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Australia: Police Response to Aboriginal Death in Custody and Ensuing Riot Ruled Discriminatory

(Dec. 9, 2016) On December 5, 2016, the Federal Court of Australia found in favor of an Aboriginal community from Palm Island, Queensland, in a class action case involving claims that officers of the Queensland Police Service (QPS) engaged in racial discrimination in responding to a riot that took place in 2004 following the death of an Aboriginal man in police custody. (Wotton v State of Queensland (No 5) [2016] FCA 1457, Federal Court of Australia website.) The applicants also claimed that the QPS had contravened the Racial Discrimination Act 1975 (Cth) (Federal Register of Legislation website) in its handling of the investigation of the death in custody.  (Id.)

Background

Cameron Doomadgee (commonly called Mulrunji), a 36-year-old Aboriginal man, died in police custody on Palm Island on November 19, 2004. That morning, he had been arrested near the police station after yelling out what the arresting officer, Senior Sergeant Chris Hurley, considered to be abuse directed at Hurley and an Aboriginal police liaison officer who was also on duty. Mulrunji was affected by alcohol and struggled with Hurley, leading to a fall near the door to the police station. He was then dragged “limp and unresponsive” into a cell and died within the next hour. (Federal Court of Australia, Wotton v State of Queensland (No 5) [2016] FCA 1457: Summary (Mortimer J, Dec. 5, 2016), Federal Court of Australia website.)

Mulrunji’s autopsy showed that he died of major internal injuries. The coroner’s preliminary report found that Mulrunji died after falling over a step. When the autopsy results were released, about a week after his death, Lex Wotton, an indigenous activist, “led angry residents on a riot through the town.” (Palm Island Riots: Federal Court Finds Police Acted with ‘Impunity’ in Racial Discrimination Lawsuit, ABC NEWS (Dec. 5, 2016).) The police station was burned down during the riot, along with the courthouse and Hurley’s home. (Palm Island Death in Custody Timeline, SYDNEY MORNING HERALD (June 20, 2007).)

Wotton was later convicted of inciting a riot and served 19 months in prison before being released on parole. A number of others involved in the riot also faced criminal proceedings. The death in custody “led to three coronial inquests, a review by the Crime and Misconduct Commission in Queensland, two reviews by the QPS, criminal proceedings against Senior Sergeant Hurley in which he was acquitted of manslaughter, and litigation by police officers about potential disciplinary action against them.” (Summary, supra.)

Class Action Case

The applicants in the case were Lex Wotton, his partner Cecilia Wotton, and his mother Agnes Wotton. The three brought the case on behalf of “a group of people affected, they allege, by unlawful race discrimination of QPS officers” during the period from November 19 to 28, 2004. (Id.) In addition, a “subgroup” of people were also represented, being those “who were affected by an operation carried out by armed officers of the Special Emergency Response Team (SERT) on 27 and 28 November 2004,” and which included “children who were in or near the houses that were entered and searched by SERT officers.” (Id.)

The Court was asked to “decide whether, in the police investigation into Mulrunji’s death, in the management of community concerns, tensions and anger on Palm Island in the week after his death, and in the police responses to protests and fires that occurred on 26 November 2004, officers of the QPS contravened section 9(1) of the Racial Discrimination Act 1975 (Cth).” (Id.) Section 9(1) of the Act states that

[i]t 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. (Racial Discrimination Act 1975 (Cth).)

Essentially, the applicants “claimed that the police officers conducted themselves differently because they were dealing with an Aboriginal community and the death of an Aboriginal man.(Summary, supra.)

The Court’s Ruling

The judge in the case, Justice Debbie Mortimer, upheld a number of the applicants’ claims regarding contraventions of section 9(1), but not all of them. She awarded AU$220,000 (about US$164,000) in damages to the applicants. (Palm Island Riots: Federal Court Finds Police Acted with ‘Impunity’ in Racial Discrimination Lawsuitsupra.) She found that “the following conduct of QPS officers contravened s 9(1) of the RDA”:

  1. the inappropriate and partial treatment of SS Hurley;
  2. the treatment of Aboriginal witnesses;
  3. the conduct of DSS Kitching in relation to the autopsy report;
  4. the failure to suspend SS Hurley;
  5. the failure to communicate with Palm Islanders and defuse tensions in the intervening week between Mulrunji’s death and the protests and fires;
  6. the making and continuation of the emergency declaration after the evening of 26 November 2004; and
  7. the arrests, entries and searches of the houses of the applicants and the subgroup members. (Wotton v State of Queensland (No 5) [2016] FCA 1457, ¶ 1540.)

In the summary of her judgment, Justice Mortimer stated:

I have found that police acted in these ways because they were dealing with an Aboriginal community, and with the community of Palm Island in particular. I have found they conducted themselves, including Senior Sergeant Hurley while he was there, with a sense of impunity, impervious to the reactions and perceptions of Palm Islanders who were, in large numbers, distressed and agitated about the death of Mulrunji. Officers preferred confrontation to engagement and operated very much with an ‘us and them attitude. I am comfortably satisfied QPS officers would not have taken a similar approach, in any of the respects I have outlined above, if a tragedy such as this had occurred in an isolated non-Aboriginal community in Queensland. (Summary, supra.)

Reactions

The applicants’ lawyer, who took the case on a pro bono basis, stated following the ruling:

It’s the first time an entire community has been represented in a class action against a state of Australia alleging racial discrimination and being vindicated in that cause. You see terrible things happening to people without any remedies and there’s so much disillusionment in the Indigenous community because they just don’t get a fair go under our legal system. (Palm Island Riots: Federal Court Finds Police Acted with ‘Impunity’ in Racial Discrimination Lawsuitsupra.)

The president of the Queensland Police Union disagreed with the ruling, saying that the police response was “appropriate in the circumstances” and “[p]olice who serve in Indigenous communities are not racist, and purely because of someone’s Aboriginality do not treat anyone differently… .  The only people who deserve an apology are the police officers who were in the police station whilst it was being burnt down.” (Id.)

The Queensland government and QPS “said they would carefully consider the judgment before commenting further.” (Id.)