Memorandum

According to a firm memorandum provided to Lawyers Weekly, the essence of the action is that an incident occurring on 9-10 November 2016 was an “exemplar of [an] Indigenous ‘victim’ of the Northern Territory government’s institutional racism”.

The memo outlines that on 9 November 2016, Wadeye man Patrick Cumaiyi was arrested on a domestic violence charge, taken to a police plane and, on the tarmac, was “bashed by police”. These events, solicitor Stewart Levitt noted in his affidavit, “were witnessed by the [other] applicants, causing them distress”.

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He was being transferred to Darwin, rather than dealt with in Wadeye, “because a judicial officer only visits for hearings once a month”.

Mr Cumaiyi was, following this alleged assault, “barely treated for his serious, life-threatening injury… where the head nurse virtually disregarded his instructions and instead took a medical history from the police”.

“There was no interpreter present (this is the rule rather than the exception in Wadeye)”, the memo continued.

“He received inadequate or inappropriate medical treatment (and this is the rule rather than the exception in Wadeye).”

The memo went on to assert that NT Police “misinterpreted” reasons for his injuries to the media and to the court, and that in the Supreme Court at Darwin, there was “no qualified or independent interpreter present, and [Mr Cumaiyi’s] lawyer appeared by video link”.

He did not understand the nature of the charges against him, the memo says, not to which charges he was pleading guilty “and did not believe himself to be guilty as charged at the time when he pleaded guilty (this is commonplace)”.

Further, he was not dealt with by a court in Wadeye “because an executive decision was made by the police that he should be remanded in custody and put on trial in Darwin, albeit for a domestic violence office which was not of any particular gravity (this is commonplace in Wadeye), because of the infrequency with which a court is convened in Wadeye (a couple of days a month)”.

Originating application

In the application lodged with the Federal Court, Mr Cumaiyi and the other applicants claim that the respondents failed to provide policing services to the applicants, all of whom are Indigenous, “in the same manner in which such services are provided to or in relation to non-Aboriginal residents of the NT”.

Such acts had the effect of “nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by the applicants of human rights or fundamental freedoms”, including equality before the law, right to equal treatment, right to protection by the state against violence or bodily harm, right to access public services, right to not be subjected to unlawful interference, right to liberty and security of person, the application said.

This amounted to unlawful discrimination due to their race, the applicants surmised.

The application went on to claim that between November 2016 and May 2019, the respondents failed to provide health services to the applicants in the same way such services would be provided to non-Indigenous persons, and failed to provide adequate health services in the form of the required number of general practitioners, nurses and properly trained interpreters for Wadeye, and that such acts amounted to discrimination based on race.

It also claimed that in the aforementioned time period, the respondents failed to provide adequate funding and implement adequate programs for education and failed to ensure proper access to justice, which amounted to unlawful discrimination due to race.

The remedies sought by the applicants include: a declaration that the impugned conduct constituted unlawful discrimination, an apology from the respondents, costs and any other orders the court deems suitable.

Affidavit

Mr Levitt’s affidavit provided further context for the assertion that the inadequate levels of funding, education, healthcare and access to justice pertain to race.
The regional town of Wadeye – which, according to the 2016 census, has a population of 2,280 – is a “community in the Northern Territory in which 89.4 per cent of residents identify as Aboriginal, while only 2.8 per cent of Australians, and 25.5 per cent of Northern Territorians, identify [as such]”, he wrote.

To the best of his knowledge and belief, “Underfunding is a chronic reality affecting Wadeye [and the state government has] repeatedly reallocated funding provided by the Commonwealth for Indigenous issues to other sectors [and that it has] justified this behaviour by alleging that expenditure on prisons constitutes expenditure for Indigenous persons because Indigenous persons are incarcerated at such an overwhelming rate”.

Mr Levitt went on to note that “there is not consistently a permanent in situ doctor in Wadeye [where it] should have two full-time GPs, interpreters are not regularly in attendance, the Wadeye clinic does not have a dialysis machine [and] none of the nurses speak an Indigenous language, which would result in adequate healthcare”.

With regard to education, he said that to the best of his knowledge and belief, “educational services have been chronically underfunded”, which has resulted in poor attendance and graduation rates at schools.

Elsewhere, “despite funding being provided for the policing services, there is no funding for any dedicated trial centre at Wadeye”. Court proceedings are conducted inside the Wadeye police station, which “has the effect of exacerbating the consequences of the intimidatory and insensitive conduct of police officers towards [Indigenous persons] as it contributes to a lack of trust in and fear of government authorities and processes”.

Complaint to Australian Human Rights Commission

In May of this year, Levitt Robinson filed a complaint on behalf of the applicants with the Australian Human Rights Commission in respect of unlawful discrimination by the respondents, however in August, that complaint was terminated on the grounds that the matter could not be settled by conciliation, with the parties unable to agree on how to resolve the matter.

In its letter to the complainants, AHRC wrote that they are able to apply to have their allegations decided by the Federal Court or Federal Circuit Court.