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Reverse onus of proof in Human Rights litigation

In Australian common law human rights litigation, the reverse onus of proof is a legal principle that shifts the burden of proof from the prosecution to the defendant.


This means that instead of the prosecution having to prove the defendant's guilt, the defendant is required to prove their innocence or disprove a particular element of the case.


The reverse onus of proof typically arises in situations where there is a presumption of guilt or a legal presumption that certain facts exist.


These presumptions can be found in various legislation, such as anti-discrimination laws or laws related to human rights.


For example, in cases of discrimination, the reverse onus of proof may be applied when a person claims that they have been discriminated against based on a protected characteristic, such as race or gender.

In such cases, the burden of proof shifts to the defendant to demonstrate that they did not engage in discriminatory behavior.


The rationale behind the reverse onus of proof is to address power imbalances and provide greater protection to individuals who may be disadvantaged or marginalized.


It recognizes that certain types of discrimination or human rights violations may be difficult to prove, as the evidence is often within the control of the alleged wrongdoer.


It is important to note that the reverse onus of proof does not mean that the defendant is automatically presumed guilty.


Rather, it places an evidential burden on the defendant, requiring them to present evidence to counter the allegations made against them.


Overall, the reverse onus of proof in Australian common law human rights litigation serves as a legal mechanism to promote equality, protect vulnerable individuals, and ensure that those who allegedly violate human rights are held accountable.

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