(This article also appeared on the website of the Police Accountability Project.)
Law Institute Journal considers the new Victoria Police Act — a step forward?
A feature article in the most recent Law Institute Journal, In Search of Certainty, examines the issues surrounding the new Victoria Police Act and its implications for police accountability in Victoria.
The article, by Robinson Gill lawyers Jeremy King and Merys Williams, traces the history of the legislation and its likely effects in practice.
Until July of 2014, the principal legislation regarding police in Victoria was the Police Regulation Act of 1958. In July 2014, this Act was replaced with the Victoria Police Act as the new legislation came into force.
Both acts are problematic from the point of view of holding police accountable for misconduct through civil litigation, and compensating the victims of assaults by police and other wrongdoing.
It is not yet clear how much of an improvement the new Act will be. King and Williams argue that state policy will determine precisely how much. This post summarises their arguments; see their original article for full details.
Making the cops pay: The law governing civil liability for police misconduct
The specific problem is: if you suffer an assault or other wrongdoing at the hands of police, who can you sue? Who is liable? Is it the individual officers? Or is it the State, on whose behalf they act?
This sounds like a technicality — but it can mean the difference between being fully compensated for injuries suffered for wrongdoing, or receiving nothing.
If it is only the individual officers who are liable, those officers may not have the means to pay compensation. They may be bankrupted by the costs, or rendered impecunious.
It is in the interest of victims who have suffered police injustices, then, that the State be liable for police torts.
The position at common law, however, was very different. Known as the Independent Discretion rule, from the 1906 High Court case of Enever v R, it held that when an officer exercises their independent discretion, they are acting on behalf of themselves alone, not the State. If they committed a tort while exercising their discretion — which is what they do most of the time — they were liable and the State was not.
This position was altered by s123 of the old Police Regulation Act, which held that the State would be liable for “anything necessarily or reasonably done or omitted to be done in good faith and in the course of his or her duty as a member”.
This convoluted wording came to mean that when an officer was not acting “necessarily”, “reasonably” or “in good faith”, the State would again not be liable. Most police torts — assault, false imprisonment, malicious prosecution — are intentional. The State avoided liability again.
Indeed, under the old Police Regulation Act, the State avoided liability in precisely the worst cases of police misconduct. The worse the injustice suffered, the less likely the State was to be liable, the less likely the victim would be compensated.
In 1996, Horvath, along with her partner and several friends, were viciously assaulted by police during an unlawful raid on her home. Police violence left her unconscious, with a broken nose — then she was arrested. She suffered grave injuries. She successfully sued for damages.
But the State sought immunity under s123. Because the police were not acting “reasonably” or “in good faith” — indeed, far from it — the State was held not liable. Only the officers were liable. And the officers could not pay. Horvath won her day in court — or rather, won years of hearings and appeals in exhaustive court processes — yet received no compensation.
Horvath took her case to the UN. The Human Rights Committee found that s123 of the old Police Regulation Act was incompatible with the International Covenant on Civil and Political Rights. Her human rights had been breached, but the State had no mechanism to compensate her — only a mechanism to provide her with a Pyrrhic victory, an empty judgment in her favour.
It was only in September 2014, almost 20 years after the event, that Horvath finally received an apology and compensation from Victoria police.
The new Victoria Police Act
In something of an attempt to redress the longrunning injustice of Horvath’s case, s74(1) of the new Police Act specifies that the State is liable for “police torts”.
But the definition of a “police tort” again leads to difficulties. Section s74(2) provides an exception: the State is not liable when “the conduct giving rise to the police tort was serious or wilful misconduct by the police officer“. Again, it seems, victims will not receive compensation from the State for the worst police torts. Many police assaults are serious or wilful misconduct.
However, there is then s79(2), which requires that, in such circumstances of “serious or wilful misconduct”, the State must pay the victim “an amount” — but only when the victim “is unlikely to recover the amount from the officer” who committed the tort, and “the claimant has exhausted all other avenues to recover the amount”.
Together, this new legal regime leaves a great deal of uncertainty. What does it mean that you are “unlikely” to be able to recover from a police officer, and how do you prove it in court? What, precisely, are the “other avenues” that a victim must exhaust first? Must they first put themselves through the largely symbolic process through the Victims of Crime Compensation Assistance Tribunal (VOCAT)? And while the State is required to pay “an amount”, how much is this “amount”?
King and Williams argue that the legislation is unhelpful in answering these questions. But they see the new Police Act as a positive step forward, and conclude that
whether the [new] Police Act will overcome the shortfalls of the [old] Police Regulation Act will largely depend on the policy position adopted by the state of Victoria. The Police Act gives extremely broad discretion to the state regarding the use of the serious and wilful misconduct defence. If the state elects to use this defence in most civil litigation torts cases then the intention of the Police Act may well be undermined. Additionally, the state’s policy on how it will interpret s79(2) regarding ex-gratia payments may be key to the success or failure of the new legislation. If a technical and legalistic approach is adopted by the state then plaintiffs may find themselves no better off than Ms Horvath.
If the State insists on asserting its full legal rights in court, then, the new legislation may not be much of an improvement.
Several concerned groups, including the Flemington & Kensington Community Legal Centre, the Human Rights Law Centre, Remedy Australia, Liberty Victoria, Australian Lawyers for Human Rights, the Law Institute of Victoria, the Uniting Church, Australian Lawyers Alliance, Federation of Community Legal Centres, Aboriginal Legal Service, Victorian Council of Social Service, Springvale Monash Legal Service, and Youthlaw, sent an joint letter to the Victorian Parliament in July 2014 urging a review of Victorian police legislation to ensure conformity with our human rights obligations outlined in the Horvath decsion.
The reply from then Minister for Police and Emergency Services, Kim Wells, asserts that the new sections 72-81 of the Victoria Police Act will guard against a repeat of the circumstances faced my Ms Horvath. He states that the changes “provide an effective remedy for all torts committed by police, including assault, battery, false imprisonment and maliscious prosecution.”
We await the formal response to the Horvath decision from the Australian Government.