Reverse Burden of Proof on Racism Allegations?

The Age reports that Australia’s Race Discrimination Commissioner wants to reverse the burden of proof in racial discrimination cases:

Race Discrimination Commissioner Tom Calma wants the burden of proof in cases of racial discrimination to fall on the alleged offender, instead of the person making the complaint.

Mr Calma said Australia’s laws made it difficult to prove there had been discrimination.

In other words, once an accusation of racial discrimination has been made, it won’t be the responsibility of the accuser to bring evidence to support their allegation, but the accused must then prove that he or she is not really a racist.

Good idea?


#1 Eudaemonion on 04.06.08 at 10:08 pm

No. Overturns the idea of the presumption of innocence.

#2 null on 04.06.08 at 10:47 pm

wow and no.

#3 Manas Shaikh on 04.07.08 at 1:52 am

No. Innocent until proven guilty.

#4 G-man on 04.07.08 at 2:46 pm

So we’re all potential suspected racists until we can prove otherwise. Outrageous.

#5 Shadower on 04.07.08 at 4:38 pm

Hell no, that is ridiculous.

I agree racism needs to be confronted, but not like this, this will benefit no one, and could only make things worse.

#6 JDsg on 04.07.08 at 5:21 pm

I could be wrong, but I would think that the accuser would have already presented evidence of said racist speech or behavior. The way I understand this is that the accused, once confronted with the accusation and the evidence, must then show how his or her speech or behavior isn’t racist. For example, and to give a very blatant and obvious example, let’s say a Spanish football “fan” is accused of racist behavior toward a black football player (like Eto’o of Barcelona, who’s experienced quite a bit of this already). The fan must then prove in some way that his or her speech or behavior wasn’t racist but was in some way “normal.” That’s how I read this.

#7 Pete on 04.07.08 at 7:06 pm

After reading that comment I’m convinced that JDsg hates black people.

#8 Eudaemonion on 04.08.08 at 2:45 am

After reading that comment, I’m convinced that Pete is a troll.

#9 Hans Bader on 04.20.08 at 8:33 am

Australian race discrimination commissioner Tom Calma wrongly claims that people should have to prove themselves innocent of racism.

To support this disturbing claim, he cites an erroneous Australian human rights commission report falsely claiming that American law puts the burden of proof on defendants to prove themselves innocent.

That is false. The U.S. Supreme Court ruled in St. Mary’s Honor Center v. Hicks (1993) and Texas v. Burdine (1981) that the defendant does NOT have the ultimate burden of proof; the complainant or the government must prove the defendant is guilty.

I discuss those cases, and the false claim of the Australian “human rights” authorities, in an April 16, 2008 post on international law at, the blog of the Competitive Enterprise Institute, where I serve as counsel.

(I spent years as an attorney bringing and defending discrimination cases in private practice, and also worked briefly at the U.S. Department of Education, Office for Civil Rights, helping adjudicate discrimination cases).

#10 antish on 04.20.08 at 11:52 am


I realise that it’s shorthand, but just to be pedantic, there’s no law against ‘racism’. I personally don’t believe that ‘race’ is a meaningful concept, but many people do – and they are not breaking the law in doing so.

Back on topic – I agree it’s a really bad idea but it does have legal analogies. You have been assaulted, for instance, if you have been put in reasonable fear of imminent physical harm. It’s the perception of the victim which counts (yes, “reasonable” is a let-out, but I imagine that “reasonable” would be stated or implied in any hate-speech legislation).

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