JW Howard, then PM, and the reverse onus

Yesterday’s opinion piece in the Australian (20 November, 2012), about the new consolidated federal discrimination laws, made clear the author’s outrage about the introduction of a reverse onus in discrimination cases.

Complainants will need to show that they were treated unfavourably, and then respondents will have to show that the reasons for the unfavourable treatment did not include unlawfully discriminatory reasons.

This brings the anti-discrimination laws into sync with the Fair Work Act general protections (formerly freedom of association) provisions.

The Workplace Relations Act 1996, a JW Howard flagship piece of legislation, provided for the reverse onus in section 298U. At the time, there was no broad protection against discrimination (there was a narrower protection from dismissal for discriminatory reasons), but the freedom of association provisions proscribed certain types of conduct taken for prohibited reasons.

Since the introduction of the Fair Work Act, the freedom of association provisions have been rebadged as general protections, and the protection against adverse action for prohibited reasons has been extended so that the prohibited reasons include personal characteristics such as sex, race, sexual preference, etc. The relevant provision is described as a provision about discrimination. The reverse onus is retained in that legislation.

When the Fair Work Act was first introduced there was a lot of commentary about the new discrimination provision. At the time I wrote about why the reverse onus was important, not to give complainants an unfair advantage, but instead to remedy an unfair disadvantage. The extension of the reverse onus to the federal discrimination law is appropriate given the nature of the cause of action – that is, its nature as a cause of action about the reasons why action was taken. (As recently as this year, the difficulties that are involved in determining the reasons why action was taken were the subject of a High Court decision in Barclay v Bendigo Institute of TAFE.)

I made some public comment about this issue in Maurice Blackburn‘s press release yesterday. The Australian Financial Review article, which kindly quoted me, is here.

Update, 22 November: the Australian has quoted me on this topic, here. Unfortunately the article gives the impression that the increase in general protections claims correlates with the introduction of the reverse onus. As I’ve noted above, it has been around more than fifteen years. The general protections provisions are in some ways broader than the previous freedom of association provisions, but the reverse onus is not.