Reforming Age Discrimination Law book forum: The Hon Anthony North KC - Two suggestions to enhance the enforcement of age discrimination law

The Hon Anthony North KC provides the final post in our book forum on Alysia Blackham’s Reforming Age Discrimination Law: Beyond Individual Enforcement. To see all posts, please click here.

The Hon Anthony North KC

24.10.2022

Congratulations to Alysia Blackham on a very high-quality contribution to the learning in this area. I was particularly impressed by the logic and coherence in the development of the argument.

There are many issues raised in this book that capture my interest. I have chosen two, each of which reflects the different phases of my career, first as a judge, and then as a law reformer. Improvements here would make a significant difference to age discrimination law. The first concerns the reverse onus of proof, and the second concerns the enforcement of positive duties.

Reverse onus of proof

Central to any employment discrimination case is a finding by the court that the employer acted in a discriminatory way. It is notoriously easy for an employer to bury discrimination under lawful reasons, such as the requirements of the workplace. Unless the employer has been careless in disclosing the true, discriminatory reason, it will be difficult for the employee to establish the prohibited motivation as part of the case in chief.

For this reason, federal industrial legislation has, since its inception, provided for a reverse onus of proof. Section 361 of the Fair Work Act 2009 (Cth) requires the employer to establish a non-discriminatory motivation once the employee has made a prima facie case of discrimination. As Blackham points out, state discrimination legislation does not provide for a reverse onus. In her view, it should: she calls this an 'obvious reform'. Blackham correctly observes that a reverse onus will not always change the result as there will still be cases where the employee will not be able to establish a prima facie case. Blackham notes as well concerns that reversing the onus might generate sympathy for the employer and thereby sway the court in favour of the employer. I doubt that, because the reason for the reversal is that the employer is often the only repository of evidence about their motivation.

My experience is that the reverse onus in the federal statute is a very powerful instrument in the courtroom setting. It was not unusual to see cases of high-handed employers, spurred on by overconfident lawyers, crumple in a heap when the employer witness floundered in the witness box when cross-examined about motivation. Without the reverse onus, that witness would not have had to enter the witness box and the case would likely have been lost.

Of course, the reverse onus is especially effective in favour of employees where the employee is only required to establish that discrimination was one of the motivating factors. This does not mean that the reverse onus operates like a magic wand. As Chapman, Love and Gaze discuss in a 2014 article (following the High Court’s judgment in Board of Bendigo Regional Institute of Technical and Further Education v Barclay), judges have had divergent views about the appropriate scope of the court’s enquiry into an employer’s motivation. Nonetheless, the reverse onus answers the demand of justice that, because knowledge of the motivation for discrimination lies hidden in an employer’s mind, it is the employer who should carry the burden of proof on that issue.

Enforceable duty

Blackham also makes the case for strengthening anti-discrimination obligations by legislating for an enforceable duty on employers to eliminate, as far as possible, age discrimination at work. In doing so, she describes how Victoria, Queensland, Tasmania, and the ACT all have some form of positive duty but extremely limited means of enforcing it.

Victoria is a relevant example. Section 15 of the Equal Opportunity Act 2010 (VIC) provides for a duty to take ‘reasonable and proportionate measures’ to eliminate discrimination, sexual harassment or victimisation as far as possible. The section was introduced in 2010, following a 2008 report by former Victorian Public Advocate, Mr Julian Gardner. It implements the report's recommendation that the Act contain a duty to eliminate discrimination as far as possible (recommendation 9). The Gardner report also recommended that the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) have power to issue compliance notices if it finds that the duty has been breached (recommendation 76) and power to apply to the Victorian Civil and Administrative Tribunal (VCAT) for an order requiring compliance (recommendation 80). However, the government did not accept these enforcement recommendations, and VCAT has since found that section 15 does not provide a private cause of action. The VEOHRC is thus left solely with the power to investigate. To date, this has only been used once (in relation to the duty to eliminate sexual harassment) – as I understand it, because of VEOHRC’s limited resources.

Within this context, Blackham’s work adds to a growing call for effective mechanisms to enforce positive duties to tackle discrimination. In 2020, the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report recommended a compliance notice procedure in aid of a duty to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation. The recommendation also provided for the Commission to apply to a court for an order requiring compliance with the duty (recommendation 18). The federal government recently introduced legislation to implement this recommendation. Late last year, in the Victorian Law Reform Commission’s Improving the Justice System Response to Sexual Offences report, we recommended enforcement measures along the same lines in aid of the section 15 duty to take measures to eliminate sexual harassment. We also recommended extending the duty from sexual harassment to all forms of sexual violence (recommendations 3 & 4).

Conclusion

In relation to both the reverse onus and the enforceability of positive duties to eliminate discrimination, Blackham’s work adds force to the arguments in favour of reform. Particularly in the case of enforceability, the force of her arguments and the increasing body of support from law reform agencies promises to nudge the country towards enforcement of anti-discrimination obligations by statutory authorities. This will reduce the current reliance on individual enforcement – the limits of which Blackham so skilfully describes.

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The Hon. Anthony North KC is a former judge of the Federal Court of Australia and the Supreme Court of the Australian Capital Territory. He is Chair of the Victorian Law Reform Commission.

Suggested citation: Anthony North, ‘Reforming Age Discrimination Law book forum: Anthony North - Two suggestions to enhance the enforcement of age discrimination law’ on AUSPUBLAW (24 October 2022) <https://auspublaw.org/blog/2022/10/book-forum-anthony-north-two-suggestions-to enhance-the-enforcement-of-age-discrimination-law/>