Want to listen to the full episode and all our other episodes?
Hearsay allows you to fulfill your legal CPD requirements every year.
Our yearly subscription is only $299/year.
With a yearly subscription, you can access all of our episodes AND every episode we release over the next year.
Episode 84
Buy Episode
Substantive Law
Voicing History: Wotton and the Continuing Development of Human Rights Class Actions
Law as stated: 24 March 2023
What is this?
This episode was published and is accurate as at this date.
Expert human rights litigator Joshua Creamer joins David from Queensland to digest the burgeoning area of human rights class actions.
Substantive LawThis episode refers to people who have died.
| What area(s) of law does this episode consider? | Human rights class actions and the decision in Wotton v State of Queensland. |
| Why is this topic relevant? | Over the past few years, much attention has been paid to shareholder class actions, especially concerning the continuous disclosure obligations of publicly listed companies. Though these class actions see mixed success, these representative proceedings on behalf of investors – and how they are funded – have dominated both media coverage and law reform discussion about class actions in Australia in recent years. Human rights class actions, however, are an important and emerging part of Australia’s litigation landscape that have flown under the radar. One example is Wotton v State of Queensland (No 5) [2016] FCA 1457: a representative proceeding about race discrimination in the police response to the death of Cameron Doomadgee (known posthumously as Mulrunji) on Palm Island, including an emergency declaration and police operation. |
| What legislation is considered in this episode? | Racial Discrimination Act 1975 (Cth) (RDA) |
| What cases are considered in this episode? | Wotton v Queensland (No 5) [2016] FCA 1457
|
| What are the main points? |
|
| What are the practical takeaways? |
|
| Show notes | Australian Law Reform Commission, Integrity, Fairness and Efficiency—An Inquiry into Class Action Proceedings and Third-Party Litigation Funders (2018) Federal Court of Australia, Guide to Human Rights Cases (2022) Federal Court of Australia, Pabai Pabai v Commonwealth of Australia – Online File (2023) |
| David Turner:
1:00
2:00 | Hello and welcome to Hearsay the Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host David Turner. Hearsay the Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services and Hearsay the Legal Podcast is how we’re improving the experience of CPD. Before we begin today’s episode of Hearsay, I wanted to let our Aboriginal and Torres Strait Islander listeners know that in this episode we mentioned the names of people who have died. Over the past few years, a lot of attention has been paid to one particular type of class action, and that’s the shareholder class action, especially concerning continuous disclosure obligations when it comes to publicly listed companies. Although these class actions see mixed success, these representative proceedings on behalf of investors – and their funding – have dominated both media coverage and law reform discussion about class actions in Australia in recent years. Human rights class actions, however, are an important and emerging part of Australia’s litigation landscape, and they’ve flown under the radar a little bit. One example from a few years ago is Wotton v State of Queensland, a 2016 decision of the Federal Court: a representative proceeding about race discrimination in the police response to the death of Cameron Doomadgee (known posthumously as Mulrunji) on Palm Island, including an emergency declaration and police operation there. The Federal Court found in that case that the Queensland Police Service had contravened the Racial Discrimination Act in four key ways, which we’re going to discuss further in this episode. Now joining me today to discuss the case, and human rights class actions more generally, is barrister Joshua Creamer from Murray Gleeson Chambers in Brisbane. Josh was one of the barristers representing the applicants in Wotton, and is an expert in human rights class actions, and native title litigation. A proud Waanyi and Kalkadoon man, Joshua joins me today to talk about Wotton and the emerging role of human rights class actions in this challenging and changing area of the law. Josh, thank you so much for joining me today on Hearsay! |
| Joshua Creamer: | David, pleased to be with you. Looking forward to our discussion today. |
| DT: | Absolutely. It’s not an area I know a lot about and I don’t think it’s an area a lot of our listeners know about. So I’m really looking forward to getting into it. Before we do though, I’d love to know what brought you to this particular area of legal practice? I think human rights law is probably one of those areas that when we go to law school, a lot of people aspire to practice and maybe not as many get to. So how did you get to do it and was it a straight path there or more of a roundabout one? |
| JC: | I’m glad you mentioned the university days because I think I’m living every law student’s dream. The ability to practice… |
| DT: | You are! |
| JC: 3:00 | … practice in an area where you feel like you’re making a contribution and making a difference, I guess, for the next generation. So no, look, it’s an interesting path. I’ve just come up now 12 years at the bar. And before I was at the bar I was an associate. I’d worked in a commercial law firm for a short time and I worked in native title as well. So probably about 20 years experience in law. And before I came to the bar, actually, I was also working at Legal Aid as a clerk whilst I was finishing university and I thought I would come to the bar and be a criminal barrister. That was actually my focus. And it’s interesting – at the bar, you never really know where you’re going to end up. You can have aspirations and ideas, and really, Wotton was a significant change for me. I’d done a lot of work in native title. I was used to the Federal Court, used to that jurisdiction, used to really big, complex cases and this case really came out of nowhere and after the last eight years, that’s become my central practice. Human rights class actions, my primary focus. |
| DT:
4:00 | It’s funny that, isn’t it? That often our expectations of the work we’re going to do doesn’t really match what we end up doing at all. That’s such a common story on this show that our guests say; “well, I thought I was going to do this and I ended up doing that instead.” But it sounds like you – as you said – are really living the dream doing that sort of work that has a meaningful impact. You said, although you had that sort of experience in Legal Aid, as an associate, working in a commercial firm, it sounds like you didn’t have a huge amount of experience in practice as a solicitor before going to the bar. That’s something that I think a lot of people who think about going to the bar wonder about in terms of whether or not it will affect their success at the bar. Do you have any thoughts on that? |
| JC:
5:00
6:00 | That’s right. I had zero experience as a solicitor. So I’d worked as a law clerk and paralegal in various firms, which I mentioned before I came to the bar. And I actually got admitted – it would’ve been only six or eight weeks before I started the bar course. And then I went straight into the bar obviously. Look, I don’t think it’s the right path for everybody, and I wouldn’t necessarily recommend people do it today. The bar really is about relationships. And that’s how you get your work – relationships and experience and profile. And I always say to young lawyers if a solicitor gets a brief, you’ve really got to be the first or second name they think of and if you aren’t on that list – aren’t on that mental list – you’re not going to have any work. And I guess I was really fortunate, I had good mentors, good people around me because I’d been around as a law student practicing for five or six years, different firms. I had good relationships. And I did, I put myself out there to meet other people who I thought would be important in developing my career. I didn’t necessarily think I would be in this area, as I said. Because when I was going to law school, I don’t think human rights class actions even existed, certainly the regime would’ve been in place from the Federal Court, but I don’t think people were running those cases. And with the experience in crime and experience in native title, I thought that would be an area of my focus for my practice. And I actually thought – I was just saying to someone the other day – I thought I’d be the best criminal lawyer in Australia or criminal barrister in Australia at some stage. But I think I did one or two matters and decided it wasn’t for me. So in terms of taking those steps to the bar, I think it is a very individual decision. I often do say to the younger students or students coming out of university; “you are never going to know it all before you go”. So you’ve got to have the confidence to have the foundational skills. You’ve got to have the right relationships and I always say, if you can go before you get a big mortgage that’s a plus as well. And so those are real considerations when you take that leap. |
| DT: | Absolutely. Yeah, you’ve got to have the confidence that you might have to live without a bit of income for a while while you build that network. Now we’re going to talk about Wotton or the Palm Island case today. I’m going to ask you about the facts in a minute, but first I’d just like to ask you, what was the experience of working on the case like? As you said, it was your first really big human rights class action case. What was that like? |
| JC:
7:00
8:00
9:00
10:00 | It was interesting. It came out of time. My oldest child was just born prior to that and I was actually trying to work only one day a week. So I’d come in and I’d do like a family law matter down at court and I’d work one day a week for the first eight months. And I just wanted to spend some paternity time with my first child and my wife and be at home. And I got this brief from Levitt Robinson. It would’ve been – let’s just say – March that year. And they needed advice on evidence and this hearing was coming up and it was getting to that point where; “look, I better get back on the tools” and I started with that. It was interesting because at the stage I came on, there was just this whole hodgepodge, huge environment of people who’d had a little bit of involvement in the matter and then left. And so there’d been, I think, four or five counsel who’d had some hand in it. But no one was committed enough to do it on a full-time basis. Levitt Robinson had been working on it for a number of years but it had just sat around and no one had picked it up and grabbed by the horns and really started to shape it for this hearing. And so I came on, there was also another counsel in Brisbane who was on the preparation start and did the first day of the hearing, but didn’t actually progress beyond that. I remember looking at the case and doing my initial advice and I thought what is really critical about this case is understanding the history of Palm Island and when you read the judgment you’ll start to understand that Palm Island was established as Punishment Island. In the early 1900s it was a place where the Queensland government sent Aboriginal people to be punished under the protection regime. And there was a lot of really atrocious things that had happened to Aboriginal and Torres Strait Island people on Palm Island for almost 100 years. And in 2004, you get this event, and the way I thought about it was; “well, it’s actually the end of a whole series of things that had happened on this island for 80+ years or 100 years”. And my idea around the case was – that story needed to be told. That this case couldn’t be seen in isolation as a single event, disconnected from its history and disconnected from the people who had occupied this area. Different silks had been involved, Ron Merkel had been involved at some stage, Douglas Campbell, another silk, he was having a small role as well. What I said to Levitt Robinson – the solicitors – “you don’t win cases like these without big guns. It’s a really big case. There’s a lot to get around and in some ways you’re shifting the bar.” And I was just sitting around the water cooler in chambers and talking to another barrister and he said; “well, why don’t you get Chris Ronalds SC?“. And I know Chris, she’s one of the leading discrimination barristers in the country. She literally was involved in drafting the Sexual Discrimination Act. She had run all the big cases, and I’d known Chris and I gave her a call. She was actually traveling at the time, but fortunately, between myself and Levitt Robinson we were able to convince her to come into the case and I just wanted to highlight that because there’s so many strategic decisions that get made in these cases. You never read them in the judgment. You never read them when you’re reading materials outside of the textbooks and things. But, as counsel particularly, one of the key factors we have to do is make really strategic decisions. And there was an instance where we had three or four different senior counsel, someone was doing the opening, he was doing the closing, we had someone leading evidence from Lex Wotton, and then myself and another junior running the actual hearing and it would’ve been an absolute mess. It would’ve been chaos and just that ability to bring in someone really experienced to manage the totality of this thing. And it was, I think, probably the key thing. And then Chris comes along and very early on, she says; “alright, I want to run this like an inquiry“. Because when you look at what happened on Palm Island, there was an inquiry in relation to the police conduct in respect to the investigation. There was never an inquiry in relation to SERT and the activities that occurred there – which we’ll talk about later – and so why don’t we try and put it all together and run it as if there was an inquiry being held, and so the judge can understand, again, the totality of all the events. And you link that with the history of Palm Island and what had happened to people beforehand, plus the entirety of the events surrounding this issue and the judge had, effectively, a nice bundle of issues and history and all those things to consider in her judgment. |
| DT: 11:00 | There’s two things I really want to draw out of that. First, I think that’s a fascinating forensic decision to run the plaintiff’s case like an inquiry. I think that’s a really interesting idea, almost changing the format of the way you present your case, almost thinking of it as a different forum. I’ve never really heard that as a strategy. Tell me a bit more about how you did that, how you changed the framing from a plaintiff’s case to a commission of inquiry. |
| JC:
12:00 | Yeah, so I guess there’s a balance between the bull and the horns – the adversarial approach – where we’re just coming and we’re cross-examining on really defined issues in a really narrow space of events. And the inquiry focus, I guess, was; “let’s bring it all in, let’s start at the start, let’s do the history, but also let’s conduct the examination and the cross-examination as you would’ve more so in inquiry than you would in a trial in the Supreme Court or something”. So the questions you might ask are different, the way you present your evidence and submissions is a little bit different. And again, that was Chris’s call – in terms of, rather than just giving the judge piecemeal on the five or ten issues we’re trying to agitate, let’s really give the judge an opportunity to hear about all of these facts in all of these instances. |
| DT: | The other thing that really fascinates me about your answer is this idea that the events of 2004 aren’t just the events of 2004 – they are part of a long history that starts a century earlier. How did you bring that history into evidence? Was it led in an affidavit? Were there challenges to that evidence being introduced? How did that work? |
| JC:
13:00
14:00
15:00 | So it’s a tactic I employ on all of my historical class actions now, David. So we’ve done Palm Island, but really moreso in terms of the history, the Stolen Wages cases in Queensland, WA – which is set for mediation in late March – the Northern Territory, which has a two week preservation evidence hearing in July. And I always think my role is to tell the story and I want to influence the judge by telling the story. And a big part of that story is the history. And so the way we did it in Palm Island and I can talk about the other cases differently, but we had a historical report. So Ros Kidd, who’s a Queensland historian – she’s now retired – she produced a report on historical documents and events surrounding Palm Island from its establishment in I think it was 1905. I also do – in these cases – employ anthropologists, historians, and in Wotton there was a psychologist. But that’s a different matter. So particularly with the use of the anthropologists or the historians being able to look at the history from a documentary point of view but also then some of the lay evidence which might support that or some of the other documents anthropologists look at which may actually support that idea of telling the entire story. Now I just want to give you examples. So Stolen Wages Queensland, which is resolved. So Pearson v State of Queensland – settled about two years ago for $190 million all up – and a very similar approach. So we also looked at the historical material and that case was concerned with the mid 1930s to 1970. So what had happened to people during that period? And in one sense, you can look at that case as an economic case. People worked; their employer, rather than paying their money directly to them, was required to pay that money to the State. The State held that money on trust and the beneficiaries never received it. That’s basically the thrust of that case. It’s a trust case. It’s ultimately a forensic accounting exercise, but in convincing the people who make decisions, in my instance maybe the judge, might be the senior counsel. On the other side it might be the bureaucrats who sign the check. At the end of the day, I want to tell more than just the economic aspects to the story. I want the judge, the decision maker, to understand what it was like for people living under those conditions. The harshness, the types of behaviour that they were exposed to, or was persecuted upon them. What we developed was this idea of the system of control. People living under the system of control, both through legislation and behaviour, which really impacted upon them that’s shown out by their lay evidence, but it’s also born out by the expert evidence. Which can talk about; “well, this is what happened from 1867 right up to 1973”. So it essentially covers a longer period than the lay evidence can cover. So that’s sort of the approach that I’ve adopted in these class actions. And I talk about Native Title, it’s certainly one which we’re very familiar with in the Native Title jurisdiction. So I was able to bring that to these types of cases. |
| DT: | Something that you’ve taken from your earlier practice in Native Title, that familiarity with the anthropological evidence, and used it to tell a really evocative story that goes outside of the immediate facts in issue in the human rights case but gives that context to the tribunal of fact. |
| JC: 16:00 | Yes. And I think it’s also – in terms of fairness – it’s the most fairest way to look at it from group and members perspective, because the issue of stolen wages or the issue in Palm Island didn’t happen in isolation. It was a whole series of factors or series of legislation over a long period of time which led to those events. And that legislation affected people in more ways than just their economic position. So I think that trying to paint the entire picture for a decision maker, if that is a judge, is very important in my instance. |
| DT: | Yeah, absolutely. Let’s go back to the Palm Island case now. This case was about a police operation. You mentioned SERT before, they were involved in the police operation. How did the operation come about on Palm Island? |
| JC:
17:00
18:00 | Yeah, so as you mentioned, Mulrunji Doomadgee was walking down the street, I think it was November 2004. Seven years since I did the case so it’s been a while. But he was walking down the street, the police were arresting a man named, I think, Roy Bramwell or one of the Bramwells. Mulrunji had walked past, some comments were made, and Mulrunji Doomadgee was ultimately put into the back of the paddywagon. Palm Island’s a very small community, you could walk around it in an hour or two. It’s an island, obviously. And so within a few minutes, the paddy wagon arrived at the police station. There was definitely a confrontation between Mulrunji and Senior Sergeant Hurley, who was the arresting officer both outside the police station and inside. And about 30 minutes later – approximately – given the passage time, Mulrunji Doomadgee is dead on the floor of the watch house cell on Palm Island. Now, a week later, autopsy report is read out to the community on Palm Island and the autopsy included information that Mulrunji Doomadgee’s portal vein had been cleaved in two. I think his spleen was also split, broken ribs, and a cut above his eye. And look – it has been some time since I’ve looked at the minute detail of these cases but I’m doing my best – and the reading out of that information to a community meeting. So, Palm Island, they’ve got this little area called the mall. It’s right next to the Council. It’s the central area of town and they would be having these community meetings every day over loud speakers for updates of what happened. When that autopsy report was read out by the mayor, almost instantaneously, you know, a huge amount of civil unrest. And a group of people – and the judge ultimately had to make some decisions about numbers because there was video footage of it – and a number of people then went up to the police station, which was burnt down. And I think the courthouse was also burnt down because it was next to the police station. In response to that the police had sent huge amounts of numbers of resources to the island. Palm Island was usually a place where at any one time there was seven police on the island. Only four would be rostered on, and there was a policy of just they didn’t carry firearms because it just wasn’t a threat and wasn’t seen as a positive behaviour for the community. I think there was over 100 police ultimately sent to Palm within a day or two of the fire and those included approximately 30 S-E-R-T – or SERT – officers. When I’m talking about it in public, I just call them SWAT teams so people understand the type of gear and stuff analogous to America. |
| DT: 19:00 | Yeah. TIP: SERT, which Joshua just mentioned, stands for Special Emergency Response Team, it’s apart of the Specialist Response Branch of the Queensland Police Service. They are still active, having been called to assist with apprehending a gunman in Townsville as recently as Sunday the 15th of March. Generally they take part in high risk operations such as armed offenders, counter-terrorism and some warrant executions. PRST – the group Josh is about to mention – are the Public Safety Response Team. |
| JC:
20:00 | So there’s a SERT team and PSRT – and they’re crowd control. They’re the guys with the batons and the big shields. Once they arrived on the island over the course of about two days, they conducted what the case calls 18 raids on 17 different homes in a location called Wallaby Point. And they arrested a number of people who were alleged to or were ultimately found to be – in some instances were found not guilty and some were – in relation to their involvement in the unrest. And so our case looked at firstly the investigation of the death, the behaviour or the conduct of the police leadership following the death and the week leading up to the unrest and then also looked at the behaviour of SERT during their time on the island. And I guess when you think about those facts, it really does lend itself to an inquiry. Having a look at all of those issues in a hearing like this. |
| DT:
21:00 | Yeah. That’s an important point for our listeners to understand that it’s not actually just about the police operation, is it? The facts that were in issue were also the community engagement leading up to that autopsy report being read and the conduct – or lack thereof of conduct – of an inquiry into the death of Mulrunji. Now, as the name suggests, Lex Wotton was the representative plaintiff, but it was a representative proceeding, so he represented a class of applicants. How was that class of applicants defined in this case? |
| JC:
22:00 | Yeah. So for class actions there’s a few threshold questions. Firstly, you have to have more than seven people in the case. Secondly, it has to be a common respondent. And there also has to be some common issues involved, common issues of fact or law. Now, the description of the class, in this instance included, it had to be Aboriginal Torres Strait Islander because it was a racial discrimination case. Palm Island’s a community that is roughly 97% Indigenous anyway, but there were non-indigenous people on the island who would’ve been affected. So, you had to be Indigenous. Secondly, you had to be on the island during this period but there also was a group of people who were off the island and couldn’t get back on even though they wanted to, so they were included. But other than that, that was probably the two main principles – race, and your presence on the island during these events. Now from that, like any class action, there is different subgroups, for example. So people were affected in different ways. People like Lex Wotton were affected by the police raids, physically. Lex Wotton’s mother Agnes had some impact on her property by police raids. There are also people who were present during the police raids but weren’t arrested themselves. And then you had a general class who just were on the island at the time. So there’s different categories of people ultimately falling under that one head description. |
| DT: | And how does that work in a general sense in terms of the Federal Court’s framework for representative proceedings? How broad or narrow does a class of applicants have to be and how are those subgroups dealt with in terms of findings for or against, I suppose, an applicant or a representative applicant’s case? |
| JC:
23:00
24:00 | Yeah, so just as I said, those three threshold questions once they’re met – more than seven people, same respondent, and then substantial common issues or fact of law – that’s a threshold set. And shareholder class actions might be different, I don’t practice in those, but in the cases which I practice, an applicant will never cover all the issues. Now, let’s just say I can talk about the Stolen Wages case in Western Australia. If our claim period is from 1931 to 1975, our lead applicant might have only been employed for half of that period. He might have been employed as a stockman. We were also representing people who did domestic work. We’re representing men who worked on the railway. We’re representing a whole cross section of people. And so ultimately an applicant is able to prosecute a claim on behalf of a claimant group, but that applicant doesn’t have to be representative of all the individual claims which might arise in any proceeding. And so that’s ultimately where, as a case develops, you look at sample group members or subgroup members, representatives of those areas. So in Stolen Wages, if our applicant is a stockman we might look at making sure we’ve got sample group members or representatives who are female and who did domestic labour or who were men who worked on boats or who were men who worked on railways or who covered different time periods. And Part IVA of the Federal Court Act, which deals with the class action regime and plus subsequent legislation around different states allows for that process to occur. |
| DT: | Now just returning to the Palm Island case again, let’s talk about the finding now. The Federal Court found that there were four contraventions of the Racial Discrimination Act by the QPS. What were those findings? |
| JC:
25:00
26:00 | Yeah, so that related to the investigation of the death. Now, the first finding was that the investigation was conducted in a biased way. Now the facts of that were this; there were three investigators, one of those was a detective who was stationed on the island and a friend of Senior Sergeant Hurley, and the next two investigators were sent over from Townsville. The judge ultimately said the investigation was biased. It lacked impartiality and it was not independent because of the conflict in relationships, because senior Sergeant Hurley was never treated the same as the suspect would in those instances and that was really the crux of that claim. The second part then was, as we mentioned before, about the leadership. So after the death occurred, the police on Palm Island became aware of the likelihood of a riot, civil unrest, all these things. And it became evidence in the proceedings. It was obvious in the logs that the police kept. There was information that was put into those logs that certain police officers were informed about the risk of these events occurring. And our case was they never took appropriate conduct to try and address it. It was a failure of leadership actually, and the young police officers were really put in a very difficult and compromising position. Some of the more senior police said to them; “well, just go to bed with your glocks at night because we don’t know what’s going to happen“. Rather than our case, which was about engaging with community who wanted to be engaged with and who were open to it. So the failure of leadership. The next was the island was closed under emergency declaration and that prevented Aboriginal and Torres Strait Islander people from leaving. Non-Indigenous people were allowed to leave, but it also had the same impact on Aboriginal and Torres Strait Islander people who wanted to get to Palm Island. And I remember there being a young school group who were stuck on the mainland and couldn’t get back to the island. And then the way in which the raids were conducted. Now in respect to those raids some good examples. There was a man, William Blackman, who was a friend of Mulrunji Doomadgee. He was actually at a meeting in the local council with police and the mayor and others trying to work and find a solution. And the next day, that evening about 20 police were sent around to his house to arrest him in a raid. I think the system was that a number of police would surround the house; the SERT officers, six of them would go in, they’d have all the gear, the assault rifles, et cetera. So very traumatic event for people. And the way in which those activities were conducted, the judge said was a breach of the Racial Discrimination Act. |
| DT: 27:00 | Now there were also some claims that the applicants made, which Justice Mortimer found for Queensland or the respondent. What were those unsuccessful claims? |
| JC: | So we were unsuccessful arguing aggravated damages. So we weren’t successful in that instance. We also sought, I think, on an alternate basis, exemplary damages and Mortimer in that decision said that the Court doesn’t have power to award exemplary damages in Racial Discrimination Act. The judge also didn’t order an apology and although ultimately subsequent the judgment, one was forthcoming. We also pleaded the claim against the Commissioner. We were unsuccessful against the Commissioner, but that was largely due to the fact that the State had accepted liability. And there was also no adverse findings against the SERT officers themselves because the judge ultimately said, well; “they were doing what they were required to do. It’s really the involvement of them in the first instance. That was the issue”. |
| DT: | Yeah, I think I remember from reading the judgment that the state of Queensland had accepted that everyone had acted within the bounds of their position and the State was vicariously liable for their conduct. |
| JC: 28:00 | Yes. |
| DT: | In terms of the unsuccessful application for aggravated and exemplary damages, are those categories of special damages often part of a human rights class action? Do you find they’re often pleaded and are they often successful? |
| JC:
29:00 | Look, I’ve pleaded them subsequent – not in respect of exemplary damages because I’ve complied with Mortimer’s decision in that – although there is some authority for exemplary damages in RDA claims. I have pleaded aggravated damages. And a lot of class actions resolve and I don’t know if your listeners are aware that Palm Island – and I keep calling Palm Island Wotton, talking about the same thing – but at the time it was determined, I think the data showed that only 8% of applicants ever proceed to trial and are then ultimately successful. But ultimately what that means is a lot of matters are resolved before hearing of an applicant’s case. And so there isn’t a lot of authority subsequent Wotton about the availability and the likelihood of aggravated damages in human rights class actions because we’ve resolved those, but certainly I do plead it in the cases I’m involved with, and I think, certainly, there is scope to do it, there’s power to do it. We just haven’t had a judgment on that. But, if the facts were supportive of it, there’s no reason why a court wouldn’t award it. |
| DT: | I said in the intro to this episode that human rights class actions have flown under the radar a little bit compared to shareholder class actions. We’ve seen a lot of law reform activity around shareholder class actions, especially adjacently to that a lot of law reform activity around litigation funding, whether it’s financial service, those sorts of things and all chiefly in that shareholder class action or insolvency class action sort of space. Do you think human rights class actions have flown under the radar? Is that fair? And do you see your practice in that area getting busier? |
| JC:
30:00 | Look, I think the reality is the legislation – and we’ve had a huge focus on shareholder class action, particularly under the last government we saw the ALRC Report looking at third party litigation funders. We saw the joint parliamentary inquiry looking at litigation funding. And so there’s been this huge big focus on shareholder class actions, but everything that happens there affects us. |
| DT: | Because it’s the same framework. |
| JC:
31:00
32:00 | It is, we’ve got to comply. We have to access litigation funding as well and so if there’s changes in that area, well it’s going to affect us. And I think too, one of the things is It doesn’t suit the narrative for people to talk about these types of cases, because when you want to be critical of class actions and funders and you say; “oh, well look, it’s just these shareholder class actions, it’s money on paper. They’re not really people. They’re big institutional investors and third party litigation funders, there’s very minimal risk and they’re just coming in, taking these big wads of cash.” Well, the reality is on my side, these are probably the most difficult cases you could run. You know, in Stolen Wages, we’re running cases about events, we’re asking people what happened 80 years ago, in some instances, 90 years ago. The period of the claim is from the early 1930s, and so it doesn’t really get any more difficult. So when changes came around in relation to the litigation funders having to become part of managed investment schemes to run these cases – yes, that has an impact on us. It has a huge impact, impacts the likelihood of being able to get funding, the difficulties associated with setting it up, et cetera. So I’ve watched all this from the sidelines over the last couple of years, but I have to say that has abated a bit in the last 12 months. It hasn’t been the same sort of force thrown at it as previously. Now it has flown under the radar for obvious reasons, as I say, shareholder class actions are the ones that everyone thinks about. There are many more class actions and across different jurisdictions. But also too, I think, these cases are just a massive amount of work to start. And so whilst I can say I’m working on four or five different class actions, or five or six class actions, only one or two might be filed at any one time. And so whilst I’ve got an idea about what the pipeline of human rights class actions from my perspective might look like over the next five or six years, it’s a bit like an iceberg where the general public or the general legal profession will just see the tip of that. Meanwhile, there’s this big body of work that’s developing underneath, which will take a long time to come through. Some of the cases I’m working on take years to file and a good example of that is Stolen Wages Northern Territory and WA. I started working on, I think 2017 and they only got filed in 2020 or 2021. So; can take a while to bring these cases through. |
| DT: | Something you said about attracting litigation funding I thought was really interesting. Have you ever been part of that push to secure litigation funding. Are you brought in at that very early stage to secure funding and is it difficult to persuade funders to fund these kinds of actions? |
| JC:
33:00 | Yeah, so I’ve been brought in probably at stages before a litigation funder, so I understand right from the ground up and a good example of that is a stolen generations case in Northern Territory, which is due to be set down for approval hearing in the middle of April. So, I was at the first meeting with the people who ultimately become group members and an applicant, and we were just having a conversation. And ultimately that case started from there. So counsel is often involved in that stage and it’s really around the legal advice. Litigation funders want to reduce their risk and I don’t know what their metrics are but they certainly wouldn’t fund any claims they didn’t think had prospects. And they want to be pretty confident about the prospects of the cases they do fund. And so counsel is often involved in providing legal advice on the prospects of the matter, but certainly on discreet issues. Because funders will want to ask about certain points before they agree to fund it. So I’ve been involved in that process on a number of cases. Wotton was a bit different. We didn’t have litigation funding, we just specced that and so we didn’t have those issues but it was a different time. |
| DT: 34:00 | I only ask because it is, again, an interesting part of the portfolio for the funder. I suppose when they’re mostly thinking about, as you say, the “numbers on paper” sort of cases where it’s easy to understand what the net present value of this claim might be because it’s easy to quantify what that award might be at the end. |
| JC: | Yeah, that is a good point. And your earlier point as well. I think there’s probably a very small group of funders who understand these cases and probably even a smaller group who actually fund these cases. So it’s not the same as the shareholder class action where you can just roll out; “well, here’s the process we apply, here’s the methodology, here’s the quantum, et cetera”. It’s a process as opposed to something more like you are dealing with a lot more issues here. And I think for some people discrimination can be a bit fuzzy. They can’t get their head around discrimination law. They can’t get their head around quantums and those types of issues and so it can be really difficult to get a case like this funded because the number of funders who actually would get it and would be committed to funding it is so small. And so you don’t have that broad range of options. |
| DT: 35:00 | I want to ask you about the sorts of causes of action that you use to pursue human rights cases and human rights class actions by extension because Wotton, or the Palm Island case, you’ve got a cause of action under the Racial Discrimination Act. That’s an overtly human rights based action but when you’re describing the Stolen Wages cases, you describe those as trust cases essentially and that makes me think about this idea that sometimes laws that don’t explicitly address human rights issues can be used to raise human rights cases or address human rights problems indirectly. Has that been your experience? Is that something that human rights lawyers often have to look for as a solution where the body of discrimination or human rights legislation isn’t directly addressing the issue? |
| JC:
36:00
37:00
38:00
39:00
40:00 | Yeah. I think there’s a lot of innovation that comes in Australia practicing in this jurisdiction. Give you an example of Canada. I was in Canada a few years ago and it was a First Nations lawyers conference. And they talked about constitutional rights, they talked about treaty rights, and they talked about their bill of rights. And so they had three areas where they had powers to commence proceedings, right? If you’re a First Nations organisation or entity, you want to run cases, you’ve got power right there you can rely upon. We just didn’t have that in Australia. TIP: It’s always interesting to look at comparable jurisdictions when investigating any kind of legal issue – in some cases it’s even required – and the recognition and rights of indigenous peoples is no different. While, of course, we have to recognise that Canada’s history and legal system is distinct from our own, that country is usually a good place to start a comparative analysis. Canada’s Constitution Act 1982 contains section 35, which reads at 35 (1): The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. The University of British Columbia notes that this section affirms indigenous rights but does not define them. The definition of those rights has been left to debate, discussion, and case law. During the week of release of this episode, the Australian government announced the wording of the referendum and Australian constitutional amendment which would establish an Aboriginal and Torres Strait Islander Voice to Parliament. The opening line of the proposed section 129 in a new chapter IX states “in recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia”, and continues with: “there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice”. In the constitutional law space, and many others, human rights is one to watch. And so you have to look at what we do have in section 9 of the RDA and; “how do I shape that to run one of these issues?” What is interesting about the way we’ve employed the Racial Discrimination Act is essentially saying; “well, any conduct from 1975 onwards is open for attack. No limitations under the Act, under the RDA itself. That’s not to say other limitations not apply, but we can go back and we look at conduct for all that period”. So Wotton aside – because that’s, as you say, it’s very clear cut – Indigenous community and the conduct that occurred there. What we did in the Stolen Wages case is we looked at conduct of the government post-1975 and that was outside of our claim period. And in Queensland, what fell outside of that claim period was a reparations scheme. So under the Beattie government about 20 years ago, there was a reparation scheme that was administered and Aboriginal people who were under the Stolen Wages regime were paid $2,000 in reparations after they signed a deed which indemnified the State from any further liability. And in Pearson we said; “well, these group members suffer a whole range of disadvantages or characteristics which limit their ability to be able to understand the legal consequences of that deed and indemnity”. For example; Queensland, during that period, nobody went to school beyond grade three or four. Most of the class was impecunious and had a distrust of government and all these other factors which impacted on people’s participation in the scheme. And so you can’t sign people up to a deed, indemnifying yourself and protecting yourself if you don’t give them appropriate, proper legal advice. And so that’s the conduct we targeted under the RDA in Pearson. And ultimately that was a claim we finished with. But there was a very different RDA claim started, but we amended the claim during the course of proceedings. And then in WA it’s very similar, we looked at the reparation scheme and we said not only the conduct of the scheme, but the way they excluded it. I mean; WA there’s so many people who don’t talk English or read or write. And the requirement of the scheme was it had to be on paper, if you were going to appeal the decision that was made you had 30 days to respond. People live out literally in the Kimberleys, live out in sheds with no electricity and no access to the internet and don’t speak English. And so you can’t design this system which is going to bind them and restrict them, restrict their legal rights, and not have it tailored to address those characteristics in which they possess. |
| DT: | It’s so interesting because you described that as a claim brought under the Racial Discrimination Act because the reparation scheme came after 1975 but what you’re describing also, especially so far as putting this deed in front of impecunious class members who’ve had a year three education, it also sounds like an unconscionability claim in equity. There’s elements of this that seem to touch on so many other areas of the law too. |
| JC: | Yeah, there is. And often when I’m drafting up these characteristics for the pleadings, you know, the old Amadio case always comes into mind. |
| DT:
41:00 | Exactly. TIP: If you don’t know the case of Commercial Bank of Australia v Amadio [1983] HCA 14 by name, you most certainly know it by its facts. It’s probably been taught in law school every single year since it was handed down! The Amadios spoke limited English, had little formal education, and the documents relevant to the guarantee in issue were signed in their kitchen with no explanation from the bank on what they were. This was considered by the court to be a special disadvantage making the guarantee unconscionable for the bank to enforce. You can really see the parallels in this situation. |
| JC: | Yeah. It really does. You’re speaking to people who have all these – and they use the term “characteristics” because that’s in the Act – but you have all these characteristics which create deficiencies. And I guess my position is in these claims, as a government, you ought to be aware of those things and implement a process which ensures everybody has the same opportunity as they would if they weren’t Indigenous and that’s where the discrimination component comes in. The fact that these people were Aboriginal and Torres Strait Islander, they had these characteristics because of their race and you didn’t take steps to alleviate that, to address it. That’s where we tie in the RDA. |
| DT: 42:00 | We’ve mentioned the Federal Court framework for class actions a few times, but I also wanted to mention the Federal Court Guide to Human Rights Cases which is a publication that’s available on the Federal Court website that provides that a human rights proceeding is one that’s run under any of the Commonwealth discrimination legislation. So, racial discrimination legislation, sex, disability, age – as it was in Wotton. Are there any other kinds of human rights proceedings run in the Federal Court or human rights representative proceedings run in the Federal Court that don’t really fall within that definition that’s in the guide? |
| JC:
43:00
44:00
45:00 | Not that I’ve come across yet. But what I think you’re starting to see is, I think human rights is an increasing area and the way you think about class actions and the bigger class actions have a bigger number of people, right? And human rights is something that affects everybody and so I think where we’re starting to get to is we’re starting to see the combination of cases like human rights and environment, for example. And Phi Finney – which is one of the law firms that does class actions – they filed a case like this recently where people from the Torres Strait, their human rights were affected because of the way the government was dealing with environmental issues. I think you’re starting to see like a combination of issues which could come together. TIP: Pabai Pabai v Commonwealth of Australia is an ongoing class action against the Federal Government arguing that it owes a duty of care to protect Torres Strait Islanders from the current and projected impacts of climate change. It’s argued that the rising sea levels will make parts of the Torres Strait uninhabitable, forcing communities to move and severing their connection to the land. The case was developed in partnership with the Uganda Foundation and attempts to follow on from the decision in Urgenda v State of the Netherlands which required the Dutch government to take more action to prevent climate change. Court documents for the ongoing Australian case are publicly available on the Federal Court’s website, and the plaintiffs’ spearheading the case have a website as well where they tell their story. We’ll leave a link to both in the show notes. There’s another case which it’s not so much a human rights case, but the PFAS cases. So the contamination cases where PFAS chemicals are being leached into the environment, usually by the Department of Defense. There was a class action a couple of years ago where they settled on a number of locations. There’s another one now which is other locations – which I think is due to go to trial later this year. But there’s a separate PFAS case, which looks at the Aboriginal community in Jervis Bay and so how their rights have been affected by this environmental contamination. So don’t think they’re running a human rights point on it but certainly as Aboriginal people, their rights are different from the rest of the community or the different interests and how the contamination is separate to those. And I will just say where the difference arises. One of the cases that did resolve was the PFAS contamination around Katherine, and that was in relation to the economic value of land. So, people own private property there but what it also affects and what wasn’t part of the case was it affects the people who have Native Title rights in that area – they were a separate group that weren’t involved in the case. So, there are probably cases that don’t necessarily fall under the human rights umbrella, but certainly raise very similar issues to the things that we’re trying to prosecute here. And then the next layer that is a combination of not just human rights but other rights such as environment, et cetera. |
| DT:
46:00 | We’ll be including some further reading about the Torres Strait Island case in the show notes for this episode. I agree. I think it’s a fascinating area, this intersection of environmental law and human rights law and I imagine we’ll see more and more of that litigation come through the courts and it’ll be fascinating when we first see a judgment on that. Well, Josh, we’ve covered a lot of ground when it comes to human rights class actions this afternoon, and we’re nearly out of time but before we leave our listeners, I wanted to ask you if you have any advice for our student listeners and for any aspiring human rights lawyers listening. We said at the top of the episode, you are living the dream that a lot of law students bring with them to uni. So, how would you suggest that someone who’s interested in this area gets some experience in it? |
| JC: | Look, I think the best thing you can do in the early part of your career if you want to work in this area, is to train as a good litigator. And that might not necessarily be in a human rights organisation, but might be in a top tier firm, mid-tier firm, small firm. If you get used to running cases because a lot of these things are really you get through experience, through developing strategies, through winning and losing, et cetera. So if you can train to be a good litigator, these court cases ultimately end up in court and you’re running litigation and those skills will be essential in this area. If you can get those skills at the start of your career, you can apply them here and that’ll serve you very well. |
| DT: | Absolutely. I couldn’t agree more. I remember very early in my own career, not in the human rights context, but I was told whatever area you want to practice in, if you want to be a litigator, learn the Federal Court rules. Because that’s your toolkit, that’s your armoury and you can use that as a transferrable skill wherever you end up. So, that’s a great tip, Josh. Thank you. |
| JC: 47:00 | Yeah, and I also will say, look, this area wasn’t really around when I was around, so who knows for the young listeners out there, who knows where things are going to be in 20 years time or 30 years time? But you might be developing your own area of laws in two decades time but if you can learn some of the fundamental skills that’ll be applied in whatever jurisdiction you end up in. |
| DT: | Absolutely. Well, Joshua Creamer, thank you so much for joining me today on Hearsay. |
| JC: | Thanks, David. I really enjoyed it and I hope the listeners enjoy it and any questions, you can always find me online and shoot me an email. I’ll be happy to respond. |
| Ross Davis:
48:00 | As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank our guest Joshua Creamer for coming on the show. As you well know, if you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest this episode entitles you to claim a substantive law unit. More information on claiming and tracking your points on Hearsay can be found on our website. Hearsay the Legal Podcast is, as always, brought to you by Lext Australia, a legal innovation company that makes the law easier to access and easier to practice, and that includes your CPD. Finally, before you go, I’d like to ask you a favour. If you like this episode and other episodes that you’ve listened to, please leave us a Google Review. It helps other listeners find us and that means that we can keep making the great content that you love. Thanks for listening and we’ll see you on the next episode of Hearsay. |
You must be a subscriber to access this content.