Watego v State of Queensland

This is a race discrimination complaint brought by Professor Chelsea Watego (the applicant) against the State of Queensland, as the maintainer of the Queensland Police Service, and against two police officers (the second and third respondents). The complaint arises from the applicant's arrest and handcuffing by police outside a nightclub in the early hours of the morning, and her subsequent transportation to the watchhouse. The applicant complained to the Queensland Human Rights Commission (QHRC) that these police actions amounted to less favourable treatment of her on the basis of race. The complaint was referred to the tribunal.

The legal and factual issues to be determined by the tribunal were identified, using the tribunal's usual method of issuing directions requiring ‘contentions’ to be filed by both sides. The applicant relied on the man with whom she had an argument on the pavement outside the club as an actual comparator and said that he did not have the attribute of race and was treated more favourably. In the contentions, the applicant also described the material circumstances of a hypothetical comparator. The respondents said the man was not a proper comparator and disagreed with the applicant's formulation of a hypothetical comparator.

The evidence adduced before the tribunal included evidence from the applicant, the applicant's ex-husband, a friend of the applicant, a work colleague of the applicant, two security guards from the club, the manager of the club, the second and third respondents, a senior sergeant who was operations leader for Fortitude Valley Police Station, and a Chief Superintendent of police in the Brisbane District. The tribunal also read the documents in the hearing bundle and in the exhibits, and the referral from QHRC with documents attached. The tribunal also watched CCTV footage from inside and outside the club, and from the body cameras of the two officers.

The tribunal found that the arrest was lawful and reasonably proportionate and legally defensible. The tribunal found that the decision to approach the applicant was not unreasonable and was based on information provided by the security guards and the club manager. The tribunal found that the decision to arrest the applicant and to use handcuffs was reasonable and that the officers acted proportionately in the circumstances. The tribunal found that the decision to transport the applicant to the watchhouse was also reasonable. The tribunal found that the treatment of the applicant was not less favourable on the basis of race and that the decision not to investigate the man was not unreasonable. The tribunal found that a hypothetical comparator would have been treated in the same way as the applicant. The tribunal concluded that there was no evidence that the decisions were made on the basis of race. The complaint was dismissed.

The tribunal continued the non-publication order made on 24 September 2020 as varied by the order of 17 March 2021. The tribunal found that the non-publication order should be continued because the applicant had published an award winning book in which she alleged that she had been assaulted by unnamed police officers and that they had used excessive force during her arrest. The tribunal found that if the officers were named by the tribunal, a cause of action for defamation could be established because the allegations were untrue. The tribunal found that it was in the interests of justice not to name the officers to prevent their privacy being unlawfully or arbitrarily interfered with, and their reputation unlawfully attacked by what was said in the book.