Burden of Proof and Determination of Fairness or Unfairness
BURDEN OF PROOF AND DETERMINATION OF FAIRNESS OR UNFAIRNESS
13. Burden of proof
(1) If the complainant makes out a prima facie case of discrimination—
(a) the respondent must prove, on the facts before the court, that the discrimination did not take place as alleged; or
(b) the respondent must prove that the conduct is not based on one or more of the prohibited grounds.
(2) If the discrimination did take place—
(a) on a ground in paragraph (a) of the definition of “prohibited grounds”, then it is unfair, unless the respondent proves that the discrimination is fair;
(b) on a ground in paragraph (b) of the definition of “prohibited grounds”, then it is unfair—
(i) if one or more of the conditions set out in paragraph (b) of the definition of “prohibited grounds” is established; and
(ii) unless the respondent proves that the discrimination is fair.
[Commencement of s 13: 16 June 2003 (Proc. 49, G. 25065).]
14. Determination of fairness or unfairness
(1) It is not unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination or the members of such groups or categories of persons.
(2) In determining whether the respondent has proved that the discrimination is fair, the following must be taken into account—
(a) The context;
(b) the factors referred to in subsection (3);
(c) whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned.
(3) The factors referred to in subsection (2)(b) include the following—
(a) Whether the discrimination impairs or is likely to impair human dignity;
(b) the impact or likely impact of the discrimination on the complainant;
(c) the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage;
(d) the nature and extent of the discrimination;
(e) whether the discrimination is systemic in nature;
(f) whether the discrimination has a legitimate purpose;
(g) whether and to what extent the discrimination achieves its purpose;
(h) whether there are less restrictive and less disadvantageous means to achieve the purpose;
(i) whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to—
(i) address the disadvantage which arises from or is related to one or more of the prohibited grounds; or
(ii) accommodate diversity.
[Commencement of s 14: 16 June 2003 (Proc. 49, G. 25065).]
15. Hate speech and harassment not subject to determination of fairness
In cases of hate speech and harassment section 14 does not apply.
[Commencement of s 15: 16 June 2003 (Proc. 49, G. 25065).]