Bare v Independent Broad-based Anti-Corruption Commission

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.