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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 Law Substantive Law
Joshua Creamer
1 hour = 1 CPD point
How does it work?

This 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 (Jade link)

  • In November 2004 Mulrunji Doomadgee died in police custody. Mulrunji’s death triggered civil unrest and a response from the Queensland Police Service (QPS). Justice Mortimer found that QPS’ response to Mulrunji’s death contravened the Racial Discrimination Act in a number of ways.
What are the main points?
  • History is critical, relevant and important in building the story of the case for a human rights class action.
  • Joshua uses the example of Palm Island’s history in the Wotton decision.
  • In the early 1900s, the Queensland government would send Aboriginal people to Palm Island to be punished under the protection regime.
  • Counsel are often called on to make strategic decisions. In the lead up to Wotton, one of those decisions was the involvement of Chris Ronalds SC.
  • Chris decided that they should run the plaintiff’s case as if it were an inquiry – to build out the totality of the events so the bench could understand.
  • Joshua sees his role as telling the story and a big part of the story is history. He gives the example of preservation hearings – a type of evidential preservation technique used in the situation of elderly or ill participants.
  • However, there are others. For example, involving historians to report on historical documents and events. Or anthropologists or psychologists.
  • Joshua emphasises the importance of making the decision maker understand what it was like for people living in those conditions.
  • To bring a class action there are a few threshold questions, you need:
    • More than 7 applicants.
    • A common respondent.
    • Common issues of fact or law.
  • As the Palm Island case was a racial discrimination case, the class of applicants had to be of Aboriginal or Torres Strait Islander descent.
  • They had to be on the island during the period of unrest, or someone who could not get back onto the island.
  • Within this group, there were different subgroups. There were:
    • Those affected physically by the police raids (for example, Lex Wotton).
    • Those whose property was affected by police raids (for example, Lex Wotton’s mother).
    • Those present during the police raids but were not arrested.
    • A general class of people who were present on the island at the time.
  • In Wotton, Justice Mortimer held that exemplary damages were not available as the RDA does not provide for them as a remedy. Joshua notes there is some authority for exemplary damages in RDA claims.
  • Human rights class actions and shareholder class actions share the same framework.
  • The litigation funding rules are the same in human rights class actions, despite shareholder class actions getting more coverage on the issue.
  • Laws that don’t explicitly address human rights issues can be used to raise human rights cases or address human rights problems indirectly.
  • The volume of human rights cases are increasing, especially with the combination of human rights and the environment. This is the crux of the ongoing case of Pabai Pabai v Commonwealth of Australia.
What are the practical takeaways?
  • If you intend to practice at the bar, “you are never going to know it all before you go”.
  • You have to have the confidence to build from foundational skills, rather than being an expert.
  • Aim to get the right relationships and – as Joshua says – if you can go, go before you get a mortgage, that’s a bonus.
  • If you wish to work in human rights class action litigation, in the early stages of your career you should train as a good litigator.
  • Get used to running cases as a lot of skills are gained through experience, developing strategies and winning and losing.
Show notesAustralian 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)

The Australian Climate Case