No right to independent police investigation
In a disappointing decision handed down yesterday, the Victorian Supreme Court ruled that there was no right to an independent investigation of a police complaint.
Our client, Mr Nassir Bare, was a 17 year old Ethiopian Australian young man who alleged that a police officer had used excessive force against him in 2009. The allegations included serious assault, being capsicum sprayed while handcuffed, and being subjected to racial slurs by police.
Nassir requested an independent investigation into these allegations to the then Office of Police Integrity (OPI). Nassir had genuine concerns and fears that information about him or his complaint would result in reprisals from local police if internally investigated.
The OPI found that while the complaint warranted investigation, the investigation of the complaint would still be referred back to police. This decision from Justice Williams vindicates a scheme whereby police officers can investigate themselves.
The very idea of police investigating complaints against themselves is as comfortable as the notion of the Church investigating complaints of alleged sexual abuse by church members. This inappropriateness has been widely recognised around the world in other international jurisdictions where there are independent bodies set up to investigate such complaints.
In Victoria, we are fortunate to have a Charter of Human Rights and Responsibilities Act which clearly states that a ‘person must not be treated or punished in a cruel, inhuman or degrading way’. Yet, in Nassir’s case, what remedies did he have available to him having been victim to the alleged police assault? It is clear that his right had been infringed, and it would seem only fair and just that his complaint should be investigated thoroughly, independently and transparently so that there was some effective remedy for that breach. The Victorian Supreme Court didn’t think so.
Youthlaw works with many young people who have experienced excessive use of force by police, or have been subject to other inappropriate police conduct. In most cases, these are young people who are vulnerable and reluctant to exercise their right to complain further about their experiences. For many young people, there is fear of reprisals from police and a genuine disbelief that their complaint will be effectively and fairly investigated by an organisation responsible for the alleged misconduct. There is little faith in the system as it currently stands, and yesterday’s decision makes a mockery of the rights of Victorians who may have been subject to unlawful and inappropriate conduct by police.
In Nassir’ case, he had real concerns about the police internally investigating his complaint, and rightly so given the details of the recent race discrimination case (http://www.theage.com.au/victoria/victoria-police-settle-racial-harassment-case-20130218-2emfd.html) that found police had a practice of targeting young African men. Given some other recent media around the integrity of internal police complaints (http://www.theage.com.au/victoria/police-oversight-biased-against-public-complaints-20130316-2g7i2.html), is it any wonder that people have legitimate concerns about making a complaint against police?
If we value the rights of individuals and their right to be free from cruel, inhuman and degrading treatment from law enforcement officers, then we must have an independent body that can effectively investigate such complaints. With the OPI now subsumed into the new independent Broad-based Anti-Corruption Commission (IBAC), it is clear that IBAC will not carry this investigative function any better than the OPI without a significant overhaul. The Victorian government must provide for a public complaints system that is about accountability, transparency and fairness. A truly independent investigation body is required so young men such as Nassir feel confident to make complaints and not fear repercussion.
We commend Nassir for his courage to take his case further, to test the waters and to stand up for his rights to have his complaint heard by an independent body. We also thank the pro bono legal team, law firm Maddocks, and counsel Jason Pizer and Emrys Nekvapil for their commitment, dedication and hard work in assisting Nassir to do this.