Wotton v State of Queensland (No 5) [2016] FCA 1457

Between:

Lex Wotton (First Applicant), Agnes Wotton (Second Applicant), and Cecilia Ann Wotton (Third Applicant)

And 

State of Queensland (First Respondent), and Commissioner of the Police Service (Second Respondent)

Judge: Mortimer J

Judgment:

The Federal Court determined that the State of Queensland, acting through officers of the Queensland Police Service, committed unlawful discrimination under s 9(1) of the Racial Discrimination Act 1975 (Cth) (the RDA) in its actions on Palm Island between 19 and 28 November 2004.

The court granted declaratory relief to the applicants in the form of declarations of specific contraventions of the RDA by Queensland Police officers.

The court also granted a declaration as to the State's vicarious liability under s 18A of the RDA and ordered the State to pay compensation to the three applicants. 

The court directed the parties to make further submissions as to a proposed order that the Commissioner of the Queensland Police either: (a) issue a public apology; or (b) publish reasons as to why an apology was inappropriate.

Public Response

The decision was the first case of a community successfully alleging racial discrimination against a state (ABC). Several Aboriginal communities have indicated they are reviewing the judgment to consider commencing similar proceedings (KWM).

Litigation History

The applicants originally lodged a written complaint with the Australian Human Rights Commission (AHRC) on behalf of themselves and other Palm Islanders in relation to unlawful discrimination by the Queensland Police Service. 

The matter was not resolved and came before the Federal Court following the AHRC's termination of the complaint on 13 June 2013 [15]. The first week of the trial was conducted in Palm Island [22].

Background

Justice Mortimer emphasised the importance of understanding the historical and social context of Palm Island to understand the importance of this judgment. Palm Island was a reserve to which Aboriginal people were forcibly removed and 90-95% of the population was of Aboriginal or Torres Strait Islander descent at the time of this case.

On 19 November 2004, Cameron Doomadgee, also known as Mulrunji, a 36-year-old Aboriginal man, died in police custody on Palm Island following a confrontation with Senior Sergeant Hurley.

Police from Townsville were flown in to investigate, but closed the investigation without attributing fault and departed on 20 of November. Public dissatisfaction with Mulrunji's death, the autopsy, and a lack of a fair investigation into or consequences for the Queensland Police Service sparked protests throughout Palm Island with the police station and Hurley's home destroyed in fires.

The State of Queensland declared an emergency situation allowing the police and Special Emergency Response Team (SERT) powers of entry, search and seizure without warrant. Armed officers made arrests, entered properties and searched individuals suspected of involvement with the protests and fires without warrants from the morning of 27 November to 28 November.

The applicants alleged that the Queensland Police Service committed unlawful discrimination under s 9(1) of the Racial Discrimination Act 1975 (Cth) (the RDA) in their investigation into Mulrunji's death, and in issuing an emergency declaration to allow SERT to conduct warrantless arrests, entries, and searches.

They asserted that this conduct would not have occurred if the investigation had not taken place in an Aboriginal community.

Details of Judgment

Justice Mortimer held that the unlawful discrimination test in s 9(1) of the RDA has two limbs:  

1. The conduct-based limb looks at the alleged conduct and its connection with race. In order to satisfy this limb, the act must involve differential treatment based on race. The act can either be an isolated incident or arise from a cumulation of events that indicate racially discriminatory treatment.


2. The outcome-based limb looks at the consequences of that conduct. Satisfying this limb requires finding a purpose or effect of impairing a human right. This includes conduct that impairs a human right, but which is not strictly unlawful.

Her Honour concluded that the conduct of various Queensland police officers involved racially discriminatory acts that breached the RDA and the police duty of impartiality and therefore impacted the human right to access services intended for the public.

Specific unlawfully discriminatory acts included:

• not treating Senior Sergeant Hurley as a suspect in relation to Mulnruji's death or removing him from duty;


• biased treatment of Aboriginal witnesses in discounting or ignoring their evidence against Hurley in relation to Mulnruji's death;


• failure to communicate with Palm Islanders to provide information about Mulnruji's cause of death and the progress of the investigation to defuse tensions;


• issuing an emergency declaration after the evening of 26 November 2004, facilitating an excessive and disproportionate response; and 


• arrests, entries and house searches of the applicants and Palm Islanders.

Her Honour found that these acts would not have occurred if the community were not Aboriginal persons and that this was therefore differential treatment based on race. 

This case stands for the proposition that when the government delivers defective services to First Nations Australians and that defect arose because of race, the government is in breach of s 9(1) of the RDA (Creamer).

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References