NASSIR BARE	Plaintiff
V
RAI SMALL	First Defendant
and
INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION	Second Defendant
and
PAUL JEVTOVIC	Fourth Defendant
and
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION	Intervening Party
and
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Second Intervening Party

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATES OF HEARING:	16, 17, 18, 21, 22, 24, 25 and 29 May 2012
DATE OF JUDGMENT:	25 March 2013
CASE MAY BE CITED AS:	Bare v Small
MEDIUM NEUTRAL CITATION:	[2013] VSC 129	FIRST REVISION: 28 March 2013

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ADMINISTRATIVE LAW – Jurisdictional error – Decisions of Office of Police Integrity under s 40(4)(b)(i) Police Integrity Act 2008 as to whether in public interest for Director of Police Integrity to investigate African youth’s complaints of cruel, inhuman and degrading treatment and racial discrimination by police – Procedural fairness – Alleged failure to meet legitimate expectation.

STATUTORY INTERPRETATION – Operation of privative provision in s 109(1) Police Integrity Act 2008 – Whether applies to judicial review proceeding – Whether applies to decision not to investigate complaint – Operation of s 52 Police Integrity Act 2008.

HUMAN RIGHTS – Charter of Human Rights and Responsibilities Act 2006 – Section 10(b) cruel, inhuman or degrading treatment – Whether implied ancillary procedural right to effective and independent investigation of complaint of breaches of human rights under s 8 and s 10(b) of Charter – Whether act or decision in breach of s 38(1) of Charter constitutes jurisdictional error by public authority.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Pizer with Mr E Nekvapil	Maddocks
For the First, Second and Fourth Defendants	Mr P Gray SC with Ms K Evans	Victorian Government Solicitor
For the Intervening Party	Dr S Donoghue SC with Ms S Fitzgerald	Victorian Equal Opportunity and Human Rights Commission
For the Second Intervening Party	Mr S McLeish SC SG with Ms J Davidson	Victorian Government Solicitor

TABLE OF CONTENTS

The alleged facts................................................................................................................................. 1

Mr Bare’s complaint........................................................................................................................... 1

Section 40 Police Integrity Act..................................................................................................... 2
Youthlaw’s 3 February 2010 letter to the OPI........................................................................... 3
OPI’s handling of Mr Bare’s complaint..................................................................................... 6
PSAU preliminary assessment.................................................................................................... 6
OPI 1 March 2010 memorandum............................................................................................... 6
PSAU 30 March 2010 letter to Youthlaw.................................................................................... 7
Ms Small’s briefing note to the BMC.......................................................................................... 9
The first decision........................................................................................................................... 9
Ms Small’s 21 June 2010 letter..................................................................................................... 9
OPI priority matrix..................................................................................................................... 10
The proceeding............................................................................................................................ 11
The second decision................................................................................................................... 13
Mr Jevtovic’s 19 October 2010 letter........................................................................................ 14
Amendment of claim to challenge the second decision........................................................ 15

The Charter........................................................................................................................................ 20

Issues............................................................................................................................................. 27

Question 4.......................................................................................................................................... 28

Does s 109 of the Police Integrity Act prevent the Court from determining the claims for declarations of s 38 unlawfulness ?.......................................................................................................................... 28

Does s 109 apply to a claim for judicial review?.................................................................... 29
Does s 109 apply to a decision not to investigate a complaint?........................................... 34
Does an ‘unlawful’ act under s 38(1) or a breach of the s 38(1) ‘procedural limb’…

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.

Continue reading Bare v Small

Details

AGLC: Bare v Small [2013] VSC 129
Case: [2013] VSC 129
Decision Date: 25 March 2013

CaseChat Overview and Summary

The case of Bare v Small involved the appellant, Mr Bare, challenging the decision of the Director of the Office of Police Integrity (OPI) not to investigate his complaints about alleged cruel, inhuman and degrading treatment and racial discrimination by police officers. The decision was made under section 40(4)(b)(i) of the Police Integrity Act 2008, which requires the Director to consider whether it is in the public interest for an investigation to occur. The matter was heard in the Supreme Court of Victoria, which had jurisdiction to review the decision of the OPI Director.

The primary legal issues for the court to decide were whether the OPI Director's decision was subject to judicial review, and if so, whether the decision was legally sound. This involved interpreting the privative clause in section 109(1) of the Police Integrity Act, determining whether it precluded judicial review of the decision not to investigate, and assessing whether the decision breached the implied ancillary procedural right to an effective and independent investigation under the Charter of Human Rights and Responsibilities Act 2006. Furthermore, the court needed to consider whether the failure to investigate amounted to a jurisdictional error due to a breach of the Charter.

The court found that the privative clause in section 109(1) of the Police Integrity Act did not preclude judicial review of the decision not to investigate. It was held that the clause did not apply to decisions not to investigate, as it was intended to limit review of decisions to conduct investigations. The court also found that there was an implied ancillary procedural right to an effective and independent investigation of complaints of breaches of human rights under the Charter. However, the court concluded that the decision not to investigate did not breach this right, as the OPI Director had considered all relevant matters and the decision was not unreasonable. Consequently, the decision not to investigate was not a jurisdictional error.

The court dismissed Mr Bare's appeal and affirmed the decision of the OPI Director not to investigate his complaints. The court found that the OPI Director's decision was not legally flawed, and the decision not to investigate did not amount to a jurisdictional error or breach of the Charter. Therefore, the appeal was unsuccessful and the decision of the Director stood.

Orders