Anti-discrimination laws have been little used by Indigenous Australians. Commentators have put forward the fact that the enforcement mechanisms for such laws are too slow, cumbersome and alien to Indigenous people as the main reasons for this. The unfamiliarity of judges with anti-discrimination law and their unwillingness to adopt constructions that further the objects of such legislation have also contributed to this lack of use.
In the light of the above history the judgment of Mortimer J in the Federal Court in Wotton v State of Queensland (No 5) (“Wotton”) in 2016 and its successful use of anti-discrimination law to address racially motivated behaviour by police stands out as a refreshing exception. In the author’s view it also raises the question as to whether the litigation approach of Mr Wotton’s lawyers and the reasoning of the judgment could be used as a paradigm for public interest litigation in relation to Aboriginal deaths in custody and Indigenous over incarceration.
The judgment in Wotton concerned the circumstances following the death of the Indigenous man Cameron Doomadgee (also known as Mulrunji) on 19 November 2004 in police custody on Palm Island in Queensland. It examined the police investigation of Mr Doomagee’s death, a riot on Palm Island in response to that death and the police arrests, entries into houses and searches in response to that riot. Those events were examined by the Court to determine if any police actions in relation to them were racially discriminatory in a way that breached s 9 of the Racial Discrimination Act 1975 (Cth)(RDA).
Although much of Her Honour’s long judgment concerned a painstakingly detailed review of the disturbing facts surrounding the above events, from the wider point of view the significance of Wotton is threefold. Firstly, the private firm that conducted the case brought the proceedings as a representative proceeding (essentially a class action). This, along with Her Honour’s findings, appears to have contributed as a result of court-ordered mediation to a $30 million payout to the applicants that included costs. Such an approach may have the potential to change the economics surrounding such actions in a way that both makes them easier to bring and makes an adverse finding more costly for authorities. Secondly, for virtually the first time an Australian court has examined in detail police conduct in relation to Aboriginal Australians in the context of a police investigation, arrests, searches and entries into dwellings and found it racially discriminatory under s 9 of the RDA. Lastly, the judgment of Mortimer J in Wotton shows a mastery of human rights jurisprudence and how it might apply to the facts of the case that has been distinctly lacking in much judicial consideration of anti-discrimination law. If such an approach were to be continued it may signal a less narrow approach by the judiciary leading to constructions that more closely further the object and purpose of such legislation.
The detailed examination of police conduct in Wotton to expose partiality and racial discrimination in relation to an Indigenous death in custody is especially timely given the recent report of the Australian Law Reform Commission (ALRC) into continuously rising rates of Indigenous incarceration. That Report noted that discretionary factors and prejudices within the criminal justice system, including within the police, were a significant factor in Indigenous over incarceration.
The approach of the Applicant and the judgment in Wotton appear to raise the question whether some of the uses of discretion and prejudices identified by the ALRC (insofar as they are practiced by police) that lead to high rates of indigenous incarceration and deaths in custody might be capable of being the subject of successful litigation on the grounds that they breach s 9 of the RDA. It also appears to raise the possibility that the $30 million payout in Wotton, if able to be replicated, may raise the costs of rising indigenous incarceration sufficiently to have some effect on its continual increase. If that was possible it may open up some form of limited alternative to simply waiting for changes of government policy to address the problem – a wait that until now has been fruitless.
Just as one swallow does not make a spring, however, so it is very possible that Wotton was a unique matter whose approach will not be able to be replicated. Most Australian judges are not as in command of human rights law as Mortimer J and not all Australian State governments would reach an agreement in mediation to pay millions of dollars in compensation for racial discrimination by police.
However, the judgment in Wotton stands as a possible precedent to be cited in future cases. In addition, the use of class actions has been used successfully at least once in such circumstances and could be replicated. In the author’s view this is a cause for hope and optimism and an opportunity for those concerned about Indigenous over incarceration and deaths in custody.
The judgment in Wotton also, however, opens up possibilities in relation to racial profiling outside of the area of police treatment of Aboriginal people. In 2013 the Flemington and Kensington Community Legal Centre with the aid of a private law firm conducted an action in the Federal Court alleging racial profiling by Victoria Police of people of African descent. That matter never reached judgment as it was the subject of an out of court settlement. Much of the reasoning in Wotton in relation to police and s 9 of the RDA would appear also be applicable to racial profiling by police of immigrant communities such as the African community.
Much of the hope of those who drafted and passed the RDA in the 1970s has not yet been realised. Given the fundamental importance of the object of the RDA to the Rule of Law and human rights standards it is important that ways be constantly looked to further that object. In the author’s view the decision in Wotton opens a possible avenue in that regard. As such its approach and principles demands careful and skilful deployment in future litigation.
 N. Rees, S. Rice & D. Allen Australian Anti-Discrimination and Equal Opportunity Law 3rd ed (Federation Press, Sydney, 2018) p5 and F. Allison “A limited right to equality: evaluating the effectiveness of racial discrimination law for Indigenous Australian through an access to justice lens” (2014) 17(2) Australian Indigenous Law Review 3.
 Rees et al at n1 p 24.
  FCA 1457.
 [2016} FCA 1457 at .
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 The firm of Levitt Robinson in Sydney.
 See “’Justice is Served’: Palm Island to receive $30 million and a formal apology for response to 2004 riots” at https://www.sbs.com.au/nitv/nitv-news/article/2018/05/01/justice-served-palm-island-receive-30-million-and-formal-apology-response-2004 as accessed on 29/05/18.
 Kate Allman “ALRC report shows indigenous incarceration rates only getting worse” (2018) 44 Law Society Journal 14.
 The firm of Arnold Bloch Liebler in Melbourne.
 See Haile-Michael v Konstantinidis (No 3) FCA 53.