By Adam Fletcher
There is currently a case before the Victorian Supreme Court (Bare v Small and Others) in which a young Ethiopian man claims he was abused by Victoria Police (an officer allegedly broke his teeth against a gutter, capsicum-sprayed him while he was handcuffed and racially abused him during the course of an arrest in 2009 – when he was just 17).
In February 2010, Mr Bare’s lawyer made a complaint to the Victorian Office of Police Integrity. Despite a specific request that it conduct an independent investigation, the OPI handed the case over to Victoria Police’s internal ethical standards department.
Mr Bare’s lawyers gave two reasons when they asked the OPI to conduct an independent investigation – first, it is in the public interest that allegations of racism in the police force be investigated by the OPI (the relevant provision of the Police Integrity Act 2008 (Vic) makes specific provision for public interest investigations), and second the Victorian Charter of Human Rights and Responsibilities contains an inherent duty to conduct an effective, independent investigation of allegations of cruel, inhuman or degrading treatment or punishment.
Mr Bare is now pursuing OPI staff in the Victorian Supreme court for referring the case to the Commissioner of Police, thereby allegedly failing in their duty to conduct an effective investigation.
A previous case against the Director in December last year was unsuccessful. It was based on both administrative law and the Victorian Charter, but the human rights argument could not succeed alone because there is no independent cause of action under the Charter (simply put, complainants have to sue based on other law and add human rights arguments afterwards – yes, it is a compromised system).
According to the OPI’s website, it is required to:
- ensure that members of Victoria Police have regard to the human rights set out in the Charter, and
- ensure that all OPI personnel act in a way that is compatible with human rights or, in making a decision, give proper consideration to relevant human rights.
It remains to be seen whether Mr Bare will be successful under Australian law. However, the position on investigations at international human rights law (on which the Victorian Charter is based) is clear.
There is an explicit duty on member States to the UN Convention against Torture, including Australia, to ‘ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction’ (Article 12). Under Article 16, this duty also extends to ‘other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.’ There can be no doubt that acts such as breaking teeth against a gutter and using OC spray on someone who was already incapacitated are covered by the Convention (if they are proven).
Article 7 of the International Covenant on Civil and Political Rights prohibits torture and other cruel, inhuman and degrading treatment or punishment. In its General Comment on Article 7, the UN Human Rights Committee states that ‘[c]omplaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective [as required by Article 2(3)].’ Section 10 of the Victorian Charter is based on Article 7.
All of these provisions apply to agencies such as Victoria Police.
The European Court of Human Rights, in a case concerning the equivalent article of the European Convention, said ‘the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice’ without the duty to conduct thorough and effective investigations.
The Human Rights Committee stated in another relevant case that ‘…while noting that the State party did conduct a prompt investigation into the incident in question, an investigation in itself is not sufficient to demonstrate the State party’s conformity with its obligations under this provision if it can be shown not to have been conducted impartially.’
Impartial investigations are crucial in cases involving allegations of cruel, inhuman or degrading treatment on the part of Government officials such as police. Internal investigations are always open to claims of bias, regardless of the personal integrity of the investigators involved. The law in Australia surrounding conflicts of interests seeks to prevent not just actual but also perceived bias, which can be equally damaging to the credibility of an investigation or tribunal. The rule against bias is hammered home to law students as a fundamental element of our justice system, but most complaints against police in Australia – an integral component of our justice system – are still investigated internally.
This state of affairs will soon be tested in the international arena, because lawyers for the family of TJ Hickey, an Aboriginal teenager who allegedly died following a police pursuit in Sydney in 2004, have lodged a complaint with the Human Rights Committee. The complaint states that Mr Hickey’s suspicious death was investigated internally because ‘New South Wales did not and does not have an investigative body capable of independently investigating deaths involving the Police Force.’ It alleges that this constitutes a breach of the right to life (Article 6 of the ICCPR) and the right to an effective remedy (Article 2(3)).
If successful, the argument in the Hickey case would also apply to Article 7 read in the context of Article 2(3), which means Australia would be in ongoing violation of the ICCPR if serious complaints against police continue to be investigated internally.
An independent review of the police complaints system in Queensland published last year found that ‘[t]he Queensland police complaints, discipline and misconduct system is dysfunctional and unsustainable.’ The authors noted that ‘[t]he community, police and complainants, expect a system that protects against real or perceived conflicts of interest so that allegations made against police are investigated fairly and impartially.’ They recommended (amongst other things) significant strengthening of the role of the Queensland equivalent of the OPI – the Crime and Misconduct Commission.
The NSW Police Integrity Commission is said to be more independent, but there is still controversy over the involvement of former police officers in its operations, and it has refused to publish reports by the official Inspector of the Police Integrity Commission which were critical of its functioning. Perhaps most crucially, it refuses to investigate serious cases. In a recent refusal letter, the Commissioner stated:
While the Commission’s investigators have had considerable experience in the conduct of investigations into alleged police corruption, the investigators have not had any recent experience in investigating an accident involving serious injury or death. Furthermore, the Commission, unlike the NSW Police Force, does not have any officers with specialist forensic qualifications and does not have ready, established access, as the NSW Police Force has, to external sources of specialist forensic evidence…. The conclusion which I consider has to be drawn is that the NSW Police Force is the only agency with the capacity and the necessary powers to effectively respond to and investigate critical incidents in this State.
The South Australian Police Complaints Authority is empowered to conduct primary investigations in serious cases or cases involving senior police, but it too has been criticised for a lack of transparency and failure to address corruption.
In other States and Territories, police oversight is the task of Ombudsmen’s Offices, whose role is generally to audit police internal investigations rather than conduct their own, and who do not usually have the power to sanction officers.
In the UK, there is an Independent Police Complaints Commission, whose website acknowledges that the organisation’s ‘main role is to increase public confidence in the police complaints system in England and Wales.’ The IPCC hears appeals from complaints which have not been dealt with satisfactorily by police, and investigates the most serious complaints independently. Although the IPCC is not immune from criticism, it at least has the power to investigate police directly and has at times taken action against senior officers when required. It also has around 400 staff and an annual budget of more than 35 million pounds.
Canada is in a similar situation to Australia with Provincial Governments having set up various agencies to investigate police complaints. One in particular, the Ontario Special Investigations Unit, has the power to conduct full investigations and charge officers with criminal offences. Although subject to calls for ‘more teeth,’ it has been praised for its impartiality and the commitment of its staff. Similar fully independent agencies exist in Chicago and Ireland.
None of these agencies is a perfect model, but Australia can and should learn from them to set up a proper independent police oversight system – either federally or in each State and Territory. Police forces have relatively large budgets and, in context, the cost of such oversight would not be inordinate. Public confidence in the police is crucial to a safe and secure society, and internal investigations into serious incidents put it at risk. If that weren’t bad enough, they also breach our international human rights obligations.