A breach of s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) by a public authority constitutes jurisdictional error, rendering the decision invalid and amenable to judicial review. Section 10(b) of the Charter (prohibition on cruel, inhuman or degrading treatment) includes an implied procedural obligation requiring effective investigation of credible complaints of such treatment. The privative clause in s 109(1) of the Police Integrity Act 2008 (Vic) does not extend to judicial review proceedings challenging a decision not to investigate a complaint. Public authorities exercising discretionary powers must give proper, genuine and realistic consideration to relevant Charter rights, applying the Castles framework.
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