The Federal Court of Australia recently delivered a milestone judgment for police accountability in Wotton v Queensland (No 5). Wotton is the latest chapter in the ongoing struggle between the state of Queensland, its police force, and the Aboriginal residents of Palm Island, a small community off the state’s east coast.
On the morning of 19 November 2004, Cameron Doomadgee, a 36-year-old Aboriginal man, was arrested by police for public nuisance. An hour later, he lay dead in the Palm Island police station, his liver virtually cleaved in two. Somewhere between the police van and the station, witnesses had seen Doomadgee (known posthumously as Mulrunji) and Christopher Hurley, the arresting officer, struggle and fall to the ground. Hurley then dragged Mulrunji to a cell, where he bled to death.
In Wotton, a group of Aboriginal Palm Islanders claimed that the police’s response to Mulrunji’s death was racially discriminatory. There is no statutory bill of rights in Queensland or at the national level in Australia. But section 9 of the Racial Discrimination Act 1975 (Cth) (RDA) prohibits differential treatment on the basis of race, which has the purpose or effect of impairing the equal enjoyment of any human right.
Justice Mortimer found that the police contravened the RDA in several ways. First, they failed to conduct an effective, independent investigation into Mulrunji’s death. Police never treated Hurley as a suspect, disregarding inculpatory evidence from several Aboriginal witnesses.
Second, the police failed to engage with the community. They did not provide the community with information about Mulrunji’s death or their investigation. Nor did they explain why Hurley remained on the island and on duty for several days afterwards.
Third, on 26 November 2016, after protesters set several buildings alight, police declared a state of emergency on the island. The declaration was ‘a deliberately heavy-handed and extreme reaction’, intended to assert police dominance over the community.
Fourth, from 26 to 28 November 2004, the police used specialist emergency response (SERT) officers to forcibly enter homes and arrest suspected protesters. The SERT officers were masked, armed with assault rifles and accompanied by dogs. One of the lead plaintiffs, Lex Wotton, was tasered in front of his family. The deployment of the SERT officers, rather than ordinary police officers, was unnecessary and disproportionate.
The police acted in these ways, Justice Mortimer found, because they were dealing with an Aboriginal community. They would have acted differently if a similar tragedy had occurred in a non-Aboriginal community elsewhere in Queensland.
In so doing, the police impaired the plaintiffs’ equal enjoyment of their rights under the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights, namely access to public services, equality before the law, privacy, and liberty and security of the person.
Justice Mortimer awarded the three lead plaintiffs $220,000 in damages. The remedies for the remaining group members are yet to be determined. Queensland has now lodged an appeal against the decision.
Wotton is a breakthrough because it makes clear that police may still be answerable for their criminal investigations. Australian judges have generally been reluctant to require police to take reasonable care when investigating crimes. By way of example, the state of Victoria has a statutory human rights charter, but the charter (unlike several international human rights instruments) has been held not to guarantee an effective investigation of mistreatment by police.
This is particularly important given the troubled relationship between police and Australia’s Indigenous peoples. In 1991, the national Royal Commission into Aboriginal Deaths in Custody found that many elements of police practice served ‘to entrench the subordination of Aboriginal people and, with it, racist attitudes in the dominant society.’ The relationship between police and Aboriginal Australians was marred by ‘deep animosity and often hatred’. This led to higher numbers of Aboriginal people (and thus Aboriginal deaths) in custody.
In Wotton, Justice Mortimer noted that the police acted as they did because they were operating in an Aboriginal community ‘where domination of Aboriginal people by white authorities was the historical norm.’
Wotton sends an important signal: the justice system enables Aboriginal Australians to call police to account for differential treatment on the basis of race. 25 years after the Royal Commission into Aboriginal Deaths in Custody, during which time the Indigenous incarceration rate has doubled, this signal has never been more important.