Wotton v State of Queensland (No 5)  FCA 1457 (5 December 2016)
Justice Mortimer in the Federal Court has ruled that the State of Queensland, acting through officers of the Queensland Police Service (QPS), engaged in unlawful discrimination under section 9(1) of the Racial Discrimination Act 1975 (Cth) (RDA), in relation to their actions on Palm Island between 19 and 28 November 2004. These actions followed the death in custody of Aboriginal man Cameron Doomadgee, referred to by his traditional name Mulrunji after his arrest and confrontation with QPS Senior Sergeant Christopher Hurley (SS Hurley).
The action was brought as a representative proceeding by three applicants, Mr Lex Wotton, Ms Cecilia Wotton and Mrs Agnes Wotton (the named applicants), as representatives of the Aboriginal community on Palm Island. The action followed termination of a complaint to the Australian Human Rights Commission pursuant to s 46PO.
The manner in which the QPS dealt with Mulrunji’s death and its aftermath were the basis of the findings of racial discrimination. In particular, the following actions were ruled discriminatory under section 9(1) of the RDA:
- QPS’ failure to independently and impartially investigate Mulrunji’s death by not treating Hurley as a suspect, or removing him from duty;
- Further QPS discounting or ignoring Aboriginal witnesses implicating Hurley;
- QPS’ failure to communicate with the Palm Island Aboriginal community, to provide timely and accurate information about the cause of death and progress of the investigation and defuse tensions;
- the declaration of an emergency situation under section 5 of the Public Safety Preservation Act 1986 (Qld) (PSP Act) facilitated an excessive and disproportionate policing response; and
- use of officers of the Special Emergency Response Team (SERT) for various arrest, entries and searches on Palm Island was unnecessary, disproportionate and undertaken as a show of force against the Aboriginal people.
Justice Mortimer granted declaratory relief to the applicants, ordered compensation to be paid to the three named applicants, and has requested further submissions on the potential for a public apology.
Justice Mortimer’s judgment provides a detailed examination of the history and experiences of the Palm Island community, finding that its members were subject to control and subordination on a racial basis. The judgment pays particular attention to the Royal Commission into Aboriginal Deaths in Custody recommendations and the lack of awareness of these by QPS involved. Justice Mortimer was highly critical of a large number of actions by the QPS, and in her closing remarks Her Honour stated that:
[f]or those in command and control of particular policing activities, and for those in charge of a police investigation into the death of a person in police custody, to perform their functions differently by reference to the race of the people they are dealing with is also, in my respectful opinion, an affront to the rule of law.
Justice Mortimer’s judgment reflects a large volume of video and documentary evidence, and witness testimony, in relation to the events outlined below. Witness testimony was particularly important in assessing much of the conduct alleged to be a violation of the RDA, and is examined in great depth. The facts outlined below provide a brief chronology of the main events, but much of the judgment deals with particular attitudes and experiences of individual witnesses, some of which are discussed below.
Palm Island is a chain of 10 islands in far northern Queensland, with a population of around 2000 in 2004 (when the relevant events occurred). Around 90-95% of the population of Palm Island in 2004 was of Aboriginal or Torres Strait Islander descent (and that remains the case today). On the morning of 19 November 2004, Mulrunji, then a 36 year old Aboriginal man and resident of Palm Island, was arrested after a confrontation with SS Hurley who was arresting another Aboriginal person, and died in custody approximately 44 minutes later from injuries he did not have prior to his arrest.
Police officers from Townsville were flown to Palm Island to investigate Mulrunji’s death. They considered the investigation to be closed and departed on 20 November.
Despite the Townsville investigators being brought in, SS Hurley, the person with Mulrunji in the events leading up to his death, was not isolated from the investigation, suspended from duty or asked to leave the island. He remained as officer in charge until the afternoon of 22 November 2004.
In arranging for Mulrunji’s autopsy, the police delayed sending the Form 1 certificate to the State Coroner by 2 days, and did not include critically new information uncovered during that time. The Form 1 also included a number of inaccuracies and made significant omissions to present police conduct in a more favourable light. DSS Kitching (the police officer attending) also informed the pathologist conducting the autopsy that Mulrunji may have been sniffing petrol or drinking bleach prior to his arrest – an assertion that was not based in any evidence.
The autopsy took place on 23 November. It was determined that Mulrunji’s death was not from natural causes. The pathologist found that the cause of death was intra-abdominal haemorrhage due to a ruptured liver and portal vein. Mulrunji also had four broken ribs. These injuries were “indicative of a moderate to severe compressive force applied to the upper abdomen” and the use of direct force could not be ruled out.
Between Mulrunji’s death and his autopsy, 3 community meetings were held. Tensions were high and crowds gathered and threw rocks at police vehicles and at the police station on the 22, 23 and 24 November.
On 22 November, police reinforcements were flown to the island, increasing police numbers from 7 to 20. However, no cross-cultural liaison officers from QPS were sent to Palm Island to improve relations with the local community until 26 November.
On 26 November, a community meeting was held at which the mayor of Palm Island conveyed certain information about the results of the autopsy report to 150-200 attendees. However certain important elements from the autopsy findings were omitted. The information conveyed to the community was that a fall had caused Mulrunji to break four ribs, which ruptured his liver and resulted in death. The information caused distress to those present, with some expressing disbelief that Mulrunji could have died from a fall and anger at the police for failing to arrest SS Hurley.
Following the meeting, crowds gathered at the police station. Rocks were thrown at the police station; the courthouse, police station, the police residence of SS Hurley and a police vehicle were set on fire. The first named applicant, Lex Wotton, was alleged to be a ringleader of these events, and was subsequently convicted of a number of offences relating to these events.
At approximately 1.45pm on 26 November, QPS declared an emergency situation without the community being notified. In the afternoon and evening, between 59-82 police arrived on Palm Island, and an additional 18 SERT officers and 11 PSRT officers were also deployed there over the 24 hour period.
Between 1.45 pm on 26 November 2004 and 1.30 pm on 27 November 2004, all commercial flights to and from Palm Island were also suspended. However, the QPS arranged for a ferry to be available from Palm Island to Townsville for certain Palm Island residents (mainly teachers, and none of whom were Aboriginal), and for the evacuation of some patients (including some Indigenous patients) from the Palm Island hospital to Townsville by Queensland Emergency Services helicopter.
Armed SERT officers effected arrests, entries and searches of persons suspected of involvement in the fire and events of 26 November without warrants from approximately 5am on 27 November 2004 to 8.10am on 28 November. These arrests occurred at homes where women and children were present (terrorised and scared) including the homes of the named applicants. At this point, there appeared to be greatly reduced concerns on behalf of the QPS about police safety and the need for extra policing. The emergency declaration was revoked, and most of the additional police officers on Palm Island departed.
SS Hurley was subsequently charged with the manslaughter of Mulrunji, on the allegation that he beat Mulrunji inside the station, but was acquitted. The case has attracted a great deal of attention and legal proceedings, of which this is just one case.
Justice Mortimer deals with a number of preliminary issues before discussing the substantive claims relating to breach of section 9(1).
Of importance to the judgment, Her Honour devoted a significant amount of time to describing the historical and social contexts of Palm Island – stating that “[t]he applicants’ claims in this proceeding cannot be understood without first appreciating the particular history of Palm Island and its community”. In particular, Justice Mortimer notes the history of Palm Island as a “reserve” to which a large number of Aboriginal people were forcibly removed, including people who still live on Palm Island and their descendants. She also noted the history of heavy handed and discriminatory treatment by the police and authorities on the Island.
The purpose of this examination, as is made clear throughout the judgment, is to provide context to the subjective feelings and attitudes of the residents of Palm Island, and to highlight the ignorance or disregard for this history by officers from QPS. Similar context is provided in Her Honour’s discussion of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) – and again Her Honour notes the lack of awareness of the findings and recommendations of this landmark report amongst the relevant members of QPS in this case.
Her Honour also deals with several major points of evidence. In particular, Her Honour:
- Details the importance of drawing inferences when assessing conduct alleged to be discriminatory, including inferences about why particular actions were taken. Her Honour notes the importance of sufficient evidence supporting inferences, and many inferences are drawn about the attitudes of QPS and the residents of Palm Island during the judgment.
- Notes that whilst there has been a great deal of external evidence referred to in past decisions and reports as a result of earlier criminal proceedings, coronial and police investigations, these materials could not be used as evidence or adopted by Her Honour to prove anything she relies on for this judgment.
The content and interpretation of section 9(1) of the RDA
Section 9(1) of the RDA reads:
It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
Justice Mortimer concludes that section 9(1) contains two limbs: a conduct-based limb, and an outcome–based limb. The conduct –based limb is described as broad, and requires a finding that there was an act involving distinction, exclusion, restriction or preference which is based on race, colour, descent or national or ethnic origin. In this case an act which involves a differential treatment that is based upon race. Such assessment necessarily involves determining how a person or members of a race are treated compared to others who do not belong to that race. The wording “based on” implies a causal connection i.e. the differential treatment must be because of that person or group’s race. In assessing this limb, Her Honour noted that a court is required to look at everything that is bound up or involved in the conduct, to provide the overall context for the differential treatment that is identified.
The second limb, outcome-based, requires a finding that the act must have either the purpose or the effect of nullifying or impairing a human right. Her Honour provides a detailed summary of the way in which this limb is bound up in international human rights jurisprudence, in particular the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on the Elimination of all forms of Racial Discrimination (ICERD). Of particular importance in this case were the human rights to equality before the law and equal protection of the law (ICCPR Art 26); to equal treatment before organs administering justice (ICERD Art 5(a)); to access public services (ICERD Art 5(f)); not to be subjected to unlawful interference with privacy, family or home (ICCPR Art 17); to liberty and security of person (ICERD Art 5(b) and ICCPR Art 9); and not to be subjected to inhuman or degrading treatment (ICCPR Art 7).
Her Honour also made several important remarks about the general approach to be taken to section 9(1). The first is that section 9(1) is not just concerned with isolated and particular incidences of conduct against individuals, but can also apply to broader courses of conduct and events, which when taken cumulatively, indicate racially discriminatory treatment. This is important in clarifying that applicants need not point to multiple isolated incidents as each breaching section 9(1), but can rather refer to the broader context of that conduct to prove the breach.
The second important point is that a right can be violated without the relevant conduct being strictly unlawful (i.e. not authorised by relevant statutes or common law). This is because, in many cases, conduct that is arbitrary (in the sense of being disproportionate or unjustified) can be sufficient to breach a human right. An example used by Justice Mortimer is the right to privacy, which can be shown to be violated by an interference that is “arbitrary”, without needing to provide evidence that the invasion of privacy was illegal.
In this context Justice Mortimer then proceeded to examine the particular conduct that was alleged to be discriminatory, which is discussed below. Her Honour’s approach was to first assess each category of conduct (organised roughly chronologically) for evidence of differential treatment based on race, and then where such conduct is found, to determine which fundamental right had been breached by that conduct. This case note adopts that same approach.
Failure to properly investigate or treat SS Hurley as a suspect, and treatment of witnesses
On this ground, Justice Mortimer found that QPS owed a duty to expeditiously conduct an impartial investigation; in a manner that preserved public confidence and trust in their integrity and impartiality and in the best interests of the community without fear or favour, (the impartiality duty). Her Honour found that this impartiality duty was violated by QPS in relation to the investigation of Mulrunji’s death in a number of ways, which Her Honour concluded was referrable to the fact that the Palm Island community were mostly Aboriginal, as well as the fact that the key suspect, SS Hurley, is white.
Particular conduct identified by Her Honour as demonstrating the breach of the impartiality duty, and its racially discriminatory nature, include:
- Failure to treat SS Hurley as a suspect. In particular, SS Hurley was allowed to continue his duties in uniform in view of the community. He was also allowed to pick up investigating officers from the airport. The investigating officers later ate a meal with SS Hurley at his house. This was despite evidence SS Hurley had provided incorrect statements about the circumstances surrounding the death to the investigating officers, and a preponderance of evidence that would have led any person “acting impartially” to conclude SS Hurley was a suspect. In relation to allowing SS Hurley to remain on duty after Mulrunji’s death, Her Honour was particularly critical, stating that this indicates that QPS “did not care whether the investigation seemed impartial or not; they did not care if it was deeply offensive to that community that the white police officer who arrested Mulrunji and who brought him into the police station and locked him up was still going about his duties in uniform on the island as if nothing had happened.”
- Differential treatment of witnesses. Justice Mortimer found differential treatment in the manner of questioning of a number of key Aboriginal witnesses because they were Aboriginal and perceived by the officers as unlikely to provide a reliable or truthful account, including questioning of Roy Bramwell (who was inside the station when Mulrunji was brought in and reported that SS Hurley had punched Mulrunji). Justice Mortimer found the methods utilised in these interviews (including many leading questions) were intended to steer the conversation away from information that might discredit or implicate SS Hurley, and further that the investigating officers disregarded and discounted much of their evidence simply because they were Aboriginal. Her Honour also noted that the investigating officers seemed to stereotype Aboriginal witnesses as unreliable, and had no concern for adjusting the manner of their interviews to be sensitive to the cultural needs of the witnesses. Her Honour noted that the treatment of Roy Bramwell in particular: is the most obvious example of differential treatment of an eyewitness because he was an Aboriginal person, and not perceived by the investigating officers as likely to have an account of events that was reliable, or truthful. Again, it supports and contributes to my finding concerning the lack of impartiality in the investigation.
- The conduct of the autopsy. Justice Mortimer found that the investigator tasked to assist the pathologist did not act impartially in failing to provide certain information inculpating SS Hurley, in addition to improperly alleging unfounded material to suggest Mulrunji was responsible for his own death. In particular, unfounded allegations that Mulrunji may have been drinking bleach or sniffing petrol appeared in notes to the coroner, which Justice Mortimer found were based on racial stereotypes. In addition, allegations made by a key Aboriginal witness who was inside the station at the time that an assault may have occurred was omitted.
Overall, the QPS treatment of the investigation of SS Hurley was described by Mortimer as displaying significant “attitudinal problems” indicative of a discriminatory attitude and in violation of the “impartiality duty”. Her Honour observed that the investigating officers:
had little awareness of the nature of the community they were entering and little knowledge of its history. They did not much care about either of those things. The oppressive role played by police officers on Palm Island in the past – a clear precursor to high levels of suspicion and mistrust, as the QPS remote policing review indicated – was not a matter they brought to account in the performance of their duties. They were not interested in how they were perceived by the Palm Island community. They were not thinking, at all, about any apprehensions of lack of impartiality which might arise from some of the conduct now impugned by the applicants. I detected no sense that any of the investigating officers saw themselves as performing their investigative tasks, even in part, for the Palm Island community itself. That community was simply the location, nothing more.
Further, Her Honour concluded that the investigation revealed a clear double standard. Referring to the police treatment of Mulrunji compared to SS Hurley, she observed:
Whether there was or was not a valid basis for that arrest [of Mulrunji], my point in referring to it here is to illustrate the double standards at work on the very same day on Palm Island. A young Aboriginal man who protests about what he saw as the partisanship of a PLO is arrested, roughly and with some aggression, by SS Hurley.
But when, on all accounts, that same young Aboriginal man punches SS Hurley and a considerable struggle ensues at the door of the police station which has both men ending up on the ground and only Mulrunji being limp and unresponsive afterwards and then dead in less than an hour, no white police officer considers there should be a reasonable suspicion about SS Hurley’s conduct at all. Even allowing for the benefit of hindsight, I can see on the evidence before me no justification or explanation for this, other than the fact SS Hurley was a white police officer and the victim was an Aboriginal resident of Palm Island. The assumption that SS Hurley was acting lawfully, while arresting Mulrunji for the most minor of matters, with force, was never questioned by any investigating officer.
Speaking of treatment of Aboriginal witnesses in the case, Her Honour concluded that:
The Aboriginal race of the people involved cannot be separated from their status as Aboriginal people from Palm Island. Palm Island is an Aboriginal community – that is its nature. The community is defined by race, and defined by the racially discriminatory and negative treatment that Aboriginal people in that community have suffered since its inception. On 19 and 20 November 2004, there was no respect from the investigating officers for the members of this community, there was no understanding of them, and there was no sense that what they had to say might be more truthful than what a white police officer had to say. There was, quite simply, no objective, racially neutral starting point.
In conclusion on the investigation, her Honour found that the investigation that was conducted could not be seen as impartial, or in the best interests of the Palm Island community. She further concluded that the QPS officers “were not interested” in what the community thought about what they were doing, and did not view their role as supporting or assisting the community. Said her Honour:
there was clear favour given to the views and interests of white police officers on the island, with no real respect or consideration paid to the justifiable concern and bewilderment amongst Palm Islanders about how Mulrunji could have died so soon after being taken into custody.
Failures in the “intervening week” before the autopsy report
After assessing the conduct of the investigation, Justice Mortimer then examined QPS conduct in the “intervening week” after Mulrunji’s death and leading up to the autopsy report, protests and fires on 26 November. Broadly there are five categories of conduct discussed: failure to suspend SS Hurley from duty; failure to take culturally appropriate policing measures; failures to liaise with the community and address its concerns; deployment of police without adequate cross-cultural skills; and failures regarding the autopsy report. The failures around the autopsy report were addressed by Mortimer in discussing the investigation, and Her Honour found no further breaches of the RDA in the intervening week in relation to the autopsy.
In relation to the failure to suspend and remove SS Hurley, this was found to be an act (omission) involving a distinction based on race. Justice Mortimer found that this failure “very substantially” contributed to the sense of grievance in the Palm Island community around Mulrunji’s death. In her Honour’s view, suspension of SS Hurley would have been the “obvious, prudent, rational and impartial course” in the circumstances. The fact that the suspension did not occur was found by Mortimer to be because:
QPS officers – especially those tasked with the investigation, but also SS Hurley himself … had no regard whatsoever for the reaction of the community, for how this event affected them, or for their perceptions of how the rule of law would operate in those circumstances.
This attitude was summarised by Mortimer as an attitude that “[n]o complaints by groups of Aboriginal people – stereotyped as disaffected, disconnected, transient, uneducated, drunken, violent, unworthy and unimportant – would be allowed to have any effect on how the white QPS officers would conduct themselves.”
The next three courses of conduct: failures to take culturally appropriate policing measures; failures to liaise with the community and address its concerns; and deployment of police without adequate cross-cultural skills; were grouped together by her Honour. In relation to these grounds, Justice Mortimer found that overall QPS attitude showed “no semblance of understanding” about the context of the Palm Island community’s distress and anger as to what had happened to Mulrunji and the progress of the investigation into his death. The failures to communicate with the community and defuse tensions were ongoing acts that involved distinctions – namely adherence to lesser standards about the preservation of peace and good order, and a focus on increasing security and police numbers without regard to other methods. They further involved a preference to protection of non-Aboriginal police officer interests and safety over engagement with the community.
Her Honour found that, rather than responding to the community’s frustration, outrage and “palpable sense of injustice” (as shown in video of community meetings at the time, and in witness evidence), QPS officers retreated to a “battle mentality” and adopted a patronising “wait and see” attitude, stating that the community should simply wait for the outcome of the autopsy. Her Honour found that:
[a] likely explanation for QPS officers being less aware, or unaware, of the depth and intensity of the grief, frustration and sense of injustice in the community lies in one of the facts I have found to lead to a contravention of s 9: QPS officers did not engage with the community very much at all.
In relation to the failure to take culturally appropriate measures, Justice Mortimer noted that QPS’ failure to utilise “Cross Cultural Liaison Officers” (CCLOs) and “Police Liaison Officers” (PLOs) that were available on Palm Island is one of a number of “obvious” measures that could have been implemented to ease tensions in the community. Her Honour went on to list other measures based on decency and transparency that could have been taken to provide appropriate information and sensitively engage with the community. Justice Mortimer also called out for particular criticism the actions of QPS officers who addressed community meetings, including the meeting where Mulrunji’s autopsy results were announced. These officers, said her Honour, indicated no intent to openly communicate with the Community, and behaved in a patronising and antagonistic manner:
preference was given to protection of the interests and safety of the non-Aboriginal police officers on the island, at the expense of engagement with the local community. Instead of defusing tensions and addressing the justifiable concerns expressed at the meetings about what was being done about SS Hurley, and why the autopsy report was taking so long, QPS officers (led by SS Whyte and Inspector Richardson) geared up for confrontation, and subjugation.
Declaration of emergency
The third category of conduct alleged to contravene the RDA related to the declaration of emergency made under section 5 of the PSP Act.
In describing the context of the emergency declaration, her Honour made a number of remarks indicating that the QPS officers overreacted and overestimated the threat to them and the community, that
what the officers on Palm Island were articulating as their fears and apprehensions were substantially affected by their sense of being under siege from a group of Aboriginal people, and there was some material stereotyping at work in the officers’ reactions, as well as considerable disproportion of reaction stemming from that.
In particular Her Honour noted that the evidence of QPS officers that those participating in the protests were armed with sticks, rocks, clubs, spears or firearms were not supported by video evidence, and she did not accept these claims. Her Honour noted that on the evidence before her the only people who were capable of inflicting severe physical harm, and had spoken about shooting people, were the QPS officers themselves.
Justice Mortimer found that the ‘fires’ at the Police Station and SS Hurley’s house were sufficient to justify the declaration of an ‘emergency situation’ being made. However, once those fires were under control and the crowds dispersed, her Honour concluded that there was not a sufficient threat to the Palm Island to justify the continued imposition of the state of emergency. Her Honour concluded that the only real threat was to police, not the community at large, and that emergency declaration was kept in place solely to justify the maintenance of police control over the island, and to allow for the arrest without warrant of suspects in the protests that caused the fire (including Lex Wotton). This means that the maintenance of the emergency declaration was not lawful (this is also important in relation to the arrests made by SERT, see below).
Her Honour was also strongly critical of the application of the declaration to the entirety of Palm Island, including a commercial flight ban and closure of the Palm Island airport, which she considered unnecessary and heavy handed. In particular, the flight plan showed “no concern” for the Aboriginal people on Palm Island and those Palm Islanders who were stuck in Townsville due to the flight ban. In an illuminating passage, Justice Mortimer contrasted the “compassion” shown by the QPS to SS Hurley’s dog, which was frightened by the fire and subsequently removed from Palm Island by QPS officers, with the disregard shown for the Aboriginal people on Palm Island.
Justice Mortimer also noted the clear double standard in the Police commissioning a ferry that was used to transport non-Aboriginal people from Palm Island. Her Honour noted that, although the request for the ferry did not specifically prohibit its use by Aboriginal people, the manner in which it was procured indicated a preference granted to non-Aboriginal people.
The judgment also notes a number of police materials from the emergency declaration period that appear to draw distinctions between “ATSI” (Aboriginal and Torres Strait Islanders) and “non-ATSI” people, and between “civilian” and Aboriginal people. Her Honour also noted some more egregious examples in record keeping, including the description by one officer in a report on statements made by the Mayor of Palm Island (an Aboriginal person) quoting from the autopsy report as “claims”. Her Honour said that the identification of facts from the autopsy report as nothing more than “claims”:
indicates the lengths to which QPS officers were going to portray decent, responsible local people as criminals, and to diminish the tragedy of Mulrunji’s death.’
Overall, in relation to the emergency declaration, Justice Mortimer concluded that:
Making and continuing the emergency declaration could have led to conduct authorised under the PSP Act which was protective of the safety of all members of the Palm Island community, and which was aimed at addressing the risks and damage from the fires. Restrictions (such as travel or movement restrictions) might have been imposed, equally, on all persons on Palm Island. That is not what occurred and therein lies the contravention of s 9. Rather, a series of distinctions and restrictions flowed, giving rise to differential treatment which was based on race.
Use of the Special Emergency Response Team for arrest, entry and searches
The final broad category of conduct relates to the use of SERT in effecting arrests (without warrant) and policing the island after the protests. This ground is the only one where a distinction in treatment is made between the Palm Island community as a whole, and particular individuals who were actually affected by the arrests, including the named applicants and a number of other residents of Palm Island.
Justice Mortimer rejected the claims made on behalf of the community concerning the intimidating and “militarised” appearance of SERT on the basis of a lack of evidence. However, Her Honour upheld the claims in relation to those who were arrested finding that the use of SERT teams to search for and arrest suspects and way in which searches and entries into houses were conducted, was disproportionate and unnecessary and constituted acts involving distinctions and restrictions based on race.
In the use of SERT officers to effect the arrests without a warrant, her Honour determined that their actions were unlawful and arbitrary. This was on the basis that the SERT officers actually making the arrests were not involved in any of the previous events (including the protests) and therefore themselves had no “reasonable suspicion” that the people they were arresting had committed an offence. Rather, they were simply acting on orders to arrest certain people.
Justice Mortimer was also highly critical of the level of force and aggression used in making the arrests of a number of individuals. This included men in all-black combat clothing (sometimes with masks or balaclavas) forcibly entering homes with children in them, pointing guns at bystanders (including children) and the tasering of Lex Wotton. Justice Mortimer found that this conduct was materially different to what would ordinarily be expected in making arrests related to public order and property offences. Importantly, Justice Mortimer noted that QPS officers accompanying the SERT teams making the arrests remained in plain clothes and were comfortable entering the houses, indicating that QPS knew there was no real threat to officers justifying the level of force used.
Her Honour singled out for particular criticism the conduct in arresting of one Mr William Neville Blackman (Mr Blackman Sr), who turned himself in but was nonetheless handcuffed and left in the back of a paddy wagon overnight (some 6 hours). Justice Mortimer described this conduct as “disgraceful” and “inhuman and degrading”. Her Honour stated that:
what occurred was part of the punishment and subjugation of members of this Aboriginal community for rising up against the police that in my opinion was clearly evident during these days on Palm Island… I have no doubt at all that a non-Aboriginal person would not have been treated in that way.
Having determined that differential treatment based on race had occurred, Justice Mortimer went on to detail the human rights or fundamental freedoms in the public sphere that were violated by that differential treatment.
Her Honour concluded that the following rights or fundamental freedoms had been violated:
- In relation to the conduct of the investigation, the failure to suspend SS Hurley, the treatment of Aboriginal witnesses, conduct of DSS Kitching in the information given to the coroner, and the failure to communicate with the community or defuse tensions: the right to access services intended for the public, under art 5(f) of ICERD. The “impartiality duty” to investigate Mulrunji’s death impartially was interpreted to be a “service” owed to the public by QPS, and therefore referable to article 5(f) of ICERD (ability to access public services). For the reasons described above, this duty was breached on the basis of a racial distinction, and therefore the rights of the Palm Island community to access these services was violated.
- In relation to the use and implementation of the emergency declaration: the right to equal protection under the law in art 26 of the ICCPR. The fundamental aspect of this right is a “freedom against differential treatment in the application of the law, where that differential treatment is based on an irrelevant attribute.” Her Honour noted that the concept of equal justice enshrined in art 26 “is one of the foundational values of the common law of Australia”, referring particularly to the judgment of Brennan J in Mabo v Queensland (No 2)  HCA 23. Justice Mortimer found that because the emergency declaration was the exercise of a legal right in a manner contrary to how it would have been exercised against non-Aboriginal people, it was a violation of art 26.
- In relation to the arrests, Justice Mortimer determined that these were a violation of the rights to privacy of those who were arrested, and others who were in the houses when the arrests occurred. In this regard, Justice Mortimer found that the fact the arrests were unlawful is sufficient to demonstrate that they were an unjustified invasion of privacy. Her Honour also found that the invasion was arbitrary and disproportionate.
The applicants were granted declaratory relief in terms of the violations that are outlined above. The applicants also sought an apology from QPS, and compensation for the named applicants in the proceeding.
In relation to the apology, Justice Mortimer considered that the level of submissions she received on the remedy were insufficient. She questioned the value of a court ordered apology if it is not truly meant. Her Honour reserved her judgment in that matter, and requested further submissions from the parties on a proposed order that the Commissioner of QPS be required either to publish an apology, or publish the reasons why the Commissioner does not consider an apology is appropriate.
Her Honour awarded compensation to the named applicants under clause 46PO of the RDA. These damages, on the basis of the arguments made by the applicant, were compensatory in nature and reflected the harm that had occurred when the arrests occurred. Her Honour considered that exemplary (punitive) damages were not available under the RDA. However, Justice Mortimer did note in obiter that “vindicatory” damages (similar to what may be available, for instance, in the case of the tort of battery) may be available under the RDA. However, this matter was not pressed by the applicant, and the compensation award was based on similar calculations to what would occur in a claim for negligence.
This case is an important chapter in the ongoing story of the death of Mulrunji and its effects on the Palm Island community, and reconciliation in Australia more generally.
Justice Mortimer’s judgment is a useful illustration of the manner in which multiple individual events can cumulatively provide evidence of a pattern of racially discriminatory conduct. It is also a useful examination of how inferences of racially discriminatory conduct can be drawn from evidence.
The judgment emphasises the important linkages between the RDA and international human rights instruments, particularly the ICCPR and ICERD, which are the human rights basis underlying the RDA.
Justice Mortimer is also at times harshly critical of QPS conduct, and identifies multiple points at which tensions could have been diffused or minimised with a different attitude that was respectful of the Palm Islanders informed by their history and cultural needs. The case is a powerful reminder of the need for equal protection under the law, of the importance of impartial policing that is done for the community, and for Australia to continue to strive for better outcomes for Aboriginal communities.
The Queensland government initially appealed the judgment, but has since withdrawn the appeal "having received a further considered legal advice about the State's prospects of success".
The full text of the decision can be found here.
Alex Maschmedt is a Solicitor at King & Wood Mallesons