In your role as a lawyer with the Human Rights Unit in the Victorian Department of Justice, you have been asked to provide advice on the potential application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’) in the following scenario, because it may give rise to litigation and your superiors in the Department wish to be prepared:
Nelson, a 17 year old South Sudanese youth living in Dandenong, was practising driving on New Year’s Day 2019 to obtain his P plates so that he could drive on his own. He was driving past the shops near his house with his older brother (who has an unrestricted licence) in the passenger seat, when the police pulled them over. Nelson asked “is there something wrong officer?” to which the officer at the scene (Constable Collins) replied “just a random breath test”. Nelson replied “but this is a busy road – how come mine is the only car being stopped?”. Constable Collins called over his partner Sergeant Brunelli. The police officers ordered Nelson to get out of his car. When Nelson’s brother protested, they shouted at him to stay in the car “or else”, and Sergeant Brunelli stood next to the passenger door to enforce this order. Constable Collins pushed Nelson against the car, handcuffed him then searched him thoroughly in full public view. By this time, Nelson was protesting loudly, and began to struggle. Without warning, Constable Collins pulled out his capsicum spray and sprayed it at Nelson’s face, saying “we’ve just about had enough of you black kids and your attitude – this is for the Apex Gang’s victims”. On 7 January, after recovering sufficiently from his ordeal, Nelson lodged a complaint with the Independent Broad-based Anti-corruption Commission. The Commission has advised your Department that it will not be investigating Nelson’s allegations for ‘public interest reasons’. Prepare a memorandum of advice for the Director of your Unit. You should address the following two questions in your memorandum:
(a) Identify any provisions of the Charter which may have been breached by Constable Collins, and briefly explain how he may have breached each provision you identify, supporting your explanations with relevant authority.
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