UN condemns inadequate response to police violence
3rd Jul 2014
A powerful condemnation of the failure of Victoria’s laws to provide adequate remedies to victims of police violence has been delivered by the United Nations Human Rights Committee (UNHRC) in the recent and long awaited decision of Horvath v Australia (Horvath).
The decision addresses critical policing issues that have plagued the Victorian community for years, including ongoing impunity for police violence, the need for victim centred accountability mechanisms to be reflected in our laws and the need for a properly resourced, impartial investigative body independent from Victoria Police to promptly and effectively investigate complaints of police misconduct.
In its decision, the UNHRC determined that Victoria’s laws do not meet Australia’s obligations under the International Covenant on Civil and Political Rights (ICCPR) to provide an effective remedy for human rights violations perpetrated by serving police officers. Australia (and by necessity, Victoria) is now required to change its laws and processes to better match community expectations for change and to meet Australia’s obligations under international law. If the Victorian and Australian Governments take their obligations under international law seriously, the UNHRC’s decision should bring an end to the practice of police investigating themselves in relation to allegations of serious misconduct and ensure greater policing standards by our force, for the benefit of all Victorians.
Background to the decision
The decision concerns the case of Corinna Horvath, who was 21-years-old when in 1996, eight police officers stormed her home then proceeded to bash, handcuff and drag her unconscious outside to a police vehicle. The injuries she sustained left her hospitalised for five days. The police acted without a warrant, on a vendetta to ‘get even’ after Corinna had lawfully refused entry to police officers when they had previously attended her property to investigate an alleged traffic offence. Her friends and partner were also assaulted.
The ordeal was compounded by 11 charges being brought against her by the officer who rendered her unconscious. All were defended successfully, but the injustice remained and highlighted critical flaws in our current police justice system.
The first, is that there is no obligation upon the State to discipline police officers found guilty of serious misconduct by our courts. In Corinna’s case, despite the County Court and Supreme Court of Victoria finding the offending police liable for trespass, assault, wrongful arrest, false imprisonment and malicious prosecution, the police were never disciplined. The complaint brought to the Ethical Standards Department of Victoria Police was dismissed and never reopened.
If a teacher seriously assaulted a student and was found to have committed assault by a court of law, it is hard to imagine that they would not be disciplined – the community would not accept the Education Department promoting them or quietly moving them on to another school. When it comes to police misconduct, however, all too often impunity reigns. Again, turning to Corinna’s case, a number of the officers who assaulted Corinna all those years ago and were found guilty of multiple abuses of power were promoted and are still serving today in senior positions.
The second flaw in our police justice system is this: the State absolves itself of responsibility for the most serious forms of police misconduct. Again, this flaw is exemplified by Corinna’s case, in which the Victorian Government successfully argued before the Courts that it was not liable for the conduct of its officers because, pursuant to the Victorian Police Regulation Act 1958 (which remains the law in Victoria), the State is only liable for the acts or omissions of its on-duty police officers that are done (or not done) reasonably and in ‘good faith.’ It followed that, because the officers who had assaulted and maliciously prosecuted Corinna had done so intentionally, in bad faith and unreasonably, the State was not liable for their conduct.
The absurd scenario where the State can absolve itself of responsibility for the most violent and culpable acts of the police force on the basis that the conduct was beyond the lawful boundary of their duties, yet not discipline those officers, is a glaring and inexcusable defect in Victorian law. The UNHRC decision has condemned this approach as inadequate and contrary to Australia’s international obligations.
Today, police remain principally responsible for investigating themselves, and all too often they find themselves innocent of any crime. This is a disservice to the community and places our community in danger of rogue officers who are protected by the force and the State.
Instead of police investigating police, we need an adequately resourced independent authority to investigate complaints of police abuse. Although the Independent Broad Based Anti-Corruption Commission has the ability to investigate police misconduct, it largely restricts itself to allegations of corruption, and the overwhelming majority of misconduct complaints received by IBAC are referred back to police for investigation.
The current approach benefits no member of the community except for violent police officers who abuse their power. The reputation of the entire force, and the trust and safety of the community is undermined through the persistence of the State trying to defend a system that has now been undermined by the UNHRC’s decision.
Where to now?
The UNHRC has directed Australia to review its legislation to prevent future breaches of the ICCPR and provide an effective remedy to Corinna Horvath. To protect Victorians from future breaches, two changes must occur. First, there must be a properly resourced, independent and impartial body in Victoria to investigate allegations of police misconduct. The police are not capable of impartially and fairly investigating allegations of serious misconduct against fellow officers. An independent well-resourced investigative body is the only way to rectify this situation.
Secondly, we need a legislative mechanism that ensures all victims of police misconduct receive adequate compensation. Section 123 of the Police Regulation Act needs to be amended to include an effective mechanism for full compensation. The provisions under Division 8 of the new Victorian Police Act 2013 (due to come into operation on or before 31 December this year) while a start, do not remedy this situation. Indeed, s74(2) of the new Act expressly provides that 'the State is not liable for a police tort if the State establishes on a police tort claim that the conduct giving rise to the police tort was serious and wilful misconduct by the police officer who committed the police tort.' Further, victims must exhaust all avenues to recover any damages awarded by a Court against a police officer, before the State will consider paying a form of ex gratia payment to a victim. This can be a costly and exhausting process for victims.
The UN decision opens the opportunity for a long needed review of Victoria’s legislation to ensure conformity with both the Covenant and community expectations. The State should commission a review of both the new Victoria Police Act 2013 and the Independent Broad-Based Anti-Corruption Commission Act 2011 that includes community consultation.
Reforms to our police misconduct processes will instil confidence in our force and ensure ‘bad eggs’ don’t smear the reputation of the entire police force. Police officers who have seriously injured others should not be on our streets, and Victoria, the only state with a Charter of Human Rights, can and should be a leader in codifying this expectation.
Eighteen years later, Corinna has not been provided with an adequate remedy for flagrant disregard of her human rights. The UNHRC decision provides hope that Corinna might finally receive the justice she deserves. It also provides hope that Victoria may take the lead in ensuring an effective and independent oversight body exists to investigate allegations of police misconduct and that our laws are reorientated to ensure victims who are injured and whose human rights are violated by serving officers who have sworn to protect them, are adequately compensated.
The UNHRC has requested a written response from the Australian government by September 2014, outlining the measures it has taken to give effect to the UNHRC’s views. The next few months will be decisive for the Victorian and Australian governments - who must work together to meet their obligations to prevent further Covenant violations. It is our hope that the UNHRC decision will lead to genuine and much needed reform.
Sophie Ellis is a solicitor in Flemington Kensington Community Legal Centre’s Police Accountability Project - a specialist public interest legal practice focused on accountability law and strategies to provide justice to victims of police misconduct.
In 2014, Flemington Kensington Community Legal Centre was awarded the Australian Lawyers Alliance Victorian Civil Justice Award for its outstanding advocacy in the Horvarth v Australia case.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).