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Beginning of the End for the Reverse Burden of Proof?
Monday, January 20th, 2014

By Leslie Buchbinder, Director at Bowen Buchbinder Vilensky Lawyers, and Darryl Koh, Solicitor at Bowen Buchbinder Vilensky Lawyers

20 January 2014

In January 2014, Australia’s new Attorney General, George Brandis, announced that the Australian Law Reform Commission (“ALRC”) will review laws that threaten “traditional rights, freedoms and privileges”.  In workplaces especially, the reverse onus of proof is a huge burden for employers.  These laws include the Commonwealth Fair Work Act’s “general protection” provisions, which prevent employees from being dismissed or subjected to detrimental conduct on the basis of certain rights, entitlements or attributes. For example, an employer can’t take adverse action against an employee because of their industrial activities or an attribute such as their race, sex or age. Similarly, if an employee fails to perform to expectations or needs to be disciplined or made redundant, the burden of proof is on the employer to prove that this action was not in some way discriminatory. For an employer to be entangled in such proceedings and to shoulder the heavy burden of proof will necessarily require the employer to spend time, money and other resources which can otherwise be channeled towards more productive endeavours.

Several States and Territories such as Queensland, NSW, Tasmania, South Australia, the ACT and the Northern Territory have adopted the Commonwealth-initiated model Work Health & Safety Act (“WH&S Act”). However, the WH&S Acts still retain features of the reverse burden of proof in prosecutions particularly in the area of discrimination. In WA, the WH&S Bill has been introduced in the WA Parliament and is currently under debate. There are 4 key areas in which WA has highlighted that it does not agree. One of these key areas is the reverse burden of proof in prosecutions for offences involving discriminatory-type offences.  WA considers that its inclusion is in part contrary to the purpose of harmonising the Commonwealth, State and Territorial WH&S Acts.

It will be interesting to see what the ALRC proposes when it releases its report and how it relates to WA’s concerns regarding the reversal of the burden of proof issue.

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