Sarah Keenan: Lex Wotton versus the State of Queensland and the Police Commissioner

Palm Island jetty
Palm Island jetty

The Federal Court of Australia handed down a scathing judgement against the state of Queensland and its police force on Monday 5th December, finding that they acted contrary to the Racial Discrimination Act 1975 in their handling of the aftermath of the death of Aboriginal man Cameron Mulrunji Doomadgee (‘Mulrunji’) on Palm Island in 2004. Palm Island lies just off the far northeast coast of Australia, in the state of Queensland. For most of the 20th century, the Queensland government used Palm Island as an open-air prison to detain Aboriginal people who were considered dangerous and/or as punishment.

On 19 November 2004, Mulrunji walked past two police officers – seven-foot-tall white man Chris Hurley and Aboriginal Liaison Officer Lloyd Bengaroo – while they were in the process of arresting a young Aboriginal man for a public-nuisance offence. As he walked past, Mulrunji said to Bengaroo something to the effect of ‘you’re black like me, what are you doing this for?’. Bengaroo did not respond, but Hurley insisted on arresting Mulrunji, and less than an hour later Mulrunji was dead on the floor of the Palm Island holding cell. Mulrunji died from a severe compressive force that cleaved his liver in two and ruptured his portal vein. He also had four broken ribs and a black eye.

That evening, Hurley picked up the police officers who had been put in charge of investigating Mulrunji’s death from the Palm Island airport, and made dinner for them at his home. One week later when it was announced to the community that Mulrunji’s death had been ‘an accident’, the grieving Palm Island community burned down the police station, parts of the nearby courthouse and the police barracks where Hurley lived. A senior police officer declared a state of emergency and Special Emergency Response Team (SERT) police from the Australian mainland were deployed onto the island, wearing battle armour and carrying semiautomatic weapons. They raided homes, pointed assault rifles at men, women and children, and used tasers. Community leader Lex Wotton was tasered in front of his family. Ultimately most of the charges laid by police during the SERT raids were dropped, but Lex Wotton received a seven-year sentence for ‘inciting’ the riot, of which he served 20 months before being released on parole.

After his release from prison in 2010, Wotton and his family brought a class action lawsuit against the State of Queensland and its police force, arguing that their responses to Mulrunji’s death and the Palm Island riots had been contrary to the section 9 Racial Discrimination Act prohibition against racial discrimination. This was a bold and unprecedented class action accusing a state government and its police force of racism, which therefore required an understanding of racism beyond the realm of individual prejudice.

In a careful 656-page judgement, Justice Mortimer of the Federal Court found for Wotton. Justice Mortimer’s judgement includes a detailed history of the colonial violence that has made Palm Island the place it is today, and shows an understanding of the relevance of that history. She finds, for example, that “control and subordination on a racial basis was central to the way this community had always been compelled to function”. She notes, at several points, that police officers acted with “a sense of impunity”, assuming “an ‘us and them’ attitude” which they would not have adopted toward a non-Aboriginal remote community. Specifically, in this significant victory for the Palm Island community, Justice Mortimer found that the following acts of the Queensland government and police force amounted to unlawful racial discrimination:

  1. failure of the investigating officers to treat Hurley as a suspect in Mulrunji’s death
  2. police treatment of Aboriginal witnesses, including failing to supply them with information
  3. police supplying inaccurate information to the coroner
  4. failure of police force to suspend Hurley from active duty
  5. failure of police to communicate effectively with the Palm Island community following Mulrunji’s death
  6. the declaration of a state of emergency
  7. using special emergency police to carry out arrests
  8. using special emergency police to enter and search the Wottons’ house

This being a very strong decision against the Queensland government and its police force, it is likely they will appeal. Justice Mortimer’s reasons are rigorous and sound, but should this judgement be upheld, it will set a new precedent for Australian courts called upon to confront the reality of structural racism that defines the nation. For now, the Wotton family deserves to enjoy this moment of vindication in what has been a long and harrowing fight.

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