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Tuesday, 13 May 2014
Page: 2519


Senator MARSHALL (Victoria) (22:57): Eighteen years is a long time to wait for some form of justice to be delivered. Eighteen years ago, on 9 March 1996, Corinna Horvath, who was 21 at the time, was assaulted in her own home. Her front door was kicked down, she was thrown to the floor and repeatedly punched in the face. These punches broke her nose, led to extensive facial bruising, a chipped tooth and made her lose consciousness. You would think that such an attack would be investigated and justice served. Her problem, however, was that the people who assaulted her in her home were eight serving police officers in the Victorian police force.

Police officers entered her home without a warrant for arrest. After the initial assault, she was handcuffed, dragged out of her house and taken to a police cell. After 20 minutes of ignoring her pleas, she was finally given medical attention and an ambulance was called. She was then taken to Frankston Hospital for treatment. A week later, she was readmitted after an artery in her nose shattered. Surgery and a five-day stay in hospital was required to repair some of the damage done by the police officers. She subsequently experienced anxiety, depression, loss of confidence, stress, interference with her relationship, poor memory and concentration and, of course, a fear of police. Her long journey for justice commenced from that day.

The assault was reported to the Ethical Standards Department of the Victoria Police. Soon after the complaint was lodged, local police laid 11 charges against Corinna, all of which were ultimately rejected by the courts. Almost a year later, the internal police investigation found that the forced entry allegation could not be substantiated. However, they did recommend an internal disciplinary charge against one of the officers—a charge ultimately discontinued by the police themselves in mid-1998.

In June 1997, Corinna filed for damages against the state of Victoria and the individual police involved. The trial occupied some 40 sitting days, hearing a substantial amount of evidence from a large number of witnesses, including the plaintiffs and the four police defendants. In February 2001, County Court Judge Williams handed down his decision. In his concluding remarks, Judge Williams said that, overall, it was 'a disgraceful and outrageous display of police force in a private house’. He said the officers' conduct ‘showed a most high-handed approach accompanied by excessive and unnecessary violence wrought out of unmeritorious motives of ill-will and desire to get even’. In conclusion, he found police at fault of assault, unlawful arrest, false imprisonment and malicious prosecution, and found that the police told lies on matters of major significance. If any other individual was found guilty of these crimes, they would be facing a long jail sentence. False imprisonment carries a maximum penalty of 10 years jail, and causing serious injury intentionally carries a maximum penalty of 20 years imprisonment and up to 15 years jail for perjury.

Judge Williams ordered damages of $270,000 be paid to Corinna by the state of Victoria and the police in 2001.    In April, the state of Victoria appealed the decision. The state denied vicarious liability on the basis that police were acting pursuant to an independent discretion conferred upon them and therefore were not acting as servants or agents of the state. The November 2002 Court of Appeal decision found that the state was not liable; however, the police were still individually liable. Subsequently the police involved declared bankruptcy, and Corinna received no compensation for the unlawful trespass and assault.

If the assault had been conducted by anyone other than the Victoria Police, Corinna would have been entitled for compensation under the victims of crime tribunal. Corinna failed to receive any compensation, and the $270,000 awarded in 2001 is the equivalent to $375,000 in today's money—enough to help her move on from the harrowing events of 1996.

In addition to being denied compensation for the unlawful actions of police, even more importantly, Corinna was denied the justice of seeing the police investigated and charged for their actions. Clearly, the independent judiciary found against the police, but this did not lead to any action against them. Members of the Victoria Police are not subject to any real external and independent examinations of complaints or accusations of misconduct. The internal review conducted by the Ethical Standards Department of the Victorian Police led to no officer being disciplined. None of the officers who beat Corinna Horvath lost their jobs; in fact, some were promoted and two are still working for Victoria Police. There was no public release of the internal police investigation, no appeal process and neither Corinna nor any other person was invited to make a submission. The finding by the police internal review contrasts sharply with the strong findings of serious misconduct by Judge Williams.

Australia has been a signatory to the International Covenant on Civil and Political Rights since 1980. In 2008, Corinna submitted to the United Nations Human Rights Committee that her human rights had been breached by the actions of the Victoria Police and the subsequent actions taken by the state of Victoria. Article 2 of the international covenant states that signatories undertake:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his/her right thereto determined by competent judicial, administrative or legislative authorities or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy.

Specifically, Corinna argued that article 2 of the charter was breached as Victoria had not provided an effective remedy for breaches of her human rights by the Victoria Police. She received no compensation, and there was no action taken against the perpetrators of the assault. She asserted that the state failed to effectively investigate, prosecute and bring to account police offenders.

The state permitted the officers involved to continue to be employed in positions where their unacceptable behaviour could be repeated. Now, 18 years later, the human rights committee, on examining her case, found that the state of Victoria has violated Corinna's human rights. The committee found that the state of Victoria failed to show that the proceedings undertaken by the internal review of the matter met the requirements of an effective remedy. Specifically, the human rights committee noted that the investigation conducted by the Victoria Police did not call Corinna or other witnesses to give evidence; that Corinna was refused access to the file; that there was no public hearing; and that, once the civil proceeding finding was made against the police, there was no opportunity to reopen or recommence disciplinary proceedings.

The human rights committee found that the state of Victoria does not have a statutory scheme that provides adequate compensation for human rights abuses and that this is incompatible with section 2 of the covenant. The committee notes that under the convention the state of Victoria must make changes to domestic laws and practices that are necessary to ensure their conformity with the covenant.

The human rights committee has asked the state of Victoria to provide within 180 days information about the measures taken to give effect to the committee's views. I call upon the Victorian government to immediately adopt changes required to ensure that Victoria is compliant with our international human rights obligations and establish a proper independent body to investigate police and, if needed, prosecute police.

The current body responsible for oversight of complaints against police, the Independent Broad-based Anti-corruption Commission, known as IBAC, is, by their own report, inadequate to properly investigate complaints made against police. In the recently published special report following their first year of operation, IBAC concedes:

A low percentage of complaints to IBAC will result in an investigation by IBAC .

And:

In reality, many of these will be referred by IBAC to another entity for investigation …

In their report of April this year, they examined four cases of complaints against police. In the first, a complaint regarding alleged assault and racial abuse by police, IBAC advised:

After applying assessment criteria based on OPI’s legislative responsibilities, it was determined that the matter should be referred to Victoria Police for investigation.

In another matter, IBAC investigated a complaint regarding an alleged assault by police that occurred near Stawell. An internal police review of this complaint had been conducted by the senior officer at Stawell station and found no wrongdoing. This contrasted with the finding of the magistrate, who was strongly critical of police and found that police had assaulted and unlawfully detained the victim. The IBAC review found that the senior duty officer at Stawell had been deficient in investigating the complaint and:

Witness statements or contact details had not been obtained. Exculpatory evidence had not been considered. Only evidence that would support a prosecution of the complainant had been considered.

In conclusion IBAC found:

Victoria Police's oversight and review of the investigation was inadequate.

And yet, under its current powers, IBAC cannot make binding recommendations to Victoria Police or prosecute police for any wrongdoing. IBAC itself in April this year asked the parliament of Victoria to increase its powers. Specifically it is asking for 'the extent to which IBAC must be reasonably satisfied before investigating complaints' to be reviewed. The current threshold of requiring a 'prima facie evidence of an indictable offence being committed' is too high for it to investigate matters. IBAC is also seeking 'the ability of IBAC to conduct preliminary enquiries or investigations'.

Seventy-three per cent of IBAC's complaints are police related matters. In total around 3,500 complaints have been made against police to IBAC and inherited from the Office of Police Integrity, the OPI, the precursor to IBAC. This is a significant number of complaints. IBAC has a limited budget, with fewer than 30 investigators. It is clear that, if we are to see proper independent investigation of complaints made against police, there need to be significant changes made to the powers and budget of IBAC if they are to be able to carry out that role.

The police have the power to stop and detain citizens and use force if necessary. This is a grave power and, as a community, we must ensure that those we empower do not abuse this power. According to a 2008 OPI report into police use of force, an incident involving the use of force occurred every 2.5 hours in Victoria. In 2009 there were 4,166 incidents of the use of force, and in 2011 there were 3,735 cases. The 2009 OPI report estimated that these statistics were underreported by 20 to 70 per cent due to failure to fill out use-of-force forms at every incident.

We have a significant number of incidents of police using force against citizens. We also have a significant number of complaints made against police. According to the police complaints database, more than 1,418 individual police employees were the subject of one or more complaints about assault between 2000 and 2008. Between October 2005 and August 2009, the Flemington & Kensington Community Legal Centre received over 50 reports of human rights abuses against African and Afghan Australians in the Flemington and surrounding regions. These include reports of police punching people while they are handcuffed, throwing objects at people, slamming people's heads against interview walls, excessive batoning, using capsicum spray as a punishment, assaulting people with torches and assaulting a person during an interview with fists until they lost consciousness. Injuries sustained as a result of these allegations included broken teeth, cuts, bruising, scarring, ongoing and permanent back pain, arm pain, black eyes, severe headaches and eye injuries.

Many of these reports were made as official complaints to the Office of Police Integrity. In all cases they were found to be unsubstantiated following the internal police investigation. In all cases the ethical standards division referred the complaints to Victoria Police members based in the same region from which the assaults had occurred. In six of these cases, police subsequently charged the individual after they made the complaint. Charges laid included the use of threatening words, resisting police, hindering police and assaulting police. The threat of further charges being laid is a deterrent to those wishing to complain about police misconduct.

The Koori Complaints Project 2006-2008 analysed the investigation by police into 13 years of Koori complaints made against police in Victoria. One hundred and three Koori individuals lodged complaints in the period between 1991 and 2006. Forty per cent of these complaints concerned assaults made by police. Only 1.2 per cent of the assault complaints were 'substantiated' as a consequence of internal police investigation. In 70 per cent of Koori complaint files reviewed, local police conducted their own investigation. In one particular case in 2001, a Koori man alleged that he was picked up with batons under his arms and rammed head first into a wall and kicked repeatedly to the head whilst he was on the ground. The complainant was later released and then conveyed to hospital by his wife. He was then flown to Melbourne, where he remained in hospital for a further six days. As a consequence of the assault, he suffered, among other things, permanent brain damage, a stroke and dementia due to head trauma. The complainant's allegations were investigated by the local police and subsequently determined to be not substantiated.

It is clear, in examination of the number of incidents of police assaults against citizens, that we have a serious problem in Victoria. In investigating this issue, I was astounded by the number of people I spoke to who were able to relay personal stories of police misconduct affecting either themselves or people that they intimately knew. I myself have a family member who has been a victim of police misconduct. Case after case of police misconduct is not being found by internal police investigations—investigations that were mostly conducted by the police stations or the region where the officer resides. It appears that the lack of accountability for their actions has led some officers to feel as though they are above the law, safe in the knowledge that, even if someone does make an official complaint, they will be protected by an internal process. It will be seen as an internal disciplinary matter—with at worst, a warning issued by a supervisor—not the criminal matter it should be seen as.

But the issue is far wider than the reported cases. It goes to the everyday actions of some police officers at the point of stopping or arrest. It goes to the regular stopping of people; the harassment, the verbal abuse or the insults; taking an individual and dropping them off tens of kilometres from home—the 'starlight express' as some Indigenous communities call it, as the practice is so common; helping someone fall over onto the ground or into a divvy van during stopping or arrest, smashing their face and breaking their nose—injuries that police can easily blame on clumsiness or drunkenness.

I acknowledge that policing can be a difficult and challenging role. That is why the state invests heavily in training and professional development. It is why we pay our police well and provide supportive employment conditions. But policing can and must be done with integrity; Victorians expect no less.

I again call on the state government of Victoria to create an independent body to investigate complaints against police and to have the power to prosecute police for their misconduct. This may involve expanding the scope and budget of IBAC.

The UN Human Rights Committee has shone a light on the Victoria Police force and the inaction of the Victorian government. After 18 years of personal pain, maybe Corinna Horvath may finally see some justice, and, for close to six million Victorians, reassurance that their rights will be upheld and the hope that police will think twice before handing out their own punishment at the point of stopping or arrest.