No right to an independent investigation of police complaints

Gudrun Dewey and Stephanie Cauchi
Victoria

In Bare v Small [2013] VSC 129 (25 March 2013) the Supreme Court ruled that the right to protection from cruel, inhuman and degrading treatment in section 10(b) of Victoria’s Charter of Human Rights and Responsibilities Act 2006 (‘Charter’) does not include a right to an independent investigation of a complaint of such treatment. In a restrictive reading of the Charter’s obligations, Justice Williams also held that a decision of a public authority made in breach of the Charter’s obligation to act compatibly with and properly consider human rights, does not make the decision invalid or amount to jurisdictional error.

The case was an application for judicial review of a decision by the Office of Police Integrity (‘OPI’) to refer Mr Bare’s complaint of police violence to be investigated by an internal division of Victoria Police, rather than conduct an independent investigation itself. Mr Bare, then a 17-year-old of Ethiopian descent who migrated with his family to Australia in 2004, had complained that he was seriously assaulted by police officers in 2009, including being capsicum sprayed while handcuffed, kicked to the ground, racially abused and having his head repeatedly hit against the gutter, chipping his teeth and cutting his jaw.

Mr Bare and the Victorian Equal Opportunity and Human Rights Commission (‘VEOHRC’) argued that the OPI’s decision to refer the complaint for an internal investigation by Victoria Police was incompatible with section 10(b), which should be interpreted consistently with international human rights standards, as including a procedural element to an ‘effective investigation’ of a complaint of cruel, inhuman and degrading treatment. In these circumstances, an ‘effective investigation’ would be one by an organisation such as the OPI with practical independence from, and a lack of hierarchical and institutional connection to, Victoria Police. It was argued that the OPI’s decision to refer the complaint was therefore in breach of section 38 of the Charter, which says ‘it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right’.

A critical hurdle to the success of the case was a privative clause the Police Integrity Act 2008, which gives the OPI and the Director of Police Integrity a broad immunity from civil and criminal proceedings. However, because privative clauses are not effective to exclude judicial review for jurisdictional error, whether or not the OPI’s decision could be reviewed on the ground that it was unlawful under section 38 of the Charter required the Court to find that acting unlawfully under section 38 amounted to jurisdictional error.

Justice Williams held that it did not, and that acting incompatibly with human rights so as to act unlawfully under section 38 would not necessarily invalidate a public authority’s decision. Therefore, in this case, the privative clause applied to protect the OPI’s decision from judicial review. Her Honour held, in any event, the OPI had not acted incompatibly with human rights so as to breach section 38 of the Charter. Her view was that section 10(b) of the Charter does not include a procedural right to an effective investigation of a complaint of cruel, inhuman and degrading treatment.

Having made these findings, it was not necessary for the Court to consider the serious question of whether an internal investigation by Victoria Police would satisfy Mr Bare’s right to an effective investigation of his complaint (as no such right was held to exist in Victoria). Nor was it necessary for the Court to determine whether the OPI had properly considered Mr Bare’s human rights as section 38 of the Charter requires it to do.

The Supreme Court’s narrow interpretation of the right, and of the obligation on public authorities to act compatibly with human rights, is a blow to efforts to achieve police accountability through the independent investigation of serious complaints and to those seeking to rely on the Victorian Charter in legal action to hold public authorities to account.

GUDRUN DEWEY and STEPHANIE CAUCHI are Senior Legal Advisors — Human Rights at VEOHRC.

(2013) 38(2) AltLJ 133
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