In times of crisis, individual rights nearly always yield to the common good. That’s why no one should be surprised that the Beattie government bypassed normal channels and ignored the advice of the Director of Public Prosecutions to not charge Senior Sergeant Chris Hurley for the death of Palm Island man Mulrunji.

The decision to ignore the advice of the State’s most senior criminal law officer and refer the matter to Sir Laurence Street, who recommended charging Hurley, is an almost unprecedented departure from firmly entrenched protocols regarding the laying of criminal charges.

Proceeding with manslaughter charges against Hurley is viewed by the Queensland Police Union as a gross violation of Hurley’s right to be treated with due process and a capitulation by the government to Indigenous groups who protested against the DPP decision to clear Hurley.

Complaints by the Queensland Police that Hurley has been singled out for special mistreatment by the government are well founded, but there are valuable insights that the community can obtain for this unfolding drama regarding the moral and political framework in which important decisions are made.

History shows that when, as a community, we find ourselves between a rock and hard place and have to make a choice between individual interests and the collective good, we nearly always favour the collective good. And this is the way it ought to be. When rights clash the least horrible thing to do is that which causes the least amount of harm.

The Hurley matter is similar to the infamous video taped police beating of Rodney King in Los Angeles in March 1991. The four police who beat King were acquitted of any wrongdoing under state law. Riots ensued, resulting in widespread looting, damage to property, and dozens of deaths.

Shortly afterwards, the US Federal government announced the almost unprecedented step that the policemen, who were found innocent of the alleged crime, were to be tried on federal civil rights charges regarding the beating. They were duly found guilty, despite the double jeopardy involved.

Pressured by Indigenous protests, the Beattie government allowed its assessment of the common good to trump Hurley’s rights. But did it correctly weigh all the relevant considerations?

The answer is almost certainly no. The pressure to violate due process in Chris Hurley’s case was not as intense as in the King matter. Protests against the DPP decision were vocal and passionate, but they did not involve large-scale acts of civil disobedience.

This disquiet in the Indigenous community as a result of the DPP’s decision must be balanced against the adverse consequences stemming from abandoning long established criminal process protocols. The downside includes the fact that the authority of the Office of the DPP is now gravely diminished and there is enormous strain on the relationship between the police and the government.

The preferable way to deal with the Indigenous unrest following the decision to clear Hurley was for the government to finally redress the injustices that inhere in the criminal justice system which disproportionately operate against the Indigenous population.

The revolt by the Indigenous community was not solely attributable to the merits of the DPP’s decision. This was simply the straw that broke the camel’s back. And rightly so. It is indecent in the extreme that Indigenous Australians are imprisoned at a rate 13 times higher than the general population.

Rather than undermining what remains of the integrity of the criminal justice system by charging Hurley, the Queensland government should have addressed the system’s serious shortcomings.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey