The Victorian Civil and Administrative Tribunal (‘VCAT’) has now corrected a discrepancy in the law which saw some complainants of police misconduct able to access documents about their complaint where others were barred.
Individuals can make complaints about police directly to Victoria Police or alternatively to an independent body, the Independent Broad-based Anti-corruption Commission (‘IBAC’). The majority of complaints made to IBAC are referred back to Victoria Police for investigation. In practice, this means that Victoria Police investigate the majority of police complaints, regardless of where the initial complaint was lodged.
At the end of an investigation, complainants receive a decision letter stating the outcome of the investigation. The decision letter contains very little information about what investigations were conducted and how that decision was reached. As the majority of complaints about Victoria Police members are not substantiated, many complainants seek to understand the decision by making an application to access the investigation file using freedom of information (‘FOI’) processes.
The legislation which created IBAC, the Independent Broad-Based Anti-Corruption Act, includes provisions which prevent IBAC documents from being accessed through FOI. Historically, section 194 of the IBAC Act had been interpreted by Victoria Police, and later by VCAT, as operating to block complainants from accessing documents through FOI where the initial complaint was made with IBAC. Victoria Police argued that the documents related to a complaint under the IBAC Act and therefore were not subject to FOI.
As Victoria Police is a public body and is therefore subject to FOI, a discrepancy was created between complainants who initially complained to Victoria Police and those who lodged their initial complaint with IBAC. If the initial complaint had been made with Victoria Police then documents regarding the subsequent investigation could be accessed through FOI. However, if the complaint was initially made to IBAC, a complainant would not be able to use FOI processes to access documents even though the complaint was investigated by Victoria Police in the same manner as if the initial complaint had been made to Victoria Police, rather than IBAC.
The Law Institute of Victoria, together with other peak organisations, raised this issue with Parliament. A Parliamentary Committee recommended reform and a Bill was introduced which sought to rectify this issue. Unfortunately, the legislative amendments were not sufficiently clear and the new 194 IBAC Act continued to be interpreted by Victoria Police in the same way.
In her recent decision of Marke v Victoria Police FOI Division (Review and Regulation) [2018] VCAT 1320, Justice Quigley held that s 194 IBAC Act does not apply where IBAC refers a complaint to Victoria Police for investigation.
Unless the subject of an appeal, the ruling in Marke means that all complainants of police misconduct should now be able to access their Victoria Police complaint files regardless of where their initial complaint was lodged. This has significant ramifications for hundreds of complainants who have been denied transparency regarding the investigation of their complaints.
