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Hunyor, Jonathan --- "Skin-deep: Proof and Inferences of Racial Discrimination in Employment" [2003] SydLawRw 24; (2003) 25(4) Sydney Law Review 535


Skin-deep: Proof and Inferences of Racial Discrimination in Employment

JONATHON HUNYOR[*]

1. Introduction

If we know that racism exists, why is it so hard to prove? In the first three years of complaints under the Racial Discrimination Act 1975 (Cth) being heard by the Federal Court and the Federal Magistrates Court[1], 15 cases were substantively litigated and only three were successful.[2] All three involved claims of racial vilification. While it is difficult to make much of such a small sample and there may be a number of possible explanations for the results, the figures serve as a reminder of the well recognised difficulties faced by complainants seeking to prove racial discrimination.[3]

This article examines the ‘problem of proof’ facing complainants in racial discrimination matters, with a focus on employment cases in which particular difficulties arise. Section Two outlines the nature of this problem which, it is suggested, stems from some of the complex features of racial discrimination and the peculiarities of the employment context in which the personal features of an applicant are inevitably decisive in employment or promotion decisions. Section Three then examines the approach taken to allegations of racial discrimination in selected Australian and English decisions and also considers the circumstances in which courts and tribunals have held that inferences of racial discrimination may be drawn. It is suggested that the cases considered below demonstrate a failure to adequately grasp the nature of racial discrimination, which has resulted in an approach being adopted which contributes to the problems faced by complainants.

In Section Four the article suggests how the issue might better be addressed within the prevailing legal framework.[4] It also makes suggestions as to how the law may develop, most particularly by requiring a respondent employer to carry an evidential burden to provide an explanation for an impugned decision. While the article seeks to encourage a more effective basis for agitating issues of racial discrimination, the limitations of complaint-based discrimination law as a tool for addressing problems of racial discrimination and disadvantage are also acknowledged.

The precise definitions of ‘racial discrimination’ differ across the Australian and English jurisdictions considered. Basic definitions can however, be used for the purposes of cross-jurisdictional analysis. ‘Racial discrimination’ is used to describe discrimination on the basis of race, colour, descent or national or ethnic origin.[5] Direct racial discrimination can be most conveniently defined as ‘less favourable treatment based on race’.[6] Indirect racial discrimination can be defined as occurring in circumstances where an apparently neutral requirement or condition is imposed, with which persons of a particular race are less able to comply, resulting in their less favourable treatment. Such a requirement or condition must, however, be unreasonable having regard to the circumstances of the case.[7]

2. The Invisibility of Racial Discrimination in Employment

In Australian jurisdictions, as in England, it is now settled that a complainant need not prove that a respondent had a motive or intention to discriminate.[8] Courts have therefore accepted that racial discrimination can operate unconsciously. However, some degree of causal connection between the impugned act and the race of a complainant must be shown. There have been a variety of differing formulations of the appropriate test. These have included requiring a complainant to prove that the ‘true basis’ or ‘true ground’ of a decision was race, or that race was ‘a factor’ in the relevant decision of a respondent.[9]

However, proving the ‘true basis’ of an impugned act will often pose difficulties for complainants in discrimination cases. A respondent, Thornton observes, ‘is likely to have a monopoly on knowledge in that it invariably controls all information essential to the complainant’s case.[10] In the absence of a clear statement of bias or expression of a discriminatory intention, there may be no direct evidence to support an allegation of discrimination and a complainant may have to attempt to rely upon inferences from the surrounding circumstances — often expressed in terms such as ‘there could be no other reason for the decision other than my race’.[11] In cases involving employment, complainants face particular difficulties.

Discrimination, in the sense of differentiating between applicants, is fundamental to the process of recruitment and promotion in employment. Features that are personal to the candidate will obviously form the basis for such differentiation. It is inevitable that, in making distinctions between candidates, employers will be influenced by a range of preconceptions, prejudices, and stereotypes that are inextricably linked to, amongst other things, race. What makes a candidate ‘likely to fit in’ or a ‘good team player’? What makes them appear ‘impressive’? What is a ‘good communicator’? What do ‘the clients want’? All these sorts of considerations are unavoidably cultural and likely to be influenced by the bias and prejudice of even a well-meaning decision-maker.

Consequently, beyond the direct and obvious forms of racism of the ‘we don’t employ Visigoths’ variety, operates a more complex level of prejudice and assumptions that result in racial disadvantage and may manifest systemic racism. There are a number of ways in which this bias operates. An employer from one racial group may, for example, incorrectly interpret certain behaviour from another racial group as indicating qualities or characteristics (such as confidence, arrogance, dishonesty) based on racial norms. Alternatively, the qualities seen as necessary for a job or desirable from the perspective of the employer may be skewed towards a cultural norm or carry a cultural and/or racial bias.[12]

The manifestation of this sort of racial bias and prejudice can be on a conscious level (‘Visigoths just aren’t team players’) and/or it can be on a subconscious level, whereby assumptions are made about a person’s ability or qualities based on culturally biased criteria (such that the Visigoth applicant ‘just didn’t seem like a team player’). While the conscious is easy to recognise, the difficulty for a complainant will generally be proof — employers are not always going to give expression to such bias and, in the absence of some expression of bias, the employer is the only one who is aware that such considerations formed a basis for the decision. The unconscious is, of course, harder to identify and still harder to prove.

Thornton suggests that employment complaints are notoriously difficult and the burden of proof on a complainant is ‘virtually insuperable’ because the alleged racism ‘quickly becomes interwoven with bona fide considerations of merit, including formal qualifications, experience, workplace practices and relations with one’s peers’.[13] She argues:

The social and organisational choices that are designed to maintain homogeneity are rationalised as being conducive to workplace harmony and efficient managerialism. Despite contemporary rhetorical phrases such as ‘managing diversity’, bureaucratic structures, hierarchies and norms operate to disguise the organisational and institutional antipathy towards ‘otherness’. The concept of merit — a central value in determining the ‘best person for the job’ — conveys a veneer of neutrality because of its assumptions of genuine job-relatedness but, in fact, is capable of disguising racism (as well as sexism, homophobia, etc.).[14]

I argue that the cases reviewed below demonstrate a failure by Australian courts and tribunals to acknowledge this ‘veneer of neutrality’, which has resulted in them being unable to look beneath it. Courts have only rarely acknowledged the complexity of racial discrimination and the position of significant disadvantage facing applicants bringing complaints of discrimination. Indeed, some cases have suggested greater concern about the position and reputation of the respondent, having been accused of the ‘serious matter’ of racial discrimination. Even where the disadvantage faced by a complainant has been recognised, this has not necessarily resulted in the development of principles which might be applied to such cases so as to redress that disadvantage.[15]

3. Peeling Back the Veneer and the Problems of Proof

The burden of proof in all discrimination cases lies with the complainant, other than where a defence or exemption is relied upon by a respondent. The standard of proof is the civil standard — the balance of probabilities, for which a decision-maker must reach ‘reasonable satisfaction’ that the case has been proved.[16] The difficulty faced by complainants in producing direct evidence to support their case makes inferences to be drawn from the surrounding circumstances all the more important for a complainant. Australian courts and tribunals have, however, been reluctant to draw inferences of racism or racial discrimination, despite acknowledging its often systemic nature.

A. The Australian Approach: Early Cases on Inferences

The standard of evidence required to meet the ‘reasonable satisfaction’ of a decision-maker in civil cases will vary according to the nature of the case. The principle was stated by Dixon J in Briginshaw as follows:

[R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence 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.[17]

It should be noted that this is not to suggest a higher standard of proof will be required in particular cases, as Dixon J was careful to point out.[18] It may be appropriate to refer to a higher standard of evidence, or evidence of a higher probative value, required by a decision-maker to reach the requisite degree of satisfaction, depending upon the circumstances of the case and such factors as his Honour lists. I would suggest that the proper approach to the Briginshaw principle is to apply it in all cases such that the matters referred to in Dixon J’s statement (the nature and consequences of the facts to be proved etc) are taken into account in determining whether or not the evidence is sufficient to enable a decision-maker to reach a state of reasonable satisfaction.[19]

The courts have generally regarded allegations of racial discrimination as being of such seriousness that they require a higher standard of evidence, as contemplated by Dixon J’s statement, to enable a decision-maker to reach a state of ‘reasonable satisfaction’.[20] As will be seen in the cases below, the perhaps ironic result of this is that the courts have made it harder for those who claim to have been the subject of this wrong to prove it. In particular, reliance by a complainant on inferences of discrimination has been all but impossible.

In Department of Health v Arumugam [21] the Victorian Supreme Court considered an allegation of racial discrimination in the appointment of a senior medical position. There was no direct evidence of discrimination. The complainant, of Southern Indian racial origin, relied substantially on his claim to be the best qualified person for the job and the inference that race could be the only reason for him not being appointed.

Fullagar J, having referred to Briginshaw, noted the seriousness of an allegation:

that two prominent and highly qualified medical men, in government positions of trust and responsibility, and engaged in the task of selecting the best man for a very important job ... deliberately rejected the best man and appointed a person known to them to be a far less suitable man, and did that substantially, if not entirely, on the ground that the better qualified professional man belonged to a particular race of human beings.[22]

In such circumstances, his Honour held that an allegation of racial discrimination was a serious matter, ‘not lightly to be inferred’.[23]

His Honour might equally have reflected on the serious consequence for the ‘highly qualified medical man’ in the form of the complainant if he had, indeed, been subjected to racial discrimination. Rather than acknowledge the situation of disadvantage facing the complainant, his Honour’s approach may serve to compound it — it suggests that the privileged position enjoyed by a respondent should make a decision-maker slower to make a finding of discrimination, lest their reputation be damaged. In any event, Fullagar J was satisfied that alternative explanations were available for the decision, one being that someone more ‘articulate and aggressive’ was required in the position.

Fullagar J also rejected, as a matter of principle, that an inference could be drawn from a failure by an employer to explain adequately a decision:

If all that is proved, by inference or otherwise, in the absence of explanation, is less than all the elements of proof required for the complaint to succeed, neither a total absence of explanation nor a non-acceptance of an explanation can by itself provide an element of proof required. It can enable already available inferences to be drawn against dishonest explainers with greater certainty, but that is all.[24]

There are a number of important features of the decision that should be noted. The first is that Fullagar J’s comments about the seriousness of racial discrimination are in the context of conscious discrimination. It does not appear that it was, in fact, argued for the complainant that there had been a ‘deliberate’ rejection of his application on the ground that he ‘belonged to a particular race of human beings’. However, as his Honour was of the view that the Equal Opportunity Act 1984 (Vic) required that discrimination be conscious, the allegation was necessarily treated as one of conscious discrimination.[25] The Equal Opportunity Act 1995 (Vic) now provides that motive is irrelevant in determining discrimination.[26] As noted above, this is now also the established position in other Australian jurisdictions.

It should also be noted that there is no consideration in the judgment of whether or not the criteria upon which the impugned decision was found to have been based (including that he be ‘articulate’ and ‘aggressive’) or the conclusions of the respondent as to the complainant’s ability to meet those criteria (that he was not articulate and aggressive) might have been culturally and/or racially loaded and therefore biased against the complainant. It is unclear whether or not such matters were argued before Fullagar J, but, having formed the view that the Equal Opportunity Act only made intentional discrimination unlawful, his Honour had no reason to consider that issue.

Fullagar J’s statement, suggesting that the failure by an employer to explain a decision cannot, of itself, give rise to an inference of discrimination, has been criticised by Beth Gaze, who suggests that such an approach requires the complainant to carry the entire evidentiary burden and consequently makes the prohibition of direct discrimination ‘close to unenforceable’.[27] This criticism was noted by Smith J in State of Victoria & Others v McKenna [28] who sought to suggest that the approach taken by Fullagar J would not have the effect suggested by Gaze. Smith J stated:

... a given fact to be considered in considering all the evidence is the race or gender of the complainant which is to be compared with the race or gender of the other persons involved. Another relevant fact would be the existence of racism or sexism in the community. His Honour in fact referred to the presence in the community of the phenomenon of racism, a phenomenon that is known to affect decision making by people ... Bearing these points in mind, it might be properly argued, for example, having regard to the existence of racism in the community, that where a choice was made between two individuals, one of whom was black and one of whom was white, and the white (or the black) person was selected, a number of possible inferences arise for consideration, one of them being that race was a factor in the choice because of the existence of racism and the fact that a choice was made between people of different races. An analysis of the full facts of the case may reveal that that inference should not be drawn. Arumugam was such a case; for while the complainant had better qualifications he was ‘less articulate and less aggressive’ and for that reason less suitable. An innocent explanation existed and was accepted. But if, after an analysis of the proven facts, the initial inference of racial discrimination remains open and the innocent explanations offered are rejected, it is not clear to me why the inference should not normally be drawn, even though there is no additional positive evidence to support the drawing of the inference [Emphasis added.][29]

This does not, however, properly address the problem identified by Gaze. It assumes that the respondent will be called upon to provide an explanation, but Fullagar J’s statement in Arumugam indicates that their failure to do so cannot be the basis for an inference being drawn against them. Such an approach enables a respondent to sit silent in the knowledge that the complainant is carrying the whole of the evidential burden, while at the same time the knowledge of the basis for the decision, which may disclose conscious or unconscious discrimination, may lie with them alone.

Fullagar J’s approach was adopted by the Supreme Court of Western Australia in KLK Investments Pty Ltd v Riley (No 1) [30] in which the complainant, an Aboriginal man, claimed that he was asked to leave a pub following an altercation (for which he also claimed he was not to blame). The complainant alleged racial discrimination, noting that the other person in the altercation was not asked to leave the hotel while his wife and companions, who had not been involved in the altercation, were asked to leave. The manager who had evicted the complainant was not called by the respondent to give evidence. However, a letter was tendered in which the manager explained that the reason the complainant was evicted was that he was ‘known as a troublemaker’. Initially, the Western Australian Equal Opportunity Tribunal upheld the complaint, stating:

It is necessary to examine the evidence with a view to determining what factors influenced [the manager’s] decision to evict. The Tribunal finds it difficult to accept that the hotel manager would ordinarily have evicted people associated with a drinker who was involved in an altercation. This leads the Tribunal to conclude as a matter of inference from the available facts proved by other evidence, that the complainant was perceived as one of a group of Aboriginal people. Thus, the complainant was treated less favourably than a white drinker would have been treated in such circumstances because he was perceived as belonging to an Aboriginal group, which might cause trouble.... This view of the matter is reinforced by the fact that [the other person involved in the altercation] was not evicted from the premises even though the manager had no means from her own observation of determining which of the two persons involved in the altercation was at fault. The Tribunal finds support for this conclusion in the terms of the letter written by [the manager]... and in the fact that she was not called as a witness by the respondent.[31]

On appeal, however, the Court found that the factual findings of the Tribunal were not able to ground an inference of racial discrimination. Anderson J held that such an inference could only be drawn in circumstances ‘such as to fairly raise in an unsuspicious mind the inference of racial discrimination as the probable explanation for the different treatment’.[32] His Honour stated that the rule in Jones v Dunkel [33] went ‘no further than that inferences that are otherwise available in the evidence’ may be drawn ‘more confidently’ in the absence of an explanation from a witness who might be expected to have been called by a party.[34] Anderson J concluded:

Serious consequences can follow for a person or corporation held to have infringed the Act. Proof that the complainant is a person of Aboriginal descent, and that he and his drinking companions were told to leave the hotel after he had been involved in a physical encounter with a non-Aboriginal patron just before closing time, and that the non-Aboriginal patron was not also evicted, is not of itself evidence of discrimination on the ground of race. To hold that publicans against whom only those facts are proved must give evidence in explanation or contradiction of a charge of racial discrimination would, in my respectful opinion, effectively reverse the onus of proof.[35]

As predicted by Gaze in her critique of Arumugam, the approach taken by Anderson J leaves a complainant carrying the whole of the evidential burden.[36] While his Honour’s statement of the rule in Jones v Dunkel is correct, it is arguable that the Tribunal did no more than apply Jones v Dunkel in ‘finding support’ for its conclusions from the failure of the respondent to call evidence from the manager. Furthermore, to place an evidentiary burden upon the respondent to provide an explanation for his conduct, as the Tribunal did at first instance, is not to ‘effectively reverse the onus of proof’. Shifting some of the evidential burden, so as to require a respondent to adduce evidence on an issue to avoid an adverse inference being drawn against them, does not alter the requirement that a complainant satisfy a court or tribunal that discrimination is made out. It does, however, go some way to addressing the difficulties faced by complainants in effectively challenging decisions which they believe to be discriminatory.

The elusive nature of proof of systemic discrimination was acknowledged by the Human Rights and Equal Opportunity Commission (hereinafter HREOC) in Murray v Forward & Merit Protection Review Agency.[37] In that case, Ms Murray, an Aboriginal woman, had applied for a position with her employer and had been the unanimous choice of the Selection Committee. When the position was not filled, the complainant made a complaint via the internal grievance process. It was the manner in which her grievance was handled that formed the basis complaint to the HREDC. In particular, she was nt satisfied with the outcome of the process (she did not get the job) and the fact that she did not have the opportunity to challenge derogatory comments concerning her literacy skills that had been made and recorded in connection with her application.

The complainant claimed that the director of the review agency, Ms Forward, demonstrated racial bias in handling her complaint. It was alleged that Ms Forward was aggressive and patronising during the interview, and lacked sympathy and understanding. The complainant further alleged that Ms Forward had demonstrated racial bias by uncritically accepting the criticisms that had been made regarding the complainant’s literacy in connection with her application. The Commissioner noted that the last of these complaints was supported by the fact that Ms Forward’s recommendation arising out of the grievance process included a reference to the provision of training opportunities to improve the competitive edge of the applicant in pursuing any future promotion opportunities — suggesting that Ms Forward had accepted the criticism of the complainant’s literacy.

The Commissioner identified the problem faced by the complainant in making out her complaint, but concluded that there was simply not enough evidence to establish that there had been discrimination:

Counsel for the complainant argued that I can draw the inference that Ms Forward was motivated by racism from her ready acceptance of Mr Gallagher’s derogatory assessment, coupled with [an unsubstantiated allegation of dishonesty]. He argued that the only inference to be drawn from such ready acceptance of illiteracy was of racist motivation based on the stereotype of Aboriginality that accepted weakness in this area. Ms Forward was unconsciously reacting to stereotypes because otherwise she would not have assumed that Mr Gallagher was right.
I have not found the resolution of this issue an easy one. Counsel acknowledges that to accept his submission on behalf of the complainant I must exclude all other inferences that might reasonably be open. I am sensitive to the possible presence of systemic racism, when persons in a bureaucratic context can unconsciously be guided by racist assumptions that may underlie the system. But in such a case there must be some evidence of the system and the latent or patent racist attitudes that infect it. Here there is no such evidence. Consequently there is no evidence to establish the weight to be accorded to the alleged stereotype.[38]

The importance of requiring an explanation from a respondent, and subjecting it to careful scrutiny, is that it may at least provide some evidence of ‘the system and the latent or patent attitudes that infect it’. Of course, in Murray v Forward, it did not do so (which may simply be a reflection of the absence of discrimination in that particular matter). By way of contrast, however, is the decision in Oyekanmi v National Forge Operations Pty Ltd.[39] In that case the complainant, an engineer of Nigerian national origin, complained of having been discriminated against in the decision, amongst other things, to terminate his employment. The respondent employer argued that there were objective (and non-racial) bases for his dismissal.

The complainant gave evidence, not disputed by the respondent, that in an interview with the respondent he was asked by one of the panel members whether he foresaw a racial problem working in a company that was ‘all white’.[40] Evidence was also given to the Victorian Equal Opportunity Board by the chairman of the company that it was crucial for the complainant to have ‘credibility’ with company staff. This included an ability to ‘strike up a working relationship’, ‘sell his ideas’ and be ‘accepted’.[41]

The Board found that this requirement of credibility stemmed from a consciousness of the complainant’s race and a perception that the workforce might be racist and might not accept him. In making this finding, the Board rejected the apparently objective nature of these criteria, finding that they were not imposed upon other employees and had not formed part of the complainant’s written terms of employment. The decisions made by the respondent concerning the complainant’s employment were found to be based on this consciousness of the complainant’s race and, accordingly, the complaint was upheld.[42] This rare success for a complainant arguably demonstrates the importance of requiring an explanation from an employer and subjecting those reasons to careful scrutiny, conscious of the nature of racial discrimination and the dynamics of the employment context.

B. The English Approach

An early line of English cases suggested a greater willingness to draw inferences of racial discrimination and require a respondent to explain their conduct. In Oxford v Department of Health and Social Security,[43] a sex discrimination case, the complainant argued that the respondent should carry the onus of proof as the complainant could not know all the facts surrounding the decision not to employ them. The Employment Tribunal rejected that argument, finding that the formal burden of proof lay upon the applicant. However, the Tribunal was of the view that in the course of the case the ‘evidential burden may easily shift to the respondent’.[44] The Tribunal approved of the approach taken by the tribunal below, which had stated:

At the conclusion of the [complainant’s] case, we were inclined to reject his claim on the basis that no case against the [employers] had been established. Nevertheless, bearing in mind the difficulties the [complainant] faced, we decided to hear from the [employers] and to give the [complainant] every opportunity to examine their witnesses and question them on matters he considered relevant.[45]

The Tribunal further added that while the burden of proof lies on the applicant, ‘it would only be in exceptional or frivolous cases that it would be right for the industrial tribunal to find at the end of the applicant’s case that there was no case to answer and that it was not necessary to hear what the respondent had to say about it’.[46]

In Chattopadhyay v Headmaster of Holloway School[47] the Employment Appeals Tribunal noted the difficulties faced by a complainant bringing an action of racial discrimination and, citing the decision in Oxford, stated:

It is for this reason that the law has been established that if an applicant shows that he has been treated less favourably than others in circumstances which are consistent with that treatment being based on racial grounds, the industrial tribunal should draw an inference that such treatment was on racial grounds, unless the respondent can satisfy the industrial tribunal that there is an innocent explanation ...[48]

The Court of Appeal approved of this approach in West Midlands Passenger Transport Executive v Jaquant Singh.[49] More recently, however, the House of Lords has backed away from this proposition in Glasgow City Council v Zafar,[50] holding that a court ‘may’ make an inference, rather than ‘should’. However, the Court in Zafar adopted the following approach from the decision of Neill LJ in King v Great Britain-China Centre,[51] which still suggests a willingness to require a respondent’s explanation once a complainant has met a very low evidentiary threshold:

... a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such cases 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 is not a matter of law but as May L.J. put it in North West Thames Regional Health Authority v Noone ([1988] ICR 813 at 822), ‘almost common sense’... It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.[52]

The English courts have also considered the extent to which statistics might be used to demonstrate systemic discrimination and overcome some of the difficulties faced by complainants. In West Midlands Transport v Singh the Court of Appeal stated:

Statistical evidence may establish a discernible pattern in the treatment of a particular group: if that pattern demonstrates a regular failure of members of the group to obtain promotion to particular jobs and to under-representation in such jobs, it may give rise to an inference of discrimination against the group.... The suitability of candidates can rarely be measured objectively; often subjective judgments will be made. If there is evidence of a high percentage rate of failure to achieve promotion at particular levels by members of a particular racial group, this may indicate that the real reason for refusal is a conscious or unconscious racial attitude which involves stereotyped assumptions about members of that group.[53]

Conversely, the courts have allowed employers to give evidence that:

persons holding responsible positions include both white and non-white as demonstrating that they have a policy of non-discrimination and as providing evidence from which [a tribunal] could decide in a particular case that the particular applicant had not been discriminated against.[54]

C. The Australian Approach: Recent Cases

The more recent of these English cases were adopted in part by the Federal Court in Sharma v Legal Aid Queensland,[55] and, in the same matter on appeal, by the Full Federal Court in Sharma v Legal Aid (Qld).[56] The case concerned allegations by a solicitor of Indian national origin that he had experienced racial discrimination on a number of occasions during his employment with the respondent, in particular in relation to the selection process for the positions of solicitor-in-charge at the Mackay office and senior solicitor at the Mt Isa office. In the case of the Mackay position, Mr Sharma claimed that he fulfilled the selection criteria and was the highest scoring candidate for the position, but was nevertheless not offered the position. In relation to the Mt Isa position, he was not rated as highly as the other candidate, but complained about his treatment by the interview panel and that he was not given the same latitude in preparing answers to questions.

The applicant sought to draw inferences to support his claims from the small number of people employed by the organisation coming from non-English speaking backgrounds, particularly at the level of professional staff. He also sought to rely on the fact that no solicitor-in-charge of any of the respondent’s offices was from a non-English speaking background.

At first instance, Kiefel J accepted that statistical evidence ‘may be able to convey something about the likelihood of people not being advanced because of factors such as race or gender.’ She cited with apparent approval West Midlands Transport v Singh, but noted that ultimately it is ‘a question of fact in each case’. In the present case, all that could be said was that ‘a small number of the workforce of the respondent comes from non-English speaking backgrounds’.[57]

Ultimately Kiefel J found that there was no evidence of racial discrimination and that the decision had been made on the basis of an evaluation of the selection criteria. Her Honour’s conclusion is not surprising given the facts as set out in the case. Of interest, however, is one matter that did cause her Honour ‘concern’.[58] This was a reference by a member of the selection panel to the capacity of an applicant to be ‘the public face of the CEO and the organisation’ in Mackay.[59] The evidence given on behalf of the respondent was that ‘public face’ referred not to physical characteristics, but to the functions that a person would be undertaking and their broader responsibility in the community. This explanation was accepted by Kiefel J. However, her Honour made the following comment:

The use of the words ‘the public face [of the respondent]’ to describe the aspect of the role in question has caused me concern. It is possible that it could refer to a need for someone to have physical characteristics which are different from those shared by the applicant’s race. It is possible that underlying it is a view that someone of the applicant’s racial background and appearance did not fit that picture. My concerns cannot be elevated, at an evidentiary level, beyond possibilities ... there is no other aspect of the evidence which supports any view of their approach as including race as a factor.[60]

While this touches upon the issue of apparently neutral, but possibly racially-biased, selection criteria, it does so only in a superficial way. The potential for racial bias in the notion of the ‘public face’ of an organisation surely goes beyond the issue of the ‘physical characteristics’ that this may suggest (such as the requirement to be ‘articulate’, as was the case in Arumugam). As noted above, cultural assumptions and prejudices that can lead to racial discrimination in employment are not skin-deep. It would be unfortunate if courts were only conscious of such matters when expressions such as ‘public face’ were used, and more so if only the superficial connotations of such expressions were considered relevant to the issue of discrimination.

On appeal, the Full Court upheld the decision of Kiefel J and made the following comment which, although citing with apparent approval the English authorities discussed above, suggests that the Australian courts at the federal level will remain circumspect when it comes to drawing inferences:

It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953, 958. There may be cases in which the motivation is subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] UKHL 36; [1999] 3 WLR 425, 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361–362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature.
In a case depending on circumstantial evidence, it is well established that the trier of fact must consider ‘the weight which is to be given to the united force of all the circumstances put together’. One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v The Queen [No.2] (1983–[1984] HCA 7; 1984) 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important, provided, of course, that the circumstances relied upon are established as facts.[61]

Despite the apparent acceptance of the ‘higher standard’ in Briginshaw in the decisions in Sharma, there is authority to support the proposition that not every case in which discrimination is alleged will involve issues of importance and gravity such as to attract the higher standard of evidence contemplated by that test. Indeed, it is arguable that Sharma, in which it was not necessary to find that there was conscious discrimination, was a case in which the higher standard was not appropriate.

The Full Federal Court in State of Victoria v Macedonain Teachers Association of Victoria [62] considered a complaint in relation to a directive issued by the Victorian government that all Victorian government departments and agencies should thereafter ‘refer for the time being to the language that is spoken by people living in the Former Yugoslav Republic of Macedonia, or originating from it, as Macedonian (Slavonic)’. This was alleged to impair the recognition, enjoyment or exercise of a number of human rights and fundamental freedoms, and thereby constitute racial discrimination.

The Court cited the decision of Deane, Dawson and Gaudron JJ in G v H  [63] in which it was noted that ‘due regard must be had to the nature of the issue involved because not every case involves issues of importance and gravity in the Briginshaw sense.’[64] In G v H, a case involving the paternity of a child, the High Court held that the higher standard of evidence contemplated by Briginshaw was not required. As to the allegations in the Macedonian Teachers Case before them, the Full Court stated:

In this case the complainants did not make, and did not need to make, any ‘serious allegations’ against the respondent, and they submitted to the Commission that it should confine itself in its determination to an examination of the effect of the directive given by the respondent in the terms of s 9 of the Act without considering the motives of the government.
In the present case it is not necessary to make a finding of ‘deliberate’ discrimination against one section of the community in order to favour another section, and the probity of the Victorian government is not in issue. The 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. We disagree with his Honour's conclusion that the absence of intention to discriminate does not significantly diminish the gravity of any such finding. As the first respondent submits, there are many examples of governments being held to have discriminated unlawfully against individuals or groups of individuals without resort to the principle in Briginshaw. They referred to the case of Bacon v Victoria (unreported, Supreme Court of Victoria, Beach J, 7 November 1997) where the issue was whether the education policy of the Victorian government was discriminatory. Beach J held that it was, but his Honour did not invoke the Briginshaw principle. That case was similar, in principle, to this one. No issue of fraud or impropriety was raised or needed to be determined. [Emphasis added.][65]

The apparent conflict between these federal authorities was considered in a recent decision by the New South Wales Administrative Decisions Tribunal in Dutt v Central Coast Area Health Service.[66] The Tribunal preferred the view taken in the Macedonian Teachers Case, and held that a finding that a government agency and its staff have contravened a provision of an anti-discrimination statute was not ‘so grave’ as to attract the higher standard of evidence contemplated by the Briginshaw test. The Tribunal stated:

The allegations made by Dr Dutt are of two sorts. All but one are allegations of unlawful discrimination in the absence of any explicit reference to Dr Dutt’s race. For those allegations Dr Dutt relies on inference to show that his race was a reason for the conduct. The various instances of conduct, if found to have occurred, were the conduct of a range or people, all officers of [the respondent] and all performing their ordinary duties. A finding that that conduct was unlawful discrimination is not in our view so grave as to warrant a reliance on the Briginshaw standard of evidence. Such a finding would be well short of a finding of criminal conduct, and it would cause no reasonably foreseeable adverse consequence to the people concerned. The observation made in [the Macedonian Teachers Case] would be made in similar terms for the [respondent] and the parties to the conduct in this matter: a finding that a government agency and its staff have contravened a provision of an anti-discrimination statute is not, in our view, sufficient to attract the Briginshaw test.[67]

On appeal, the first instance decision was affirmed.[68] However, the Appeal Panel stated, correctly in my view, that the proper approach to the Briginshaw principle is to apply it universally. The matters referred to in Dixon J’s statement in Briginshaw (the nature and consequences of the facts to be proved etc) should therefore be taken into account in all cases to determine whether or not the evidence is sufficient to enable a decision-maker to reach a state of reasonable satisfaction.[69]

4. A Way Forward?

A greater acknowledgement by courts and tribunals of the subtleties and complexities of racial discrimination may enable some of the difficulties faced by complainants to be addressed. It is clear, for example, that complainants are likely to benefit from an approach which does not necessarily regard a finding of racial discrimination as being ‘so grave’ as to attract the higher standard of evidence contemplated by the Briginshaw principle, an approach adopted by the Full Federal Court in the Macedonian Teachers Case and the New South Wales Administrative Decisions Tribunal in Dutt. In particular, such an approach may increase the ability of a complainant to rely on inferences to satisfy the burden of proof.

This is not to suggest that racial discrimination is not serious (nor possibly very serious), but by attaching less opprobrium to a finding of discrimination, particularly in circumstances in which discrimination takes place without an intent to discriminate, courts may be better able to acknowledge and tackle systemic and underlying racial prejudice.[70] The fact is that ‘good people’ (such as the ‘highly qualified medical men’ in Arumugam) may make decisions which are influenced by racial bias. Furthermore, it should be recognised there is nothing ‘inherently unlikely’ about racism or racial discrimination, such that under the Briginshaw principle a higher standard of evidence should be required to make out such a claim. As I have argued above, factors such as race are an inevitable influence on decisions which require a differentiation of candidates based on their personal attributes.

Acknowledging these facts may allow for a more honest and workable approach to complaints of racial discrimination, and would be preferable to stern judicial pronouncements about the seriousness of racial discrimination which ultimately only add to the difficulties faced by complainants in proving their case.

Recognising also that the true basis for a decision, which may manifest conscious or reflect unconscious discrimination, is peculiarly within the knowledge of an employer, an evidential burden should rest on a respondent employer to provide an explanation for that decision. In the absence of such an explanation, and in the event that there is no reasonable explanation for the failure by that party to call such evidence, it is suggested that the approach taken in the English cases following Oxford v DHSS be adopted and an inference of discrimination should be drawn. In cases where there is already evidence supporting a finding of discrimination, this may amount to no more than an application of the rule in Jones v Dunkel. However, the ‘monopoly on knowledge’ enjoyed by the respondent in discrimination cases justifies the application of the principle in any case where a low ‘case to answer’ hurdle is cleared. To require an explanation from a respondent for an impugned decision will not, it is suggested, place an unduly great burden upon them. It also does not amount to a reversal of the onus of proof. To the extent that this extends the principle in Jones v Dunkel, such a development may, however, require legislative initiative.

As a further step towards a more satisfactory approach to racial discrimination cases, courts and tribunals should also be encouraged to scrutinise carefully the reasons proffered by respondents for their decisions, being sensitive to the systemic bias (both conscious and unconscious) which may underlie them. It must be acknowledged that exposing what lies beneath the opaque language of ‘merit’ is unlikely to be an easy task. However, the prospect of indirect discrimination occurring by virtue of the disparate impact of the apparently neutral requirements of a position, would seem to be one approach to the issue which is yet to be explored in the case law.

In all of the cases considered above, it appears that only direct racial discrimination was argued. Both in cases where overt racism was alleged and in cases in which prejudice, conscious or unconscious, was alleged to have operated, the issue was framed as one of less favourable treatment based on a person’s race. It would seem that none of the cases sought to tackle the issue of whether or not the apparently neutral qualities seen as necessary for a job may be skewed towards a cultural norm or carry a cultural and/or racial bias such that persons from a particular racial group are less likely to be able to satisfy those criteria. If such qualities or criteria can be shown to be unreasonable, this would constitute indirect discrimination. This is another way in which applicants, or tribunals acting in an inquisitorial mode, may seek to more effectively attack workplace discrimination.

The apparent reasonableness of a requirement or condition will limit the circumstances in which indirect discrimination can be shown. Courts should, however, be slow to find that requirements with a discriminatory impact are ‘reasonable’, consistent with the principle that when construing legislation designed to protect human rights, courts have a special responsibility to take into account the purposes and objects of the legislation (to eliminate racial discrimination) and, accordingly, should construe exemptions and provisions restricting rights narrowly.[71] Nevertheless, it needs to be acknowledged that one of the significant limitations in the ability of discrimination laws to achieve substantive equality in employment (and elsewhere) is that it does not address the societal disadvantage faced by particular racial or ethnic groups, which results in persons from those groups having a lesser ability to meet selection criteria relating, for example, to English literacy.[72] There is, in effect, a societal ‘selection process’ which operates to perpetuate disparities in opportunity and outcome between racial groups and which falls beyond the scope of anti-discrimination legislation.

The courts have also flagged the use of statistics as one way in which complainants may attempt to expose systemic bias. Here, however, complainants are likely to face difficulties in collecting and using such evidence. Even with a co-operative respondent, the provisions of the Privacy Act 1988 (Cth) may present barriers to such an undertaking, although this would not prevent such information being obtained by subpoena once proceedings have commenced.[73] It is also likely that statistics will need to be comprehensive and compelling to be useful. The decision of Kiefel J in Sharma illustrates that in cases involving relatively small organisations, statistics may prove little. On the other hand, where larger organisations are involved, even if a complainant is able to collect statistics, the task of doing so will be an onerous one.

5. Conclusion

I have argued that the approach taken by some Australian courts to the drawing of inferences in racial discrimination cases is unnecessarily restrictive and creates further obstacles for complainants. An approach that shifts some of the evidentiary weight onto employers reflects appropriately the context in which such cases are brought, and may result in the difficult issues of systemic racial bias being more thoroughly scrutinised.

This will not, however, end the significant difficulties faced by complainants. As Thornton observes, the language of ‘merit’ with which impugned employment decisions will be explained, is still likely to mask racial bias where it exists.[74] Indeed it can be noted that in all of the Australian employment cases discussed above, the employer did, in fact, provide an explanation for its decision and, with the exception of Oyekanmi, that explanation was accepted by the court/tribunal.[75] Of course, the purpose of suggesting a different approach to this issue is not to chalk up more ‘wins’ for complainants, but rather to try to find a more satisfactory basis for such matters to be more robustly tried. The decision of the Tribunal in Oyekanmi in favour of the complainant arguably illustrates the benefits of the suggested approach.

While it remains the case that the formal complaint-based legal process can only ever play a limited role in addressing issues of racial inequality, we should seek to make the most of what tools we have and seek to peel back the ‘veneer of neutrality’ covering decisions made in the field of employment.


[*] The author is a senior legal officer with the Human Rights and Equal Opportunity Commission. The views expressed are his personal views and not those of the Commission. Thanks to Juliet Bourke and Cassandra Goldie for their very helpful comments on drafts of this article — any errors, of course, remain mine.

[1] The Human Rights Legislation Amendment Act No 1 1999 (Cth) commenced 13 April 2000. Prior to this time, complaints were heard at first instance by the Human Rights and Equal Opportunity Commission.

[2] I have excluded from consideration those matters dismissed at an interlocutory stage and appeals. The three successful cases were: McGlade v Lightfoot [2002] FCA 1457; McMahon v Bowman [2000] FMCA 3; and Horman v Distribution Group Ltd [2001] FMCA 52. Those unsuccessful were: Hagan v Trustees of the Toowoomba Sports Groun Trust [2000] FCA 1615; Sharma v Legal Aid Queensland [2001] FCA 1699; Paramasivam v Tay [2001] FCA 758; Creek v Cairns Post Pty Ltd [2001] FCA 1007; Gibbs v Wanganeen [2001] FMCA 14; Oberoi v Human Rights and Equal Opportunity Commission & Ors [2001] FMCA 34; Williams v Tandanya Cultural Centre [2001] FMCA 46; Chau v Oreanda Pty Ltd t/as Blue Cross Medical Centre & Ors [2001] FMCA 114; Hassan Anor v Smith and Ors [2001] FMCA 58; Charan v Commonwealth Insurance Ltd [2002] FMCA 50; Batzialas v Tony Davies Motors Pty Ltd [2002] FMCA 243; and McLeod v Power [2003] FMCA 2. I have not included Tadawan v State of South Australia [2001] FMCA 25, which involved an allegation of victimisation on the basis of a previous race discrimination complaint (made to the South Australian Equal Opportunity Commission).

[3] See, for example, Chattopadhyay v Headmaster of Holloway School and Ors [1982] ICR 132 at 137 (Browne-Wilkinson J); Margaret Thornton, ‘Revisiting Race’ in Race Discrimination Commissioner, The Racial Discrimination Act 1975: A Review (Canberra: AGPS, 1995) at 81–99; Beth Gaze, ‘Problems of Proof in Equal Opportunity Cases’ (1989) Law Inst J 731–733; Pelma J Rajapakse, ‘An Analysis of the Methods of Proof in Direct Discrimination Cases in Australia’ [1998] UQLawJl 5; (1998) 20(1) UQLJ 90.

[4] While I have chosen this narrow scope for the present article, I acknowledge the significant critiques of anti-discrimination and ‘equality’ paradigms as a means of dealing with racism and racial discrimination. See, for example, Alan Freeman, ‘Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine’ (at 29–45) and Derrick Bell Jr, ‘Racial Realism’ (at 302–312) in Kimberlé Crenshaw, Neil Gotanda, Garry Peller & Kendall Thomas (eds), Critical Race Theory: The Key Writings That Formed the Movement (1995).

[5] See, for example, s9(1) of the Racial Discrimination Act 1975 (Cth) (hereinafter RDA).

[6] Section 9(1) of the RDA provides a more detailed proscription: ‘It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin 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...’.

[7] See, for example, s9(1A) of the RDA.

[8] In Australia, under the RDA, see Australian Medical Council v Wilson & Ors [1996] FCA 1618; [1996] 68 FCR 46 at 74 (Sackville J); Creek v Cairns Post Pty Ltd [2001] FCA 1007 at [19]–[28] (Kiefel J). Under the Anti-Discrimination Act 1977 (NSW), see Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 176 (Deane and Gaudron JJ). Under the Equal Opportunity Act 1995 (Vic), see s10. Under the Anti-Discrimination Act 1992 (NT), see s20(4). Under the Anti-Discrimination Act 1991 (Qld), see s10(3). Under the Anti-Discrimination Act 1998 (Tas), see s14(3)(c). See also Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359 (Mason CJ and Gaudron J, with whom Deane J agreed at 382). In England, see R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 and James v Eastleigh Borough Council [1990] UKHL 6; [1990] 2 AC 751.

[9] The decision of Kiefel J in Creek v Cairns Post Pty Ltd [2001] FCA 1007 at [19]–[28] provides a summary of many of the attempts that have been made to define the exact nature of the causal link required to prove racial discrimination. See also Weinberg J’s decision in Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8 at 33 in which his Honour suggests that the relevant requirement under s9(1) of the RDA is for a ‘sufficient connection’, rather than a ‘causal nexus’.

[10] Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990) at 180.

[11] As Einfeld J remarked in Bennett v Everitt (1988) EOC 77,261 at 77,271: ‘... many discrimination cases (other than sexual harassment) have to be proved by comparatively weak circumstantial evidence, without direct or perhaps any witnesses and based only on an intuition or a deeply held if correct belief that there has been discrimination.’

[12] It is not suggested that every cultural bias will result in a racial bias — but there is an obvious connection between the two. For further analysis of the nature, manifestations and significance of unconscious racial discrimination, see Charles Lawrence III, ‘The Id, the Ego and Equal Protection Reckoning with Unconscious Racism’ in Crenshaw et al, above n4 at 235–256.

[13] Thornton, above n3 at 90.

[14] Thornton, above n3 at 91–92.

[15] For an American perspective, see Linda Greene, ‘Race in the Twenty-First Century: Equality Through Law?’ in Crenshaw et al, above n4 at 292–301. She argues that formalistic and ‘hypertechnical’ reasoning in a series of important decisions in the United States Supreme Court significantly limited the scope for racial inequalities to be redressed through the formal legal system.

[16] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (hereinafter Briginshaw).

[17] Briginshaw, above n16 at 362.

[18] Id at 361.

[19] This approach was recently advocated by the Appeal Panel of the NSW Adminstrative Decisions Tribunal in Dutt v Central Coast Area Health Service [2003] NSWADTAP 3 at [12]–[18].

[20] The issue is not exclusive to the area of racial discrimination: it is equally relevant to sex and disability discrimination. See, for example, Font v Paspaley Pearls [2002] FMCA 142 at [127], where Raphael FM applied the ‘more onerous “Briginshaw” test’ to an allegation of sexual harassment.

[21] [1988] VicRp 42; [1988] VR 319 (hereinafter Arumugam).

[22] Id at 331.

[23] Ibid.

[24] Id at 330.

[25] Id at 327.

[26] Equal Opportunity Act 1995 (Vic) s10.

[27] Gaze, above n3 at 733.

[28] (2000) EOC 74,249 at 74,261 (a sex discrimination case).

[29] Id at 74,262.

[30] (1993) EOC 92–525 (hereinafter KLK Investments).

[31] Quoted in KLK Investments, above n30 at 79,667.

[32] Id at 79,668.

[33] [1959] HCA 8; (1959) 101 CLR 298 (hereinafter Jones v Dunkel).

[34] Ibid.

[35] Ibid.

[36] Gaze, above n3 at 733.

[37] [1993] HREOCA 21 (hereinafter Murray v Forward).

[38] Id at 4.

[39] (1996) EOC 78,893 (hereinafter Oyekanmi).

[40] Id at 78,894.

[41] Id at 78,897.

[42] Ibid.

[43] [1977] ICR 884 (hereinafter Oxford v DHSS).

[44] Id at 886.

[45] Ibid.

[46] Id at 887.

[47] [1982] ICR 132.

[48] Id at 137 (Browne-Wilkinson J).

[49] [1988] 1 WLR 730 at 734–735 (hereinafter West Midlands Transport v Singh).

[50] [1997] UKHL 54; [1998] 2 All ER 953 (hereinafter Zafar).

[51] [1991] EWCA Civ 16; [1992] ICR 516.

[52] Id at 528–529. See also Zafar, above n51 at 958.

[53] West Midlands Transport v Singh, above n49 at 735–736 (Browne-Wilkinson J).

[54] Id at 735.

[55] [2001] FCA 1699.

[56] [2002] FCAFC 196 (hereinafter Sharma).

[57] Sharma v Legal Aid Queensland, above n55 at [60].

[58] Id at [40].

[59] Id at [37].

[60] Id at [40].

[61] Sharma, above n56 at [40].

[62] [1999] FCA 1287; (1999) 91 FCR 47 (hereinafter Macedonian Teachers Case).

[63] [1994] HCA 48; (1994) 181 CLR 387 at 399.

[64] Macedonian Teachers Case, above n62 at 50.

[65] Id at 50–51.

[66] [2002] NSWADT 133 (hereinafter Dutt).

[67] Dutt, above n66 at [56].

[68] Dutt v Central Coast Area Health Service [2003] NSWADTAP 3.

[69] Id at [12]–[18].

[70] It does not follow from an approach under which findings of discrimination are seen as ‘less grave’ that, in the event of a successful claim, damages should be reduced. The courts have approached this aspect of the Briginshaw principle as being concerned primarily with the seriousness of the finding for a respondent and found that the phenomenon of racial discrimination, and its impact upon people’s lives, should not be regarded as any less serious as a result.

[71] Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359 (Mason CJ and Gaudron J); IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 14 (Brennan CJ and McHugh J), at 22–23 (Dawson and Gaudron JJ), at 27 (Toohey J), at 39 (Gummow J), and at 58 (Kirby J); X v Commonwealth (1999) 200 CLR 177 at 222–223 (Kirby J); and Qantas Airways Limited v Christie (1998) 193 CLR 280 at 332–333 and footnotes 168–169 (Kirby J).

[72] This disadvantage is most acute in the case of Aboriginal and Torres Strait Islander people, where basic social indicators in relation to education, health and housing reflect profound historical and ongoing disadvantage. See, for example, Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Indigenous disadvantage as historically derived’ in Social Justice Report 2000 <http://www.humanrights.gov.au/social_justice/sj_report/index.html> . It is beyond the scope of the article to examine more broadly the limitations of anti-discrimination legislation in combating racial discrimination. For further discussion see: Race Discrimination Commissioner, The Racial Discrimination Act 1975: A Review (Canberra: AGPS: 1995); Thornton, above n10, chapter VI; and Freeman and Bell, above n4.

[73] An exemption to the Privacy Act 1988 (Cth) is applicable where the disclosure of information is required or authorised under law: Information Privacy Principle 11(1)(d) (Privacy Act 1988 (Cth) s14) and National Privacy Principle 2.1(g) (Privacy Act 1988 (Cth) Sch3, cl12).

[74] Thornton, above n14.

[75] The Tribunal in Dutt did make a partial finding in favour of the complainant in relation to an incident, but otherwise dismissed the complaint. Dutt, above n65 at [104]–[105]. It should be noted that while the history of failed cases highlights some of the problems faced, I am not suggesting that in those cases there was discrimination that simply could not be proved. Such a suggestion is not available on the facts as they appear in those decisions.


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