monkey"), as well asdenial of training and promo­tions because of his race and/or disability.

At first instance,17 many ofMr Gama's allegations failed,although his allegations regar­ding the derogatory remarkswere accepted, and held toconstitute disctimination onthe grounds of his race and, inrelation to the 'monkey' com­ment, his disability as well.'s

On appeal," the full Fed­eral Court upheld the find­ings of race discrimination,accepting that isolated racistremarks can constitute an actof discrimination even in theabsence of any further workrelated detriment.'"

The court set aside the find­ing of disability discrimination,however, on the basis that Rap­hael FM had failed to applythe applicable test under theDisability Discrimination Act1992 (Cth).

Nevertheless, the court con­cluded that this error did notalter the assessment of dam­ages and so did not warrantremittal.2l

Among the many grounds ofappeal and cross-appeal, bothQantas and Mr Gama asserted

is C3,'illeti

yet is often wholly within the knowledgeand domain of the respondent:'

curious that Briginshaw hastaken on such significance indiscrimination law comparedwith other areas of civil law.8

Stemming primarily from the1988 decision of the VictorianSupreme Court in Department0/Health v Arumugam," courtshave frequently observedthat discrimination is a "seri­ous matter, not lightly to beinferred"" and, accordingly,applicants have often been

effectively required to lead evi­dence to an apparently higher'Briginshaw standard'."

Discrimination is certainlyserious; few victims of discrimi­nation would disagree. How­ever, there is a cold irony inacknowledging with one breathtile seriollsness of the harm,only to then effectively raise theevidential bar as a result.

Without wishing to dimin­ish the significance of dis­crimination as a social wrong,I would suggest that there isnothing inherently "serious"or "unlikely" about discrimina­tion allegations in the senseused in Briginshaw. 12 The con­sequences for a respondentare, in most cases, limited toa (notoriously low)'3 award ofdamages.

While a respondent may alsoface some adverse publicity,this is generally no more thanin many other types of civilclaims, such as negligence,misleading or deceptive con­duct, unfair dismissal or prod­uct liability. The courts havealso emphasised that respond­ents may be in breach of dis­crimination laws in the absenceof a discriminatory intent," oreven with a benevolentintent,15which diminishes the gravityof any such finding. l6

The recent decision of thefull Federal Court in Gamais therefore a welcome devel-

Brook Helyis a seniorlawyer at theHuman Rightsand EqualOpportunityCommission.

WE ALL KNOW THAT preju­dices are prevalent withinsociety and often translate intodiscrimination. Yet provingdiscrimination is notoriouslydifficult. l

Partly, this has stemmedfrom the application of theHigh Court's decision in Bri­ginshaw v Briginshaw' in rela­tion to meeting the civil stand­ard of proof. Fortunately, therecent decision of the full Fed­eral Court in Qantas Airways vGama' goes some way towardscorrecting this.

Briglnshaw

By BROOK I-IELY

The facts in Briginshawinvolved allegations of adulteryat a time when such allegationswere of considerably greaterseriousness and legal conse­quence than they are today.'

While acknowledging thatthe standard of proof remainsconstant in all civil claims, thecourt observed that the qual­ity of evidence and level ofpersuasion required to meetthat standard might vary,depending on the seriousnessor inherent unlikelihood of theallegation and/or the gravityof the consequences for therespondent.'

With no disrespect to theirHonours, the observationwas not especially remarlc­able. As the High Court hassince observed, the commentssimply reflect the ordinaryprocess of human reasoning. 6

The comments did not estab­lish an intermediate standardof proof between the civil andcriminal standard. They alsodid not lay down a strict test tobe applied to all allegations of aparticular type.'

It is therefore perhaps

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shaw test' and, in that context,to racial discrimination beinga serious matter not lightly tobe inferred, have a tendency tolead a trier of facts into error.The correct approach to thestandard of proof in a civil pro­ceeding in a Federal Court isthat for which s.140 of the Evi­dence Act provides."23

This is a sensible correctionof the creeping trend in manycourts of treating discrimi­nation claims as somehowuniquely and inherently seri­ous compared with other civilclaims.

In relation to the drawing ofinferences of discrimination,Branson Jalso noted that a rel­evant matter in assessing theevidence was "the long-stand­ing common law rule that evi-

Service [2006] FMCA5, [138] (DriverFM); Tyler v Kesser Torah College[2006] FMCA 1, [100] (Driver FM);Wiggins v Department of Defence- Navy [2006] FMCA 800, [52](McInnes FM); Dutt v Central CoastArea Health Service [2002] NSWADT133, [56]-[58].13. Beth Gaze, 'The Sex Discrimina­tion Act After Twenty Years: Achieve­ments, Disappointments, Disillusion­ment and Alternatives", (2004) 27 (3)University of New South Wales Lawjournal 914, 919-20. See also Austral­ian Law Reform Commission, Equal­ity Before the Law: Women's Equality,Report No 69, pt II (1994), [3.10];HREOC, Federal Discrimination Law(2008), 337-69.14. See, for example, Waters v PublicTransport Corporation (1993) 173CLR 349, 359 (Mason CJ and Gaud­ron J); Purvis v NSW (2003) 217 CLR92, 142-3 [160] (McHugh and Kirbym, 163 [236] (Gummow, Hayne andHeydon JJ). See further HREOC, Fed­eral Discrimination Law (2008), 52-3,104-6,173-7.15. See, for example, Proceeding Com­missioner v Howell & Anor (1993)EOC 92-522; Churchill v Town of Cot­tieslow (1993) EOC 92-503; Smith vFranl &Anor (1991) EOC 92-362. Seefurther Pelma Rajapakse, "An Analy­sis of the Methods of Proof in DirectDiscrimination Cases in Australia",(1999) 90 University of QueenslandLaw journal 90, 94.16. Victoria v Macedonian TeachersAssociation of Victoria Inc and Anor(1998) 91 FCR 47,51 (O'Connor, Sun­dberg and NorthJJ).17. Gama v Qantas Airways Limited(No 2) [2006] FMCA 1767.18. At the relevant time, Mr Gamawas suffering from an injury whichcaused him to walk with a limp. Rap-

September 2008

dence is to be weighed accord­ing to the proof which it wasin the power of one party toproduce and the power of theother party to contradict.""

The onus of proving whythe respondent acted as it didis carried by the applicant,yet is often wholly within theknowledge and domain ofthe respondent. The courtshave long acknowledged thisinherent difficulty for appli­cants in establishing a claim ofdiscrimination. 25

The above observation byBranson J is therefore a usefulreminder that, while respond­ents do not carry the onus,respondents who fail to crediblyestablish a non-discriminatorycausal basis for their conductdo so at their own peri1.2fi 0

hael FM accepted that the commentwas based on his race and his disabil­ity: Ibid [101].19. Qantas Airways Limited v Gama[2008] FCAFC 69.20. Ibid [78] (French and Jacobson JJ,BransonJ generally agreeing [122]).21. Ibid [89]-[92], [121] (French andJacobson n, Branson J generallyagreeing [122]).22. HREOC was granted leave tointervene in the appeal. HREOC'swritten submissions are available onits website.23. [2008] FCAFC 69, [139] (BransonJ, French and Jacobson generallyagreeing, [110]).24. Ibid [138], citing Medtel Ply vCourtney (2003) 130 FCR 182, [76](Branson J).25. See, for example, Australian Iron& Steel Ply Ltd v Banovic (1989) 169CLR 165,176 (Deane and GaudronJJ);Glasgow City Council v. Zafar [1998] 2All ER 953,958. See further KatherineLindsay, Neil Rees and Simon Rice(above n 1), 93; S Wilborn "Proof ofDiscrimination in the United King­dom and the United States" (1986) 5Civil justice Quarterly :321, 321.26. See also Glasgow City Council vZafar [1998] 2 All ER 953, 958. Com­pare s.63A of the Sex DiscriminationAct 1975 (UK), which effectivelyrequires a respondent to establish anon-discriminatory explanation. Seefurther Wong v Igen Ltd Drs [2005] :3All ER 812. Compare also the reversalof the onus pursuant to ss.664 and 808of the Workplace Relations Act 1996(Cth) , discussed in Bognar v MerckSharp Dohme (Australia) Ply Ltd[2008] FMCA 571, [47]; Liquor, HosPi­tality Miscellaneous Union v WoonoonaBulli RSL Memorial Club Ltd [2007]FCA 1460, [21]. 0

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