The Briginshaw 'standard of proof' in anti-discrimination law: 'pointing with a wavering finger'

摘要

In Briginshaw v Briginshaw, the High Court held that where a civil case involves allegations of criminal conduct, fraud or moral wrongdoing which may lead to grave consequences for the defendant, the judicial approach should be a closer scrutiny of the evidence. However, the Briginshaw 'standard of proof' has been adopted by all Australian anti-discrimination jurisdictions as a general rule without examining whether it is warranted. This article traces the evolution of the Briginshaw test and argues that its indiscriminate use by tribunals creates confusion, uncertainty and injustice. It suggests ways in which equal opportunity tribunals could conform with appellate court commentary and direction.