A decision by the Victorian Supreme Court, Bare v Small, has failed to uphold the right to the independent investigation of complaints of serious mistreatment at the hands of Victoria Police. The case was brought by Youthlaw and pro bono counsel on behalf of a young African man, Nassir Bare, who alleged serious assault, including being capsicum sprayed while handcuffed, and being racially slurred by police in a February 2009 incident when he was 17 years old. His complaint to the then Office of Police Integrity (OPI) was referred back to the Victoria Police for investigation, prompting the legal challenge to seek an independent investigation.
In her ruling Justice Williams confirmed that under Victorian law there is no implied right to have complaints of serious assault by Victoria Police officers effectively investigated by a body that is independent of Victoria Police. This is despite such a right being recognised under international law and many other countries. Justice Williams also ruled that
Under the current law even when someone requests a serious complaint be investigated independently of Victoria Police – for example, by the former OPI, now subsumed by new independent Broad-based Anti-Corruption Commission (IBAC) – referral to Victoria Police’s Internal Ethical Standards Division (ESD) is considered adequate and effective investigation of complaint.
The Bare decision highlights the failure of current police accountability mechanisms in Victoria and the need for reform to ensure that both police related deaths and instances of torture of ill-treatment are fully and independently investigated.