Bare v Independent Broad-based Anti-Corruption Commission

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0045

NASSIR BARE	Appellant
v
INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION	First Respondent
and
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION	Second Respondent
and
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Third Respondent

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JUDGES:	WARREN CJ, TATE and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 May 2014
DATE OF JUDGMENT:	29 July 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 197
JUDGMENT APPEALED FROM:	Bare v Small [2013] VSC 129 (Williams J)

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ADMINISTRATIVE LAW – Whether decision of Director of Police Integrity under s 40(4)(b)(i) Police Integrity Act 2008 not to investigate a complaint of cruel, inhuman and degrading treatment breached s 38(1) of Charter of Human Rights and Responsibilities – Whether Director failed to give proper consideration to the rights of the appellant under the Charter – Castles v Secretary of Department of Justice (2010) 28 VR 141 applied.

ADMINISTRATIVE LAW – Charter of Human Rights – Whether duty of a public authority under s 38(1) of Charter applicable when public authority exercising power under s 40(4)(b)(1) of Police Integrity Act 2008 in the public interest – Whether s 38(1) of Charter applicable where s 40(4)(b)(1) of Police Integrity Act 2008 interpreted by s 32 of Charter.

STATUTORY INTERPRETATION – Operation of privative clause in s 109(1) Police Integrity Act 2008 – Whether privative clause applies to judicial review proceedings – Whether privative clause applies to decision not to investigate – Operation of s 52 Police Integrity Act 2008 – Appeal allowed.

ADMINISTRATIVE LAW – Charter of Human Rights – Jurisdictional error – Whether decision or act of public authority in breach of s 38(1) of Charter amounts to jurisdictional error – Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 163 applied.

HUMAN RIGHTS – Charter of Human Rights – Section 10(b) cruel, inhuman or degrading treatment – Whether implied procedural right to effective and independent investigation of complaint of breaches of human rights under s 10(b) of Charter.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J D Pizer QC with Mr E M Nekvapil and Ms F C Spencer	Maddocks
For the First Respondent	Mr P R D Gray QC with Ms K Evans	Victorian Government Solicitor
For the Second Respondent	Dr S P Donaghue QC with Ms S M C Fitzgerald	Victorian Equal Opportunity and Human Rights Commission
For the Third Respondent	Mr S G M McLeish SC, Solicitor-General, with Ms J Davidson	Victorian Government Solicitor

WARREN CJ:

Introduction
Background
Legislative scheme and the Charter
Trial judgment
1. ....... Does s 109 of the PIA preclude judicial review of Mr Jevtovic’s decision for non-jurisdictional error of law?
........... Decision not to investigate
........... Privative clause
2. ....... Is an act or decision made in contravention of s 38(1) of the Charter necessarily affected by jurisdictional error?
........... Commission’s submissions
........... IBAC and the Attorney-General’s submissions
........... Conclusion
3. ....... Does s 10(b) of the Charter include a procedural right to an effective investigation of a credible complaint of cruel, inhuman or degrading treatment?
........... The Charter and its international equivalents
........... The interpretive approach
........... Application of international jurisprudence
........... Interpretive approach
........... Application of international jurisprudence
........... ECtHR
........... United Kingdom
........... United Nations
4. ....... In making the decision under challenge, did Mr Jevtovic fail to give proper consideration to the procedural right under s 10(b) of the Charter and the equality rights in s 8(3) of the Charter?
Conclusion..........................................................................................................................................
Introduction

The second defendant in the proceeding below,[1] the Office of Police Integrity (‘OPI’), rejected an application by the appellant, Mr Bare (‘the appellant’), to investigate an allegation of mistreatment by members of Victorian Police under s 40(4)(b)(i)[2] of the Police Integrity Act 2008 (Vic) (‘PIA’).
[1]On 10 February 2013, pursuant to item 3 of the Schedule to the Independent Broad-based Anti-corruption Commission Act 2011, the OPI and the office of the Director were abolished, and, by force of item 4(c) of that Schedule, the respondent, the Independent Broad-based Anti-corruption Commission (‘IBAC’) (‘the respondent’), was substituted for the Director as the Second Defendant.
[2]That section provides:
The Director —
(b) may investigate a complaint if the conduct complained of —
(i) is of such a nature that the Director considers that investigation of the complaint by the Director is in the public interest; or
(ii) is in accordance with established practices or procedures of Victoria Police and the Director considers that those practices or procedures should be reviewed.

The decision not to investigate was made on 21 June 2010 by the first defendant, an employee of the OPI, Ms Small. By his Originating Motion, the appellant sought relief in the nature of certiorari and mandamus as well as declaratory relief. Following the filing of the originating motion, another employee, Mr Jevtovic, the third defendant, made a second decision not to investigate on 19 October 2010. The appellant filed an Amended Originating Motion on 12 November 2010 seeking the same relief in relation to the first and second decision.

Following an eight day trial, a judge of the Trial Division dismissed the application for judicial review.[3]
[3]Bare v Small [2013] VSC 129 (‘Reasons’).

The appellant appeals the decision and orders of her Honour.

Background

The appellant is of Ethiopian descent and migrated to Australia in 2004. The basis of the appellant’s complaint surrounds an incident on 16 February 2009 when he was 17 years old. He claimed that the police stopped a car in which he was travelling. When he got out of the car, he alleged that a police officer pushed him up against the vehicle, handcuffed him and then kicked his legs out from under him so that he fell to the ground.

The appellant further claimed that, as he lay on the ground, the officer pushed his head to the ground so that his chin struck the gutter. The officer then grabbed him by the hair and repeatedly pushed his head into the gutter and four or five of his teeth were chipped. His jaw was cut, which resulted in scarring. The officer sprayed him in the face with ‘OC’ (capsicum) spray several times, forcibly raising his head to do so. This caused him difficulty breathing. During the alleged assault the appellant claimed that the officer said words to the effect ‘you black people think you can come to this country and steal cars. We give you a second chance and you come and steal cars’. A second police officer allegedly kicked him in the ribs whilst he was on the ground and handcuffed.

The appellant complained that he was taken to a nearby house and the officers held his head under water for a long period and told him to wash his eyes or he would go blind. He was then told he was under arrest and taken to Williamstown Police Station in the back of a police van. While in the cells at Williamstown Police Station ambulance officers said he needed stiches but an officer said ‘no he can go in his own time’. The appellant suffered pain, injury to his teeth and jaw, bruising and humiliation as a result of the alleged serious assault.

On 3 February 2010, the appellant (by his lawyers) wrote to the OPI complaining that on 16 February 2009 he was seriously assaulted and racially abused by officers of Victoria Police. He said this constituted cruel, inhuman or degrading treatment under s 10(b) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’).

Section 40 of the PIA sets out the way in which complaints were to be dealt with by the Director.[4] In particular, s 40(4)(b) authorised the Director to investigate complaints where her or she considered it is in the public interest to do so.
[4]The Director is the head of the OPI. According to s 8 of the PIA he has certain powers and functions under the Act (see para [25]), and is an independent officer of the Parliament.

The appellant’s complaint was written by his lawyer, Ms Davies from the Young People’s Legal Rights Centre (‘Youthlaw’). That letter set out the nature of the appellant’s complaint and requested that the complaint be investigated by the OPI, rather than referred to Victoria Police for investigation. The letter outlined, pursuant to the test in s 40(4)(b)(i), the public interest in investigating the complaint:

2. Investigation of the complaint is in the public interest
2.1 It is in the public interest the OPI conduct an independent investigation of the complaint, as it involves serious allegations of assault and cruel, inhuman and degrading treatment of a minor. Nassir was 17 years of age at the time of the incident.
2.2Nassir is of Ethiopian descent and migrated with his family to Australia in 2000. he (sic) is a recent migrant, having arrived in Australia in 2004. Nassir alleges Constable ... made discriminatory remarks to him when he said ‘You black people think you can come to this country and steal cars. We give you a second chance and you come and steal cars’. It is in the public interest this complaint be further investigated as it involves allegations of discriminatory treatment on the basis of race.[5]

[5]Reasons [11].

The complaint also outlined the obligation of the State in relation to the Charter:

3.Obligations under the Victorian Charter of Human Rights and Responsibilities 2006
3.1The Victorian Charter of Human Rights and Responsibilities 2006 (‘the Charter’) states at s 10(b) that a person is not to be treated in a cruel, inhuman and degrading manner. At s 22, the Charter provides that when deprived of liberty all persons must be treated with humanity and with respect for the inherent dignity of the human person.
3.2Section 1 of the Charter imposes an obligation on public authorities to act in a way that is compatible with human rights. Section 38 of the Charter states that it is unlawful for public authorities to act incompatibly with human rights or to fail to give consideration to human rights in their decision making.
3.3A stated objective of the Director of the OPI within the Police Integrity Act 2008 at s 8(1)(d) is to ‘ensure that members of Victoria Police have regard to the human rights set out in the Charter of Human Rights and Responsibilities’.
3.4As outlined above, we submit that the conduct of members of the police in relation to the use of OC spray during this incident amounts to cruel, inhuman and degrading treatment and is therefore a breach of s 10(b) of the Charter. Police conduct during this incident further amounted to a failure to respect the humanity and inherent dignity of a person deprived of liberty, as required by s 22 of the Charter.
3.5It is our view that the right to freedom from cruel, inhuman, degrading treatment, as set out in s 10(b) and mirrored in s 22, places an obligation on the state to not only refrain from such treatment but to effectively investigate allegations of such treatment. This view is supported by international human rights jurisprudence (Khan v United Kingdom, Eur Ct HR (12 May 2000); House of Lords decision in JL; R (on Application of) v Secretary of State for the Home Department & Ors [2009] EWCA Civ 219 (17 March 2009).
3.6It is our submission that for an investigation to be effective it should follow the guidelines set out by the European Commission of Human Rights Rapporteur on Police Complaints. The guidelines state that an effective investigation must be one that is ‘independent’, ‘adequate and capable of resulting in discipline and prosecution of perpetrators’, ‘prompt’ ‘transparent and open to public scrutiny’ and ‘involves and protects the victim of the alleged abuse’. In our view, failure to carry out an effective investigation in accordance with those guidelines amounts to a breach of s 10 (b) and s 22 of the Charter.
3.7We submit that the Charter and the Police Integrity Act 2008 place an obligation on the OPI to carry out investigation of this complaint. Referral of this complaint to the Victoria Police risks compromising the standards of effective investigation outlined above, particularly with regard to the independence of the investigation. In our view, a decision by the OPI to refer the investigation of this matter to Victoria Police would amount to a failure to act compatibly with human rights as required by s 1 and s 38 of the Charter.[6]

[6]Ibid [11].

Ms Small was the acting manager of the OPI’s Professional Standards Assurance Unit (PSAU) at the time the complaint was lodged. A member of that unit made an initial assessment of the complaint and referred it to the OPI’s Case Assessment Committee (CAC) on 1 March 2010. The preliminary assessment was described by the trial judge as an assessment of the ‘check-box’ variety.[7] It set out items that warranted the referral to the CAC including the nature of the complaint and the possible need to review established practices or principles.
[7]Ibid [13].

In addition to the preliminary assessment an OPI officer prepared a memorandum dated 1 March 2010 which summarised the appellant’s complaint. The officer recommended that the CAC consider the complaint for investigation and also listed a number of issues with the complaint:

1. Allegations are of serious assault and unnecessary use of force:
While handcuffed: using OC spray, kicking legs from under BARE, repeatedly pushing BARE’S head into the gutter.
Resulting injuries including chipped teeth and a cut to the jaw.
Ambulance officers recommended BARE to go to hospital for stitches but police did not allow this.

2. Racial vilification by saying to BARE:
‘You Black people think you can come to this country and steal cars’.
3.Const … has two previous instances listed in Compass for inappropriate use of OC spray...

4. BARE does not want the compliant forwarded to Victoria Police.
5. BARE’s lawyer has escalated the matter to be one of human rights.
6.Incident complained of is almost 12 [months] prior to complaint being lodged.[8]

[8]Ibid [15].

Following the receipt of the memorandum and preliminary assessment, the PSAU wrote to Youthlaw acknowledging the complaint and explaining that the complaint would receive close examination. It also sought evidence of the appellant’s medical treatment following the alleged incident.

In April 2010 the OPI abolished the CAC and replaced it with the Business Monitoring Committee (BMC). The BMC was made up of the OPI Deputy Director and managers of OPI’s operational units, including Ms Small. On 28 April 2010, the Director delegated his power under s 40 of the PIA to Ms Small. The BMC met on 11 May 2010 to consider the appellant’s complaint. Ms Small was absent from the meeting, though she prepared a briefing note which contained much of the same information set out in the PSAU memorandum. At that meeting, the BMC decided not to accept the appellant’s complaint for investigation by the Director (‘the first decision’). Importantly, as Ms Small was not in attendance, no delegate of the Director was present at the meeting.

On 21 June 2010, Ms Small wrote to Youthlaw and advised them of the decision not to investigate the appellant’s complaint. The letter stated:

The Director and his delegates prioritise matters relating to systemic issues where OPI considers it can make a long-term impact. An assessment committee has evaluated your client’s matter against a priority matrix and has determined that your client’s complaint is most appropriately investigated by Victoria Police. I acknowledge receipt of the further material you provided, your reference to human rights issues associated with your client’s complaint and your concerns about the independence of police investigators. However, the investigation of other matters currently before OPI has a greater public interest justification.
For all matters referred to Victoria Police for investigation, Victoria Police provides this office with a written report and the complete investigation file at the completion of the investigation. OPI independently reviews the investigation of the complaint and advises the complainant of the results of the investigation, any further investigation proposed and of the action taken (or proposed to be taken) following the investigation of the complaint.
If you wish OPI to refer this matter to Victoria Police for investigation, I request that you advise this office of this preference in writing within 30 days. Should this office receive no direction on this matter, the file will be closed and no further action will be taken by OPI.[9]

[9]Ibid [23].

The trial judge in her reasons outlined the concept of the ‘priority matrix’ referred to in Ms Small’s letter:

The OPI ‘priority matrix’, to which Ms Small referred, is set out in a document entitled ‘OPI Priority Model’ (‘priority matrix’). Its function as a tool is described in the introduction in this way:
This priority model is a tool to assist in establishing the priority of work undertaken to ensure OPI’s limited resources are utilised in the most effective and efficient manner to achieve the outputs expected by Government.
The Priority Model enables proposals for investigations/projects to be assessed considering a number of characteristics and determines a level of priority for special investigations/projects.
The model is only one filter to assist in determining whether activity should be undertaken by OPI and resources allocated to particular activities. It may be appropriate for lower priority matters to be given precedent (sic) over other high priority matters, for example, to ensure a specific output requirement is achieved.
The priority level attributable to a particular matter will assist members of the [BMC] to accept or reject proposals considering the priority of ongoing matters compared to new proposals.
The ‘Elements of Prioritisation’ include:
(a) the nature of the activity or proposed investigation or project;
(b) the activity’s importance to OPI ‘including mandatory requirements, risk to OPI of not undertaking the activity and likelihood of achieving required outputs and corporate plan objectives’;
(c) the impact or perceived impact of the successful completion of the activity ‘on OPI objects, OPI reputation, Victoria Police and the Victorian community’;

(d) the duration of the activity;
(e) ‘the estimated amount of OPI resources likely to be utilised; and
(f) ‘the likely outputs that may be achieved as a result of undertaking the proposed activity’.

A numerical rating is given to each element. A proposal’s ‘Priority Rating’ is to be calculated by reference to the ‘Critical’, ‘High’, ‘Medium’, ‘Low’ or ‘Insignificant’ range in which the total of those ratings fell.

Mr Bare’s solicitor, Ms Davis, had not heard of the priority matrix before receiving the letter advising of the first decision.[10]

[10]Ibid [24]–[26].

On 20 August 2010, the appellant filed an originating motion seeking relief in the nature of certiorari and mandamus and declaratory relief, in respect of the first decision. The appellant alleged that the first decision was affected by jurisdictional error and that it was unlawful under s 38 of the Charter. Ms Small was the first defendant, the Director was the second defendant and the State of Victoria was the third defendant (but was removed as a party a few months later).

On 16 September 2010, the legal firm Maddocks filed a notice of change of solicitor replacing Youthlaw as the appellant’s solicitors. Following this, on 20 September 2010, Maddocks filed an Amended Originating Motion which added a declaration against the State of Victoria on the grounds that it had breached the appellant’s rights to an effective independent investigation pursuant to s 10(b) of the Charter.

On 19 October 2010, the third defendant, Mr Jevtovic (acting as a delegate to the Director), purported to remake the first decision (‘the second decision’). Mr Jevtovic reviewed the file and again rejected the request for the OPI to investigate. In a letter to the appellant’s lawyers, he wrote:

None of the matters in section 40(1) of the Police Integrity Act 2008 persuaded me that the complaint did not warrant investigation; therefore the complaint must be investigated.
As part of my considerations I intentionally focussed on identifying all available evidence that would warrant consideration for deviating from our established legislated process. That is, I must refer a complaint warranting investigation to the Chief Commissioner subject to section 40(4).
Section 40(4)(b)(i) allows the Director to investigate a complaint if the conduct complained of ‘is of such a nature that the Director considers that investigation of the complaint by the Director is in the public interest’.
I examined the available evidence including the OPI file and all correspondence received from the complainant.
I also considered the seriousness of the allegations and the complainant’s reference to section 10 of the Charter of Human Rights and Responsibilities Act 2006.
I have also considered the interpretation by the complainant of OPI’s obligations in the context of Human Rights Charter. Whilst not qualified to make judgments on the merits of that interpretation/argument, I have made the observation that the complainant appears to have arrived at a point which reflects a predisposition that Victoria Police Ethical Standards Department (ESD) will not investigate this matter effectively and with integrity. It was therefore prudent in my view to focus my review on identifying what, if any, evidence existed to support the merits of the position the complainant appears to have taken.
It should be noted that given the nature of the review and concerns raised by the complainant, I did not believe that it was necessary for me to refer to OPI’s Priority Model and therefore did not do so in any manner. There were no OPI policies or procedures which raised any other issues for my consideration of this matter.
Conclusion
Having conducted the review I can confirm that I have not discovered nor has any evidence supporting the complainant’s position been made available to me, other than of course the complainant’s position as it relates to their interpretation of OPI’s obligations under the Human Rights Charter.
In light of the above matters I have concluded the following:
First Issue I reaffirm OPI’s original conclusion that the matter warrants investigation; and
Second Issue I do not consider that investigation by the Director is in the public interest, and I am satisfied that referral under s 40(2) of the Police Integrity Act is adequate for the investigation of this complaint.
I would however like to extend to the complainant (given the circumstances of this complaint and the position taken by the complainant) that OPI could appropriately undertake a more active oversight of the ESD investigation should the complainant be agreeable to that course of action.

Following the receipt of Mr Jevtovic’s letter, the appellant filed a Further Amended Originating Motion to encompass a challenge to the second decision. The trial proceeded on the basis of a Third Further Amended Originating Motion filed on 21 May 2012. That motion continued to seek the same relief on the same grounds on the first decision and added a claim for similar relief on similar grounds on the second decision.

In short, the appellant claimed the first decision was affected by jurisdictional error on the grounds that:

·he was not accorded procedural fairness because he had not been given notice about the ‘priority matrix’;
·the decision was made beyond power because no delegate of the Director was in attendance at the meeting;
·the assessment committee failed to have regard to a relevant consideration, namely the rights of the appellant to an effective investigation of a complaint under s 10(b) of the Charter; and
·the decision was unlawful under s 38(1) of the Charter.

Further, the Third Further Amended Originating Motion claimed that the second decision was affected by jurisdictional error on the grounds that:

·the re-exercise of the discretion was beyond power;
·the decision was made for an improper purpose;
·the plaintiff was not accorded procedural fairness in that he was not given a reasonable opportunity to be heard before the second decision was made;
·Mr Jevtovic failed to have regard to a relevant consideration, namely the rights of the appellant to an effective investigation of a complaint under s 10(b) of the Charter, and to equal protection of the law without discrimination under s 8(3) of the Charter; and
·the decision was unlawful under s 38(1) of the Charter.

The Third Amended Originating Motion also claimed that Mr Jevtovic did not understand the nature of his jurisdiction under s 40(4) of the PIA and thus failed to recognise how the power should be exercised in relation to the requirements in s 32 of the Charter and therefore exceeded his statutory power.

Legislative scheme and the Charter

The PIA was introduced for the purpose of continuing the OPI and establishing a separate act for the entity outside the Police Regulation Act 1958. Section 8 of the PIA outlines the objects, functions and powers of the Director. Relevantly, sub-section (1)(d) provides that one of the objects of the Director is to ensure the Victorian Police have regard to the human rights set out in the Charter:

8. Objects, functions and powers of the Director
(1) The objects of the Director are—
(a)to ensure that the highest ethical and professional standards are maintained in Victoria Police; and
(b)to ensure that police corruption and serious misconduct are detected, investigated and prevented; and
(c) to educate Victoria Police and the general community regarding police corruption and serious misconduct, including the effect of police corruption and serious misconduct; and
(d)to ensure that members of Victoria Police have regard to the human rights set out in the Charter of Human Rights and Responsibilities.

(2)The Director has the functions conferred on the Director by this Act or any other Act.

Part 3 of the PIA outlines the role of the Director in relation to complaints against members of Victoria Police. Section 40 provides a number of options to the Director when the OPI receives a complaint. In particular, subsection 40(4)(b)(i) provides for the Director to investigate actions of Victoria Police if it is in the public interest:

40. Dealing with complaints
(1)The Director may determine that a complaint does not warrant investigation—
(a) if in the Director's opinion—
(i) the subject-matter of the complaint is trivial; or
(ii) the complaint is frivolous or vexatious or is not made in good faith; or

(b)if the complainant had had knowledge for more than a year of the conduct complained of and fails to give a satisfactory explanation for the delay in making the complaint.

(2)Subject to subsection (4), the Director must refer a complaint warranting investigation to the Chief Commissioner.
(3)If the Director refers a complaint to the Chief Commissioner under subsection (2), the Chief Commissioner must investigate the complaint under Division 2 of Part IVA of the Police Regulation Act 1958.

(4) The Director—
(a) must investigate a complaint if the conduct complained of is conduct of the Chief Commissioner or of a Deputy or Assistant Commissioner; and

(b) may investigate a complaint if the conduct complained of—
(i) is of such a nature that the Director considers that investigation of the complaint by the Director is in the public interest; or
(ii) is in accordance with established practices or procedures of Victoria Police and the Director considers that those practices or procedures should be reviewed.

(5)In a case to which subsection (4) applies, if the complaint was not first made to a member of Victoria Police, the Director may give the Chief Commissioner details of the complaint.
(6)The Director may attempt to resolve a complaint by conciliation and must—
(a)before commencing to conciliate, notify the Chief Commissioner of the proposed attempt; and

(b) notify the Chief Commissioner of the results of the attempt.

Part 4 of the PIA provides for the general investigatory powers of the Director. Section 52 is the opening provision of this Part and states:

52. Application of Part
This Part applies for the purposes of an investigation by the Director under Part 3.

Part 4 contains a number of powers given to the Director including the ability to summons witnesses (s 53), compel the provision of documents (s 54) and examine witnesses (s 61). The Director has the ability to conduct private or public examinations of witnesses and compel answers regardless of the privilege against self-incrimination (s 69).

Part 4 also provides the Director and the OPI with wide ranging investigatory powers, including the ability to carry out search warrants (s 93), enter the premises of public authorities (s 88) and seize documents (s 89).

In addition to these significant powers, Division 10 of Part 4 of the PIA provides protection for the Director and officers of the OPI from judicial oversight. Section 106 prevents documents held by the OPI from being produced in legal proceedings other than a criminal proceeding. Section 107 provides for a process for resisting production of documents in a criminal proceeding. Importantly, s 109 of the PIA sets out what is commonly understood as a ‘privative clause’. It provides:

109. General protection of protected persons
(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.
(2)Subsection (1) does not apply to an act done in the course of, or that results in, a critical incident.
(3)No civil or criminal proceedings may be brought against a protected person in respect of any act of a kind referred to in subsection (1) without the leave of the Supreme Court.
(4)The Supreme Court may not give leave unless it is satisfied that there is substantial ground to believe that the person to be proceeded against has acted in bad faith.
(5)Without limiting the generality of subsections (1) and (3), no civil or criminal proceeding may be brought against the Director in respect of the giving of a certificate by the Director under section 106, unless the certificate was given in bad faith.

(6) Despite anything in this section—
(a)an order cannot be issued restraining the Director from carrying out or compelling the Director to carry out any investigation; and
(b)a proceeding cannot be brought against the Director seeking the issue of such an order.

(7)A protected person cannot be called to give evidence in any court or in any legal proceedings or before the Appeals Board in respect of any matter coming to his or her knowledge in the exercise of functions under this Act.

Section 104 defines a ‘protected person’ as:

104. Who is a protected person?
For the purposes of this Division, a protected person is—
(a)       the Director;
(b)       the Acting Director;
(c)       a member of staff of the Office of Police Integrity;
(c)a person who has taken an oath or made an affirmation under section 18(2);
(d)a person (other than a natural person) engaged under section 17(1)(b), if any officer or employee of the person has taken an oath or made an affirmation under section 18(2);
(e)the members of a body engaged under section 17(1)(b), if any member, officer or employee of the body has taken an oath or made an affirmation under section 18(2).

Further, s 106 permits the Director to certify that a document is a protected document such that a protected person cannot be compelled to produce it in certain legal proceedings.

106. Protected documents and other things – legal proceedings other than criminal proceedings
(1)This section applies to any legal proceeding (other than a criminal proceeding) or to any proceeding before the Appeals Board.
(2)In any proceeding to which this section applies, a protected person cannot be compelled to produce any document or other thing that has come into his or her possession in the performance of functions under this Act, if the Director certifies in writing that, in the Director’s opinion, the document or thing is a protected document or other thing.
(3)In this section a reference to a document or other thing includes a reference to part of a document or other thing.

In summary, the PIA provides the OPI with wide-ranging powers to investigate and prosecute police misconduct. Further, it provides the Director with powers and immunities to enable him to carry out his investigative and prosecutorial duties.

Turning to the Charter, it was enacted in 2006 following the report of a Consultation Committee into whether Victoria should have a legislative enactment to protect human rights. In PJB v Austin Health,[11] Bell J described the nature of the Charter as follows:

The main purpose of the Charter of Human Rights and Responsibilities Act is ‘to protect and promote human rights’. The Charter is based on the fundamental principle, expressed in the Preamble, that ‘all people are born free and equal in dignity and rights’ and ‘human rights are essential in a democratic and inclusive society that respects the rule of law, human dignity, equality and freedom’.[12]

[11][2011] VSC 327.

[12]Ibid [31] (citations omitted).

Section 1(2) of the Charter explicitly outlines its purpose:

(2)The main purpose of this Charter is to protect and promote human rights by—
(a) setting out the human rights that Parliament specifically seeks to protect and promote; and
(b)ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; and
(c)imposing an obligation on all public authorities to act in a way that is compatible with human rights; and
(d)requiring statements of compatibility with human rights to be prepared in respect of all Bills introduced into Parliament and enabling the Scrutiny of Acts and Regulations Committee to report on such compatibility; and
(e)conferring jurisdiction on the Supreme Court to declare that a statutory provision cannot be interpreted consistently with a human right and requiring the relevant Minister to respond to that declaration.

The Charter places specific obligations on public authorities. Section 4 describes what a public authority is:

4. What is a public authority?
(1) For the purposes of this Charter a public authority is—
(a)a public official within the meaning of the Public Administration Act 2004; or

Note
A public official under the Public Administration Act 2004 includes employees of the public service, including the Head of a government department or an Administrative Office (such as the Secretary to the Department of Justice or the Chairman of the Environment Protection Authority) and the Victorian Public Sector Commissioner. It also includes the directors and staff of certain public entities, court staff, parliamentary officers and holders of certain statutory or prerogative offices.
(b)an entity established by a statutory provision that has functions of a public nature; or

…
(c)an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise); or

…
(d) Victoria Police; or
(e) a Council within the meaning of the Local Government Act 1989 and Councillors and members of Council staff within the meaning of that Act; or

(f) a Minister; or
(g)members of a Parliamentary Committee when the Committee is acting in an administrative capacity; or
(h)an entity declared by the regulations to be a public authority for the purposes of this Charter—

but does not include—
(i)Parliament or a person exercising functions in connection with proceedings in Parliament; or
(j)a court or tribunal except when it is acting in an administrative capacity; or

…
(k)an entity declared by the regulations not to be a public authority for the purposes of this Charter.

The two rights the appellant relies on in his submissions are set out in ss 8 and 10. They provide:

8. Recognition and equality before the law
(1) Every person has the right to recognition as a person before the law.
(2)Every person has the right to enjoy his or her human rights without discrimination.
(3)Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
(4)Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

10. Protection from torture and cruel, inhuman or degrading treatment
A person must not be—
(a) subjected to torture; or
(b) treated or punished in a cruel, inhuman or degrading way; or
(c)subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.

Division 3 of the Charter provides for the interpretation of laws in ensuring they are compatible with human rights. Section 32 of the Charter is the interpretive clause. It states:

32. Interpretation
(1)So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
(2)International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(3) This section does not affect the validity of—
(a)an Act or provision of an Act that is incompatible with a human right; or
(b)a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

In Momcilovic v The Queen,[13] Crennan and Kiefel JJ outlined the effect of s 32:

Section 32 does not state a test of construction which differs from the approach ordinarily undertaken by courts towards statutes. Its terms identify an approach of interpretation which has regard to the terms and to the purpose of the statutory provision in question, as previously discussed. The statutory direction in s 32(1) … seeks to ensure that Charter rights are kept in mind when a statute is construed. The direction is not, strictly speaking, necessary. In the ordinary course of construction regard should be had to other existing laws. The Charter forms part of the context in which a statute is to be construed. It will be recalled that Lord Hoffmann viewed the Convention in a similar way in Wilkinson. The process of construction commences with an essential examination of the context of the provisions being construed.

Where it is possible, consistently with a statute’s purpose, s 32(1) requires that all statutory provisions are to be read conformably with Charter rights.[14]

[13]Momcilovic v The Queen (2011) 245 CLR 1 (‘Momcilovic’).

[14]Momcilovic (2011) 245 CLR 1, 217 [565]–[566] (citations omitted).

Finally, Division 4 contains the specific obligations of public authorities. Section 38 classifies certain conduct of a public authority in connection with a human right as unlawful and section 39 describes the remedies available to a person claiming under the Charter. Those sections provide:

38. Conduct of public authorities
(1)Subject to this section, 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.
(2)Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
Example
Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.

(3) This section does not apply to an act or decision of a private nature.
(4)Subsection (1) does not require a public authority to act in a way, or make a decision, that has the effect of impeding or preventing a religious body (including itself in the case of a public authority that is a religious body) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which the religious body operates.

(5) In this section ‘religious body’ means—
(a) a body established for a religious purpose; or
(b)an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.

39. Legal proceedings
(1)If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
(2)This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right—
(a)to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and
(b)to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

(3)A person is not entitled to be awarded any damages because of a breach of this Charter.
(4)Nothing in this section affects any right a person may have to damages apart from the operation of this section.

Trial judgment

In the hearing in the Trial Division, the Victorian Equal Opportunity and Human Rights Commission (‘the Commission’) intervened as of right under s 40(1) of the Charter, as did the Solicitor-General on behalf of the Attorney-General. At trial, her Honour was asked to answer a number of questions identified by the appellant. They were (including her Honour’s answers):

1.Is there an implied procedural right under s 10(b) of the Charter to an ‘effective’ investigation of a claim of a breach of human rights stated in that section?
No
2.Were the first decision and the second decision incompatible with the appellant’s right to an effective investigation of his complaint?
Not applicable, given the answer to question 1.
3.Did the relevant decision-maker in the case of each of the first decision and the second decision properly consider the appellant’s human rights as required by s 38 of the Charter?
Not applicable, given the answer to question 4. The relevant claims will be dismissed, stayed or struck out.
4. Does s 109 of the Police Integrity Act prevent the Court from hearing and determining the appellant’s claims for declarations that the first decision and the second decision were contrary to s 38 of the Charter?
Yes.
5.Was the first decision made by the Business Monitoring Committee tainted by jurisdictional error?
Yes.

6. Was the second decision tainted by jurisdictional error?
No.[15]

[15]Reasons [57].

In rejecting the appellant’s claim for judicial review, her Honour began with the fourth question. Her Honour answered the question by setting out and analysing the three contentions put by the appellant:

1.s 109 does not exclude judicial review proceedings, absent requisite words of ‘irresistible clarity’;
2.even if it does, s 109 does not apply to a decision not to investigate a complaint; and
3.a decision which is contrary to s 38 is thereby tainted by jurisdictional error and the privative clause cannot oust a challenge on that ground after the High Court’s decision in Kirk v Industrial Court (NSW).[16]

[16]Ibid [60] (citation omitted).

Her Honour rejected the first contention on the basis that the words in the PIA reflected a clear intention of the legislature to remove judicial review of a decision of the Director, except where there is jurisdictional error.[17] The trial judge compared s 109 to other privative clauses that have come under judicial scrutiny. In particular her Honour considered s 12(3) of the Witness Protection Act 1991 (‘Witness Protection Act’) which was discussed in Applicants A1 & A2 v Brouwer.[18] That section provided:

No action or proceedings can be brought against any person to whom this section applies in respect of any act, matter or thing done by that person in the course of his or her duties in accordance with this Act.

[17]The trial judge accepted that the decision of the High Court in Kirk v Industrial Relations Court (NSW) (2010) 239 CLR 531 meant that a state legislature could not oust judicial review for a decision which is affected by jurisdictional error.

[18](2007) 16 VR 612 (‘Brouwer’).

The Court of Appeal in Brouwer held that the section did not apply to a challenge to the validity of the relevant decision.[19] The trial judge noted that the Court of Appeal considered the second reading speech and the s 85(5) Constitution Act 1975 statement and held that if the legislature had intended to oust judicial review it would have used express language. The trial judge outlined the reasoning in Brouwer and compared the Witness Protection Act with s 35A of the Ombudsman Act 1975 (NSW) (‘Ombudsman Act’). Section 35A(1) of that Act, her Honour noted, was in similar terms to s 109 of the PIA:

(1)The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith.

[19]Ibid 632.

The Court of Appeal noted:

Nor, more importantly, does s 12(3) of the Act contain any equivalent of the critical words in s 35A(1) (‘whether on the ground of want of jurisdiction or on any other ground’). Those words clearly signified the intention of the New South Wales Parliament to oust judicial review.[20]

[20]Ibid 631.

Drawing on that decision, the trial judge noted that the ‘critical words’ that the Court of Appeal had highlighted in Brouwer appear in s 109 of the Act. Further her Honour relied on the extrinsic material in interpreting the section.[21] She noted the second reading speech by Mr Cameron, the Minister for Police and Emergency Services, in particular his statement regarding judicial review.[22]
[21]Pursuant to s 35 Interpretation of Legislation Act 1984; see Reasons [72]-[75].
[22]See para [111].

The trial judge dismissed the second contention that s 109 did not apply to a decision not to investigate.

The appellant sought to argue that at the time the second decision was made there had been no past investigation and no ongoing or future investigation in relation to the appellant’s complaint. Therefore there was no decision made ‘for the purpose of an investigation’ under s 52 of the PIA. In rejecting the contention, her Honour stated:

I agree with the defendants that a decision about whether or not to investigate a complaint is a necessary step in the process of investigation by the Director. As they submit, before that determination is made there is clearly the prospect that an investigation may occur and that, consequently, the decision was made within the meaning of s 52 ‘for the purpose of’ an investigation (an object which does not have to be in existence).[23]

[23]Reasons [81].

Her Honour also pointed to the functions and objects of the PIA which supported the view that the protection offered by s 109 should not be narrowly construed. Her Honour further explained:

I agree with the defendants that the extrinsic materials discussed are consistent with a broader immunity for protected persons under s 109, relevantly, to give effect to the statutory purposes of both the OPI and the Director under the Police Integrity Act by allowing them to carry out their functions without the impediment of legal proceedings challenging their decisions, with the exception of those alleging jurisdictional error.[24]

[24]Ibid [85].

The trial judge then assessed the third contention, that an act which is classified by s 38(1) of the Charter as unlawful is a jurisdictional error and therefore cannot be ousted by a privative clause.[25] The trial judge set out the key question that had to be answered:

Was it the legislative purpose of s 38(1) to take away a public authority’s power to act in contravention of it?[26]

[25]See Kirk v Industrial Court (NSW) (2010) 239 CLR 531 (‘Kirk’).

[26]Reasons [97].

Her Honour noted the difficulty recognised by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs[27] in determining whether the failure to comply with a procedural obligation amounted to jurisdictional error. Further, her Honour outlined the decision of the plurality in Project Blue Sky Inc v Australian Broadcasting Authority[28] who held:

A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid … In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute.’[29]

[27](2005) 228 CLR 294 (‘SAAP’).

[28](1998) 194 CLR 355 (McHugh, Gummow, Kirby and Hayne JJ) (‘Project Blue Sky’).

[29]Ibid 391.

At the trial, the appellant contended that in the statutory context of the Charter, the term ‘unlawful’ meant ‘invalid’. First, he argued that it was apparent that failure to take into account a consideration clearly amounted to jurisdictional error under general administrative principles. Furthermore, the appellant submitted that it would be incongruous for a breach of the procedural limb of s 38(1) to give rise to a jurisdictional error but a breach of the substantive limb would not. Her Honour rejected this argument as circular:

Under administrative law principles, whether a decision maker is bound to take a particular consideration into account and whether failure to do so will be significant enough to affect the validity of the outcome is to be ascertained having regard to the subject-matter, scope and purpose of the legislation requiring consideration of the matter, taking into account the nature of the repository of the power.
It is common ground that Emerton J described what is required by the s 38(1) obligation under the procedural requirement to give proper consideration to a human right in Castles v Secretary, Department of Justice, when she said:
The requirement in s 38(1) to give proper consideration to human rights must be read in the context of the Charter as a whole, and its purposes. The Charter is intended to apply to the plethora of decisions made by public authorities of all kinds. The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a ‘common or garden’ activity for persons working in the public sector, both senior and junior. In these circumstances, proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration need not involve formally identifying the ‘correct’ rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.
While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.

Mr Bare and the Commission argue that, by characterising as unlawful a failure to act in the manner described, s 38(1) makes it clear that a public authority is bound to take such a right into account, with the consequence that a failure to do so will render the decision it makes invalid.
I agree with the Attorney-General’s characterisation of this argument as ‘circular’. As he submits, the Court should not take Parliament to have intended that a breach of the s 38(1) procedural obligation would necessarily involve jurisdictional error. It did not state expressly that a relevant human right must be considered, choosing rather to characterise both the failure to give a relevant right proper consideration and the breach of the obligation to act incompatibly with it, as ‘unlawful’.[30]

[30]Reasons [101]–[104] (citations omitted).

Secondly, the appellant argued at trial that the legislative context of s 39 of the Charter favoured reading unlawfulness in s 38(1) as amounting to jurisdictional error. He contended that the remedies set out in s 39 contemplated jurisdictional error and therefore unlawfulness in s 38(1) should be interpreted as giving rise to such a cause of action. The trial judge considered the Court of Appeal’s decision in Sudi v Director of Housing[31] which briefly assessed the meaning of s 39 of the Charter, though as the section was not in issue in the appeal the Court did not determine its purpose.[32] In rejecting this argument her Honour held:

The meaning of s 39 is not directly in issue in this proceeding and it is not settled as to what is required, in terms of another claim or otherwise, before s 38(1) unlawfulness can supply a necessary element of a cause of action or defence. I am not, however, persuaded that the terms of s 39 are inconsistent with the view that s 38(1) unlawfulness does not per se amount to jurisdictional error. Any limitation of the availability of a remedy for breach of s 38(1), including the ruling out of compensation by way of damages by s 39(4), rather militates against acceptance of the argument that it does.
I agree with the defendants that considerations relevant to the existence of invalidity, taken into account in Project Blue Sky, also suggest that an act done or decision made in breach of either of the requirements of s 38(1) would not amount to a jurisdictional error. The obligations to act compatibly with human rights and to give them proper consideration under s 38(1) lack the ‘rule-like quality’, easily identified and applied, thought indicative of requirements for validity. The criteria for lawfulness under s 38(1) might be open to different interpretations, given the nature of the judgment required under s 7(2). The definition of ‘public authority’ in s 4 is also ‘open ended’, in terms of the relevant criteria, and there is power to expand or reduce the number of bodies fitting the description for Charter purposes by characterising entities as public authorities or removing that character by regulation. In addition, the applicability of the exceptions in sub-ss 38(2), 39(2), 39(3) and 39(4) may not always be clear.[33]

[31]Sudi v Director of Housing (2011) 33 VR 559 (‘Sudi’).

[32]Ibid 569 [49] (Warren CJ); 580 [98] (Maxwell P); 596 [214] (Weinberg JA).

[33]Reasons [116]–[117] (citations omitted).

After rejecting the appellant’s argument in relation to the privative clause and the role of s 38(1), the trial judge then went on to consider the first question, whether there was an implied procedural right to an investigation under s 10(b) of the Charter. The appellant contended that s 10(b) contained an implied procedural right to an effective investigation of allegations of cruel, inhuman and degrading treatment. He did so by relying on the jurisprudence of the United Nations Human Rights Committee (UNHRC) and the European Court of Human Rights (ECtHR).

While it was unnecessary to do so given her findings on question 4, her Honour began by noting the role of international jurisprudence in analysing the Charter. The trial judge noted that s 32 specifically allows for decisions of foreign courts and tribunals to be used in interpreting provisions of the Charter, though she noted the reluctance of several members of the High Court in Momcilovic on relying too heavily on such decisions.[34]
[34]See Momcilovic (2011) 245 CLR 1, 36–8 (French CJ).

The trial judge analysed a number of decisions of the UNHRC and the ECtHR in assessing the nature of the alleged implied right. Her Honour rejected the implication on two broad grounds. First, her Honour rejected the implied right on the grounds that international tribunals relied on a combination of rights in international instruments to find the implied right to an effective investigation. The trial judge initially examined the International Covenant on Civil and Political Rights (‘ICCPR’) Article 7 of which provides:

No-one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no-one shall be subjected without his free consent to medical or scientific experimentation.

The trial judge accepted that this Article was in similar terms to s 10(b) of the Charter and thus decisions of the UNHRC may be of assistance. However, her Honour also noted the existence of a separate obligation on States to investigate breaches of the ICCPR found in Article 2:

1.Each State Party to the present Covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other means as may be necessary to give effect to the rights recognised in the present Covenant.

3. Each State Party to the present Covenant undertakes:
(a) to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State and to develop the possibilities of judicial remedy;
(c) to ensure that the competent authority shall enforce such remedies when granted.

The trial judge noted that the decisions of the UNHRC which found that a State had not established an effective investigation into a breach of Article 7 relied on the interrelationship between that Article and the State’s obligations under Article 2. In particular, her Honour noted General Comment 20 which provides:

Article 7 should be read in conjunction with Article 2, para 3 of the [ICCPR]. In their reports, the States Parties should indicate how their legal systems effectively guarantee the immediate termination of all acts prohibited by Art 7 as well as appropriate redress. The right to lodge complaints about maltreatment prohibited by Article 7 must be recognised in the domestic law. Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective.[35]

[35]Human Rights Committee, General Comment No 20: Article 7 (Prohibition of torture and cruel treatment or punishment) , 44^th sess, UN Doc. HRI/GEN/1/Rev 9 (Vol I) p 202, (10 March 1992), [14].

The trial judge had a similar approach in analysing the applicability of decisions of the ECtHR. Her Honour set out the following provisions of the European Convention of Human Rights (ECHR):

Article 1
Obligation to respect human rights
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.
Article 3
Prohibition of Torture
No-one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 13
Right to an Effective Remedy
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

Her Honour noted that in many of the decisions cited by the appellant, the ECtHR relied on either Article 1 or 13 in conjunction with the substantive prohibition in Article 3 to find that a State had breached the right to an effective investigation into an allegation of torture or inhuman or degrading treatment.[36]
[36]See for example Assenov v Bulgaria (1998) 28 EHRRR 652, 107 [102].

While the appellant sought to both distinguish these cases and note the obligation on the State of Victoria to comply with certain international instruments, her Honour rejected those arguments:

In the case of s 10(b), it is the absence from the Charter of obligations to secure the enjoyment of a right or to remedy its breach which makes the international material as to the content of those rights under Art 7 of the ICCPR and Art 3 of the ECHR distinguishable. The content of those rights has been determined in the context of such obligations.
The statement of the purpose of protecting and promoting rights in s 1(2)(a), the recognition of rights in s 6(1), the reference to Parliament seeking to protect and promote rights in s 7(1) and the obligations on public authorities under s 38 do not make the statutory context sufficiently analogous for recognition of the alleged implied procedural right under s 10(b).[37]

[37]Reasons [158]–[159].

Secondly, in the absence of applicable international jurisprudence, the trial judge looked at the words in the Charter to determine whether s 10(b) contained an implied right to an effective investigation. Her Honour rejected the appellant’s contention that such a construction was warranted by the nature of the Charter in particular as informed by s 1(2)(a), which sets out the purpose of the Charter as being to protect and promote rights, and s 7(1), which outlines the legislature’s role in seeking to protect and promote rights. The trial judge stated:

The Charter remains to be construed according to its text, in its own constitutional context. When construing legislation, the Court must endeavour to discern the intention manifested by the words of the statute. The text of s 10(b) does not contain an express reference to the asserted procedural right. I am not persuaded that it would have been a statutory purpose of s 10(b) that it should include such a right by implication, in the context of the Charter as a whole. The relevant obligation to act compatibly with the right falls on a public authority and the Charter 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. Indeed, s 24(1) specifically refers to the right of a person charged with a criminal offence or party to a civil proceeding ‘to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing’.[38]

[38]Ibid [160] (citations omitted).

Further the trial judge dismissed the appellant’s argument that Australia’s obligations under the ICCPR and the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (‘Torture Convention’) would compel a construction of s 10(b) that found an implied right to an effective investigation:

The requirement to construe the Charter conformably with Australia’s international obligations to investigate complaints of rights’ violations under the ICCPR or the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment does not, in my opinion, compel a construction of s 10(b) which effectively imposes those obligations upon public authorities. The State’s established criminal and civil justice systems would appear to supply the means for compliance with any investigative obligations the State might have in relation to a complaint of abuse of the right under s 10(b). A right to an investigation of a complaint of violation of a human right under s 10(b) might, on the other hand, be sourced in the duty of a public authority under s 38 or another statutory provision, when construed in accordance with s 32(1).[39]

[39]Ibid [162].

With regards to the second and third questions, namely whether the decisions were compatible with the appellant’s right to an effective investigation and whether the decision maker took into account the appellant’s Charter rights when making his decision, the trial judge held that it was unnecessary to answer them considering she had rejected the implied right to an investigation and found that the PIA had ousted judicial review except for jurisdictional error.

As to Question 5, whether the first decision was tainted by jurisdictional error, the trial judge noted the defendants conceded the first decision was unlawful because the BMC was not authorised to make the decision.

Finally, the trial judge examined the sixth question, whether the second decision was tainted by jurisdictional error. The appellant submitted the following three contentions to support his case at trial:

1.By the first decision, the OPI said that [Mr Bare’s] complaint had been assessed by reference to a ‘priority matrix’. [Mr Bare] relevantly sought review of the first decision on the basis that he had not been given notice of, or the opportunity to be heard about, the priority matrix. Mr Jevtovic then made the second decision without reference to the priority matrix, and did so without giving [Mr Bare] notice that the priority matrix would not be applied or an opportunity to be heard on whether it should be. Did that failure constitute a denial of procedural fairness?
2.Does section 10(b) of the Charter provide a new dimension of the public interest that must be considered by the Director when a complaint is made of cruel, inhuman or degrading treatment at the hands of police officers?
3.Does section 40(4)(b)(i) of the [Police Integrity Act] authorise the making of a decision that is incompatible with [Mr Bare’s] right to an effective investigation of his complaint of cruel, inhuman or degrading treatment?[40]

[40]Ibid [171].

Her Honour rejected the first contention, holding that while there may have been an expectation that the priority matrix would not apply, or that the matrix should have been provided to the appellant in order to allow him to make submissions on it, there was no resulting procedural unfairness. Further, the trial judge stated that a decision maker is not generally obliged to give prior notice of their thinking before they make their decision. In this case, procedural fairness did not demand that Mr Jevtovic inform the appellant of his view as to the adequacy of the material presented to him. Her Honour stated:

Nor am I satisfied that the Director departed from any policy enshrined in the priority matrix, causing procedural unfairness as a result of any failure to solicit submissions from Mr Bare. He stated in his 19 October 2010 letter that he had examined all the material on the OPI file including correspondence from Mr Bare. He had considered the seriousness of the allegations made and the reference to s 10 of the Charter. In other words, he had considered the nature of the proposed investigation of the claims of breaches of Mr Bare’s human rights not to be discriminated against on the basis of his race, under s 8, and not to be subjected to cruel inhuman or degrading treatment under s 10(b). The material on the OPI file included the internal various assessments and reports, such as the PSAU preliminary assessment which identified the issues for consideration in relation to the determination required by s 40(4)(b)(i) of the Police Integrity Act. In that context, Mr Jevtovic concluded that there were no OPI policies or procedures which raised other issues for his consideration and that it was not necessary for him to use the tool to assess the priority of the matter.[41]

[41]Ibid [185].

The trial judge dismissed the second contention that the Charter provided a new dimension of the public interest that the Director had to take into account under s 40(4)(b)(i). Her Honour accepted that s 32(1) of the Charter does provide a new dimension to the question of what is in the public interest, but held that there was no evidence that Mr Jevtovic had not taken into account Charter rights when assessing the public interest under s 40(4)(b)(i). This was particularly so considering the trial judge had not accepted that s 10(b) of the Charter included an implied right to an effective investigation.

Her Honour rejected the final contention on the basis that she had not found an implied right to an effective investigation and therefore it was unnecessary for her to deal with it.

Notice of Appeal

On 10 April 2013, the appellant filed a Notice of Appeal against the decision of the trial judge. IBAC (the second respondent) sought leave to have the names of Ms Small and Mr Jevtovic removed from the proceeding. As this was not opposed the Court granted leave to have the names removed and allowed the appellant to file an Amended Notice of Appeal. This was filed on 21 May 2014.[42]
[42]Hereafter, all references to the Notice of Appeal refer to the Amended Notice of Appeal dated 21 May 2014. As a consequence of the removal of Ms Small and Mr Jevtovic as respondents, IBAC became the first respondent to the appeal, the Commission became the second respondent and the Attorney-General became the third respondent. In what follows I refer to IBAC as ‘the respondent’ and I continue to refer to the Commission as ‘the Commission’ and the Attorney-General for Victoria as ‘the Attorney-General’.

That Notice of Appeal set out seven grounds of appeal:

Section 109 of the Police Integrity Act 2008
1.The learned trial judge erred in holding that section 109 of the Police Integrity Act 2008 (the PI Act) prevents the Court from hearing and determining the Appellant’s claim for a declaration that the purported decision communicated to the Appellant by the Third Respondent by a letter dated 19 October 2010 (the decision) was contrary to section 38 of the Charter of Rights and Responsibilities Act 2006 (the Charter).
2.The learned trial judge erred in failing to hold that the Court could hear and determine the Appellant’s claim on the basis that:
(a)the decision was a decision not to investigate the Appellant’s complaint; and
(b)section 109 of the PI Act, properly construed and applied in the context of section 52 of the PI Act, does not apply to a decision of that kind.

3.The learned trial judge erred in failing to hold that the Court could hear and determine the Appellant’s claim on the basis that:
(a)section 109 of the PI Act does not apply to a decision tainted by jurisdictional error; and
(b)if the decision breached section 38 of the Charter in the manner alleged then it involved an error of that kind.

Section 10(b) of the Charter – Effective Investigation
4.The learned trial judge erred in holding that the human right in section 10(b) of the Charter read in light of the Charter as a whole, does not include the right to an effective investigation of a credible claim of cruel, inhuman or degrading treatment.

5. The learned trial judge erred in failing to hold:
(a)the right under s 10(b) of the Charter read in light of the Charter as a whole, includes the right to an effective investigation of a credible claim of cruel, inhuman or degrading treatment; and
(b)an ‘effective investigation’ of a credible claim that members of the Victoria Police have breached section 10(b) of the Charter relevantly requires an investigation by an organisation that does not have hierarchical or institutional connection to Victoria Police and that has practical independence from Victoria Police.

Section 38(1) of the Charter — the Substantive Obligation
6.The learned trial judge erred in failing to hold that the decision was incompatible with the Appellant’s right to an effective investigation of his complaint of cruel, inhuman or degrading treatment.

Section 38(1) of the Charter — the Procedural Obligation
7.The learned trial judge erred in failing to hold that, contrary to s 38(1) of the Charter, in making the decision the Third Respondent did not give proper consideration to the Appellant’s right under:
(a)section 10(b) of the Charter to an effective investigation of a complaint of cruel, inhuman or degrading treatment, as that right is to be properly understood; and
(b) section 8(3) of the Charter to equal protection of the law without discrimination and equal and effective protection against discrimination.

During oral argument, the appellant (along with the Commission) sought to advance four main questions (these were largely accepted by all parties one way or another in submissions):

1. Did the privative clause in s 109 of the PIA preclude judicial review of Mr Jevtovic’s decision for non-jurisdictional error of law?

2. Whether an act or decision made in contravention of s 38(1) of the Charter is necessarily affected by jurisdictional error?

3. Whether s 10(b) of the Charter includes a procedural right to an effective investigation of a credible complaint of cruel, inhuman or degrading treatment?

4. Whether, in making the decision under challenge, Mr Jevtovic failed to give proper consideration to the procedural right under s 10(b) of the Charter and the equality rights in s 8(3) of the Charter?

I adopt those four questions as the pivotal questions in this appeal and deal with them in turn.

1. Does s 109 of the PIA preclude judicial review of Mr Jevtovic’s decision for non-jurisdictional error of law?

The first question is whether s 109 of the PIA limits judicial review of the decision of Mr Jevtovic (as the delegate of the Director) not to investigate the appellant’s complaint.

The appellant’s main contention[43] was that s 109 of the PIA cannot be read in isolation. He submitted that a number of contextual factors limit its operation. In particular, the appellant relied on s 52 of the PIA and s 32 of the Charter as operating to limit the protection offered by s 109 of the PIA.
[43]The Commission and the Attorney-General did not make submissions on this point.

First, to recapitulate, s 52 of the PIA provides:

Application of Part
This Part applies for the purposes of an investigation by the Director under Part 3.

The appellant submitted that this section applies to the privative clause in s 109 in a way that limits the protection from judicial review only to acts that are made for the purpose of an investigation as opposed to any act done under the PIA. The appellant pointed to a number of other provisions within the PIA that have similar limiting effects. These included ss 38 and 43 which respectively limit the type of complaints that can be investigated and restrict the ability of the Director to conduct an investigation.

To illustrate this point, the appellant outlined how s 52 limits other provisions within Part 4. For example, s 53 provides for the issuing of witness summonses by the Director. Section 53(1) specifically sets out the types of summonses the Director may issue:

(1) The Director may issue the following witness summonses—
(a)a summons to attend an examination before the Director to give evidence;
(b)a summons to attend at a specified time and place to produce specified documents or other things to the Director;
(c)a summons to attend an examination before the Director to give evidence and produce specified documents or other things.

Section 61(1) of the PIA then limits the instances in which the Director may conduct an examination. It provides:

61. Director may conduct examinations
(1)The Director may conduct an examination for the purposes of an investigation.

The appellant noted that the first and third type of summons involve an examination and therefore fall under the limiting provision of s 61, in other words, the summonses must be for the purpose of the examination. The appellant argued therefore that s 52 has work to do in limiting the operation of s 53(1)(b), the issuing of a witness summons seeking the production of documents. This is because the second type of summons does not involve an examination and therefore is not limited by s 61(1).

In applying this analogy to s 109, the appellant posited that the operative words of s 109 concern the protection from judicial review of ‘any acts’ purported to be done by the Director under the PIA. The appellant argued that in interpreting the term ‘any acts’ purported to be done by the Director, the Court must be mindful of the privative clause’s operation throughout Part 4. In particular, he pointed to how s 109 interacts with ss 51A and 51B of the PIA. These sections concern the Director instigating criminal prosecutions and an immunity conferred on the exercise of that discretion. They provide:

51A Director and staff may prosecute
(1)The Director or a member of staff of the Office of Police Integrity authorised under subsection (2) may commence criminal proceedings against a person for an offence in relation to any matter arising out of an investigation.
(2)The Director may authorise in writing a member of staff of the Office of Police Integrity to exercise powers under subsection (1)—

Analysis of English authorities

In several cases under the Human Rights Act 1998 (UK), courts have held that there is an implied obligation to conduct an independent and effective investigation into credible complaints of a breach of Article 3 of the European Convention notwithstanding that Article 1 of the European Convention (upon which cases such as Assenov are based) does not form part of that Act.

In R (Mousa) v Secretary of State for Defence,[663] the claimant represented a large number of Iraqis who complained that they had been subjected to ill treatment, in breach of Article 3 of the European Convention, at the hands of British forces in Iraq. Inquiries had been established; the proceeding concerned their adequacy rather than any obligation to conduct them. It was common ground that there had to be an investigation that was independent effective and reasonably prompt. The Court referred to Jordan v United Kingdom[664] in which it was decided that the right to an investigation in an Article 2 case (right to life) also existed in an Article 3 case. In Jordan, the ECtHR had said:

The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force.[665]

[663][2011] EWCA Civ 1334.

[664](2003) 37 EHRR 2 (‘Jordan’).

[665]Ibid [105].

In Jordan, the ECtHR also referred to Article 13 of the European Convention and said:

The Court’s case-law indicates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an ‘arguable complaint’ under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision.[666]

[666]Ibid [159].

In Morrison v Independent Police Complaints Commission,[667] the claimant had been stopped by police, subjected to a taser, arrested on suspicion of possession of a firearm and an offensive weapon, taken to Brixton Police Station and, eventually, to hospital where he was treated for cuts to his face which, he said, were caused by his having been ‘tasered’. He was released without charge. He sought an investigation of the treatment to which he had been subjected. The issue before the court was not dissimilar to the issue before this Court: when an arguable complaint is made that the police have used ill-treatment, contrary to Article 3 of the European Convention, against a person whom they have arrested, must the Independent Police Complaints Commission investigate the matter itself, or can the Commission direct the same police force to investigate the matter? In answering that question, Nicol J distinguished the substantive obligation in Article 3 from the ‘procedural’ obligation. About the latter, he said:

The European Court of Human Rights has implied a duty to investigate arguable breaches of Article 3. It has done so following a similar process of interpretation of the right in Article 2 which says ‘Everyone’s right to life shall be protected.’ In both cases the Court has relied on the general duty under Article 1 of the Convention on Contracting States to ‘secure to everyone within their jurisdiction the rights and freedoms defined in the Convention.’ Although Article 1 is not one of the specified rights in Schedule 1 of the Human Rights Act 1998, a like investigative obligation is incorporated as part of domestic law though the 1998 Act.[668]

The Commission relied upon the holding that, under the Human Rights Act 1998 (UK) a procedural right was held to exist notwithstanding the absence of Article 1 of the European Convention.

[667][2009] EWHC 2589, [33]–[35], [63]–[64].

[668]Ibid [31].

However, Nicol J also said:

It is important to remember from the outset that the investigative obligation under Article 3 is cast on the UK as a Contracting State to the ECHR. It will only be in breach of the obligation if none of the suggested alternatives, singly or together, are sufficient. In these proceedings the Defendant is not (and cannot be) the UK government. The IPCC is, of course, a public authority for the purposes of the Human Rights Act 1998. As such, it owes a duty to the Claimant not to act incompatibly with Convention rights – see s 6 of the 1998 Act. In the present context, however, that means that the Commission will only be in breach of its duty under s 6 if this will inevitably involve a breach of the UK's obligation to carry out an effective investigation. Sometimes a Claimant can show that that is the case — as Amin illustrates — but I agree that this reasoning requires me to examine whether the alternatives put forward by the IPCC (and the Home Secretary) might be other ways in which the investigative obligation could be discharged.[669]

As the Attorney-General submitted, the High Court warned in Momcilovic[670] against the too ready reliance on United Kingdom jurisprudence. In that respect, it is important to remember that the investigative obligation under Article 3 is cast from the United Kingdom as a contracting State to the European Convention. The process of investigative obligation is quite different under the Charter from that which applies under international law. The latter is influenced to a very considerable degree in the international jurisprudence by the presence of specific obligations on the international entities, internationally, legally obliged entities which are parties to the international instruments. The provisions of Article 1 and Article 13 of the European Convention and Article 2(2) and (3) of the ICCPR embrace the submissions as to effective remedy in that context. As is made clear in Morrison, the international obligation is placed on the State itself.

[669]Ibid [37].

[670](2011) 245 CLR 1.

Further, characteristic of English decisions has been the determination of the English judges to align their human rights jurisprudence with ‘Strasbourg jurisprudence’. In R (Ullah) v Special Adjudicator,[671] Lord Bingham said that a national court ‘should not without strong reason dilute or weaken the effect of the Strasbourg case law’.[672] In Regina (Al-Skeini) v Secretary of State for Defence,[673] Lord Rodger said:

Under section 2(1)(a) of the 1998 Act, when determining any question in connexion with a ‘Convention right’, a court in this country must take into account any judgment or decision of the European court. While article 1 is not itself included in the Schedule, it affects the scope of article 2 in the Schedule, and that article embodies a ‘Convention right’ as defined in section 1(1). It follows that, when interpreting that article 2 right, courts must take account of any relevant judgment or decision of the European Court on article 1.[674]

In the same case, Baroness Hale said that it was the task of the English courts to keep in step with Strasbourg jurisprudence, ‘neither lagging behind nor leaping ahead’.[675]

[671][2004] 2 AC 323.

[672]Ibid 350 [20].

[673][2008] 1 AC 153.

[674]Ibid 198 [66].

[675]Ibid 204 [90]. See also Lord Brown 207–9 [105]–[110], especially his endorsement of Lord Bingham in R (Ullah) v Special Adjudicator [2004] 2 AC 323, 350 [20]. For a discussion of the reasons leading English courts to align with Strasbourg jurisprudence together with a comment on the present stage of interaction between the UK Courts and that jurisprudence, see Rt Hon Lord David Neuberger of Abbotsbury, ‘The Role of Judges in Human Rights Jurisprudence: A Comparison of the Australian and UK Experience’ (2014) 2 Judicial College of Victoria On-Line Journal 43, 30, 40–1.

In Attorney-General's Reference (No 2 of 2001),[676] Lord Hope said:

If questions arise about the content of these rights the answer which is given must take into account the jurisprudence of the European Court of Human Rights and the Commission: section 2(1). The decisions of those institutions are not binding on the domestic courts, but it is obviously desirable that close attention be paid to the Strasbourg jurisprudence … The government's purpose was to see ‘rights brought home’. That purpose would not be achieved if the domestic courts were to depart in material respects from current thinking about the content of the Convention rights in Strasbourg.[677]

As the Attorney-General pointed out, the imperative of bringing ‘rights back home’ so that rights enforceable as part of international law become enforceable as part of domestic law (such that a right of investigation recognised as a part of international law becomes a right under domestic law) does not apply with the same force to public authorities in Victoria.

[676][2004] 2 AC 72.

[677]Ibid 97 [52] (citation omitted).

The Commission referred to Allen v Chief Constable of the Hampshire Constabulary[678] as supporting the proposition that Article 3 alone (and not by reference to Article 1) carried the implied procedural obligation. In that case, the appellant had commenced proceedings in which she claimed under s 6 of the Human Rights Act 1998 (UK)[679] that the respondent had failed to comply with his investigative and protective obligations in respect of her rights to freedom from inhuman and degrading treatment. It appears that the appellant had been married to a police officer and, she said, had been harassed by another police officer who had been in a relationship with her husband. The appellant also contended that the respondent was vicariously liable for the conduct of that police officer. The appellant’s claim against the respondent had been struck out. For present purposes, we are concerned only with the discussion of the origin of the implied procedural obligation. Gross LJ (with whom Dyson MR and Ryder LJ agreed) said:

Turning to matters of substance, the ‘few words’ of Art. 3 give rise to a number of duties on the part of the State, designed to render its general legal prohibitions (of fundamental importance) effective in practice: see, the observations of Lord Dyson JSC (as he then was) in the context of Art. 2, in Rabone v Pennine Care NHS Trust. At least for present purposes, these duties may be summarised as follows:
i)A general obligation to provide systems of law enforcement and for the punishment of criminal liability.
ii)An implied positive obligation to conduct an effective investigation into allegations that treatment amounts to, or arguably amounts to, a violation of a person's Art 3 rights; such an investigation should be capable of identifying and punishing those responsible: Assenov v Bulgaria. Necessarily, this is an obligation of ‘means’ not ‘results’: Vasilyev v Russia.[680]

[678][2013] EWCA Civ 967.

[679]In so far as is material, s 6 provides: ‘(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right’. Section 7 of the Act empowered the victims of violations of rights to bring proceedings before the courts and s 8 conferred upon courts the power to grant appropriate relief, including damages.

[680][2013] EWCA Civ 967, [42] (citations omitted).

The Commission finally referred to DSD & NBV,[681] which, it said, was its ‘best case’. In that case, the claimants brought proceedings under ss 7 and 8 of the Human Rights Act 1998 (UK) in which they said that their rights under Article 3 of the European Convention had been violated. They had been victims of a rapist who had been convicted of having committed well in excess of 100 rapes and sexual assaults over a six year period of women whom he was carrying in his cab. At common law, the police do not owe a duty of care in negligence in relation to the investigation of crime. The question in this case was whether the Human Rights Act 1998 (UK) did impose such a duty and, if so, whether it had been breached. The defendant contended that the Act did not provide a remedy to victims of crime committed by private parties ‘where the core of the allegation is that the police failed properly to investigate’.[682]
[681][2014] EWHC 436 (Green J). In this case, the Court decided that the defendant was liable to the claimants for breach of the Human Rights Act 1998 (UK). In a later judgment, the Court determined the claim for damages; see D v Commissioner of Police of the Metropolis [2015] 1 WLR 1833.
[682][2014] EWHC 436, [5].

Before this Court, the Commission said that the case ‘confronts an argument that is nearly identical to the argument’ that this Court faces. In DSD & NBV, counsel (for the defendant) advanced an argument that all of the ECtHR decisions about an implied right to investigation should be ignored as (a) they depended upon Article 1 and (b) the Human Rights Act 1998 (UK) does not incorporate that Article. The Commission said that that argument had been rejected. It placed emphasis on the following remarks of Green J:

[I] can see no reason why Article 1 can be said to create a pro-active duty whereas the same would not be said of Article 3 standing in complete isolation (including from Article 1). Article 3 is a clear and unequivocal prohibition which has been repeatedly described by the Strasbourg Court as ‘fundamental’. In MC v Bulgaria the Court stated that there was a ‘positive obligation inherent’ in Article 3 to apply law prohibiting rape through ‘effective investigation’ and punishment. [S]ee also Milanovic. The Article prohibits without caveat or qualification torture and inhuman or degrading treatment. That prohibition exists quite regardless of Article 1; the message in Article 3 is that the State must preserve its citizens from such severe treatment. Section 6 HRA makes it ‘unlawful’ for a public authority to act in a way that is incompatible with, inter alia, Article 3. And sections 7 and 8 make such an unlawful failure justiciable. There is no point in having a prohibition if it is not accompanied by the commensurate obligation on the State to enforce the prohibition. That applies to the conduct of the State and its agents and actors but extends also to the preservation of citizens from severe violence perpetrated by private parties. Article 3 does not require turbo-charging from Article 1 to arrive at this conclusion and in any event sections 6-8 HRA plug any gap that might otherwise exist.[683]

[683]Ibid [233].

Green J surveyed the ‘Strasbourg case law’ and concluded ‘Article 3 of the Convention imposes a duty upon the police to investigate which covers the entire span of a case from investigation to trial. The purpose behind this duty is to secure confidence in the rule of law in a democratic society, to demonstrate that the State is not colluding with or consenting to criminality, and, to provide learning to the police with a view to increasing future detection levels and preventing future crime … The investigation must be independent, impartial and subject to independent scrutiny.’[684]
[684]Ibid [212].

Notwithstanding the way Green J expressed himself at the end of the paragraph extracted above, it is to be observed that he relied upon MC v Bulgaria[685] and Milanovic v Serbia.[686] As is plain from the discussion of them above, in holding that Article 3 contained an implied procedural duty to investigate, each of those authorities relied explicitly upon the Assenov principle.[687] Finally, he said:

Pulling together and summarising the various strands of argument I interpret the HRA as imposing a duty on the police in circumstances such as the present for the following reasons: (i) Strasbourg case law which I must take account of is consistent settled and mature; (ii) it articulates a test which does not open the Pandora’s Box of liability for the police and when applied rigorously by the domestic courts should not be such as to create a disproportionate burden on the police; (iii) the duty which is acknowledged by Strasbourg case law (to investigate efficiently) is not one which jars with common law traditions but, on the contrary, is consistent with domestic law; (iv) the conclusion is one which the domestic courts have not (in their admittedly brief encounters with the principle) objected to. In all these circumstances I conclude that the duty contended for by the Claimants exists.[688]

[685](2005) 40 EHRR 20.

[686](2014) 58 EHRR 33.

[687]Green J also referred to those parts of the speeches in R (Ullah) v Special Adjudicator [2004] 2 AC 323 and R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153 that have been extracted above.

[688][2014] EWHC 436, [241] (emphasis added).

In The Commissioner of Police of the Metropolis v DSD & NBV,[689] the Court of Appeal (UK) dismissed an appeal from the judgment of Green J in DSD & NBV.[690] The appellant contended that Article 3 of the European Convention did not impose any obligation to investigate and, to the extent that there was a positive obligation to investigate, it had been drawn from Article 1 which formed no part of domestic law in so far as that Article was not a Convention right within the meaning of the Human Rights Act 1998 (UK). In his reasons, Laws LJ (with whom Dyson MR and Kitchin LJ agreed) pointed to the reasons underpinning the policy of the UK courts ensuring consistency between domestic law and Strasbourg jurisprudence. He said:

Secondly, on [the appellant’s] argument there is a substantial mismatch between the scope of Article 3 guaranteed by the Convention and the scope of Article 3 enforceable, by means of the HRA, in the UK courts. The first includes an investigative duty but the second does not. In the course of argument [counsel for the appellant] accepted that the HRA gives effect ‘lock, stock and barrel’ to the substantive rights guaranteed by the ECHR, and that is surely right: in Quark Fishing Ltd (cited by Lord Rodger in Al-Skeini) Lord Nicholls stated that ‘[t]he [HRA] was intended to provide a domestic remedy where a remedy would have been available in Strasbourg’. This contradicts the mismatch which Mr Johnson’s argument implies. The effect of such a mismatch would anyway be bizarre. It would mean that a complaint of violation of Article 3 in the UK constituted by actual ill-treatment could be litigated here; but a complaint that the self-same Article was violated by an investigative failure would have to go to Strasbourg.[691]

[689][2015] EWCA Civ 646 (30 June 2015).

[690][2014] EWHC 436.

[691][2015] EWCA Civ 646, [16] (citations omitted).

It is true that, in his judgment, Laws LJ seems to reject the proposition that the duty to investigate a breach of Article 3 of the Convention is based solely upon Article 1 and Article 13.[692] However, he then described the manner in which the European Convention had been made part of UK domestic law. In the Human Rights Act 1998 (UK), there are (at least) two sorts of provisions which implement in UK domestic law the rights recognised in the European Convention. Some of those provisions are ‘ancillary provisions concerning proceedings and remedies’; other provisions state ‘substantive rights [that] are named as the Convention rights’. The former are the means whereby the UK has complied with Article 1 of the European Convention (the obligation on the High Contracting Parties to secure to everyone the rights and freedoms defined in the Convention) and Article 13 (the right to an effective remedy). Those Articles are not themselves expressed in the Human Rights Act 1998 (UK). On the contrary, the Act itself is the means whereby they are satisfied.
[692]Ibid [17].

As has been indicated above, the Charter contains its own provisions for securing substantive rights, including express obligations placed upon public authorities and its own remedial provisions. As a consequence, the legal matrix in which rights are secured under the Charter is different from that in which rights have been secured under the UK legislation. For the reasons already given, the circumstances which have made Strasbourg jurisprudence part of UK domestic law are absent here.

Conclusion

In the circumstances, the European and the English cases provide little assistance on the question whether s 10(b) of the Charter contains an implied duty to investigate a complaint of a breach of that provision. In formulating its jurisprudence, the ECtHR has relied upon the obligation upon the parties to the European Convention to provide effective remedies. In construing the Human Rights Act 1998 (UK), the English courts are specifically enjoined to take into account ‘Strasbourg jurisprudence’[693] and they strive to keep in step with that jurisprudence. As the Attorney-General submitted: ‘the concept of keeping in step with Strasbourg is alien to our Charter’. The Charter contains its own remedial provisions, and it does not need to resort to implications to achieve them.
[693]Human Rights Act 1998 (UK) s 2(1)(a).

In the circumstances, it is unnecessary to address the submissions of the parties on what might have been the content of any such procedural right in the present circumstances.

Does the text of s 10(b) of the Charter itself give the right to an independent and effective investigation?

The terms of s 10(b) of the Charter make no reference to there being a right to an independent investigation of credible claims of a contravention of it. Should words be read into it to effect its purpose? In Director of Public Prosecutions (Vic) v Leys,[694] this Court dealt with the circumstances in which words could be read into legislation.[695] It referred to Kingston v Keprose Pty Ltd (No 3),[696] in which McHugh JA, following what Lord Diplock had said in Jones v Wrotham Park Settled Estates,[697] said:

First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.[698]

[694](2012) 296 ALR 96.

[695]Ibid 111 [54] (Redlich and Tate JJA and T Forrest AJA).

[696](1987) 11 NSWLR 404.

[697][1980] AC 74, 105.

[698](1987) 11 NSWLR 404, 423.

In the case of s 10(b), these criteria cannot be met to support the existence of the procedural right. With respect to the conduct of public authorities, the Charter itself regulates the manner in which the rights it recognises are to be protected, the manner in which they are to be taken into account, the fact that conduct incompatible with them is to be unlawful and the way in which unlawful conduct may be remedied.[699]
[699]See s 38 and s 39.

Conclusion

For the reasons given above, in my opinion the appeal should be allowed. The delegate failed to give proper consideration to the appellant’s right recognised in s 10(b) of the Charter and s 109 of the PI Act did not exclude the jurisdiction of the Court to give him the relief that he sought.

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[2015] VSCA 197

29 July 2015