Bare v Small

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2010 04583

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’ amount to a jurisdictional error?.................................................................................................................... 38

Question 1.......................................................................................................................................... 46

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?......................................................... 46

ICCPR............................................................................................................................................ 50
ECHR............................................................................................................................................ 51

Question 2.......................................................................................................................................... 60

Were the first decision and the second decision incompatible with Mr Bare’s right to an effective investigation of his complaint?...................................................................................................... 60

Question 3.......................................................................................................................................... 60

Did the relevant decision-maker in the case of each of the first decision and the second decision properly consider Mr Bare’s human rights as required by s 38 of the Charter?.................. 60

Question 5.......................................................................................................................................... 60

Was the first decision tainted by jurisdictional error?.............................................................. 60

Question 6.......................................................................................................................................... 60

Was the second decision tainted by jurisdictional error?......................................................... 60

Was there procedural unfairness in relation to the priority matrix?.................................. 61
Does s 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?............................................................................................................................. 66
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?................................................................................................................. 67

Orders................................................................................................................................................. 67

HER HONOUR:

The plaintiff, Mr Bare, is of Ethiopian descent. He migrated to Australia with his family in 2004. He claims to have been assaulted by police on 16 February 2009, when he was 17 years old.

Mr Bare seeks orders in the nature of certiorari and mandamus, as well as declaratory relief, against the defendants (‘Ms Small’), (‘the Director’) and (‘Mr Jevtovic’) respectively. The orders sought relate to two decisions of the Office of Police Integrity (‘OPI’) made in response to his complaint about his mistreatment at the hands of the police. He claims that the decisions were tainted by jurisdictional errors, which included errors arising from breaches of s 38 of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’). I note that the office of the Director Police Integrity was abolished on 10 February 2013 and the Independent Broad-based Anti-corruption Commission was substituted as the second defendant to this proceeding under cl 3(2) of the Schedule to the Independent Broad-based Anti-corruption Commission Act 2011.

The alleged facts

Mr Bare says that, on 16 February 2009, police stopped the car in which he was travelling. An officer then handcuffed him and kicked his legs, causing him to fall. As he lay on the ground, the officer pushed his head repeatedly into the gutter and four or five of his teeth were chipped in the process. His jaw was cut, with resultant 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 in breathing. During the assault, the officer said words to the effect of: ‘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 kicked him in the ribs, whilst he was on the ground. Mr Bare suffered pain and humiliation as a result of this alleged serious assault.

Mr Bare’s complaint

Mr Bare alleges that he was treated in a cruel, inhuman or degrading way in violation of his human rights under s 10(b) of the Charter. He also maintains that he suffered racial discrimination at the hands of police which amounted to a breach of his rights under s 8.

Mr Bare could have complained about his treatment to a member of the Victoria Police force under s 86L of the Police Regulation Act 1958 (‘Police Regulation Act’). If such a complaint was made about a member’s ‘serious misconduct’, s 86M of that act required the Chief Commissioner to investigate it.

There is no dispute that the alleged behaviour might be regarded as ‘serious misconduct’, as defined in s 86A:

serious misconduct, in relation to a member of the force, means—
(a)conduct which constitutes an offence punishable by imprisonment; or
(b)conduct which is likely to bring the force into disrepute or diminish public confidence in it; or
(c)disgraceful or improper conduct (whether in the member’s official capacity or otherwise).

Mr Bare was also entitled under s 86L of the Police Regulation Act to complain to the Director. Division 1 of Part 3 of the Police Integrity Act 2008 (‘Police Integrity Act’) applied to such a complaint. Under s 40(4)(b)(i), which is in Division 1, the Director was given a discretion to investigate Mr Bare’s complaint, if he first decided that it was in the public interest to do so.

Section 40 Police Integrity Act

Section 40 of the Police Integrity Act was in these terms:

40Dealing 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.

On 12 January 2010, the Director delegated his powers as Director under the Police Integrity Act to Mr Jevtovic.

Youthlaw’s 3 February 2010 letter to the OPI

On 3 February 2010, Mr Bare’s solicitor, Ms Annie Davis of the Young People’s Legal Rights Centre (‘Youthlaw’), wrote to the OPI complaining about the assault. Mr Bare had instructed Youthlaw to ask the OPI to investigate his allegations and not to refer them to the Victoria Police Ethical Standards Division (‘ESD’).

Ms Davis referred to the decision to be made by the Director under s 40(4)(b)(i). She argued that it would be in the public interest for the Director to investigate Mr Bare’s complaint. She mentioned that he was a minor and African and that he had been subjected to discrimination on grounds of race. She then argued that his implied right under s 10(b) of the Charter would be infringed if the Director did not conduct the investigation. I will set out her letter in full :

We submit this incident warrants independent investigation by the OPI and not Victoria Police Ethical Standards on the following grounds:
1. The seriousness of the misconduct
1.1Nassir complains details (sic) a serious assault by the police member Constable … . Nassir alleges this police member pushed his head into a gutter deliberately and repeatedly. Nassir states that this occurred after he was handcuffed and had his legs kicked out from under him and no use of force by police was necessary. As a result of this assault, Nassir sustained injuries including 4-5 chipped teeth and a cut under his jaw leaving a scar measuring approximately 2cm long.
1.2Nassir further complains of an assault by another police member he cannot identify but believes to be based at … Police Station. Nassir alleges this member kicked him in the ribs whilst he was lying on the ground and use of force by police was not necessary.
1.3The manner in which OC spray was deployed amounts to cruel, inhuman and degrading treatment. Nassir alleges Constable … sprayed him in the face once he was already handcuffed and not presenting any risk to himself, police or other persons present. Nassir alleges this member forcibly raised Nassir’s head whilst deploying the OC spray to his face area. The complainant experienced pain, difficulty breathing and humiliation during this incident.
1.4The conduct of members of police described in the complaint contravenes several operating procedures within the Victoria Police manual (VPM). The deployment of OC spray after the complainant was effectively restrained by handcuffs and no longer resisting arrest fails to meet the criteria for use set out in s 7.2.1 of the VPM. During transportation, the complainant was not kept under constant observation and he should not have been transported alone in the divisional van, according to 7.4.1 and 7.4.2 of the VPM. In our submission, the deployment of OC spray and the use of excessive force during this incident failed to give priority to the VPM operational principles of “Safety first” and “Minimal force”.

2. Investigation of the complaint is in the public interest
2.1It 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.

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.

OPI’s handling of Mr Bare’s complaint

Ms Small had been the acting manager of the OPI’s Professional Standards Assurance Unit (‘PSAU’) since April 2010. A PSAU member made a preliminary written assessment of Mr Bare’s complaint and referred it to the OPI’s Case Assessment Committee (‘CAC’) on about 1 March 2010. Youthlaw’s 3 February 2010 letter and the PSAU memorandum to the CAC formed part of the OPI case file relating to Mr Bare’s complaint.

PSAU preliminary assessment

The PSAU preliminary assessment was of the ‘check-box’ variety. These items had been marked as grounds upon which the PSAU had referred the matter to the CAC:

“Public interest” investigation may be warranted.
Complaint relates to conduct that has affected a large number of persons or the rights of persons generally or a group of persons within society (may include specific reference to human rights, discrimination etc).
Complaint relates to a Victoria Police member or station with a significant complaint history or intelligence indicates that a member or station is of concern to OPI.

Review of “Established practices or procedures” may be warranted.
Complaint relates to training issues that impact on the capacity of police to respond to the needs of the Victorian community.
Complaint relates to a systemic flaw or issue.

OPI 1 March 2010 memorandum

In a memorandum dated 1 March 2010, an OPI officer advised the CAC about Mr Bare’s allegations of assault, to enable it to assess his complaint for the purposes of its possible investigation by the OPI. The memorandum set out the facts, including the reference to the remark by police about ‘black people’. It noted Ms Davis’s assertions of procedural non-compliance and breach of Mr Bare’s human rights. It recorded her request for an OPI investigation and her argument that reference of the complaint to Victoria Police would breach ss 1 and 38 of the Charter and would result in an ineffective investigation. The memorandum also reported Ms Davis’s reference to the requirements of the European Commission of Human Rights Rapporteur on Police Complaints for independent, transparent investigations protecting victims of the alleged abuse.

The officer recommended that the CAC consider the matter for OPI investigation. Significantly, the memorandum (which also became part of the OPI case file) listed the issues raised as follows:

ISSUES
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.

PSAU 30 March 2010 letter to Youthlaw

On 30 March 2010, the PSAU wrote to Youthlaw, acknowledging the extremely serious nature of Mr Bare’s allegations and stating that his complaint required close examination. The letter pointed out the 12 month interval between the alleged events and the complaint. It also described the OPI complaints process in this way:

Every complaint submitted to this office is first assessed by a Case Assessment Team within the Professional Standards Assurance Unit. Those cases such as mandatory investigations, public interest matters and possible reviews of practices are submitted to the Case Assessment Committee. Each case is assessed on its own merits, and that will include our capacity to deal with the investigation, the appropriateness of this office to deal with the matter and the realistic opportunity of this office being able to conduct an investigation, based on the information it has been provided with.

The writer noted Ms Davis’s argument for an independent adequate investigation and the requirement that such an investigation be “prompt, transparent and open to public scrutiny.” She went on to say:

Whilst I agree, I would also submit that nothing should abrogate the responsibility of Victoria Police to ensure that it maintains the highest possible standards of discipline and service delivery and that will include identifying, investigating and resolving any matters that fall below the accepted standard.

She requested evidence of Mr Bare’s medical treatment and said that further assessment would be deferred until it was provided.

On or about 15 April 2010, an OPI ‘Business Monitoring Committee’ (‘BMC’) replaced the CAC. The BMC members were the OPI Deputy Director, Assistant Directors, the Coordinator of Enabling Services and the managers of each of the OPI’s operational units.

On 28 April 2010, the Director’s powers under s 40 of the Police Integrity Act 2008 were delegated to Ms Small.

It seems that some unsuccessful attempts were made by the OPI to contact Mr Bare’s solicitor at Youthlaw. When no further information had been received from Mr Bare, Ms Small referred his complaint to the BMC on about 6 May 2010.

Ms Small’s briefing note to the BMC

Ms Small, the Director’s delegate, was unable to attend the BMC’s 11 May 2010 meeting, where Mr Bare’s complaint was scheduled for discussion. There was no delegate of the Director at the meeting. Ms Small had prepared a briefing note for the BMC’s acting team leader. It was relevantly in the same terms as the 1 March 2010 memorandum prepared for the CAC. It identified the issues for consideration by the BMC, as they were recorded in the 1 March 2010 memorandum.[1]
[1]See para [15] above.

The first decision

On 11 May 2010, the BMC considered Mr Bare’s complaint and decided not to accept it for investigation and resolved that it should be referred to the ESD for action (‘the first decision’).

On 12 May 2010, Youthlaw wrote to the PSAU again, explaining that Mr Bare had been charged with an offence arising from the same incident. He had delayed his complaint, fearing that, if police had learnt about it, he might be charged with further offences or that it might compromise the outcome of the matter. Although Youthlaw had advised that he could lodge a complaint without notifying police in the initial stages, Mr Bare had instructed it to wait until the criminal charge had been finalised. Youthlaw supplied additional information about his injuries.

Ms Small’s 21 June 2010 letter

On 21 June 2010, Ms Small wrote to Youthlaw, advising it of the first decision. She referred to the Director’s obligation to refer complaints warranting investigation to the Chief Commissioner under s 40(2) of the Police Integrity Act. She referred to the Director’s discretion to investigate the complaint under sub-s 40(4) and went on to say:

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.

OPI priority matrix

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.

The proceeding

On 20 August 2010, some two months after Ms Small’s 21 June 2010 letter, Mr Bare commenced this proceeding by originating motion against Ms Small, the Director and the State of Victoria. He sought:

(a) an order in the nature of certiorari quashing the first decision;

(b) an order in the nature of mandamus compelling Ms Small or the Director to make a decision about the appropriate course for investigating his complaint according to law;

(c) declarations that the first decision was:

(i) unlawful and of no force and effect; and

(ii) contrary to s 38 of the Charter; and

(d) alternatively, a declaration that he had a right under s 10(b) of the Charter to an ‘effective investigation’ of the incident by the State of Victoria and that such an effective investigation comprised an investigation by an organisation with a lack of hierarchical or institutional connection to Victoria Police and practical independence from it.

The grounds for the relief alleged jurisdictional error on the part of the BMC in these terms:

Jurisdictional error
12.The decision was affected by jurisdictional error for one or more of the following reasons:
(a)the plaintiff was not accorded procedural fairness because he was not given notice about a “priority matrix” or that his claim would be evaluated against it, and was given no opportunity to be heard about how his claim should be evaluated against it.
(b)the decision was made beyond power in that –
(i)it was made by the assessment committee, which had no power to make it; or
(ii)if it was purported to be made by the first defendant, the first defendant acted under dictation by the assessment committee or abdicated her statutory obligation to make the decision herself.

(c)the assessment committee or the first defendant failed to have regard to a relevant consideration – namely the right of the plaintiff under section 10(b) of the Charter to an effective investigation of a complaint of cruel, inhuman or degrading treatment, as that right is properly understood.

The originating motion then stated a claim under s 38 of the Charter as follows:

Charter, section 38
13.Further, the decision is unlawful because, in making the decision, contrary to s 38 of the Charter:
(a)the decision-maker acted in a way that is incompatible with the plaintiff’s right under section 10(b) of the Charter to an effective investigation of cruel, inhuman or degrading treatment as that right is to be properly understood; and/or
(b)the decision-maker failed to give proper consideration to a relevant human right – namely, the right under 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.

On 16 September 2010, Maddocks filed a notice of change of solicitor which stated that it represented the plaintiff in a pro bono capacity and that Youthlaw remained involved in the proceeding. On the same day, the OPI faxed a request to Youthlaw for a four week adjournment of a directions hearing scheduled for the next day, so that the OPI Deputy Director could reconsider Mr Bare’s complaint. The writer said that if the parties ‘cannot not reach agreement in the matter within this period and without prejudice’ it would be returned to the Court.

On 17 September 2010, Ms Tonkin of Maddocks telephoned Mr Frances Hill, a senior solicitor at the OPI, enquiring about the defendants’ position with regard to costs.

On 20 September 2010, Maddocks filed an amended originating motion which added a claim for a declaration against the State of Victoria that it had breached Mr Bare’s right under s 10(b) of the Charter by failing to provide an effective independent investigation of his complaint of cruel, inhuman or degrading treatment against Victoria Police.

The second decision

Mr Jevtovic reviewed the OPI file.

In an 11 October 2010 memorandum to Ms Small, he reaffirmed the OPI’s original conclusion that the matter warranted investigation. He stated that he had found no evidence ‘that would warrant consideration for OPI deviating from [its] established legislated process’. He went on to say:

I have also considered the interpretation by the complainant of OPI’s obligations in the context of the Human Rights Charter. Whilst not qualified to make judgments on the merits of that interpretation /argument, I have made the observation that we appear to move to this point on the basis of a pre-disposition that Victoria Police ESD will not investigate this matter effectively and with integrity. Again, I reiterate that no evidence supporting this proposition has been made available to me.
The complainant is advised of my decision and that OPI are prepared to refer the matter to Victoria Police ESD.
I believe 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 agree to that course of action.

Mr Jevtovic’s 19 October 2010 letter

On 19 October 2010, Mr Jevtovic wrote to Ms Davis, stating that he had reconsidered the complaint as a result of the proceeding and had not considered it to be in the public interest for the Director to investigate Mr Bare’s complaint (‘the second decision’). Mr Jevtovic 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.

Amendment of claim to challenge the second decision

After the second decision, Mr Bare added Mr Jevtovic as a defendant and included a challenge to the second decision in a further amended originating motion. Subsequently, the Attorney-General and the Commission became intervening parties.

Mr Bare’s claim has been most recently set out in his third further amended originating motion filed on 21 May 2012. The latest pleading continues to seek the same relief on the same grounds in relation to the first decision against the remaining defendants, Ms Small and the Director, and goes on to set out his challenge to the second decision and the relief he seeks in that regard. He puts his claim this way:

The first decision
1.An order in the nature of certiorari quashing the decision communicated to the plaintiff by the first defendant by letter dated 21 June 2010, being a decision to:
(a)refuse to exercise the discretion conferred by section 40(4)(b) of the Police Integrity Act 2008 (the Integrity Act) to investigate the plaintiff’s complaint to the second defendant by letter dated 3 February 2010; and
(b)determine that the complaint was not appropriately investigated by Victoria Police.

(the first decision).
2.An order in the nature of mandamus compelling the first defendant, alternatively the second defendant, to make a decision about the appropriate course for the investigation of the plaintiff’s complaint according to law.
3.A declaration that the first decision is unlawful and of no force or effect.
4.A declaration that the first decision was contrary to s 38 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter).

The second decision
5.An order in the nature of certiorari quashing the purported decision communicated to the plaintiff by the fourth defendant by letter dated 19 October 2010, being a purported decision:
(a) to reconsider the first decision; and
(b)that the fourth defendant did not consider that investigation by the second defendant was in the public interest; and
(c)that referral to Victoria Police under section 40(2) of the Integrity Act was adequate for the investigation of the complaint.

(the second decision).
6.In the alternative to the relief sought in paragraph 2 above, an order in the nature of mandamus compelling the fourth defendant, alternatively the second defendant, to make a decision about the appropriate course for the investigation of the plaintiff’s complaint according to law.
7.A declaration that the second decision is unlawful and of no force or effect.
8.A declaration that the second decision was contrary to s 38 of the Charter.

9.Further or alternatively to paragraphs 1 to 8 above, declarations that:
(a)the plaintiff has a right under section 10(b) of the Charter to an “effective investigation” by the State of Victoria of the incident about which the plaintiff complained; and
(b)an “effective investigation” comprises an investigation by an organisation that has not only a lack of hierarchical or institutional connection to, but also practical independence from, Victoria Police.

The grounds for the relief for the first time contain the additional allegation that the BMC and Mr Jevtovic, respectively, breached s 38 of the Charter by failing to give proper consideration to Mr Bare’s relevant human right under s 8 not to be discriminated against. The grounds are stated as these:

First decision
Jurisdictional error
17.The first decision was affected by jurisdictional error for one or more of the following reasons:
(a)the plaintiff was not accorded procedural fairness because he was not given notice about a “priority matrix” or that his claim would be evaluated against it, and was given no opportunity to be heard about how his claim should be evaluated against it.

(b) the decision was made beyond power in that —
(i)it was made by the assessment committee, which had no power to make it; or
(ii)if it was purported to be made by the first defendant, the first defendant acted under dictation by the assessment committee or abdicated her statutory obligation to make the decision herself.

(c)the assessment committee or the first defendant failed to have regard to a relevant consideration — namely, the right of the plaintiff under s 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.

Charter, section 38
18.Further, the first decision is unlawful because, in making the decision, contrary to s 38 of the Charter:
(a)the decision-maker acted in a way that is incompatible with the plaintiff’s right under 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/or
(b)the decision-maker failed to give proper consideration to a relevant human right – namely:
(i)the right under 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;
(ii)the right under section 8(3) of the Charter to equal protection of the law without discrimination and equal and effective protection against discrimination.

Second decision
Jurisdictional error
19.The second decision was affected by jurisdictional error for one or more of the following reasons:
(a) The second decision was beyond power because:
(i)the power to decide to refuse to exercise the discretion conferred by section 40(4)(b) of the Integrity Act in respect of the complaint could be exercised only once;
(ii)that power was exercised when the first defendant made the first decision; and
(iii)the fourth defendant purported to re-exercise the power in making the second decision, but had no power to do so;

(b)the second decision was made for an improper purpose – namely, to weaken the plaintiff’s prospects of success in this proceeding; and
(c)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, and, specifically, he was still not given reasonable opportunity to be heard about the “priority matrix” and whether or not it should apply.

Charter, section 38
20.Further, the second decision is unlawful because, in making the second decision, contrary to s 38 of the Charter, the fourth defendant:
(a)acted in a way that was incompatible with the plaintiff’s right under 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/or
(b)failed to give proper consideration to the right of the plaintiff under:
(i)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;
(ii)section 8(3) of the Charter to equal protection of the law without discrimination and equal and effective protection against discrimination.

Charter, section 32
21.The fourth defendant misunderstood the nature of his jurisdiction under section 40(4) of the Integrity Act by:
(a)failing to recognise that when section 40(4)(b) of the Integrity Act is interpreted in the manner required by section 32 of the Charter, it is necessary to consider the human rights protected by the Charter in determining the scope of the “public interest”; and/or
(b)exceeding the statutory power conferred by section 40(4)(b) of the Integrity Act because section 32 of the Charter requires that provision to be read as not authorising any decision that is “incompatible with human rights”.

Declaration sought in paragraph 9
22.The Court should make the declaration sought in paragraph 9 because:
(a)the plaintiff’s complaint was a complaint of cruel, inhuman or degrading treatment of him by Victoria Police;
(b)the plaintiff has a right under section 10(b) of the Charter to an effective investigation by the State of a complaint of that kind;
(c)in the circumstances, an “effective investigation” comprises an investigation by an organisation that has not only a lack of hierarchical or institutional connection to, but also practical independence from, Victoria Police;
(d)by the first decision, the second decision, or both of them, it was determined that the complaint was most appropriately investigated by Victoria Police; and, therefore
(e)the State of Victoria has not yet provided an “effective investigation” of the plaintiff’s complaint.

Mr Bare now no longer seeks orders in the nature of certiorari quashing the first decision, or any order in the nature of mandamus.

The defendants concede that the first decision was unlawful because the members of the BMC lacked power to make it. In those circumstances, Mr Bare does not rely upon the jurisdictional error allegations in respect of the second decision in para 19(a) (by purported re-exercise of discretion) or the claim in para 19(b) (of acting for an improper purpose) of the third further amended originating motion.

The defendants, nevertheless, continue to deny the para 4 allegation to the effect that the making of the first decision was contrary to s 38 of the Charter. Indeed, by their amended summons, dated 20 March 2012, they seek the summary dismissal, stay or striking out of claims in paras 4 and 8 for declarations of unlawfulness under s 38 of the Charter. They argue that the privative provisions of s 109 of the Police Integrity Act apply to those claims.

The Charter

Before turning to the issues, including that preliminary challenge, I will set out additional relevant provisions of the Charter.

The Charter’s purposes are stated in s 1(2) and (3) in this way:

1(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.

(3) In addition, this Charter—
(a)enables Parliament, in exceptional circumstances, to override the application of the Charter to a statutory provision;

There are definitions in s 3. It provides that an ‘act’ includes a failure to act.

The Charter imposes obligations upon a ‘public authority’ under s 38. That term is defined in s 4:

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 Chief Executive Officer of the State Services Authority. 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
Notes
1 In section 38 of the Interpretation of Legislation Act 1984 entity is defined to include a person (both a human being and a legal person) and an unincorporated body.
2 See subsection (2) in relation to “functions of a public nature”.
(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
Example
A non-government school in educating students may be exercising functions of a public nature but as it is not doing so on behalf of the State it is not a public authority for the purposes of this Charter.
Note
See subsections (4) and (5) in relation to “on behalf of the State or a public authority”.

(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
Note
Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedures.
(k)an entity declared by the regulations not to be a public authority for the purposes of this Charter.

(2)In determining if a function is of a public nature the factors that may be taken into account include—
(a)that the function is conferred on the entity by or under a statutory provision;
Example
The Transport (Compliance and Miscellaneous) Act 1983 confers powers of arrest on an authorised officer under that Act.
(b)that the function is connected to or generally identified with functions of government;
Example
Under the Corrections Act 1986 a private company may have the function of providing correctional services (such as managing a prison), which is a function generally identified as being a function of government.

(c) that the function is of a regulatory nature;
(d)that the entity is publicly funded to perform the function;
(e)that the entity that performs the function is a company (within the meaning of the Corporations Act) all of the shares in which are held by or on behalf of the State.
Example
All the shares in the companies responsible for the retail supply of water within Melbourne are held by or on behalf of the State.

(3) To avoid doubt—
(a) the factors listed in subsection (2) are not exhaustive of the factors that may be taken into account in determining if a function is of a public nature; and
(b)the fact that one or more of the factors set out in subsection (2) are present in relation to a function does not necessarily result in the function being of a public nature.

(4)For the purposes of subsection (1)(c), an entity may be acting on behalf of the State or a public authority even if there is no agency relationship between the entity and the State or public authority.
(5)For the purposes of subsection (1)(c), the fact that an entity is publicly funded to perform a function does not necessarily mean that it is exercising that function on behalf of the State or a public authority.

Section 7 provides that a human right may be subjected to ‘reasonable limits’ under law:

7       Human rights—what they are and when they may be limited
(1)This Part sets out the human rights that Parliament specifically seeks to protect and promote.
(2)A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a)       the nature of the right; and
(b)       the importance of the purpose of the limitation; and
(c)       the nature and extent of the limitation; and
(d)the relationship between the limitation and its purpose; and
(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

(3)Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

The human rights which Mr Bare claims were infringed in his case were those set out in ss 8 and 10(b) of the Charter:

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.

Part 3 of the Charter provides for the means by which human rights are to be ‘applied’ in Victoria. It commences with s 28 requiring a Parliamentarian introducing a bill to lay before Parliament a statement as to whether and how the bill is compatible or incompatible with human rights, before giving the second reading speech. Section 29 provides that a failure to comply with s 28 does not affect the validity, operation or enforceability of any resulting act or statutory instrument.

Section 30 provides for a bill to be scrutinised by the Scrutiny of Acts and regulations Committee for compatibility with human rights.

Under s 31, Parliament retains the right to make an ‘override declaration’ that an act is effective, even if it is incompatible with a human right. It is intended that such a declaration will only be made in exceptional circumstances (s 31(4)). Such exceptional circumstances must be explained to Parliament at certain times (s 31(5)), but failure to comply with those obligations will not affect the validity, operation or effectiveness of the legislation (s 31(9)).

Section 32 provides for the way in which legislation is to be interpreted, taking account of the human rights recognised by the Charter:

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.

Section 36 provides for the Court to make a ‘declaration of inconsistent interpretation’ on notice to the Attorney-General. That declaration does not affect the validity, operation or effect of the subject legislation or create a legal right or cause of action (s 36(5)(b)). Section 37 requires the Attorney-General to respond, reporting on that response to Parliament.

Mr Bare alleges that his human rights were unlawfully breached under s 38 which imposes duties on public authorities:

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.

Section 39 provides for remedies for breaches of s 38:

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.

Section 44(1) requires the Attorney-General to cause a review of the Charter after four years of operation. The matters to be considered under s 44(2) include whether further provision should be made with respect to proceedings which may be brought and remedies which may be awarded in relation to acts or decisions of public authorities ‘made unlawful because of s 38’.

Section 46(2) gives the Governor in Council power to make regulations making entities public authorities (sub-s 2(a)), or prescribing them not to be public authorities for Charter purposes (sub-s (2)(b)) or for Charter purposes when exercising certain functions (sub-s(2)(c)).

Issues

Mr Bare has effectively identified the questions to be answered in this case. These are the questions and my answers to them:

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 Mr Bare’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 Mr Bare’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 Mr Bare’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.

I will turn first to the preliminary issue raised by question 4.

Question 4
Does s 109 of the Police Integrity Act prevent the Court from determining the claims for declarations of s 38 unlawfulness ?

Question 4 raises the effect of the privative provisions in s 109 of the Police Integrity Act on proceedings for declarations of Charter unlawfulness. Section 109 is and was relevantly in these terms:

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.

Mr Bare and the Commission resist the defendants’ argument that s 109 prohibits the s 38 unlawfulness claims, maintaining that:

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).[2]

[2](2010) 239 CLR 531 (‘Kirk’).

I will address the issue raised by each response in turn.

Does s 109 apply to a claim for judicial review?

I consider that it does. I will explain with reference to what is agreed and what is in issue between the parties.

A number of matters are not in dispute. It is common ground that Ms Small and Mr Jevtovic were ‘protected persons’ as defined by s 104(1) of the Police Integrity Act when the impugned decisions were made. No ‘critical incident’ within the meaning of s 109(2) is said to have occurred. Further, after Kirk, sub-ss 109(1) and (3) should not be construed as depriving the Court of power to grant relief for jurisdictional error.[3]
[3]Ibid 566 [55], 581 [100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

The first issue is as to whether s 109 applies to proceedings for judicial review. A similar question arose in Applicants A1 & A2 v Brouwer[4] as to the construction of a privative clause in s 12(3) of the Witness Protection Act 1991. The Court of Appeal held that the Director had made a jurisdictional error in an appeal from a decision of the Chief Commissioner of Police relating to the provision of witness protection services to the plaintiffs. As it was common ground that the privative clause could not render the Director’s decision immune from such an attack, it was unnecessary for the Court of Appeal to determine whether s 12(3) would have prevented the plaintiffs from claiming certiorari on the grounds of a non-jurisdictional error. Nevertheless, the Court did address the ambit of s 12(3), because the issue had been fully argued.
[4](2007) 16 VR 612 (‘Applicants A1 & A2’).

Section 12(3) of the Witness Protection Act 1991 was in these terms:

(3)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.

Maxwell P, Neave and Redlich JJA concluded that the privative provision did not apply to a challenge to the validity of that decision, stating that:

the phrase “action or proceeding … against any person” means a proceeding in which the person is exposed to liability. The phrase is not apt to encompass a proceeding which challenges the validity of a decision made (or refused to be made) by that person. Such a proceeding, of which the present is an instance, is not as a matter of ordinary language an action “against” the person. Rather, the action is in respect of the person’s official act, that is, the decision or refusal.[5]

[5]Ibid 632 [80].

Their Honours concluded that the second reading speech in relation to the Witness Protection Act bill[6] and the s 85(5) Constitution Act 1975 statement[7] indicated a legislative concern to ensure that those performing functions under the act would not be induced to act over-cautiously to avoid personal civil or criminal liability. If Parliament had intended to exclude judicial review, it would have done so expressly, using quite different language.[8]Their Honours gave the example of s 150 of the Infertility Treatment Act 1995, as one of many Victorian statutory provisions[9] showing Parliament’s intent to exclude challenges to decisions of the entity in question:

150.A decision or purported decision of the Authority under s 99(1) or a decision or purported decision of the Authority under s 106 or s 107 in relation to an approval under s 99(1) cannot be appealed against, reviewed, challenged, quashed or called in to question on any account in any court or tribunal before any person acting judicially within the meaning of the Evidence Act 1958.

[6]Victoria, Parliamentary Debates, Legislative Assembly, 31 October 1996, 1002 (William McGrath).

[7]Ibid.

[8]Applicants A1 & A2 (2007) 16 VR 612, 632 [82], (comparing Public Service Association (SA) v Federated Clerks’ Union of Australia South Australian Branch (1991) 173 CLR 132; Hockey v Yelland (1984) 157 CLR 124; Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602, 633-4 (Gaudron and Gummow JJ); Kriticos v New South Wales (1996) 40 NSWLR 297).

[9]Also referring to Health Services (Conciliation and Review) Act 1987, s 31; Education Act 1958, s 81(A); Confiscation Act 1997, ss 55(10), 56(6), 57(6); Planning and Environment (Planning Schemes) Act 1996, s 22(2).

The Court of Appeal distinguished the New South Wales Supreme Court’s decision in Ainsworth v The Ombudsman.[10]There, the privative clause in s 35A of the Ombudsman Act 1975 (NSW) was held not to be limited to excluding claims for damages brought against the Ombudsman or his officers. Section 35A was in terms very similar to those of s 109:
[10](1988) 17 NSWLR 276 (‘Ainsworth’).
35A Immunity of Ombudsman and others
(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.
(2)Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court.
(3)The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith.
The Court had taken account of two challenges to the Ombudsman’s power and jurisdiction in lead-up to the introduction of s 35A, concluding that Parliament may have considered the Ombudsman vulnerable to such actions and that his protection was in the public interest.

The Court of Appeal noted the absence of equivalent background circumstances to the enactment of s 12(3) of the Witness Protection Act. Before going on to refer to authority supporting strict construction of privative clauses,[11] their Honours, significantly, said this:

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. (Emphasis added)[12]

[11]Citing Herald & Weekly Times Pty Ltd v A (2005) 160 A Crim R 299, 304 [18] (Maxwell P and Nettle JA) (‘Herald & Weekly Times’).

[12]Applicants A1 & A2 (2007) 16 VR 612, 631 [78].

Those ‘critical words’ are, however, to be found in s 109. I consider that they demonstrate a legislative purpose to oust judicial review, as they did in the NSW legislation. It would appear that the Court of Appeal in Applicants A1 & A2 would have given them effect, despite their Honours’ view as to the meaning of the expression ‘action or proceeding against any person’.

The secondary materials, to which the defendants refer and which the Court may take into account when determining the purpose or object of s 109,[13] support their contention that Parliament should be taken to have intended that the section would apply to judicial review proceedings, as well as those seeking to attribute personal criminal or civil liability.
[13]Interpretation of Legislation Act 1984, s 35.

In the second reading speech in relation to the bill for the Police Integrity Act, the Minister for Police and Emergency Services, Mr Cameron, made specific reference to judicial review, saying:
Judicial review and redress
The level of judicial review available for actions of the director and OPI is maintained, not reduced, by this bill. Furthermore, additional provisions are included in this bill to increase the circumstances in which legal redress is available in relation to OPI personnel. The existing protections from legal proceedings will no longer extend to liability arising from the involvement of OPI staff in a critical incident, such as a car accident.
Under the Police Regulation Act 1958 the Supreme Court is able to review actions of the director and officers of the OPI that are performed in bad faith. The court is also able to determine whether the director has the jurisdiction to investigate a complaint. These provisions are retained in the bill.
The narrow scope to review the OPI’s actions is comparable with arrangements for most similar bodies in other Australian jurisdictions. The Fitzgerald (Queensland) and Wood (New South Wales) royal commissions on police corruption found that review of the actions of investigatory bodies by the courts can lead to significant delays that prevent their effective operation and the conduct of their investigations. These royal commissions reported that judicial review should not be used to improperly reveal activities of anticorruption bodies.
It is appropriate to retain the existing limitation on the courts’ scope to review the OPI’s actions. This prevents legal actions designed to impede and delay OPI investigations. The proposed provision is consistent with the protection of the Ombudsman and his officers under the Ombudsman Act 1973. A re-enactment of the current provision is also consistent with the level of statutory protection given to the director’s predecessors.[14]
[14]Victoria, Parliamentary Debates, Legislative Assembly, 13 March 2008, 850 (Bob Cameron).
In his statement under s 85 of the Constitution Act 1975, the Minister also said that s 109 replaced s 86J of the Police Regulation Act. He explained the need for ‘protected persons’ to be protected:
The protection of these persons is required to prevent the director’s investigations from being impeded by legal challenges and proceedings on grounds other than allegations of bad faith. The existing protection in the Police Regulation Act 1958 has been successful in allowing the director and OPI staff to perform their current functions, and the protection afforded to them under the current law should continue for that reason. …
Both clause 109 and the proposed section 86KJ provide the protection necessary for the director and staff of the OPI to perform their significant public functions properly and efficiently, without the prospect of delay or interference by legal actions, on grounds other than allegations of bad faith.[15]
[15]Ibid 853.
Section 86J(1) of the Police Regulation Act was in relevantly identical terms to s 109(1), as was s 29 of the Ombudsman Act 1973, to which the Minister referred in the second reading speech. I have not been referred to any relevant authorities relating to the scope of either provision. Nor have I been able to find any.

The Court of Appeal’s 1985 decision in R v Hallstrom; Ex parte W (No. 1)[16] is distinguishable. The court held that an order for certiorari for jurisdictional error was not excluded by a privative provision in very similar terms to s 109(1). Citing Denning LJ’s decision in R v Medical Appeal Tribunal, Ex parte Gilmore,[17] their Lordships held that s 139 of the Mental Health Act 1983 (UK) did not contain the requisite ‘most clear and explicit words’ to take away the remedy of certiorari in a case involving jurisdictional error.[18] It is common ground in this case that s 109 would not deprive Mr Bare of a remedy for a jurisdictional error.
[16][1986] 1 QB 824, 841. (‘Hallstrom’).
[17][1957] 1 QB 574, 583.
[18]Hallstrom [1986] 1 QB 824, 841 (Akner LJ), 848 (Neill LJ), 851-2 (Glidewell LJ).

For these reasons, I have reached the conclusion I have that s 109 does apply to proceedings such as these which seek judicial review.

Does s 109 apply to a decision not to investigate a complaint?

Mr Bare then argues that s 52 of the Police Integrity Act prevents s 109 from applying to the second decision, which was effectively a decision not to conduct an investigation under Part 3. I disagree.

Section 52 is found in Part 4 (which includes s 109) and is in these terms:

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

Mr Bare contends that s 52 has the asserted limiting effect, even though he concedes that Part 4 (and s 109, as a consequence) does apply for the purposes of an investigation which has occurred in the past, is presently taking place or might be conducted in the future. Mr Bare argues that there had been no past investigation, there was none ongoing and no future investigation was contemplated at the time of the second decision.

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).

As the defendants point out, there are indications in the language of Part 4 itself that it is not a purpose of s 52 or s 109(1) that the operation of the latter sub-section is to be restricted to actions in the context of an investigation. For example, ss 106 and 107 prevent compulsory production of a document or thing that has come into a protected person’s possession ‘in the performance of functions under this Act’, in civil and criminal proceedings, respectively. Further, s 109(6), which prohibits an order compelling the Director to conduct an investigation, must contemplate a situation where no investigation has commenced.

[58] Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 80^th sess, UN Doc CCPR/C/21/Rev.1/Add. 13 (26 May 2004), [15].

In General Comment 20, the Committee described the rights protected by Art 7 in terms which linked the right to investigation of complaints of infringement of those rights to Art 2(3), stating:

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.[59]

[59] 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].

Mr Bare cites decisions of the Committee in which it refers to General Comment 20 or Art 2(3) when stating a State Party’s obligation to investigate alleged breaches of Art 7.[60] He and the Commission also rely upon decisions which, more generally, refer to the requirement for an effective investigation into ill-treatment.[61]
[60]Human Rights Committee, Views: Communication No 328/1988, 51^st sess, UN Doc CCPR/C/51/D/328/1988 (18 August 1994) [10.6], [11] (‘Blanco v Nicaragua’); Human Rights Committee, Views: Communication No. 322/1988, 51^st sess, UN Doc CCPR/C/51/D/322/1988 (9 August 1994) [12.3], [13] (‘Rodríguez v Uruguay’); Human Rights Committee, Views: Communication No 950/2000, 78^th sess, UN Doc CCPR/C/78/D/950/2000 (16 July 2003) (‘Sarma v Sri Lanka’).
[61] Human Rights Committee, Views: Communication No. 373/1989, 55^th sess, UN Doc CCPR/C/55/D/373/1989 (18 October 1995) [7.1] (‘Stephens v Jamaica’); Human Rights Committee, Views: Communication No 981/2001, 78^th sess, UN Doc CCPR/C/78/D/981/2001 (19 September 2003) , [7.1] (‘Gómez v Peru’); Human Rights Committee, Views: Communication No 107/1981, 19^th sess, UN Doc CCPR/C/19/D/107/1981 (21 July 1983) 216, [15] (‘Quinteros v Uruguay’) (referring to Art 4 (2) of the Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 302 (entered into force 23 March 1976)).

In addition, they seek support from the Committee’s 2009 ‘Concluding Observations on Australia’. There, it spoke of the need for independent investigation of claims of rights’ violations by Australian police. The Committee said:

The Committee expresses concern at reports of excessive use of force by law enforcement officials against groups, such as indigenous people, racial minorities, persons with disabilities, as well as young people; and regrets that the investigations of allegations of police misconduct are carried out by the police itself … The State party should … establish a mechanism to carry out independent investigations of complaints concerning excessive use of force by law enforcement officials … [62]

[62] Human Rights Committee, UN Doc CCPR/C/AUS/CO/5 (7 May 2009), [21].

There are also decisions in the United Kingdom which recognise the asserted procedural right ancillary to the Art 2 and Art 3 rights, such as R (Mousa) v Secretary of State forDefence[63] and R (JL) v Secretary of State for Justice.[64]
[63][2011] EWCA Civ 1334, [12] (Lord Justice Maurice Kay).
[64][2009] 1 AC 588, 610 [26] (Lord Phillips of Worth Matravers).

In R (Middleton) v West Somerset Coroner[65] the House of Lords spoke of the obligations under Art 2 right in these terms:

The European Court of Human Rights has repeatedly interpreted Art 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life.

[65][2004] 2 AC 182, [2].

After referring to that analysis, Lord Bingham reflected on the development of the procedural right in R (Gentle) v Prime Minister,[66] when he said:

This procedural duty does not derive from the express terms of article 2, but was no doubt implied in order to make sure that the substantive right was effective in practice … It is clear … that the procedural obligation under article 2 is parasitic upon the existence of the substantive right, and cannot exist independently.[67]

[66][2008] UKHL 20.

[67]Ibid [5]-[6].

The defendants and the Attorney-General emphasise the distinguishing features of the ICCPR and the ECHR. They argue that the jurisprudence surrounding Art 7 and Art 3 has developed in the context of the parties’ other obligations under each treaty to both ensure the rights specified and provide remedies for their breach. The implied procedural obligation is correlative with, and recognised because of, those additional obligations on the party states. They argue that, absent similar requirements in the Charter, the basis for the implication of the alleged procedural right is missing. They deny that it derives from the substantive rights in Art 7 and Art 3, respectively.

They cite the European Court’s decision in Bati v Turkey[68] in which the court noted that the essence of the complaint relating to torture was Turkey’s failure to conduct an investigation and that the ECHR Art 13 right to an effective remedy was engaged and gave rise to the right to a ‘thorough and effective investigation’.[69] The court referred to its decision in Ilhan v Turkey[70] for the proposition that whether it would be appropriate or necessary to find a breach of the procedural obligation under Art 3 would depend on the circumstances of the particular case.[71] In Ilhan, the court had suggested that the Art 3 procedural obligation might be invoked where lack of investigation had resulted in the facts of the violation not being determined.[72]
[68] (European Court of Human Rights, Chamber, Application Nos 33097/96 and 57834/00, 3 June 2004) (‘Bati’).
[69]Ibid [133].
[70](2002) 34 EHRR 36 (‘Ilhan’).
[71]Bati (European Court of Human Rights, Chamber, Application Nos 33097/96 and 57834/00, 3 June 2004) [126].
[72]Ilhan (2002) 34 EHRR 36, [90].

Mr Bare and the Commission respond to the argument that the procedural obligation recognised under Art 7 and Art 3 is linked to additional requirements, missing from the Charter, by referring to Australia’s international obligations, at least as far as the ICCPR is concerned. They rely also upon Australia’s express obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[73] to conduct ‘a prompt and impartial investigation, wherever there is reason to believe that [cruel, inhuman or degrading treatment or punishment has occurred]’.
[73]Opened for signature 10 December 1984, ATS 1989 No 21 (entered into force 26 June 1987) Arts 12, 13, 16(1).

They argue that, in accordance with the principle of legality, the Charter should be construed conformably with those obligations.[74] That principle provides scope for judicial protection of rights in accordance with Australia’s international obligations. They point out that those obligations can be breached at the State level in Australia.[75] Accordingly, the Victorian Parliament should be taken to have intended that the human right in s 10(b) of the Charter be given its full effect, as that right is understood in international law.
[74]Citing Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J (Toohey and Gaudron JJ agreeing)); Kartinyeri v Commonwealth (1998) 195 CLR 337, 384 (Gummow and Hayne JJ); Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22, 39 [75], [78] (Maxwell P).
[75]See Human Rights Committee, Views: Communication No 1157/2003, 87^th sess, UN Doc CCPR/C/87/D/1157/2003 (10 August 2005) (‘Coleman v Australia’).

With respect to the argument that it is the remedy provision, Art 13, which creates the requirement to investigate complaints of violations of Art 3 rights in European cases, they submit that the prevailing approach of the Grand Chamber of the European Court is rather to rely upon a specific investigative obligation under Art 3.[76] They argue that cases like Bati do not represent the prevailing approach. The European Court is most likely to characterise an ineffective investigation as a breach of Art 13 when able to conclude (as in Bati and Ilhan) that, notwithstanding that ineffective investigation, a person did suffer cruel, inhuman or degrading treatment.[77] Where it is not possible to determine whether a person suffered cruel, unusual or degrading treatment because there is insufficient factual information available, they contend that the European Court routinely holds that the failure to undertake an effective investigation is itself a contravention of Art 3.
[76]Citing Clayton and Tomlinson, The Law of Human Rights (Oxford University Press, 2^nd Ed, 2009)494, [8.74].
[77]Citing as examples Bati v Turkey (European Court of Human Rights, Chamber, Application Nos 33097/96 and 57834/00, 3 June 2004), [133]; Ilhan (2002) 34 EHRR 36, [90], [93].

Mr Bare and the Commission do, however, recognise that the implication of the procedural right by the European Court in many cases occurs with reference to a State Party’s obligation under Art 1.

Indeed, in its oft-cited decision in Assenov v Bulgaria[78], the European Court said:

The Court considers that, in these circumstances, where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”, requires by implication that there should be an effective official investigation.[79]

[78](1998) 28 EHRR 652.

[79]Ibid [102].

The defendants cite other cases in which Assenov v Bulgaria provides authority for a finding that the state’s Art 1 duty to secure rights underpins the obligation to investigate alleged breaches of Art 3.[80] R v Police Complaints Authority; Ex parte Green[81] is an example. There, Lord Roger of Earlsferry referred to the counsel’s acceptance that the procedural obligation under Art 3 arose when read in conjunction with Art 1 and cited the European Courts decisions in Assenov v Bulgaria[82] and McCann v United Kingdom[83] where that connection between Art 3 and Art 2, respectively, was made.[84]
[80]Kmetty v Hungary (2005) 40 EHRR 6 [38]; Caloc v France (2002) 35 EHRR 14, [89]; Secic v Croatia (2009) 14 EHRR 18, [52]; Matko v Slovenia (2009) 48 EHRR 46, [84]; Banks v United Kingdom (2007) 45 EHRR SE 2, [23].
[81][2004] UKHL 6.
[82](1998) 28 EHRR 652, 701, [102] Lords Carswell, Binghman of Cornhill, Hoffman and Scott of Foscote agreeing.
[83](1995) 21 EHRR 97, 163-164, [161]-[164].
[84]See also Ramsahai v Netherlands (1995) 21 EHRR 97.

The Commission argues that there is no warrant to distinguish the European cases. Although the Charter does not contain an express right to an effective remedy, it does contain an analogous requirement to Art 1, as Parliament intended that the Charter should secure to the Victorian people the rights and freedoms it contains. Section 6(1) states that all persons ‘have the human rights set out in Part 2’ and s 7(1) refers to the human rights in that Part which ‘Parliament specifically seeks to protect and promote’. The purpose of the Charter is plainly to secure those rights, at least in so far as the conduct of public authorities is concerned. They argue that the explanatory memorandum indicates that that objective is pursued principally through the mechanism created by 38(1).[85]
[85]Citing the Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006, 27.

Mr Bare and the Commission also contend that Parliament inferentially recognised an implied right to an investigation in respect of a s 10(b) Charter right when making the Statement of Charter Compatibility in relation to the Police Integrity Act bill, two years after the Charter was enacted.[86]
[86]Victoria, Parliamentary Debates, Legislative Assembly, 13 March 2008, 842-3 (Bob Cameron).

The defendants and the Attorney-General respond that the Charter does not obligate the State of Victoria, much less Victorian public authorities, to secure a human right or to provide a remedy for its alleged breach. The recognition that persons have such rights, in the context of the provision of restricted redress for their breach, is quite different from the situations under the ICCPR and the ECHR, where such obligations are imposed on the parties. The United Kingdom has incorporated those obligations into domestic law under the Human Rights Act 1998 (UK).

They also point out that the Charter has made specific provision for procedures in criminal matters under s 21, in relation to persons in detention under s 22, with respect to children involved in the criminal process under s 23, for the purposes of a fair hearing in criminal and civil matters under s 24 and in relation to criminal proceedings generally under s 25.

True it is that the Victorian Parliament has effectively adopted the words of Art 7 of the ICCPR in s 10(b) and, as French CJ recognised in Momcilovic,[87] relevant international material may be consulted, cautiously, when determining the content of the rights it recognises.
[87]Momcilovic (2011) 245 CLR 1, 37-8 [19].

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).

The Charter remains to be construed according to its text, in its own constitutional context.[88] When construing legislation, the Court must endeavour to discern the intention manifested by the words of the statute.[89] 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.[90] 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’.
[88]Ibid 90 [158] (Gummow J).
[89]Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 264-5, [31] (French CJ, Gummow, Hayne, Crennan and Keifel JJ).
[90]E.g. s 21 (right to liberty and security of person), s 22 (right to humane treatment when deprived of liberty), s 24 (right to a fair hearing).

Further, even if the asserted implied obligation were restricted to situations involving credible allegations of infringement of the rights under s 10(b), in the context of the s 38(1) obligation imposed on public authorities alone, it would seem unlikely to have been a purpose of s 10(b) to include the implied right to investigation. It would clearly be impracticable to require many such bodies to bring about an independent investigation of a complaint of their own alleged breach of s 38(1).

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).

It follows that I am not persuaded to recognise the asserted implied right under s 10(b) by reference to the principle of statutory construction that the legislature should not be taken to have intended to curtail or abrogate fundamental rights and freedoms, absent an unambiguous language showing that it intended to do so.[91]
[91]Al-Kateb v Godwin (2004) 219 CLR 562, 577, [19] (Gleeson CJ).

Finally, I am not persuaded to the contrary by whatever was intended by what was subsequently said in Parliament as to the effect of s 10(b), in 2008, in the context of a statement relating to provisions of the Police Integrity Act bill.

Question 1 should be answered, ‘no’.

Question 2
Were the first decision and the second decision incompatible with Mr Bare’s right to an effective investigation of his complaint?

Given my response to question 1, it would be inappropriate to venture an answer to question 2, and I am not asked to do so.

Question 3
Did the relevant decision-maker in the case of each of the first decision and the second decision properly consider Mr Bare’s human rights as required by s 38 of the Charter?

This question is premised upon a finding that s 109 of the Police Integrity Act does not apply to the proceedings relating to alleged breaches of s 38 of the Charter. Whilst I have concluded that it does, I have dealt with question 2 on the basis that I might be wrong. There is no call to do the same with regard to question 3 and I am not asked to do so.

Question 5
Was the first decision tainted by jurisdictional error?

The defendants concede that the first decision was unlawful and of no force or effect because it was made by the BMC, which was not authorised to make the decision. Question 5 should be answered, ‘yes’.

It would be to engage in a hypothetical exercise and to effectively give an advisory opinion to go on to consider whether there would have been a jurisdictional error by a properly constituted body making the first decision and I will not do so.

Question 6
Was the second decision tainted by jurisdictional error?

I do not consider that it was. I will give my reasons again with reference to the parties’ submissions.

Mr Bare raises the following issues relevant to the answer to this question:

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 provided 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?

6(1) - Was there procedural unfairness in relation to the priority matrix?

Mr Bare maintains that there was a policy enshrined in the priority matrix. He complains that Mr Jevtovic made the second decision without reference to that policy, and without giving him notice that it would not be applied or providing him with the opportunity to be heard as to why it ought to be and why its application would assist him.

Relying upon the High Court’s decisions in Minister for Immigration and Ethnic Affairs v Teoh[92] and Minister for Immigration and Multicultural and Indigenous Affairs v Lam,[93] he contends that there was a procedural unfairness to him because he was not told that Mr Jevtovic would not rely upon the priority matrix, when the circumstances were such as to give rise to a legitimate expectation that he would do so. As he says, there might be such a legitimate expectation in all the circumstances, despite the absence of any express statement to the effect that the priority matrix would be used in reaching the second decision.
[92](1995) 183 CLR 273.
[93](2003) 214 CLR 1 (‘Lam’).

Mr Bare says that he gave notice in the first originating motion of his complaint about the use of the priority matrix in relation to the first decision. That amounted to a request to see the document and to make submissions about how it should be applied to his complaint. Then, the reference to possible agreement between the parties in the 16 September 2010 OPI facsimile, requesting the adjournment, gave rise to a rational expectation that the priority matrix document would be provided to him and, if it were not to be used, that he would be given an opportunity to make submissions on the matter.

He argues that Mr Jevtovic also failed to give him the opportunity to file material in support of his argument that the policy in the priority matrix should be applied in his favour. That material would have been of the type subsequently relied upon as evidence before this Court, relating to alleged ‘over-policing’ of African youths, the need for a hierarchically independent investigation of his complaint and the inappropriateness of the Victoria Police ESD in that role.

In addition, Mr Bare contends that Mr Jevtovic unfairly identified the absence of evidence that the ESD was an inappropriate investigator as ‘critical’ to his determination, without giving him advance notice or inviting him to supply relevant evidence of the type he later relied upon. This amounted to procedural unfairness of the type described by the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd.[94]
[94](1994) 49 FCR 576, 591-2 (Northrop, Miles and French JJ) (‘Alphaone’).

It is common ground that the disappointment of an expectation will not of itself amount to procedural unfairness. The factual issue is as to whether there is resulting unfairness.[95] I agree with the defendants that there was no procedural unfairness in Mr Bare’s case.
[95]Lam (2003) 214 CLR 1, 12-3 [34] (Gleeson CJ).

First of all, the priority matrix was an internal tool used by the BMC in considering the public interest in the Director investigating Mr Bare’s complaint. Although the evidence from Ms Small is to the effect that Mr Jevtovic, as Deputy Director of the OPI, was a member of the BMC, he was not present at the BMC meeting at which the first decision was made. There was no evidence that he was obliged to use the priority matrix when reviewing the first decision and no legitimate expectation should be taken to have arisen that he would do so, in the circumstances.

A legitimate expectation which might have arisen in the circumstances would have been that Mr Jevtovic would give Mr Bare the opportunity to be heard as to the application of the priority matrix in relation to his complaint if he did intend to use it when reconsidering the first decision. That is because Mr Bare had claimed that he had suffered procedural unfairness when the OPI had failed to give him that opportunity before the BMC used the priority matrix. Given that background, the OPI’s reference to the possibility of agreement between the parties to the proceeding should not be taken to have given rise to a legitimate expectation that Mr Bare would be given an opportunity to argue for the application of the priority matrix in relation to his complaint if Mr Jevtovic were not going to use it.

Secondly, even if, contrary to my view, there was a legitimate expectation that Mr Bare would be given notice of Mr Jevtovic’s intention not to apply the priority matrix and that expectation was disappointed, I am not satisfied that there was any procedural unfairness to him. I am not persuaded that he would have acted differently had that expectation been met and he had convinced Mr Jevtovic to apply the tool to the assessment of the public interest in the Director investigating his complaint. Mr Bare claims that he would have produced more material relating to the over-policing of African youths and the unsuitability of the ESD as the investigator in relation to his allegations. He was represented by two different solicitors and the issues to which the material he subsequently produced had been the focus of his complaint in Youthlaw’s 3 February 2010 letter. If the situation was that, during that month long adjournment, he expected that the priority matrix would not be used without notice to him, then he did not take advantage of the opportunity to submit that it should be used and to how it should be used to benefit him or to provide the OPI with more material relevant to the issues he had raised. If the situation was that he expected that the priority matrix would be used, again, he made no attempt to make submissions as to how it should be used to benefit him or to provide additional material. The only contact between Mr Bare’s solicitors and those representing the defendants to the proceeding appears to be that which occurred early on in that month in relation to their attitude towards costs.

This is not a situation such as that considered by the High Court in Applicant NAFF of 2002 v Minister for Immigration and Multicultural Affairs.[96] In NAFF, it was held that the applicant could not have indicated in advance his answers to questions which were not asked of him. In this case, there was nothing to stop Mr Bare from requesting the priority matrix or from providing the OPI with further material in support of his objections to the Victoria Police ESD as an appropriate independent effective investigator of his claim.
[96](2004) 221 CLR 1 (‘NAFF’).

Further, as the defendants submit, decision-makers are generally not obliged to give prior notice of their thinking or their views as to the sufficiency of material before them. There are limits to that proposition, but Mr Jevtovic did not reach an unexpected conclusion of the type contemplated in Alphaone. He rather found insufficient material to persuade him that the ESD could not perform the investigation effectively and independently, as Mr Bare had alleged.

Procedural fairness did not demand that Mr Jevtovic should have indicated, in advance, his view as to the adequacy of the material relating to the issue which had been raised in Youthlaw’s 3 February 2010 letter of complaint The Full Court of the Federal Court said this in Alphaone:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions before the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, or comment by further submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications, however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.[97]

[97](1994) 49 FCR 576, 591-2 (Northrop, Miles and French JJ).

Insofar as Mr Jevtovic may be said to have identified as a ‘critical issue’ that the ESD would not investigate the matter effectively and with integrity, that issue was apparent to Mr Bare and his representatives in the circumstances, being a focus of Youthlaw’s 3 February 2010 letter. The material upon which the determination of that issue was made was known in advance. There was no obligation upon Mr Jevtovic to expose his reasoning to comment or to invite further evidentiary material to ensure procedural fairness in accordance with the principles enunciated in Alphaone.

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.

6(2) - Does s 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?

This question enquires as to whether Mr Jevtovic made a jurisdictional error by misinterpreting his task under s 40(4)(b)(i) by failing to take account of a new dimension of the ‘public interest’ introduced by reference to s 10(b) of the Charter and the interpretive requirement of s 32(1).

The question is said to be the counterpart of that in question 3 as to whether proper consideration was given to Mr Bare’s human rights by Mr Jevtovic. I answer it, having concluded that s 109 precludes consideration of the issues of compliance with the procedural limb of s 38(1) of the Charter.

I will not give an advisory opinion as to whether a properly constituted entity would have made a such a jurisdictional error when arriving at the first decision.

It is common ground that the interpretative requirement of s 32(1) of the Charter does provide a new dimension to the question as to what is in the public interest under s 40(4)(b)(i) of the Police Integrity Act. In Hogan v Hinch,[98] that new dimension was explained by the majority as follows:

The expression "that it is in the public interest" imports a judgment to be made by reference to the subject, scope and purpose of the Act…. But, as will now appear, the question of what is in the public interest has more than one dimension.
That additional dimension is supplied by the requirement that the Act, "[s]o far as it is possible to do so consistently with [its] purpose", must be interpreted in a way that is compatible with the civil and political rights set out in Pt 2 (ss 7‑27) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Human Rights Act"). This method of interpretation is enjoined by s 32(1) of the Human Rights Act. [99]

[98](2011) 243 CLR 506.

[99]Ibid. [69]-[70] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), citing O'Sullivan v Farrer (1989) 168 CLR 210 at 216‑217; [1989] HCA 61; McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at 443‑444 [55]; [2006] HCA 45; Osland v Secretary, Department of Justice (2008) 234 CLR 275 at 323 [137]; [2008] HCA 37.

Insofar as the argument in relation to this question was premised upon the recognition of the implied ancillary right under s 10(b) to an effective and independent investigation of a complaint of breach of the express right to which the sub-section refers, I need not answer it.

Otherwise, if the issue is raised under this question, I am not satisfied that Mr Jevtovic misdirected himself as to the scope of the public interest under s 40(4)(b)(i) in relation to the need to have regard to Mr Bare’s rights under s 10(b) (or s 8 for that matter). There is no evidence to contradict his assertion in his 19 October 2010 letter to the effect that he had considered the complaint in all its aspects as they were identified in the documents on the OPI file. Those documents indicated the nature of the incident and the allegations as to the breach of Mr Bare’s rights under both s 8 and s 10 (b). Mr Jevtovic’s letter established, in the absence of evidence to the contrary, that he understood that the concept of the ‘public interest’ under s 40(4)(b)(i) incorporated the requirement for compatibly with Mr Bare’s identified relevant human rights.

6(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?

Question 6(3) is premised upon the existence of the asserted implied procedural right under s 10(b) and I will not answer it.

Orders

Mr Bare’s claims should be dismissed and I will hear the parties as to the form of orders.

[2013] VSC 129

25 March 2013