Bare v. Independent Broad-Based Anti-Corruption Commission: one step forward, one step back; the Victorian Charter in Bare v. Independent Broad-Based Anti-corruption Commission.

• Jurisdiction: Australia
• Author: Maxwell, Jack
• Date: 01 August 2016

CONTENTS I Introduction II Facts III Key Charter Issues on Appeal IV The Jurisdictional Error Issue A Background B Warren CJ's Reasoning C Tate JA and Santamaria JA's Reasoning D Analysis V The Implied Right Issue A Bare's Argument B The Court's Reasoning C Analysis VI The Proper Consideration Issue A The Court's Reasoning B Analysis VII The Remedy Issue A Background B Tate JA and Santamaria JA's Reasoning C Analysis VIII Conclusion I INTRODUCTION

Bare v Independent Broad-Based Anti-Corruption Commission ('Bare') (1) is the most significant case brought under the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Charter) since the High Court's decision in Momcilovic v The Queen ('Momcilovic'). (2) This case note will critically examine the Victorian Court of Appeal's decision in Bare and highlight its practical implications for litigators looking to use the Charter in court.

Bare has several significant consequences for litigators. First, while not binding on this question, Bare considers in detail whether a breach of s 38(1) of the Charter by a public authority constitutes a jurisdictional error. Second, the Court adopts a very cautious approach to the use of international law to construe the scope of Charter rights. Litigators will need to take care in their use of international legal materials in future cases. Third, the Court's finding of a breach of s 38(1) shows that the Charter can be a powerful instrument for ensuring that human rights are taken into account by public authorities. Finally, the case illustrates how the Administrative Law Act 1978 (Vic) ('Administrative Law Act') bolsters both claims of unlawfulness and access to remedies under the Charter.

II FACTS

The appellant, Nassir Bare, migrated from Ethiopia to Australia with his family in 2004. (3) Bare alleged that, on 16 February 2009, police assaulted and racially vilified him during a random traffic stop. According to Bare, he was handcuffed, knocked to the ground, sprayed in the face with capsicum spray and kicked in the ribs. His head was pushed repeatedly into the gutter, chipping his teeth and cutting his jaw. During the assault, one of the police officers told Bare: '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'. (4)

On 3 February 2010, Bare complained to the Office of Police Integrity ('OPI') about the assault. Bare claimed that the police officers' conduct breached his right under s 10(b) of the Charter not to be treated or punished in a cruel, inhuman or degrading way.

Bare requested an independent investigation of his complaint by the OPI, rather than an internal investigation by Victoria Police. The OPI was an independent body (5) tasked with investigating serious police misconduct, and ensuring that police have regard to the human rights set out in the Charter. (6) It was established in part to address the concern that police investigations into police wrongdoing are compromised by the tendency 'to close ranks and cover up misconduct.' (7)

Under s 40(4)(b)(i) of the Police Integrity Act 2008 (Vic), the Director of the OPI had a discretion to investigate a complaint if he considered it to be 'in the public interest' to do so. The 'public interest' encompassed matters such as whether the complaint raised systemic issues, and the resources available to the OPI. (8)

Bare contended that, under s 10(b) of the Charter, he had an implied right to an effective, independent investigation of his mistreatment. The Director would act incompatibly with this implied right, contrary to s 38(1) of the Charter, if he declined to investigate and instead referred the complaint to an internal investigation. Section 38(1) states that it is unlawful for a public authority to act in a way that is incompatible with a human right ('the substantive obligation') or, in making a decision, to fail to give proper consideration to a relevant human right ('the procedural obligation').

On 19 October 2010, the Director's delegate decided that Bare's complaint should not be investigated by the OPI. Bare sought judicial review of this decision in the Supreme Court of Victoria. (9) Bare claimed that the decision was unlawful both on common law grounds, and under s 38(1) of the Charter. Bare argued that the delegate had acted in a way that was incompatible with his implied right to an effective investigation under s 10(b). Bare also argued that the delegate had failed to give proper consideration to his express rights under ss 10(b) and 8(3) of the Charter. Section 8(3) provides that '[e]very person is equal before the law and is entitled to the equal protection of the law without discrimination'. Bare's application was dismissed at first instance. (10)

III KEY CHARTER ISSUES ON APPEAL

Bare's appeal presented four important questions concerning the Charter. (11) The first question was whether a breach of s 38(1) of the Charter constituted a jurisdictional error ('the jurisdictional error issue'). The second question was whether there was an implied procedural right to an effective investigation under s 10(b) of the Charter ('the implied right issue'). If s 10(b) contained such an implied right, Bare argued, the delegate's decision was incompatible with that right, in breach of the substantive obligation under s 38(1). The third question was whether the delegate failed to give proper consideration to Bare's express rights under ss 8(3) and 10(b) when deciding not to investigate his complaint, in breach of the procedural obligation under s 38(1) ('the proper consideration issue'). Bare thus sought to challenge the delegate's decision under both the substantive and procedural limbs of s 38(1). The fourth question was whether Bare was entitled to a remedy if the delegate's decision was unlawful under s 38(1) ('the remedy issue').

IV THE JURISDICTIONAL ERROR ISSUE

A Background

There is a jurisdictional error of law when a decision-maker acts outside the limits of his or her power. (12) Without diminishing the complexities of the concept, (13) a finding of jurisdictional error has at least two important implications. First, a person may seek a broader range of remedies. Orders in the nature of prohibition and mandamus are only available for jurisdictional error. (14) Orders in the nature of certiorari are also usually limited to jurisdictional error, unless the error appears on the face of the decision-maker's record. (15) Second, judicial review by the High Court and the state Supreme Courts for jurisdictional error is constitutionally entrenched. (16)

In Bare, (17) the jurisdictional error issue arose in connection with this second implication. Section 109 of the Police Integrity Act 2008 (Vic) contained a privative clause which purported to oust judicial review of the delegate's decision. If s 109 of the Act applied to the decision, Bare could only escape its reach by establishing that a breach of s 38(1) of the Charter constituted jurisdictional error, review for which is constitutionally entrenched. (18)

In separate judgments, Tate JA and Santamaria JA held that s 109 did not apply to the delegate's decision. (19) This meant that the delegate's decision could be challenged on the basis of either jurisdictional or non-jurisdictional error of law. Consequently, their Honours did not need to decide the jurisdictional error issue. (20) Warren CJ dissented on the application of s 109, and so was required to decide this issue. (21)

B Warren CJs Reasoning

Warren CJ was unconstrained by authority. In Director of Housing v Sudi, Bell P implied that Charter unlawfulness constituted jurisdictional error. (22) The Court of Appeal subsequently overturned Bell P's decision on other grounds, without expressing an opinion on the jurisdictional error issue. (23)

Applying the High Court's approach in Project Blue Sky Inc v Australian Broadcasting Authority, (24) Warren CJ held that the relevant test was whether the legislature intended that non-compliance with s 38(1) would lead to invalidity. (25) Her Honour concluded, on the basis of the text, context and purpose of s 38(1), that Parliament did not intend a breach to constitute jurisdictional error. (26)

With respect to text, Warren CJ noted that the word 'unlawful' does not necessarily mean 'invalid'. (27) More importantly, Warren CJ held that the s 38(1) obligations are 'limited and imprecise', and thus lack the 'rule-like quality' indicative of a jurisdictional limit on power. (28) The substantive obligation requires a public authority to balance competing rights and interests in accordance with s 7(2) of the Charter. (29) The procedural obligation is a 'common or garden' activity for which there is 'no formula'. (30) The character of these obligations tells against a breach of s 38(1) resulting in invalidity. (31)

With respect to context, Warren CJ held that 'unlawful' should be given a consistent meaning across ss 38(1) and 39(1) of the Charter. (32) The word 'unlawful' does not appear to be limited to jurisdictional error in s 39(1), and thus should not be interpreted to denote jurisdictional error in s 38(1). (33)

With respect to purpose, Warren CJ held that the Charter was directed to ensuring that 'human rights are observed in administrative practice and the development of policy', rather than providing an avenue for judicial review by the courts. (34) The threat of invalidity for breach of s 38(1) was not the only way to achieve this purpose. (35) There remain a range of remedies available to a plaintiff for s 38(1) unlawfulness, including declarations, injunctions and orders in the nature of certiorari for error on the face of the record. The interpretive clause in s 32(1) is another mechanism by which the Charter advances this purpose. (36) For these reasons, Warren CJ held that this interpretation would not remove 'the normative force of the Charter'. (37)

Finally, Warren CJ noted that, if every breach of s...