This article was written by Jacqueline Bisas, Trish Matthews and Peta Stevenson.
The Federal Court of Australia’s judgment on 5 December 2016 in Wotton v State of Queensland (No 5)  FCA 1457, a class action brought against the State of Queensland and the Commissioner of Police for Queensland, is one of very few class actions to proceed through hearing to judgment and the award of damages. Research suggests that less than 6% of class actions reach a post-trial outcome favourable to plaintiffs.
The case alleged contraventions of the Racial Discrimination Act 1975 (Cth) (RDA) arising out of the conduct of the Queensland Police Service (QPS) on Palm Island over an 11 day period in November 2004, following the death in custody of an Aboriginal man. The trial, which was conducted partly in the local school hall on Palm Island and partly in Townsville, ran for 22 sitting days. Ultimately, the Applicants successfully established some but not all of the contraventions alleged and were awarded declaratory relief and damages.
In an environment where few class actions go to hearing, and even fewer go to judgment and are then decided in favour of the plaintiff, the outcome of this case is significant. It is particularly significant given the unusual nature of the claims, the fact that the claim was against the State, and that damages were awarded.
On 19 November 2004, a 36 year old Aboriginal man now known as Mulrunji died in police custody on Palm Island. Mulrunji’s death and the way that the QPS dealt with the aftermath, including a riot, led to several coronial inquests, reviews, criminal proceedings and litigation.
In this class action, the Applicants – Lex, Cecilia and Agnes Wotton - alleged contraventions of s 9(1) of the RDA by the State and the QPS in the investigation of the death and the conduct of the QPS on the island during the 11 day period that followed. The State of Queensland was a respondent to the proceeding as it accepted that all QPS officers were acting in the course of their duties as employees or agents of the State and therefore the State was vicariously liable for their conduct pursuant to s 18A of the RDA.
On 26 November 2004, following the release of the autopsy results, there were protests and fires and the police station and residence of the police officer involved were destroyed by fire. This led to the declaration of an emergency situation under s 5(1) of the Public Safety Preservation Act 1986 (Qld) (PSP Act) – the effect of which was to enable the use by police and the Special Emergency Response Team (SERT) of coercive powers, powers of entry, search and seizure which they would not have otherwise been able to execute without a warrant. These powers were exercised throughout the following days, for example: the Wottons’ homes were searched and Mr Wotton was arrested, tasered and removed from the Island, as part of these measures.
The events are detailed in the 1806 paragraph reasons for judgment, and centred on the investigation, interviews of key witnesses by the police, information being provided to the coroner, and community meetings where information was provided.
Section 9(1) of the RDA provides as follows:
“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”
The Applicants brought the proceeding on their own behalf and on behalf of Indigenous people who were ordinarily resident on Palm Island on 19 November 2004 and who remained ordinarily resident there until 25 March 2010. The named Applicants also represented a subgroup of the group members who were persons affected by entries and searches conducted by the members of the QPS, including by members of the SERT, on eighteen homes during the period 27 to 28 November 2004.
There were four categories of claims made by the Applicants:
- the police conduct in the investigation of Mulrunji’s death – it was alleged that the QPS conducted the investigation in a substandard, inadequate and flawed way;
- the police conduct during the ‘intervening week’ after Mulrunji’s death and prior to the protests and fires that occurred on 26 November 2004;
- the emergency declaration issued under the PSP Act; and
- the use of the SERT in the arrests, entries and searches carried out on Palm Island between 27 and 28 November 2004.
Broadly, the Applicants alleged that the QPS would not have conducted themselves as they did, if the investigation was not in an Aboriginal community.
The Applicants sought declaratory relief, an apology, compensation and aggravated and exemplary damages.
The Court found that the following conduct of QPS officers contravened section 9(1) of the RDA, and that the police acted in this way because they were dealing with an Aboriginal community and with the community of Palm Island in particular:
- QPS officers with command and control of the investigation into Mulrunji’s death did not act impartially and independently;
- During the week following Mulrunji’s death and prior to the protests and fires, there were substantial failures by QPS officers to communicate with the community and defuse tensions;
- The declaration of an emergency situation by the QPS was part of facilitating an excessive and disproportionate policing response including the use of SERT officers; and
- The use of SERT officers to arrest suspects and conduct entries and searches was unnecessary, disproportionate and undertaken as a show of force against local people who had protested about the conduct of police.
As the matter came to the Federal Court pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth), Justice Mortimer considered the type of orders which were appropriate pursuant to that section, including compensation pursuant to s 46PO(4).
The Court made declarations that certain contraventions had been proven, that the State was vicariously liable pursuant to s 18A of the RDA, and that the arrests, entries and searches were unlawful under Queensland law.
The Court declined to order an apology. Justice Mortimer however directed the Commissioner of the Police Service to consider whether, on the basis of the findings of the Court, it would be appropriate to apologise on behalf of the QPS to the community of Palm Island. The Court directed the Commissioner to publish his reasons if, having considered the Court's reasons, he decided that it was not appropriate to apologise.
Mr Wotton was awarded $95,000 in damages for the way he was treated when arrested and for interference with his home, family and privacy. Cecilia Wotton was awarded $115,000 on a similar basis. Agnes Wotton was awarded $10,000 for interference with her home. Justice Mortimer considered that the correct approach was that compensation was to be awarded for loss or damage “because of” contravening conduct, rather than placing the applicant in the position each would have been in if the unlawful discrimination had not taken place.
Being a class action, the only orders for compensation that the Court considered were those relating to the lead applicants, the Wottons. The Court did however indicate that it was apparent from the evidence and findings that other individuals, especially those in the subgroup, may have independent claims for compensation, to be assessed in accordance with Justice Mortimer’s reasons. The Court also considered that some of the subgroup members were entitled to recover compensation for property damage although none of the named applicants made such a claim.
Aggravated and exemplary damages
The Court rejected the Applicants’ claim for aggravated damages and found that the Court has no power to award exemplary damages under s 46PO(4) of the RDA.
Justice Mortimer gave the parties the opportunity to make further submissions on some consequential issues such as costs, and the way the remainder of the proceeding should be dealt with in relation to any individual claims by group members and subgroup members that were not finally determined.
Since the judgment was handed down, a number of other Aboriginal communities have indicated that they are considering the judgment with a view to commencing proceedings based on similar claims.