Indigenous Law Bulletin
by Paula Morreau
A death in a police watch-house on Palm Island in north Queensland in 2004 generated intense public scrutiny of the capacity of Queensland’s legal and political frameworks to meet the interests of Indigenous Australians; particularly when those interests directly conflicted with those of police. The competence of the justice system to investigate and allocate responsibility for a black death in police custody has been challenged, culminating in June 2007 in Senior Sergeant Hurley’s acquittal by a Townsville jury.
An additional focus of the inquest into the death was Hurley’s decision to arrest and charge moordinyi with a public nuisance offence as opposed to less intrusive measures that were available to him. He said he did so ‘in support of’ Lloyd Bengaroo after moordinyi challenged him, saying: ‘Bengaroo, you black like me. Can’t you help us? What are you doing this for?’ and allegedly retorted ‘you f***ing c***s,’ after being threatened with arrest as he walked away. The arrest was arguably unlawful. The Coroner described Hurley’s decision to arrest as ‘completely unjustified’, echoing the approach of the Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’).
The Inquest revealed that on Palm Island, the police role is a powerful one, but often performed by young recruits, with limited resources and little supervision or accountability. A police officer is the enforcer of the laws of the state, but is also called upon to be a social worker. Hurley’s role suffered from such a paradox. He was assisting a domestic violence victim when his interaction with moordinyi started. But his approach to police detention as a ‘natural place’ for Indigenous persons who are drunk to ‘go in for a sleep’ warrants some examination. It mirrors colonial policing practices under which intervention by police into the private lives of Indigenous families and a blurring of their duties between the legal and the social has been described as fostering a culture of criminalisation of Indigenous persons for trivial behaviour, leading to ‘over-policing’ of Indigenous individuals and communities.
Complex legal, social, historical and political frameworks serve to define and support this police role. Any consideration in this context should not be limited solely to its current manifestations. Instead, this paper suggests that improvements in police culture and practices will be slow unless they are contextualised. Leaving the deconstruction of the complex dynamic raised in an interaction between state institutions and Indigenous persons to the discretion of ill-equipped police officers has obvious limitations. A more comprehensive response from communal and governmental sectors is required. There is a need for a change in the way Indigenous life is viewed: not merely as a problem and threat, but as the human manifestation of a struggling, disadvantaged sector of our community.
Hurley thought that he had the support of ‘the law’ to charge moordinyi with being a public nuisance, contrary to the Summary Offences Act 2005 (Qld) (‘SOA’). That charge censures ‘disorderly’ or ‘offensive’ language or behaviour which ‘interferes or is likely to interfere’ with the use or enjoyment of public places by members of the public. But the ambiguity as to what amounts to ‘disorder’ or ‘offence’ renders the offence particularly vulnerable to fluid subjective views, both on the street – by members of the public and police – and in the courts. How does one draw a line between the use of public space and nuisance? Do any or all of the following: noise, alcohol use, verbal insult or the use of expletives; create disorderly or offensive behaviour per se? The short answer must be no. Otherwise many ordinary harmless people could be arrested. And yet, the provision carries prima facie strict liability, providing no guidance as to what conduct might not amount to a breach. Its Explanatory Memorandum (‘EM’) targets incidences of poverty and the use of certain language.
The courts have sought to limit the broad operation of these types of laws, suggesting that the level of conduct ought to be sufficiently ‘serious’, and that the law ought only step in when society needs protection, as it is not a crime to be difficult or poor. However, this caution cannot be seen in recent Queensland jurisprudence. Statistics collated by the Aboriginal and Torres Strait Islander Legal Service in Brisbane and by Tamara Walsh suggest that the number of prosecutions for public order offences has markedly increased since the commencement of the SOA.
Bernard Harcourt, drawing upon Michel Foucault’s analysis of the early penitentiary, suggests that there is a normative role to the criminalisation of disorder in two ways: institutional practices (eg policing) serve to shape perceptions of disorder at the same time as categorising who qualifies as disorderly (eg the homeless, or Indigenous persons). He calls this ‘subject creation’; a product of historical, political, cultural and social factors. If policing practices shape and enforce citizens’ views, it must follow that police officers are themselves products of their own circumstances. In 2006, in support of a successful application to transfer the trials of those charged with rioting on Palm Island, a survey commissioned to canvass the views of Townsville residents about race revealed that 73.2 per cent of those who had been affected by anti-social behaviour said it had involved an Indigenous person and 42.7 per cent provided negative comments regarding the Indigenous community. Such negative views influence perceptions of disorder, interference, and even the use of public space: outdoor socialising in large family groups comes to be seen as dysfunctional. A black person walking home drunk at 10am is perceived differently to a white person so walking at 5am.
Harcourt also suggests that policing of disorder categorises the ‘disorderly’ as those who need to be policed; by implication, from whom society needs protection. The CEO of the Brisbane City Council saw it as legitimate to seek to rid public spaces of homeless people, because their ‘presence’ restricts other members of society ‘in a psychological sense’. But is it indeed harmful to be annoyed or upset at the presence of impoverished or Indigenous persons? Jeremy Waldron suggests that being distressed, offended or revolted by such things may not necessarily amount to harm; it might instead motivate someone to do something (good) about it. He describes laws which enforce these feelings as ‘pander(ing), in the name of utility or the minimisation of social cost, to people’s desires not to have their illusions about the society they live in dispelled.’ But the SOA provides no basis to suggest that mere annoyance or distress will not lead to culpability. The EM says conduct causing someone to leave a place is sufficient. And new police powers to ‘move on’ people whose presence or actions cause ‘anxiety’ blurs the issue further.
In addition to being imbued with negative societal constructs, the institution of policing brings its own interests and culture, which has relevance to the exercise of discretion. The SOA was drafted by and is part of the Police Minister’s portfolio. The Minister and the Police Union have consistently rejected calls for de-criminalisation of street offences, whilst lobbying for increased police powers and against increased protections for Indigenous persons caught within the criminal justice system. If a police officer is the person being offended by conduct, this must affect perceptions of what is ‘offensive’. Tamara Walsh’s study showed that nearly a quarter of public nuisance offences involved police complainants. This should be considered in light of Marcia Langton’s work tracing traditional uses of coarse language, and their transformation into modern forms of political expression. The process of colonial domination, in particular through its most vivid modern expression – the imposition of a criminal justice system, as enforced by police – is an openly contested, opposed and confronted one, often through the use of language, alcohol and behaviour during the course of those interactions. The very presence or intervention of police officers, sometimes for entirely unrelated reasons, can be provocation enough for the expression of some form of resistance or insult. The flipside is that policing of minor conduct can represent an assertion or defence of authority by police where this has been challenged: eg Hurley arrested moordinyi ‘in support of’ his Police Liaison Officer (Bengaroo).
These features led to a recommendation by the RCIADIC that arrests should not ordinarily be made for offensive language charges, where the intervention has been initiated by police. Some superior courts, including the High Court, considered these circumstances to lessen culpability. However, these measures have been displaced in the SOA.
It is usually only in very limited circumstances that the personal characteristics of a defendant are considered relevant to culpability. This is said to uphold the principle of equality before the law and in the context of Australia’s Indigenous peoples, is coupled with a principle of the ‘universal’ application of the criminal justice system upon the colonised. So, in Couchy v Del Vecchio, the Court of Appeal rejected a submission that poverty and being Indigenous were relevant to an assessment of whether language used in the context of a drunken discussion with police was insulting. The courts’ inability to recognise the context and circumstances of, relevantly, an Indigenous defendant means that any number of features which might go to properly characterise the actions said to be ‘disorderly’ – including whether it has been the result of discrimination or hardship or even custom – are excluded from consideration. Further, the failure to accord some identity or context to the ‘other’, the defendant, can act to veil the fact that it is the poor and the marginalised, including Indigenous persons, whose identity or status – including appearance, habits and perceptions that the person is either resisting or failing to comply with majority (white) values – is being penalised. The court in Couchy v Del Vecchio held that the use of the word ‘c***’ was insulting, taking into account only the officer’s personal characteristics, namely that she was a female police officer. In Green v Ashton the court took into account against the defendant that she was Indigenous and that her insult was a racial one uttered against white police officers; thus intentionally or recklessly inflicting the ‘extra sting’ of a racial slur. The frequency with which such language supports a conviction, particularly in the context of dealings with police, is revealing of an attitude which sees race only as an aggravating feature but ignores it in mitigation, or in assessing culpability.
A more complete appreciation of the circumstances would include regard to the denial of access to Indigenous persons of more ‘appropriate’ processes for voicing opposition or complaint. There are socioeconomic limitations on access to technology or legal or other advocates and, as revealed in the inquest process, the frequent fate of written complaints against police is re-direction, delay, flawed investigation and rejection as ‘unsubstantiated’. The investigation into moordinyi’s death suffered from a lack of transparency, objectivity and independence. The Crime and Misconduct Commission (‘CMC’) is still investigating some of these matters, although it remains to be seen whether the extent of systemic flaws in police self-investigation will be canvassed. Even after the death, the CMC has dismissed complaints of assaults during the course of the State of Emergency that was (unlawfully) declared, primarily on the basis of the police denials, and in December 2006, it announced that no disciplinary action would be taken by it in respect of Hurley’s role; delegating such inquiries to the Queensland Police Service. This does not bring much comfort given the Commissioner’s and the Police Union’s stance on the matter to date.
In this sense, Indigenous persons are viewed akin to how rape victims were historically regarded: their complaints of police misconduct lie unanswered unless supported by independent, preferably non-Indigenous, corroborating evidence. Former police Inspector Col Dillon and activist Murrandoo Yanner have warned that more events such as the Palm Island riots will occur if these matters impeding communities’ trust and views of policing are not addressed. Historical racism and powerlessness has translated into, at the very least, disrespect for police officers and what they represent. Disrespect is expressed in fear, hostility, anger, compliance, avoidance or indifference. But Indigenous perceptions of the system are perhaps most visceral when one hears children from Palm Island first ask if you’re a police officer, before relaxing into a conversation. A noticeable pastime for some is ‘target practice’; throwing rocks at police vehicles.
When the Coroner announced her finding that Hurley had intentionally assaulted moordinyi, the Queensland Police Union labeled the inquest a ‘witch-hunt’. The Police Commissioner declined to stand Hurley down from duty. Following the decision to indict, the Union was ‘incensed’ and warned of police protests and strikes. Hurley’s acquittal was followed by another media campaign by the Union, attacking the decision to place Hurley on trial.
The State Government’s support of the police position throughout most of these events – until public debate required more – reveals something of the complex role of government in the politics of law and order, when it is not representative of an Indigenous minority most affected by it. Public order offences significantly contribute to the disproportionate representation of Indigenous persons within the criminal justice system, a matter flagged by the Queensland Government in 2000 by the Queensland Aboriginal and Torres Strait Islander Justice Agreement. But the SOA was soon thereafter passed with bi-partisan support.
Government approaches have not adequately addressed the disparate impact of public order laws upon Indigenous persons, perhaps because this might impact upon a (white) majority’s interests in not wishing to be annoyed by the visibility of Indigenous poverty and difference; the contingent commercial interests such as tourism and retail patronage; and a lack of broad support for specialised laws and measures for Indigenous interests.
Instead, governments have turned to alcohol regulation and a law and order platform justified by an ‘Aboriginal drinking problem’. Some, like Noel Pearson, at least tacitly support this characterisation.
When looking at the re-institution of government processes within Indigenous communities, or the enlargement of supervision by executive and judicial processes, the politicised and other inherent interests of the state in the maintenance of popularity and sovereignty cannot be ignored. Cooptation through participation in processes which are not entirely acceptable, in terms of decision-making and control, may actually impede goals of self-determination. Such concerns have some strength, when one considers the extent of administrative control, access to information and frequency of interactions between governments and Indigenous communities and individuals; through the State’s role as founder and service provider. This continues to disempower and is to that extent, inimical to a functioning relationship between Indigenous peoples and the State, including police.
It would be remiss to proceed on the basis that the events of Palm Island in 2004 have been sufficiently examined. Whilst the legal processes in respect of the death are taking their own course, the daily interactions with and treatment of Indigenous persons by police and others remain of broadest impact and importance. The primary focus of this paper was to locate the intertwined political, police and judicial practices within the framework expounded by moordinyi’s death. The criticisms throughout however, do lead to the inexorable position that public nuisance laws as currently framed, interpreted and enforced, are inherently incapable of an objective and fair application in the context of policing of Indigenous persons.
The legacy of colonialism is not in the past. The parallels between some of the responses of the state and its criminal justice system to the 2004 events and those throughout history suggest that Indigenous perceptions of the processes of colonisation should not be given mere lip service. There has been a failure within conventional approaches to law and order issues to provide respectful treatment of this sector of the community. The ill-appreciation of this living history has translated into oppressive and arbitrary processes reliant upon a factually inaccurate concept of ‘disorder’. This veils the law’s unacknowledged reliance upon and promotion of a (white, European) majority’s concepts of what is ‘disorder’ or ‘offensive’, denying its examination and without giving adequate recognition or voice to Indigenous social, economic and political realities, practices and perspectives; indeed treating these as aggravating features. In this context, for government and police to fail to respond to the plethora of Indigenous voices on these issues in a real way is a significant failing.
Paula Morreau BA/LLB (QUT) (Hons), LLM (Harv) was one of the lawyers representing the Palm Island Council at the coronial inquest into moordinyi’s death. The input of Kenneth Mack, Katie Young, Jennifer Langlais, Andrew Boe and Nikola Lusk is acknowledged.
 This tribal name is used in the Gulf region of North Queensland, where moordinyi’s family is from. It was spelt ‘Mulrunji’ in the Inquest.
 See, for eg, Police Powers & Responsibilities Act 2000 (Qld) (‘PPRA’), ss 46, 47, 50, 382, 389.
 An Indigenous police liaison officer (‘PLO’).
 PPRA, s 365.
 Findings of the Acting State Coroner, Coroners Court Queensland, (27 September 2006), 3.
 Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991).
 Mark Finnane, Police and Government: Histories of Policing in Australia (1994) 122.
 Human Rights and Equal Opportunity Commission, Racist Violence: Report to the National Inquiry into Racist Violence, (1990) 82-91; Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) 2; Chris Cunneen & David McDonald, Keeping Aboriginal and Torres Strait Islander People out of Custody (1997).
 Summary Offences Act 2005 (Qld) (‘SOA’), s 6. Similar offences can be found throughout the states and territories of Australia.
 Coleman v Power  HCA 39; (2004) 220 CLR 1 at 42 (McHugh J) (‘Coleman’); cf ss 4(3), 4A(2) Summary Offences Act 1988 (NSW).
 Explanatory Memorandum, Summary Offences Bill 2004, 3-4.
 Coleman, above n 10, 25-7 (Gleeson CJ) and 77, 87 (Kirby, Gummow and Hayne JJ); Barrington v Austin & Oths  SAStRp 38;  SASR 130, 132; Perry v Denman (unreported) White DCJ, 23 May 1997; Dillon v Byrne (1972) 66 QJPR 112, 133. See also Ball v McIntyre (1966) 9 FLR 237 and Donnelly v McDonald (1989) 12 Qld Lawyer Reps 111.
 Zanetti v Hill  HCA 62; (1962) 108 CLR 433, 431 (Dixon CJ), and 441 (Kitto J).
 Dooley v Polzin (1991) 57 A Crim R 420, 422 citing Clarke (1975) 61 Cr App R 320.
 Moore v Moulds (1981) 7 QL 227, 240.
 Aboriginal and Torres Strait Islander Legal Service Submission to the Crime and Misconduct Commission Review of Public Nuisance (29 June 2006); Tamara Walsh ‘No Offence: the Enforcement of Offensive Language and Behaviour Offences in Queensland’ (April 2006).
 Bernard Harcourt, Illusion of Order: The False Promise of Broken Windows Policing (2001).
 Michel Foucault, Discipline and Punish (1979) 298.
 Harcourt above n 17, 161.
 Survey conducted by AEC Group (July 2006).
 Greta Bird, ‘The “Civilising Mission”: Race and the Construction of Crime’ (1987) 4 Contemporary Legal Issues 17-18.
 Harcourt, above n 17, 162-3.
 Jude Munroe ‘Sharing Experiences and Building Bridges’, (paper presented at the National Local Government Drug Conference, 4-5 December 2001), in Tamara Walsh ‘Waltzing Matilda One Hundred Years Later: Interactions between Homeless Persons and the Criminal Justice System in Queensland’  SydLawRw 5; (2003) 25(1) Sydney Law Review 75.
 Jeremy Waldron ‘Homelessness and Community’ (2000) 50 University of Toronto Law Journal 371, 375.
 Ibid 379-381.
 Ibid, 385.
 PPRA, ss 46(1)(a) and 47(1)(a).
 G E Fitzgerald ‘Report of a Commission of Inquiry Pursuant to Orders in Council’ Queensland Government (1989), 200.
 Mark Finnane, When Police Unionise: The Politics of Law and Order in Australia (2002) 70-72, 175-6, 178-9, 189.
 See relevantly, Waldron, above n 24, 381.
 Tamara Walsh ‘The Impact of Coleman v Power on the Policing, Defence and Sentencing of Public Nuisance Cases in Queensland’  MelbULawRw 6; (2006) 30(1) Melbourne University Law Review 191.
 Marcia Langton, ‘Medicine Square’ (1983) cited in Bird, above n 21, 25-27.
 Chris Cunneen ‘Policing and Aboriginal Communities: Is the Concept of Over-Policing Useful?’ in Chris Cunneen (ed) ‘Aboriginal Perspectives of Criminal Justice’ (1992) Sydney University Institute of Criminology 79, 82.
 Bird, above n21, 37, citing D Hope A Pitjanjatjara Perspective (1977).
 Recommendation 86.
 Coleman, above n 10, 26-7 (Gleeson CJ).
 Sub-s 6(4); 2nd reading speech: Hansard 28 October 2003, 4363-4.
 Stingel v The Queen  HCA 61; (1990) 171 CLR 312; Masciantonio v The Queen  HCA 67; (1995) 183 CLR 58.
 Walker v New South Wales (1994-5) 182 CLR 45 at 49-50 per Mason CJ.
  QCA 9, 3.
 Richard Delgado and Jean Stefancic, ‘Hateful Speech, Loving Communities: Why our Notion of “A Just Balance” Changes so Slowly’ (1994) California Law Review 851.
  QDC 8 (8 February 2006) , -.
 Commissioner of Police v Clements & Ors  QSC 203, , ,  & ; Doomadgee v Clements & Ors, Hurley v Clements & Ors  QSC 392.
 For example, the failure to provide crucial evidence against Hurley’s interests to the pathologist; inappropriate socialisation with Hurley; compromising and undocumented discussions about the evidence between police witnesses and investigators; and insufficient use of cross-cultural and linguistic support.
 Letter from Stephen Lambrides, Assistant Commissioner Misconduct, Crime & Misconduct Commission, to Assistant Commissioner Ian Stewart, Ethical Standards Command, Queensland Police Service, 30 June 2005.
 Queensland Government, Report of the Taskforce on Women and the Criminal Code (2000) 57-58, 76, 243-247.
 ABC (Reporter: Conor Duffy) ‘Palm Island Inquest Highlights Need for Policing Reform’ The World Today 27 September 2006; ABC News Online ‘Aurukun Riots linked to Palm Island’ 11 January 2007.
 Palm Island Select Committee, Resource Officer Report, 38-9 (January 2006).
 ABC Online ‘Police Union Rejects Mulrunji Inquest “Witch-Hunt”’ 27 September 2006 <http://www.abc.net.au/news/newsitems/200609/s1750321.htm> at 30 July 2007.
 ABC (Reporter: Conor Duffy), ‘Qld Police Union Attacks Beattie’ PM, 21 June 2007.
 Chris Griffith, ‘Palm Island Officer Not Stood Down’, Courier Mail (Brisbane) 28 September 2006.
 See, for eg, statistics contained in Natalie Taylor and Michael Bareja, ‘2002 National Police Custody Survey’, Australian Institute of Criminology, (2005); and Chris Cunneen ‘Evaluation of the Queensland Aboriginal and Torres Strait Islander Justice Agreement’, Institute of Criminology (2005).
 Queensland Aboriginal and Torres Strait Islander Justice Agreement, signed 19 December 2000.
 Chris Cunneen, Conflict, Politics and Crime: Aboriginal Communities and the Police (2001) 182.
 See generally Rob White ‘Street Life: Police Practices and Youth Behaviour’ in Rob White and Christine Alder (eds) The Police and Young People in Australia (1994) 114, 117; Tamara Walsh, above n 23, 85.
 ABC Online (Reporter: Louise Willis) ‘Beattie Expands Communities Portfolio to include Indigenous Partnerships’ AM 25 January 2007.
 Noel Pearson, ‘Politics Aside, An End to the Tears is our Priority’ The Australian (Sydney, 23 June 2007).
 Paul Havemann, ‘The Indigenisation of Social Control in Canada’ in Bradford Morse and Gordon Woodman (eds) Indigenous Law and the State (1988) 71.
 Fay Cohen, Duncan Chappell and Paul Wilson ‘Aboriginal and American Indian Relations with Police’ in Duncan Chappell and Paul Wilson (eds) The Australian Criminal Justice System (1977) 113.
 See Judith Shklar, The Faces of Injustice (1990) 19.