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

de Plevitz, Loretta R. (2003) The Briginshaw 'standard of proof' in anti-discrimination law: 'pointing with a wavering finger'. Melbourne University Law Review, 27(2), pp. 308-333.

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Abstract

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.

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ID Code: 9332
Item Type: Journal Article
Additional URLs:
Keywords: civil standard of proof, Briginshaw standard of proof, anti, discrimination law
ISSN: 0025-8938
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Law not elsewhere classified (180199)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Civil Law and Procedure (180104)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Copyright Owner: Copyright 2003 Loretta R. de Plevitz
Deposited On: 05 Sep 2007
Last Modified: 29 Feb 2012 23:02

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