On 29 July 2015, in Bare v Independent Broad-based Anti-corruption Commission & Ors [2015] VSCA 197, the Court of Appeal, by majority, allowed an appeal by Nassir Bare against a decision of a single judge of the Supreme Court. The trial judge upheld the original decision of the Director (Director) of the Office of Police Integrity (OPI) not to investigate a complaint against a member of Victoria Police of cruel, inhuman or degrading treatment (Decision). The Court of Appeal quashed the Decision and ordered the Independent Broad-based Anti-corruption Commission (IBAC) – which has since replaced the OPI – to reconsider Mr Bare’s complaint in accordance with the Charter of Human Rights and Responsibilities Act 2006 (Charter).

The decision has implications for government agencies, particularly the matters to be considered when determining applications made to, and requests made of, them. In particular, government agencies must give ‘proper consideration’ to a person’s rights under the Charter when making such determinations. A failure to do so will result in the decision being unlawful.

Facts

On 3 February 2010, Mr Bare – who had migrated to Australia from Ethiopia – complained to the OPI that, on 16 February 2009, members of Victoria Police stopped a car in which he was travelling and that, when he got out of the car, a police officer pushed him against the car, handcuffed him and then kicked his legs out from under him. Mr Bare claimed that, as he lay on the ground, the police officer repeatedly pushed his head into the ground so that his jaw struck the gutter, chipping his teeth and cutting his jaw. He also alleged that the police officer forcefully sprayed him with capsicum spray and said words to the effect ‘you black people think you can come to this country and steal cars. We give you a second chance and you steal cars’.

Mr Bare claimed that the conduct complained of amounted to a breach of his rights under ss 10 and 8 of the Charter, specifically:

  • a person must not be treated in a cruel, inhuman or degrading way (s 10(b))
  • every person is entitled to equal protection of the law without discrimination (s 8).

Importantly, Mr Bare claimed that he was entitled to an effective investigation of his complaint, independent of Victoria Police, pursuant to an implied procedural right in s 10(b) of the Charter.

On 19 October 2010, the Director’s delegate made the Decision pursuant to s 40(4)(b)(i) of the Police Integrity Act 2008 (PI Act) (now repealed). He offered to refer the complaint to the Ethical Standards Division of Victoria Police for investigation instead. Mr Bare refused the offer and applied for judicial review of the Decision.

Court of Appeal’s Decision

At first instance, the trial judge upheld the Decision (see Bare v Small & Ors [2013] VSC 129 (25 March 2013)). That was the subject of the appeal to the Court of Appeal.

The Court of Appeal held, by a majority (Chief Justice Warren dissenting), that the Decision was unlawful on the basis of an error of law on the face of the record – specifically, the Director’s failure to give proper consideration to Mr Bare’s human rights, as required by s 38(1) of the Charter.

The Court of Appeal:

  • declared that the Decision was unlawful and of no force or effect and contrary to s 38(1) of the Charter
  • made an order in the nature of certiorari quashing the Decision
  • remitted the matter to IBAC for it to make a fresh decision on the correct course for dealing with Mr Bare’s complaint.

The Judgment

The salient points in the judgment are as follows:

  • The privative clause

Adopting a restrictive construction of s 109(1) of the PI Act – as is required – the majority (Justices Tate and Santamaria) held that it applied only to oust the Court’s review jurisdiction regarding decisions made or acts done ‘for the purposes of an investigation’. The majority further held that a refusal to investigate a complaint is not a decision made or act done ‘for the purposes of an investigation’. It followed that the privative clause did not apply and, on that basis, the Decision was amenable to judicial review for jurisdictional and non-jurisdictional error.

  • ‘Proper consideration’ of human rights

All three judges agreed that the Director failed to comply with his obligations under s 38(1) of the Charter to give ‘proper consideration’ to Mr Bare’s rights when making the Decision. In particular, the Director failed to weigh the serious nature of Mr Bare’s complaint with any countervailing interests or obligations of the State.

The three judges noted the ‘Castles test’ (see Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010)) as the relevant test for giving ‘proper consideration’ to rights under s 38(1) of the Charter, citing Justice Emerton’s comment, at [185], that:

Proper consideration need not involve formally identifying the ‘correct’ rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests.

Mr Bare submitted, and the three judges broadly agreed that, based on the ‘Castles test’, there are four key elements that should be present to show that a decision-maker has given ‘proper consideration’ to a relevant human right, being:

  • understanding, in general terms, which of the rights may be relevant and whether, and if so how, those rights will be interfered with by the decision
  • seriously turning their mind to the possible impact of the decision on the person’s human rights and the implications for the person
  • identifying the countervailing interests or obligations of the State
  • balancing completing private and public interests as part of the exercise of justification.
  • Non-jurisdictional error

The majority held that the Director’s failure to comply with s 38(1) of the Charter constituted an error of law on the face of the record, meaning that the Decision was unlawful. Given that, in the view of the majority, the privative clause did not apply, this resulted in the majority ordering that the Decision be quashed.

The majority, however, found it unnecessary to determine, in this case, whether the contravention of s 38(1) of the Charter constituted jurisdictional error.

In what might be an indication of the Supreme Court’s future consideration and determination of such a point, Chief Justice Warren held, in her dissenting judgment, that such a contravention did not constitute jurisdictional error.

  • The implied right to an effective investigation

The three judges agreed that s 10(b) of the Charter does not contain an implied right to an effective investigation of an allegation of cruel, inhuman or degrading treatment.

While Mr Bare and the Commission were entitled to rely on international jurisprudence to assist in the interpretation of the Charter, such reliance must be approached with caution. The three judges agreed that the Charter lacks certain necessary elements that exist in its European equivalents, including the undertaking to ‘secure to everyone…the right and freedoms’ of those European equivalents, to permit the implication of a right to an effective investigation.

Commentary

The judgment of the majority of the Court of Appeal makes it clear that a failure of a decision-maker to comply with s 38(1) of the Charter, and give ‘proper consideration’ to human rights, is a legal error on the face of the record and results in the decision being unlawful.

Unfortunately, we must await further judicial consideration of the Charter to clarify whether a failure to comply with s 38(1) of the Charter constitutes jurisdictional error. This judgment indicates, though, that the Court is inclined to a position that it does not.

It was disappointing that the Court did not uphold the position under international human rights law that any breach of the right to cruel, inhuman or degrading treatment by the State incorporates a duty to independently and effectively investigate the incident.

This decision continues the trend in conservative decision-making by Victorian courts as to the nature and scope of Charter rights. It also highlights the distinct differences between the content of human rights, and the manner in which they are secured, under the Charter as against the more developed international human rights instruments (see, for example, Article 1 of the European Convention on Human Rights).

The outcome in this case will hopefully prompt greater consideration of the limitations of the Charter as an accountability mechanism in the independent review that is currently underway.

The decision is available here.