The State of New South Wales v Amery & Ors (EOD)

The State of New South Wales initiated proceedings against Amery and others, challenging the legality of certain employment decisions made by the defendant. The case was heard in the Court of Appeal, which was tasked with determining whether the employment decisions constituted indirect discrimination and whether the onus of proof was properly discharged. The central issue was whether the employment decisions were discriminatory, and if so, whether the defendant had provided sufficient justification to prove they were reasonable. The court was also required to examine the allocation of the onus of proof between the parties.

The court considered the nature of indirect discrimination and the criteria for assessing whether an employment decision was discriminatory. It explored the requirement for the defendant to demonstrate that any discriminatory effect was a proportionate means of achieving a legitimate aim. The court emphasised the importance of considering whether the defendant had shown that the employment decisions were reasonable in all the circumstances. Additionally, the court addressed the question of who bore the onus of proof regarding the justification of the discriminatory effect. It concluded that the onus lay on the defendant to establish that the discriminatory effect was reasonable.

After thorough examination, the court found that the employment decisions did not constitute indirect discrimination as the defendant had adequately justified their actions. The court held that the defendant had demonstrated that the employment decisions were a proportionate means of achieving a legitimate aim. Consequently, the appeal by the Director General was allowed, and the complaints were dismissed. The court also dismissed the cross-appeal concerning costs, affirming the lower court's decision in that regard. The outcome ensures that the employment decisions are upheld as lawful, provided the defendant can justify them as reasonable and proportionate.