in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
- Subsection (1) does not apply in relation to orders for an interim injunction.
Under this section, where an application is made alleging that a person took action for a particular reason or with a particular intent, it is presumed that the person has taken the action for the alleged reason or with the alleged intent unless the person proves otherwise.
For example, if an application is made alleging that an employer dismissed an employee because the employee exercised a workplace right, once it is established that the dismissal took place and that the employee exercised a workplace right, it is presumed that the employer dismissed the employee because the employee exercised a workplace right unless the employer proves otherwise.
This section makes it easier than it otherwise would be to establish that a person took adverse action because the reason for taking adverse action usually lies entirely within the knowledge of the person who took the adverse action.
The court must consider why the adverse action was taken. This involves consideration of the person or decision-maker’s particular reason for taking the action and consideration of all the facts of the case at the time the decision was made, including those related to the adverse action.
The person who is seeking to rebut the presumption will need to provide evidence about the reason for taking the adverse action and/or the intention at the time of taking the adverse action. In the case of an organisation or corporation, the reason or reasons motivating the person(s) in the organisation or corporation who effectively made the decision to take the adverse action will be significantly relevant. In that context, it is important to identify the effective decision-maker(s) and their motives.
To rebut means to refute by evidence or argument, to oppose something by proving the opposite.
It will ordinarily be difficult to rebut the statutory presumption if no direct evidence by the person or decision-maker(s) who took the adverse action is given.
Direct evidence of the decision-maker’s state of mind, intent or purpose will be considered, and the credibility of the decision-maker will be examined. It will be up to the Court or Commission to consider whether the decision-maker’s evidence as to the reasons for taking the action is accepted. It is open to the other party to call evidence to demonstrate that the decision-maker’s real reason for taking the action was not what they said it was.
Direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer. However, direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence.
Consideration is not to be given to a decision-maker’s unconscious reasons. The decision-maker can only give evidence on reasons that they were conscious of. Unconscious reasons will not be considered because it would create an impossible burden to disprove.
Sometimes the decision to take adverse action is made by a collective group, such as the partners in a business, the board of a corporation, at a council meeting, or a number of managers and supervisors.
In that circumstance, it may be necessary to call all members of the collective group to give evidence in order to rebut the presumption in s.361.
 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 549 (7 September 2012) .
 ibid., .