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Bare v Independent Broad-based Anti-Corruption Commission

Bare v Independent Broad-based Anti-Corruption Commission

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSCA 197
Decision Date: 29 July 2015

CaseChat Overview and Summary

The matter of Bare v Independent Broad-based Anti-Corruption Commission involved an appeal against the decision of the Director of Police Integrity under section 40(4)(b)(i) of the Police Integrity Act 2008 not to investigate a complaint of cruel, inhuman and degrading treatment. The applicant argued that the decision breached section 38(1) of the Charter of Human Rights and Responsibilities Act 2006. The Supreme Court of Victoria heard the case, with the applicant seeking judicial review of the Director’s decision.

The legal issues central to this case revolved around whether the Director's decision to not investigate the complaint breached the applicant's rights under the Charter of Human Rights and Responsibilities. Specifically, the court needed to determine if the Director failed to give proper consideration to the applicant’s rights under the Charter, and whether the duty imposed by section 38(1) of the Charter was applicable to the Director's exercise of power under section 40(4)(b)(i) of the Police Integrity Act. Additionally, the court examined the applicability of the privative clause in section 109(1) of the Police Integrity Act to the decision not to investigate, and whether such a decision constituted a jurisdictional error under section 38(1) of the Charter.

The court held that the decision not to investigate constituted a jurisdictional error because it failed to properly consider the applicant’s rights under the Charter. The court emphasised that the duty imposed by section 38(1) of the Charter is applicable to the Director's exercise of power under section 40(4)(b)(i) of the Police Integrity Act, and that the privative clause in section 109(1) did not apply to decisions not to investigate. The court found that the decision to not investigate the complaint amounted to a breach of the applicant's rights under section 10(b) of the Charter, which encompasses a right to an effective and independent investigation of complaints of breaches of human rights. As a result, the appeal was allowed.

The final orders of the court included allowing the applicant's appeal, setting aside the Director's decision not to investigate the complaint, and directing the Director to reconsider the complaint in light of the decision. The court's ruling underscored the importance of public authorities considering the rights guaranteed under the Charter when exercising their powers.

Orders