Redressing State-inflicted Racial Violence: A Federal Discrimination Law Remedy for Deaths in Custody after Wotton

Abstract

Despite the vast number of First Nations deaths in custody and community experiences of racial injustice, the Racial Discrimination Act 1975 (Cth) has rarely been engaged. Section 9(1) has lain in deep freeze since 1975, generating equal parts mystique and contestation. In Wotton v Queensland, the Federal Court found section 9(1) contraventions in relation to conduct following the death in custody of Waanyi man Cameron ‘Mulrunji’ Doomadgee. An eleventh-hour procedural infelicity prevented the Court from examining conduct preceding his death. This article argues that section 9(1) supplies a remedy for state-inflicted racial violence preceding some deaths in custody because section 9(1) contains an unstructured comparison, an analytical tool for discerning a racial basis that avoids the difficulties of a complex comparator structure found in other anti-discrimination statutes. Section 9(1) also accommodates a unique denial of rights inquiry which utilises concepts of arbitrariness and proportionality to review police discretion.

Keywords: discrimination law, policing, discretion, human rights, arbitrariness, race discrimination, international law

JEL Classification: K30, K33