Court decision highlights need for overhaul of police complaints in Victoria

A Court of Appeal decision today highlights the need for reform to the system of investigating police complaints in Victoria, the Human Rights Law Centre said. The Court found that IBAC must reconsider an alleged serious police assault in February 2009 to determine if it should be independently investigated by the watchdog rather than being investigated by police

“This decision is an important vindication for Nassir Bare and his six year struggle for justice. However, it exposes broader problems with the way police complaints are investigated in Victoria and underscores the need for reform to IBAC,” said Anna Brown, the HRLC’s Director of Advocacy & Strategic Litigation.

“Serious complaints should not be referred back to police to investigate their own conduct, and unfortunately the decision fails to address this underlying issue,” said Ms Brown.

Mr Bare was assisted by Youthlaw and a pro bono legal team to seek an independent investigation of allegations that Victoria Police officers assaulted him, capsicum sprayed him while handcuffed and racially abused him in 2009, when he was 17 years old. He complained to the Office of Police Integrity (now subsumed into the Independent Broad-based Anti-Corruption Commission) but the OPI sent the complaint back to Victoria Police for investigation. Mr Bare challenged the decision to send his complaint back to police on the basis that he was entitled under Victoria’s Human Rights Charter to an investigation by an independent body.

The Court of Appeal today allowed Mr Bare’s appeal. It found that OPI did not give proper consideration to Mr Bare’s rights under the Charter and ordered the complaint to be referred to IBAC for a fresh decision on whether it should conduct an independent investigation. However, the Court found there was no implied right to an effective and independent investigation.

“While it’s pleasing to see the Court confirm that Mr Bare’s human rights weren’t properly considered, the Court found that the Charter does not provide a right to have serious complaints against police investigated by an independent body,” said Ms Brown.

“Disappointingly, the Court’s decision also limits the role the Human Rights Charter can play in reviewing decisions of public officials.”

Despite IBAC having jurisdiction to investigate police complaints, more than 90% of complaints are referred back to Victoria Police for investigation.

“When serious allegations are made against police, it’s essential that the complainant and the public have confidence in a system that is fair and impartial and properly resourced to deal with their complaint. Serious complaints should not be referred back to police to investigate their own conduct,” said Ms Brown.

“The Government is currently considering reforms to IBAC. It needs to ensure that IBAC has the resourcing and powers to effectively and independently investigate human rights abuses and deaths resulting from police conduct,” said Ms Brown.

“When serious allegations are made against police, it’s essential that the complainant and the public have confidence in a system that is fair and impartial and properly resourced to deal with their complaint,” said Ms Brown.

A summary of the Court of Appeal judgment is available here and the full judgment is available here.

Read the media release by Mr Bare's representatives Youthlaw here.

Mr Bare was assisted to take his case to the courts through support of Youthlaw and pro bono assistance from private law firm Maddocks, and counsel Jason Pizer, Emrys Nekvapil and Fiona Spencer.

For further comments or queries:

Anna Brown, Director of Advocacy & Strategic Litigation, 0422 235 522, anna.brown@hrlc.org.au