Bare v Small  VSC 129 (Unreported, 25 March 2013)
The Supreme Court of Victoria dismissed an application seeking judicial review of two decisions by the Office of Police Integrity not to investigate a complaint of cruel, inhuman or degrading treatment by an officer of Victoria Police.
The Court held that the privative clause contained in section 109 of the Police Integrity Act 2008 (Vic) prevented it from considering claims that the OPI's decisions were contrary to section 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Court further held that section 10(b) of the Charter does not give rise to a procedural right to an 'effective' investigation in the event that a public authority violates, or is alleged to have violated, the substantive right not to be treated or punished in a cruel, inhuman or degrading manner.
The plaintiff, Mr Nassir Bare, is of Ethiopian descent. He claims to have been the victim of racially motivated physical and verbal abuse at the hands of an officer of Victoria Police in 2009, when he was 17 years of age. In 2010, Mr Bare requested that the OPI investigate his allegations and not refer them on to the Victorian Police Ethical Standards Division.MrBarealleged that he had been treated in a cruel, inhuman or degrading way in violation of section 10(b) of the Charter. He also claimed that his treatment by the officer amounted to racial discrimination in breach of section 8 of the Charter.
The Business Monitoring Committee of the OPI assessed Mr Bare's complaint, according to a priority matrix designed for this purpose, and decided that, although the complaint warranted investigation, it was not in the public interest for the OPI to conduct the investigation. The OPI offered to refer the complaint to Victoria Police for investigation.
Mr Bare applied for judicial review of this decision seeking, amongst other things, a declaration that the decision was contrary to section 38 of the Charter; i.e. the decision-maker had acted in a manner incompatible with section 10(b) of the Charter or, alternatively, the decision-maker had failed to give proper consideration to section 10(b). Mr Bare further sought a declaration that he had a right under section 10(b) of the Charter to an effective investigation of the incident, being an investigation undertaken by an organisation that was practically independent from, and lacked any hierarchical or institutional connection with, Victoria Police (first decision).
The OPI requested a four week adjournment to enable the OPI to reconsider Mr Bare's complaint. The file was reviewed by the Director's delegate, Mr Jevtovic, who affirmed that the matter warranted investigation but that this investigation should be referred to the Ethical Standards Division (second decision).
Mr Bare subsequently added Mr Jevtovic as a defendant and included in the originating motion the allegation that, as with the first decision, Mr Jevtovic’s decision contained a jurisdictional error and was incompatible with section 38 of the Charter. The Victorian Attorney-General and the Victorian Equal Opportunity and Human Rights Commission also subsequently intervened in the proceeding. As the OPI was abolished on 10 February 2013, the Independent Broad-band Anti-Corruption Commissioner was substituted as second defendant.
Mr Bare's challenge to the decision asserted that each decision was:
- affected by jurisdictional error, either by a failure to consider an additional public interest dimension brought about by the charter, a lack of procedural fairness (including a failure to inform him about the priority matrix), and breach of an implied procedural right to an effective investigation; and
- unlawful because the making of each decision was contrary to section 38 of the Charter.
Mr Bare further claimed that the State of Victoria had a direct obligation under section 10(b) of the Charter to provide Mr Bare with an effective investigation of the incident, and that it had failed to do so.
The defendants conceded that the first decision was affected by jurisdictional error because the members of the Business Monitoring Committee lacked power to make it.
The Court dismissed Mr Bare's application, and held that:
- section 109 of the Police Integrity Act operated to prevent the Court from determining the claim that the decisions were unlawful by reason of being contrary to section 38 of the Charter;
- section 10(b) does not give rise to a right to an 'effective' investigation of an alleged breach of the substantive right not to be subject to cruel, inhuman or degrading treatment or punishment; and
- Mr Jevtovic's decision was not affected by jurisdictional error.
Section 109 of the Police Integrity Act
The Court held that the privative provision articulated in section 109 of the Police Integrity Act (now repealed) prevented the Court considering Mr Bare's claim that the decision was unlawful because it was incompatible with section 38 of the Charter. Section 109 of the Police Integrity Act provides for ‘General Protection of Protected Persons’ and, among other things, states that “(1) A protected person is not liable, whether on the ground of lack of jurisdiction or on any other ground, to any civil or criminal proceedings to which they would have been liable apart from this section in respect of any act purported to be done under this Act unless the act was done in bad faith.”
Mr Bare submitted that a breach of section 38 of the Charter constituted a jurisdictional error. Following the High Court's decision in Kirk v Industrial Court of NSW (2010) 239 CLR 531, a privative clause cannot operate to exclude judicial review of a jurisdictional error. The decision, therefore, to not investigate his complaint was not captured by the section 109 privative clause. However, the Court, in considering the statutory purpose of section 38(1), rejected the submission that breach of section 38(1) was intended to amount to jurisdictional error. Rather, the court noted that “the Charter’s purpose was to have a normative effect and not to result in the automatic invalidity of administrative action”. However, the Court acknowledged that, following the Kirk decision, section 109 of the Police Integrity Act did not operate to exclude judicial review of Mr Jevtovic's decision on other grounds raised by Mr Bare.
Right to an effective investigation
Mr Bare submitted that the right to not be subject to cruel, unusual or degrading treatment articulated in section 10(b) encompasses a procedural right to an effective investigation in the event that the substantive right is breached. This submission is based on the interpretation of equivalent provisions of international and regional human rights instruments, including both article 7 of the International Covenant on Civil and Political Rights (from which the express right in section 10(b) derives) and article 3 of the European Convention on Human Rights.
The Court accepted that, pursuant to section 32(2), it may have regard to comments from international bodies such as the Human Rights Committee when considering the scope of human rights articulated in the Charter. However, following the findings in Momcilovic (2011) 245 CLR 1, it considered that, ultimately, the Charter is to be construed according to its text in its own constitutional context and that, when construing legislation, the Court must endeavour to discern the intention manifested by the words of the statute. Considering the context of the Charter as a whole, the Court noted that throughout the document it not only states exhaustively how such rights are to be protected, but also makes a number of procedural requirements relating to the protection of a number of other rights. In contrast, the Court found that the text of section 10(b) does not contain an express reference to a procedural right to an effective investigation, nor is such an interpretation compelled by reference to either Australia’s international obligations or the principle of statutory construction that the legislature should not be taken to have intended to curtail or abrogate fundamental rights and freedoms, absent unambiguous language showing it intended to do so.
The Court considered three issues raised by Mr Bare in respect of his claim that the second decision was affected by jurisdictional error, but held that it was not so affected.
First, the Court rejected the submission that Mr Bare had been denied procedural fairness because he had not been given notice that Mr Jevtovic's decision would be made without reference to the 'priority matrix', or provided an opportunity to be heard on this.
Second, the Court agreed that the Charter does provide a new dimension to the consideration of what is in the public interest. However, it noted that it had concluded that section 109 of the Police Integrity Act precluded consideration of compliance with section 38 of the Charter, and further found that there was no evidence that Mr Jevtovic had not considered the complaint in light of sections 8 and 10(b) of the Charter.
Third, the Court dismissed the argument that section 40(4)(b)(i) of the Police Integrity Act did not authorise the making of a decision that was incompatible with Mr Bare's right to an effective investigation of his complaint. The Court noted that this argument relied on the existence of an asserted implied procedural right under section 10(b) but, as discussed above, it had found that such a right did not exist.
This decision provides further guidance as to the construction and operation of sections 10(b) and 38 of the Charter. It indicates that a failure to make a decision in a manner compatible with section 38 of the Charter will not generally constitute jurisdictional error for the purposes of an application seeking judicial review.
The decision further confirms that the Court will adopt a narrow approach to the operation of section 32(2), which enables the Court to have regard to international and foreign comparative jurisprudence when construing rights articulated in the Charter. Importantly, the Court indicated that section 10(b) does not create a procedural right to an effective investigation of an alleged violation of the substantive right not to be subject to cruel, unusual or inhuman treatment or punishment. This interpretation of section 10(b) departs from that adopted in respect of equivalent rights in international jurisprudence, which has recognised that this right creates both substantive and procedural obligations. In future cases, the Court may adopt a similar approach to the construction of section 9, the right to life, equivalent provisions of which have also been interpreted at an international level to give rise to a procedural right to an effective investigation of alleged violations of substantive rights.
This decision is currently being appealed. Grounds of appeal include, among others, that the Court erred in finding that there is no right under the Charter to an effective investigation of complaints of serious assault. The Court will also be asked to determine whether the OPI properly considered Mr Bare's human rights when it decided to refer his complaint to the Ethical Standards Division for investigation. The outcome of this appeal is likely to provide further guidance on the operation of the Charter, and in particular sections 10(b) and 38, and may also impact the way in which complaints against Victoria Police are dealt with, in particular by the OPI's successor, Independent Broad-based Anti-corruption Commission.
This decision is available online at: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2013/129.html?stem=0&synonyms=0&query=bare%20and%20small&nocontext=1
Jessica Porter is a Secondee Lawyer at Allens and Catie Shavin is a Lawyer at Allens.