Tuesday, 21 March 2023

Bills

Human Source Management Bill 2023

Second reading

Debate resumed on motion of Ingrid Stitt:

That the bill be now read a second time.

Matthew BACH (North-Eastern Metropolitan) (13:33): I am pleased to take to my feet to speak on the Human Source Management Bill 2023. It is a noble and fair aim that the government has to seek to implement to the greatest possible degree many of the recommendations from the Royal Commission into the Management of Police Informants, but that does not grant the government a blank cheque. Whilst those of us on this side of the house support many of the recommendations that have been made and support their implementation, we also are not absolved of our duties to go through, line by line, the government’s response. There is a reason why the Nicola Gobbo scandal caused such intense outrage across our community here in Victoria some years ago. Victoria Police’s use of barrister Nicola Gobbo as a police informant for 19 years, between 1995 and 2014, according to court documents, was what the High Court referred to as constituting ‘reprehensible conduct’, with Gobbo’s actions being ‘fundamental and appalling breaches’ of the obligations of a barrister. I confess I know nobody across this house or in the other place who disagrees.

One of the reasons that we enjoy the society we do today is because of the strength of our institutions. This has been something that I have had the privilege of looking into in some of my previous studies. Our institutions only survive the test of time – institutions like this place and our courts of law – when they are invested with the trust of the people that they were established to serve. We should all be able to trust our courts. We should all be able to trust the men and women of Victoria Police. I do that; however, based on the actions of Victoria Police in the matter regarding Ms Gobbo, it became very difficult to trust the leadership of Victoria Police.

All Victorians should be able to trust that when they find themselves before a court, they know that their legal counsel will act in their best interests. There is a reason why ethics training in particular is not only mandatory but such a critical element of the training of all law students and why this training drills into those students the really quite sacred nature of the fiduciary obligations that they have to their clients. It was this sacred obligation that Ms Gobbo breached, and my view, the view of Mr O’Brien the Shadow Attorney-General and the view of all of us on this side of the place is that we all need to work together to ensure that that type of situation does not happen again.

It is not just an academic discussion – one that we all can and potentially will over the course of this afternoon pontificate about. One of Ms Gobbo’s clients, as you know, Faruk Orman was released from jail and acquitted of charges of being a getaway driver at a gangland murder because of what the Court of Appeal referred to as a ‘substantial miscarriage of justice’. So the matters we saw play out some years ago regarding Ms Gobbo continue to impact the Victorian community today. I want to be crystal clear that I do not seek in any way to question the court’s reasoning. In fact I agree with His Honour that Mr Orman was clearly denied his right to a fair trial. Nonetheless Mr Orman’s release is immensely troubling.

In this vein the object of this bill should be to once and for all stamp out the possibility of this type of conduct ever occurring. But based on significant consultation carried out by Mr O’Brien engaging with – I need to use a stronger word than ‘reputable’ – incredibly highly regarded stakeholder groups, like the Victorian Bar council, the Law Institute of Victoria (LIV) and the Law Council of Australia, among many others, it is absolutely clear that this bill will not do that. I note that the government, after being subjected to intense pressure from the broader legal community, will move some house amendments of its own. Nonetheless our view even then is that those house amendments that we have sought to consult on do not go far enough.

Our concerns with this bill are really quite straightforward. We acknowledge the government’s attempt to strengthen the framework for the registration of human sources. But this bill still allows for the registration of lawyers as human sources – noting, as I say, that the government will seek to move some house amendments of its own. A joint press release was put out from the Law Institute of Victoria and the Victorian Bar association that put it nicely, in my view, and I would like to quote from this media release at some length:

We are opposed to the idea that lawyers could ever be used as human sources or that they should covertly inform against their clients. To do so is contrary to a lawyer’s role as an officer of the court and violates many other ethical duties that a lawyer owes to their client. The duty of strict confidentiality is there to protect the client. Encroaching on this undermines community trust and confidence in the administration of justice.

Lawyers play a central role in the administration of justice and that does not include being an evidence gathering instrument of Victoria Police.

Later Ms Tania Wolff, who is of course the president of LIV said:

Despite Royal Commission findings and a High Court ruling that a lawyer who informs on their client to the police while purporting to act for them is a clear breach of ethical obligations, this legislation … would legitimise such conduct …

That is why some time ago, after engaging with the Attorney and members of the government and also engaging with the crossbench, Mr O’Brien circulated to them the amendments that we will seek to move in the committee stage of our discussions. So the concern of Ms Wolff, the head of the Law Institute of Victoria, is our central concern. If the purpose of this bill is to prevent another Nicola Gobbo, well, it actually enables a system of human source registration that does the exact opposite. Why should any of us in this place seek to support a bill that strays so far in its purpose, according to some of the most highly regarded and reputable stakeholders in the legal community? That is a question, President, that through you I would put to my friends on the Treasury bench, and that is why we will seek to move a series of amendments, if you like, to save this bill from itself.

Our amendments would have the following effects. Firstly, Victoria Police would not be permitted to register a lawyer as a human source in relation to their role or knowledge of confidential or privileged information obtained as a lawyer. We believe that is of central importance. This would mean that Victoria Police would not be able to use a lawyer as a source against that lawyer’s clients. However, a lawyer could still be a source in relation to someone other than a client as client legal privilege would not be engaged – the lawyer down the road who happens to live next door to a drug lab, for example.

Secondly, for other categories of reportable human source such as minors or persons with a serious medical or mental health condition, medical privilege, journalist privilege or religious confession privilege, a retired senior judge would have oversight of the power of the Chief Commissioner of Police to register them. Again, we think this is critical, and we think this is critical notwithstanding the amendments that the government will move. This person could veto a proposed registration if they deemed it was not appropriate. This provides a reasonable level, in my view, of oversight of what is currently the unchallengeable power of the chief commissioner to register a reportable human source under the bill in its current form.

We all know the issues that this government has with integrity and oversight – you could ask the Ombudsman, you could ask the Auditor-General, you could certainly ask the former IBAC Commissioner. In its current form this bill allows the Chief Commissioner of Victoria Police to register human sources with no appeal process and, again, we do not think that is right. The Public Interest Monitor and IBAC can make recommendations which can be ignored by the chief commissioner, another element of this bill that we think is not strong enough given the shocking miscarriages of justice that we saw during the period that Ms Gobbo was a reportable human source. It would be appropriate therefore to ensure greater accountability over the chief commissioner by enabling a respected legal figure to veto registrations when needed.

To pre-empt the concerns of those opposite and to note some of the discussions that I and the Shadow Attorney-General have had recently with members of the crossbench, I note that on this side of the house we agree with numerous reputable stakeholders that the lawyer–client relationship is sacred. There already exists the ability for lawyers to report privileged information to authorities where lives are at risk, and I think that is an appropriate carve-out.

Put simply, the great weight of stakeholder opinion is against the government on this bill, and the very significant concerns that have been raised by important stakeholders are not obviated by the amendments that I understand the government will bring forward. That is why I would implore all members of the house to support the significant amendments put forward by Mr O’Brien, which were circulated to members some time ago.

Rikkie-Lee TYRRELL (Northern Victoria) (13:44): This bill has some deeply concerning components, specifically pertaining to the potential erosion of public confidence within the legal fraternity. I do support the adoption of the Royal Commission into the Management of Police Informants recommendation of the implementation of a register for the management of informants. In fact as long as this information is kept secure from the public domain, this is a reasonable proposal for allowing our police force and justice system to function in a responsible manner. I also applaud the government’s amendment to remove children from being activated as human sources under normal circumstances.

However, regardless of all the fail-safe parameters that the government has proposed in activating a human source from a professional, legal industry, I do not support the recommendation for lawyers, journalists, doctors or religious leaders to be utilised as informants under any circumstances. These professions need to strictly maintain a status of legal, professional privilege and confidentiality and remain free from exploitation. Without such rights these traditionally honourable professionals could be forced to act unethically, undermining their own institutions and faith in the eyes of the very public who look to them for guidance. Even under the pretence that there was a serious threat to national security, the community or the life and welfare of a person and that there was no other way of obtaining the information, whereby this bill originally sought to utilise these potential human sources, we have seen terms like these deliberately misinterpreted in an effort to validate wrongful activity in the past. I do not believe this to be the right course of action. This bill, if passed, will also create a situation wherein some currently incarcerated, dangerous criminals may seek recourse through appeal, putting them back on the street.

The royal commission never intended to have these professionals activated as human sources. Even if it did, a royal commission simply suggesting a specific recommendation does not mean we need to implement it. We need to evaluate all of the perceivable flow-on implications and then balance all recommendations against the negative impacts that may be incurred on our collective Victorian community before allowing such drastic measures. I do not believe this bill in its current form has struck that balance.

John BERGER (Southern Metropolitan) (13:47): Today I rise to contribute to the debate on the Human Source Management Bill 2023, which has been proposed to regulate the registration, use and management of human sources by Victoria Police. As the member for Laverton in the other place Ms Connolly said last sitting week in a debate on a different bill – the Heritage Amendment Bill 2023, which we will get to later this sitting day – this bill was introduced into the last Parliament before the election, so it is important that we get on with it and get it done. In fact the previous government, our government, introduced a substantially similar piece of legislation to the Legislative Assembly on 16 August 2022, but the bill lapsed, unfortunately, due to the Parliament dissolving for the 2022 state election campaign on 21 September 2022.

The bill aims to provide a clear framework for police to obtain and use information from human sources. According to the report glossary or definition of terms used in the Royal Commission into the Management of Police Informants: Annual Progress Report 2020–21, a ‘human source’ is:

A person who covertly gives information to police about a crime or people involved in criminal activity, usually with an expectation that their identity will be kept confidential.

In other words – something that is more commonly known in the media, wider public and general conversation:

A human source is also referred to as a … ‘informer’ or ‘informant’.

Why is this definition of what this bill is all about important? Well, on 3 December 2018 our government announced it would establish a royal commission – royal commissions are big deals, as everyone knows – and this inquiry would take place into Victoria Police recruitment and management of human sources, subject of course to legal obligations of confidentiality or privilege.

Just to remind everyone why this happened: it followed the public release of a unanimous decision of the High Court of Australia regarding Victoria Police’s use of former criminal defence barrister Nicola Gobbo as a human source. This bill aims to implement the recommendations of this royal commission. In fact the bill delivers 25 recommendations of the Royal Commission into the Management of Police Informants. And just a reminder: our government has committed to implementing the 111 recommendations found in the report.

I understand and recognise from reading the Hansard reports of the debate in the Legislative Assembly that members from the other place, namely, the member for Malvern Mr O’Brien and the member for Berwick Mr Battin, raised concerns about the bill, stating that it seeks to change the basis of the state’s criminal justice system. They claimed that it will regularise what is fundamentally corrupt. They also highlighted the case of barrister Nicola Gobbo, who acted as a police informant against her clients, leading to the quashing of several convictions. I would like to address these concerns by emphasising that the bill aims to provide external oversight of human sources, something that was severely lacking in the past.

The case of Lawyer X, as the member for Laverton in the other house Ms Sarah Connolly pointed out, is a clear indication of the need for greater regulation and oversight in this area. While it is true that Nicola Gobbo acted inappropriately, it was the lack of oversight and regulation that allowed her to do so. This bill seeks to address that by providing a framework for the use of human sources, which will be the first of its kind in Australia.

The member for South Barwon in the other place Mr Cheeseman made an impassioned and commendable contribution on the bill. I wholeheartedly support his sentiments that Victorians want a criminal justice system that they can have confidence in – a criminal justice system with clear rules and laws that define the roles of police, courts and informants. The Human Source Management Bill 2023 is an important step forward towards achieving this. The bill provides safeguards for the use of human sources, including requiring senior officers to assess the appropriateness of a prospective source, informed consent and limits on using sources for different purposes. These measures ensure that the lines between the roles of police, courts and informants are clearly defined and not crossed.

In reflecting upon this debate, I also came upon remarks of my colleague in the other place the member for Ringwood Mr Fowles. He is always creative, let me say that, but he mentioned something that is quite important to this debate: that under the solicitors conduct rules, rule 9.2, and the barristers conduct rules, rule 82, lawyers are permitted to disclose confidential client information to police. The reality is that lawyers or those with legal backgrounds are aware that this exists, and the reality is that this will just continue that while providing a framework and more vigorous oversight. The bill aims to prevent situations like that of Lawyer X from occurring again, which ultimately led to the quashing of convictions and the undermining of the integrity of the criminal justice system. The provisions in the bill protect the rights of individuals while ensuring that police can use human sources effectively in the investigation and prosecution of crime.

Before I touch on the massive scale of consultation that the government has undertaken to prepare this bill, I want to say that the calls of a member in the other place – namely, the member for Berwick Mr Battin – for more consultation were misguided. The government has engaged in consultation throughout the development of this bill, including the recommendations of the Royal Commission into the Management of Police Informants. While it is true that some organisations and people do not trust the bill, it is important to remember that there will always be differing opinions on any matter of public policy. The government has considered the concerns raised and provided appropriate oversight and regulation in this bill to address these concerns.

On consultation, with any piece of important legislation the government consults extensively, and it is appropriate to do so, to craft the best piece of legislation. In this case the Department of Justice and Community Safety has consulted extensively. From my understanding, this includes Victoria Police, the Independent Broad-based Anti-corruption Commission, the Public Interest Monitor and the police informants royal commission implementation monitor, which clearly creates reports on the progress and implementation of the royal commission’s recommendations. These stakeholders largely support the bill. On top of that, the Department of Justice and Community Safety has consulted with the Commission for Children and Young People, Victoria Legal Aid and the Commonwealth Attorney-General’s Department on the parts of the bill that are relevant to their areas of expertise and authority. Consultation also included regular meetings of the implementation task force recommended by the commission. On top of some of the organisations that I have just listed, the task force also included the Department of Premier and Cabinet, the Law Institute of Victoria, the Victorian Bar Council, the Office of the Special Investigator, the Office of Public Prosecutions and the Victorian Legal Services Board and commissioner, and because we are thorough we also consulted with some of the relevant agencies from the United Kingdom. That is a lot of consulting.

So why human sources? The commission found that the use of human sources is a critical tool to prevent, detect and solve crimes. And it is part of VicPol’s work. In their final report they found that approximately 1200 human sources registration applications were made in a three-year period from July 2017 to July 2020, and of those approximately 3.5 per cent were potentially subject to the legal obligations of confidentiality and privilege – that is around 40. But going into the future, these sorts of sources are likely to become more important. Why? Because other investigative methods are being impacted by new technology and the growing intelligence of criminal networks. One only needs to look at ChatGPT and the future of artificial intelligence to see what criminals have in their back pockets going into the future. With the reality of human sources sticking around for the long haul, the internal procedures and policies of VicPol regulating human sources must be codified, and that is where this comes in.

Although VicPol has made significant improvements to its processes since the events that led to the royal commission, our government knows we need to create confidence and clarity in the system. We must ensure that they are appropriately managed. How does this bill go about ensuring VicPol has the highest standards? The bill sets out a process for VicPol to register human sources – and this means a strong process. It means there will be stronger requirements to register high-risk or vulnerable people as reportable human sources. It also means that in the case of an emergency there will be a quicker and easier registration process. The bill sets up a deterrent and enforcement aspect. It establishes offences to protect the safety of human sources and, when there is an investigation that involves human sources, aims to establish the utmost of integrity.

I mentioned just before how the government consulted the PIM, the Public Interest Monitor, in its development of this legislation. The bill will also provide the monitor with new functions and powers in the aim to provide VicPol with the information to make appropriate decisions when registering reportable human sources. Additionally, it will provide the Independent Broad-based Anti-corruption Commission, IBAC, with new powers to monitor VicPol’s compliance with the bill, other regulations as well as VicPol’s internal policies. Indeed an important aspect of this oversight will be VicPol’s registration of a human source. High-risk human sources – for instance, lawyers – must be put through the most stringent registration process with the greatest number of safeguards in place. That is what the royal commission recommended, and we are a government in the business of following the recommendations of the royal commission, just like we did with the Royal Commission into Victoria’s Mental Health System. In this case a senior VicPol officer must assess the risks involved. This officer must then decide that registration is appropriate and justified – after receiving legal advice. The oversight will cover VicPol’s application of this process. It will be subject to the oversight and recommendations of the Public Interest Monitor and of IBAC after the registration is made.

I am proud that this bill is building upon work that the Attorney-General has been doing this year. You see, the legislation requires the Attorney-General to report annually to the Parliament by 30 November on the progress made towards implementing the commission’s recommendations. I am excited for this 30 November and the work that this bill will achieve.

In conclusion, this bill is simply acquitting the royal commission’s recommendations. I am proud that our government is leading the way on this legislation. In fact it is the first of its kind to be introduced in Australia – yet another example of the Andrews Labor government being ahead of the curve. This bill is also important, as it gives the government the power to make regulations that give effect to the bill and the purposes of the bill. The royal commission did not recommend that a person should be prohibited from being a human source, but it did recommend that appropriate protections and external oversight arrangements be included in a legislative framework – and that is what we are doing. I would also like to conclude by associating myself with the remarks of the Attorney-General, who made comments to the Age newspaper yesterday. They are supported by my comments throughout, and they are that organisations were consulted in the development of this bill. As the Attorney-General said:

This bill proposes the most robust police informant management system of anywhere in Australia … Victorians deserve nothing less to ensure what happened with Ms Gobbo can never happen again.

I agree wholeheartedly.

Finally, as the Attorney-General said, when VicPol is rarely allowed to consider registering a lawyer as a police informant, they will be subject to multiple stages of independent oversight with regular reporting, all of which were not there before. The human sources bill is an important step towards ensuring the criminal justice system in Victoria is fair and just. The bill provides appropriate oversight and regulation of the human sources, which is essential in preventing situations like Lawyer X from occurring again. I urge all members to support this bill and demonstrate their commitment to a fair and just criminal justice system for all Victorians.

Nicholas McGOWAN (North-Eastern Metropolitan) (14:00): I rise to inform the house why we do not support the Human Source Management Bill 2023. The Victorian Royal Commission into the Management of Police Informants in 2020 – indeed the royal commission into the actions of Lawyer X and the Victoria Police – encouraged legislation to make it more ethical for police to find sources of information, not less ethical. The royal commission looked extensively at the UK Covert Human Intelligence Sources (Criminal Conduct) Act 2021. The Human Sources Management Bill draws on some aspects of the UK legislation. However, this bill is weak and ineffective because it does not have the same oversight and accountability procedures as the UK legislation. As a result, it will not have the same ethical outcomes and effectiveness as the legislation it takes its inspiration from. Rather, the bill will create and exacerbate already critical issues in the Victorian legal system, because it is out of touch with reality. It does not provide a clear and effective framework for how police will create and manage their sources of information and how this affects the public view of policing and justice in this state. There are obvious structural issues with the bill. The bill is a travesty because it removes rights from Victorian citizens. It removes trust in the legal system. It creates a disjunct in the legal system.

The bill unforgivably infringes on the rights contained in the Victorian Charter of Human Rights and Responsibilities. It removes the right to a fair trial and violates the centuries-old code of ethics of law and the role of lawyers as officers of the court. In the words of Ryan Batchelor, a member of the government, on 22 February 2023, the government want to introduce pieces of legislation which he said best reflect the will of the people who – and I paraphrase – they seek to represent. If the government truly wished to represent that outcome, they would not be introducing this deplorable bill. It does not reflect the will or the best interests of the Victorian people.

This bill does not understand how things work in the real world. The methods of Victoria Police to extract information from informants are a questionable item. The ethics of the bill are murky. Under this bill Victoria Police would require consent to register a person as a human source of information. This means a person would sign up to inform without undue pressure. No lawyer in their right mind would think, without any undue pressure, ‘I am going to register with the police as an informant so I can provide them with my client’s privileged information.’ As such, the method required to get cooperation from lawyers to sign up as a human source would be extremely questionable.

Nowadays, if police wish to extract information from a person, they use coercion and manipulation tactics and leverage an individual’s wrongdoing to make them talk. It may be that human sources engage in criminal conduct themselves, and police are able to use the threat of prosecution for this misconduct to incentivise them to provide intelligence against others. How can our justice system ethically find human sources in this way? Where is the consent without undue pressure in these circumstances? Obstruction of justice and endorsement of Lawyer X cost the entire legal system a great deal of public respect. The use of Ms Gobbo as a human source exposed systematic issues with the hierarchy of Victoria Police – not police officers themselves – and had far-reaching and detrimental consequences for the Victorian justice system. Why does the government wish to add to this distrust by legally entrenching this outrageous behaviour in an act of Parliament?

There are extensive structural issues with the organisations used to monitor the induction of human sources. The Public Interest Monitor is completely inadequate to oversee the human source management program. There are minimal requirements for the position; the only qualification is to be an Australian lawyer. Stephen Charles KC is horrified about the lack of review for the Public Interest Monitor. He rightly notes that it is dangerous for one person to have so much discretion – dangerous. There should be judicial oversight with multiple minds coming to a decision in a body of this kind. The monitor in the proposed form is currently completely inadequate.

The test for a person registering as a human source is ambiguous, and what an authorising officer regards as a serious threat is seriously subjective. This use of human judgement can lead to error; it will lead to error. It is an ineffective way to have just one person control such tests. The Victorian Bar and the Law Institute of Victoria contend that it is a simple fact that human discretion cannot be trusted without clear boundaries and guidelines. As a result, the bill fails to provide an effective monitor of induction of human sources for Victoria Police.

The Human Source Management Bill initially fails in its ethical requirement because there is no mention of any provisions for a code of practice for the creation of human sources. Why isn’t Victoria going to develop a code of practice as part of a regulation – clause 90 – that should be made public and would be subject to sunset clauses, regulatory impact statements and overall parliamentary view? This would be far more ethical and fair and would ensure that Victoria Police and the Public Interest Monitor are not abusing their powers. Members of the government in the Legislative Assembly, in particular the member for Laverton, highlighted earlier to the Parliament that trust in our legal system is very important. In their endorsement of the Human Source Management Bill the member for Laverton’s sentiment that trust in the legal system is important is one that I agree with. However, the Human Source Management Bill is an ineffective platform for building trust. It degrades trust. It will ultimately destroy trust. Trust in the legal system cannot be re-established through this outrageous, out-of-touch bill. The legal system is built upon systems of fairness, which this bill seeks to undermine. This bill gives the Chief Commissioner of Police the right to decide how the professional privilege of clients is used. This unelected official could have, with the absence of any direction or framework in this bill, the power to inform any level of police person about privileged information provided to them by a human source. There is no confidentiality requirement from the Chief Commissioner of Police outlined in the bill. The exclusion of frameworks in the bill surrounding the confidentiality of information given to police is a flagrantly immoral choice by this government. It shifts the management of an individual’s private information away from the lawyer and the individual to the Chief Commissioner of Police and Victoria Police.

Why does this legislation not include a safeguard for confidentiality of privilege? It is provided to Victoria Police. This is an agency that already has significant powers to intervene in the lives of ordinary, everyday Victorians. Why do we give them more power, unnecessary powers, which can prevent the administration of justice? This is an extreme oversight, and in combination with no code of practice for the creation of human sources, I and my colleagues have serious questions about the integrity and effectiveness of this bill. It will not assure an effective legal system. This bill will reduce the already limited trust the public have not only in the investigations of our legal system and the police but more broadly in the government’s hypocrisy and out-of-touch agenda.

There are two important pieces of legislation in existence which I would like to draw the attention of members to which work in conjunction with each other – the Terrorism (Community Protection) Act 2003 and the Evidence Act 2008. Both acts specifically protect the legal professional privilege of people accused of a crime. In the Evidence Act it is very clear that client privilege applies to all communication at any time, whether preliminary to legal proceedings or not. As a result, under this bill any conversation a lawyer has with their client could be revealed to police and threaten their client’s privilege. This bill raises the issue of how these acts will work together. How can a client be protected under these two acts yet at the same time their privileged information can be threatened if their lawyer is a human source under the Human Source Management Bill?

It also makes me wonder why terrorists are getting better rights than Victorians. The bill will remove this fundamental right for citizens accused of a crime – in other words, their right to legal professional privilege. Are the government suggesting that terrorists should have more legal rights than an accused Victorian citizen or accused citizens? This view of the government’s is frankly unethical and in conflict with existing acts. The Human Source Management Bill is inadequate in supporting the criminal procedural rights of anyone accused of a crime. This bill directly contradicts the Victorian charter. The right to a fair hearing for an accused person is expressly stated in the Victorian Charter of Human Rights and Responsibilities at section 24. This bill undoubtedly infringes on that right to a fair trial by creating evidentiary issues. This is clear grounds for an appeal. The number of cases which have been appealed on the grounds of fairness from Lawyer X is astounding, and it is a disgrace that this government wishes to endorse this behaviour – in fact legalise it. Just one lawyer, Lawyer X, has had 1297 cases brought into question.

Her behaviour has undermined public confidence in the criminal justice system and threatened the unalienable right to a fair trial. The investigation into the impact of Lawyer X’s conduct is ongoing and has cost the legal system millions of dollars on appeals. Who knows how many more cases will be brought into question as the investigation into the conduct continues. How many future cases from other lawyers and other sources conducting themselves like Lawyer X will cost the state of Victoria many more millions of dollars – to say nothing of the outcomes. And, by extension, how many more criminal convictions will be overturned to the issues of how the evidence was acquired? This bill brazenly endorses lawyers that register as an informant to behave like Ms Gobbo.

This bill will further undermine the confidence in the Victorian legal system. This method of using lawyers to provide police with privileged information is unprincipled and it is callous. Several reputable legal organisations have serious concerns about the operability of the Human Source Management Bill. The Law Council of Australia and the Australian Bar Association have major concerns over the bill, as do the Victorian Bar and the Law Institute of Victoria. These bodies are the most knowledgeable in the country about our legal system. In their eyes it is disgusting and deplorable to allow this bill to pass. Allowing this bill through will significantly disrupt the equilibrium of our legal system. The Australian Bar Association president Peter Dunning KC stated that:

An Australian lawyer should never be registered as a human source in relation to information disclosed to them which is the subject of client confidentiality.

The bill directly goes against the ethics of the judicial system.

It is deeply concerning to the Victorian Bar and the Law Institute of Victoria that the government would endorse this behaviour where lawyers inform police about privileged information belonging to their clients. Lawyers being used as human sources like Nicola Gobbo and being allowed to covertly inform against their clients is contrary to a lawyer’s role as an officer of the court and would violate multiple ethical duties that are owed by a lawyer to their client. In any court case a client owns the legal professional privilege. It is the client’s discretion which information and legal privilege they provide to their legal representation. As such, this bill, requiring the lawyer to disclose information and privilege to police, means that they give up the client’s rights, not their own. I seriously doubt that this government has considered the consequences of removing a fundamental part of the criminal justice system if this bill goes through.

Further, this will bring a lawyer into lifelong jeopardy. Once it becomes clear – and it will become clear when the information the police could not have discovered through ethical methods is presented at a trial – that a lawyer has broken the trust of their client, there will be consequences that go far beyond the simple case itself. The lawyers who do sign up – with supposed consent – to be a human source would not have the kind of career and practice purpose they had envisaged. Lawyers as professionals more generally will also lose an unprecedented level of confidence in their ability to fairly represent clients effectively. Stephen Charles KC, a former Victorian Court of Appeal judge and member of the Centre for Public Integrity, has said on the record in a radio interview with the ABC that he would be ‘raising hell’ about the bill if he were still a judge in court. He contends that it is ‘intended’ to allow another Lawyer X scandal to occur. It is clear, it seems to everyone but the government, that lawyers should never be placed in a position of informing on their clients under the Human Source Management Bill.

If this bill is to pass, it will create a fiasco of the legal system. It removes the rights of Victorians and makes a mockery of our justice system. This bill has no code of practice to explain how Victoria Police will ethically register lawyers as human sources or how they will use the information they obtain through this system. The court will be thrown into disarray and jeopardy. This bill violates deeply ingrained ethical principles. The passing of the Human Source Management Bill will exacerbate issues of ethics and procedural fairness in the courts. The bill falls gravely short in its aims, outlined by the government, to be more transparent, open and accountable in the legal system. Instead, it creates division and less fairness to the Victorian legal system. The High Court has made its position on lawyers behaving in this manner and in the manner of Lawyer X clear through its contempt of Ms Gobbo. The behaviour of Lawyer X was a travesty to the administration of justice, and this should not be endorsed by the government. In the words of the Law Institute of Victoria president Tania Wolff:

… if we have learned anything from the royal commission, it’s that lawyers should never be used as human sources.

The Human Source Management Bill shows a serious lack of perspective and a serious lack of understanding of the current political climate and the bedrocks of the Victorian legal system.

Jacinta ERMACORA (Western Victoria) (14:15): I am pleased to speak in support of the Human Source Management Bill 2023. Following a High Court decision in 2018, the government established the Royal Commission into the Management of Police Informants. This was due to the revelation that Nicola Gobbo, a prominent and experienced criminal defence barrister, was registered with Victoria Police as a human source on three occasions between 1993 and 2010. Within that period Ms Gobbo provided information to Victoria Police about her clients and their associates. It is estimated that Victoria Police filed more than 5000 written reports from her information, which assisted police to make nearly 400 arrests.

The royal commission heard from 82 witnesses, which included over 50 police members, over 129 days of hearings. The commission delivered its final report to the Victorian Governor on 30 November 2020. It includes 111 recommendations in total, 54 of which are recommendations directed to the Victorian government. From the outset the Andrews government has been committed to implementing all of the commission’s recommendations. In the final report, recommendation 8 is that the Victorian government implement legislation to regulate the registration, use and management of human sources by Victoria Police and establish an external oversight regime. The Human Source Management Bill 2023 satisfies recommendation 8, along with 24 other recommendations: 9 to 18, 44 to 56 and 58, which includes conferring functions and powers on the Public Interest Monitor, IBAC and the Victorian Inspectorate that are necessary to carry out their oversight roles. A similar bill was introduced in 2022 but lapsed on the 59th Parliament’s expiration.

The bill was developed in close consultation with Victoria Police, the Public Interest Monitor, IBAC, the Victorian Inspectorate, the Commission for Children and Young People, Victoria Legal Aid and the police informants royal commission implementation monitor. As a result, the government has ensured that the bill is largely supported by stakeholders, viable for operation by Victoria Police and compatible with the commission’s findings.

If we have a look at what ‘human source’ means, under the bill a human source is defined as ‘a person Victoria Police has registered to confidentially provide information or assistance to police to assist with a criminal investigation’. It is of primary importance that the human source’s identity remains protected to keep them safe. Human sources can engage in human source activity, which comprises a range of conduct when done for the purpose of assisting a criminal investigation. Examples include gathering of criminal intelligence with a human source by obtaining information from the person and using or disseminating information obtained by a police officer from the person. Perhaps in plain English, a human source is a little bit similar to an undercover police officer but more like an undercover civilian or undercover professional without the training, obligations and protections afforded to the role of a police officer.

This bill provides for the safety of a human source, ensures that a framework and procedures are in place within the system and codifies the nature of professional relationships in these circumstances. All stakeholders and the Victorian community at large can recognise the benefit of human sources in organised criminal enterprises.

The overarching purpose of ensuring safe and effective management of human sources is community protection. At its core the bill has a focus on risk management that is inherent within the use of human sources. The main risks identified are: risk to the safety of the human source, risk to prosecution and administration of justice and risk of undermining trust in professional relationships. The bill defines three categories of human sources. Those offering one-off information to police who do not meet any other risk criteria do not need to be registered. Registered non-reportable sources are those who have an ongoing relationship with police and do not meet the other risk criteria. Registered and reportable sources are deemed higher risk. Important to note is that lawyers remain permitted to be registered as human sources, which the royal commission recognised may come under ‘exceptional and compelling circumstances’, such as a need to respond to a significant threat to community safety.

Of course the provision of an external oversight model addresses the risk that the human source system may be abused. The bill succeeds in empowering IBAC to retrospectively monitor compliance. Also, it instigates a framework for high-risk sources, requiring the Chief Commissioner of Police to consider advice from the Public Interest Monitor and be held to account as to their use of that advice. The Public Interest Monitor will oversee all registrations of higher risk reportable human sources and will have the power to make recommendations to Victoria Police about applications to register reportable human sources. This oversight provided by experts is exactly what was lacking in the Lawyer X scenarios.

There is also the requirement for IBAC to account to the Attorney-General, the Minister for Police and the Chief Commissioner of Police to ensure the framework is followed and compliance is held to a high standard. This process is a joint venture with Victoria Police, who will update their internal policies to ensure alignment of the legislation and practical guidelines. I would be remiss not to mention that one of the most important aspects of the policy enforcement is penalties. If a person discloses information about a human source without being authorised, they can incur a maximum penalty of two years jail.

Under the recommendations of the commission, the government enacted the Police Informants Royal Commission Implementation Monitor Act 2021, which requires the Attorney-General to provide annual progress reports on the implementation of progress. I am proud to echo the words of Minister Symes that each year the government has fulfilled the commission’s recommendations with enthusiasm and without hesitation. Twelve months on from the final report, the Andrews Labor government had implemented all three- and six-month time frame recommendations. They were delivered on time. By May 2021 the government had released a detailed response to the final report, outlining the approach that would be taken to address each recommendation, and allocated $87.92 million for this work. The government also introduced three pieces of legislation: the Police Informants Royal Commission Implementation Monitor Act, which provides powers to the implementation monitor; the Special Investigator Act 2021, which delivers 11 recommendations and ensures criminal conduct and breaches relating to Ms Gobbo are investigated; and the justice legislation amendment.

Two years on from the final report, the government had delivered on 23 of the 54 recommendations as directed – and again within the time frame. The government on such delivery was conducting a review of police oversight. At the same time, the Andrews government established the independent implementation monitor, which saw the appointment of Sir David Carruthers to assess the adequacy and implementation of the commission’s recommendations and report to the Attorney-General on further action required for full delivery. Sir David provides ongoing advice on the implementation of the recommendations, ensuring that the commission’s intended outcomes are achieved.

I note that the Victorian Bar association and the Law Institute of Victoria have voiced their concerns about the use of lawyers as human sources, and their concerns have been heard. I understand the difficulty in striking the best balance between using human source information against the professional privilege of a lawyer and their client. There is a certain level of discomfort for professionals when a core tenet of their practice is exempted from application. However, there are a number of well-established and accepted examples of this across a range of disciplines within our community. For example, there are a significant number of defined examples of legally privileged relationships, such as client legal privilege, journalist privilege, medical privilege, religious confession privilege, parliamentary privilege, judicial privilege and public interest immunity. A therapist reporting high-risk suicide ideation is one example. It is an obligation of a therapist to report suicide ideation if a method has been identified by a client, if that client has the means to implement that method and if that client presents as being in a frame of mind to do so. This is an example of where the importance of preserving therapeutic confidentiality is countered by the threat to the life of the client through suicide. As with this bill, practitioners are provided with a framework of best practice to ensure accountability and the safety of clients in these complex situations. Another example is mandatory reporting of children at risk of harm in therapeutic human services in hospital and education contexts. This is where health practitioners, teachers and welfare practitioners are required to report to child protection authorities any concerns they may have about the safety and welfare of children.

This bill recognises the value of upholding legal professional privilege to the high standard it deserves. The bill prevents Victoria Police from using a lawyer as a human source to obtain privileged information unless there is a serious threat to national security, the community or the life or welfare of a person. There is no other way of obtaining the information. This is consistent with lawyers’ existing ethical obligations, which allow them to breach confidentiality if there is a serious risk to any person’s safety. The balance has been drawn to ensure that Victoria Police can register and provide protections to a lawyer in such circumstances. If this bill banned Victoria Police from registering lawyers as human sources, it might prevent lawyers from confidentially providing this critical information to police. If lawyers were banned from being human sources, it would inhibit them from exercising their own ethical judgements. This framework allows lawyers to be protected in these rare, complex and often high-stakes criminal investigations.

Furthermore, I also recognise the importance of securing convictions through legally obtained evidence. The illegally obtained evidence by Ms Gobbo undermined existing convictions, which in turn undermined community confidence in the court system and community safety. The real consequence of Ms Gobbo acting as an informant is believed to have affected over a thousand convictions, as they were not afforded a fair trial. The bill seeks to institute long-term court outcomes to ensure community safety in extremely niche examples of high-level criminal enterprise. These scenarios are very rare but do need to be codified and provided for in the relevant acts.

Michael GALEA (South-Eastern Metropolitan) (14:29): I am pleased to contribute to what is a very important bill, the Human Source Management Bill 2023. This is a bill that seeks to better protect human sources used by Victoria Police as informants, who help to prevent, detect and solve crime. This bill will establish a legislative framework for the registration, use and management of Victoria Police’s human sources, with external oversight to be conducted by the Public Interest Monitor and the Independent Broad-based Anti-corruption Commission, better known of course as IBAC.

This bill responds to and delivers on 25 recommendations made by the Royal Commission into the Management of Police Informants. The commission, as many members will know, was established in 2018 to investigate Victoria Police’s use of human sources following revelations of their use of Nicola Gobbo, a former criminal defence barrister. I note Dr Bach’s contribution, in which he went into some detail about the matter. The commission made 111 recommendations, of which 54 were directed to the Victorian government and 41 to Victoria Police, with recommendations also made to other bodies, including the Director of Public Prosecutions, the Victorian Bar Council, the Public Interest Monitor, the Independent Broad-based Anti-corruption Commission – IBAC – the Law Institute of Victoria, the Law Council of Australia, the Legal Services Council and the Victorian Legal Services Board and commissioner.

The commission was asked to determine the number of cases that may have been affected by the conduct of Ms Gobbo as a human source, and to what extent, at various times over a 14-year period. In addition, the commission was asked to examine the adequacy and effectiveness of Victoria Police’s current processes for the recruitment, management and disclosure of human sources who are subject to legal obligations of confidentiality or privilege. Victoria Police apologised for the events that led to the royal commission and summarised the way that those events were permitted to occur and to continue, which was as a result of organisational and systematic failures of their use of informants. In its apology Victoria Police said:

… without reservation that the way in which Ms Gobbo was managed as a human source in a way that resulted in a profound interference with the relationship between lawyer and client was a major failing. The consequences of that failing are resonating through the criminal justice system and will do so for many years. It has come at a very high cost to the organisation, to public confidence and to the criminal justice system.

The systemic failings resulted from a lack of policy, structure and oversight of the informant program, as well as an unprofessional culture that, because of its covert nature, saw users of informants and the informants themselves conduct themselves inappropriately and without accountability. The commission made 21 recommendations to Victoria Police around the need to update its internal policies relating to human source management, and they have all been delivered. Many of the commission’s recommendations to the government are around the need for legislated regulation and oversight of the use of human sources by Victoria Police.

Specifically the bill sets out processes for the registration, use and management of Victoria Police’s human sources by providing necessary powers, responsibilities and decision-making processes to Victoria Police. It requires that Victoria Police go through a formal registration process before they can use a person as a human source. A senior officer within Victoria Police must formally assess the suitability and justify the use of the person as a human source. Not everyone that provides information to Victoria Police will need to be registered as a human source. For example, people that provide witness statements or occasionally volunteer some information will quite rightly not be covered under this bill. The bill prohibits Victoria Police from using a person as if they are a human source unless the person has been registered as such. The person’s informed consent to be registered as a human source is to be obtained prior to the registration process, and this bill also prohibits Victoria Police from using a human source for a different purpose than was approved in the initial registration.

Importantly, in certain circumstances people will need to be registered as reportable human sources. There are stricter registration requirements for two categories, and they are, firstly, vulnerable people and, secondly, those who are expected to have access to privileged information. Vulnerable people will be those under the age of 18 and those with serious medical or mental health conditions. In these circumstances, the registration process will require the chief commissioner to determine if the person can be registered, and a medical specialist and the Public Interest Monitor are also required to make recommendations before registration can take place. In addition, this bill prevents people aged 14 and under from acting as human sources. As in the case of Nicola Gobbo, access to privileged information increases the risk for the informant, and greater scrutiny is required in this type of registration. The bill only allows Victoria Police to intentionally use a human source in breach of obligations of privilege in very rare circumstances. Only the chief commissioner or their delegate can register the person and only in the instance where there is a serious threat to national security, the community or the life and welfare of a person and where information could not be obtained through other means.

We know that this bill is widely supported for delivering upon 25 of the commission’s recommendations, but there are a couple of matters which are not supported by some, and I would like to address these because they are very significant aspects of the intentions of this bill. In the case of using a human source in breach of privileged information – for example, a lawyer – this would only be permitted in exceptional circumstances. The bill is very specific about this. This is a contentious issue to some stakeholders, including the Law Institute of Victoria and the Victorian Bar, and we understand the reasons why. We know of the outcomes that arose from Nicola Gobbo using privileged information in her role as an informant and the resulting impacts, such as overturned convictions and attempted overturned convictions. We are all also conflicted by the legal, moral and ethical issues that are at the heart of using privileged information from a human source. However, we must also acknowledge that when Nicola Gobbo was used as an informant by Victoria Police there was little to no human source management policy or practice established, certainly none with the legislated regulation or independent oversight that this bill will address. We live in a very different time than at the height of Nicola Gobbo’s informing, and we have learned so much from that time, thanks to the royal commission that we have established.

I understand that some media – in particular the Herald Sun – are dissatisfied with the potential use of lawyers in exceptional circumstances. A provision of the bill makes it an offence to disclose unauthorised information about a human source, including information that reveals identity or if that person has previously been used as a human source. The Herald Sun argue that if these provisions had been in place at the time that they investigated and revealed the use of Nicola Gobbo by Victoria Police, their revelations would have never come to light. They are correct in that matter. But on the other hand, if this legislation had been in place to manage human sources and if the independent oversight bodies had been in place, none of what took place in the use of Nicola Gobbo would have occurred, because it could not. Under the legislation that this bill will create, Nicola Gobbo would have had to have been registered using strict criteria – including, as I said, being registered by the chief commissioner; obtaining and considering legal advice and any recommendations by the Public Interest Monitor; and being able to justify that their use was in relation to a serious threat to national security, the community or the life or welfare of a person and that the information could not be obtained through any other reasonable means. The human source would then have to be re-registered every six months as a higher risk reportable human source, and then the use of that informant would have to be to the satisfaction of the independent oversight bodies.

The law institute are concerned that this bill seeks to legitimise the use of lawyers as informants. Because the use of privileged information goes to the core of this issue, the royal commission did actually consider this aspect thoroughly. The commission reasoned that there may be exceptional and compelling circumstances where it would be appropriate to register a lawyer as a human source, such as the need to respond to a significant threat to community safety. If I may quote from page 27 of the royal commission’s report:

As this inquiry has shown, the use of lawyers as human sources poses clear risks. These risks also apply to the use of other human sources who have access to confidential or privileged information. This is not to say that police should be absolutely prohibited from using human sources who are subject to legal obligations of confidentiality or privilege, but it does mean that the use of a human source who has access to confidential or privileged information should be a rare occurrence, treated with extreme caution and subject to strict …

guidelines. And that is exactly what this bill seeks to address.

The opposition, I note, is also concerned that the use of privileged information breaches ethical obligations. Again, the commission’s recommendations on this are highly considered, and I now quote from recommendation 16, which says:

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources:

a. requires that the Chief Commissioner of Victoria Police or their delegate must be satisfied that there are exceptional and compelling circumstances to justify the registration of a human source where Victoria Police intends to obtain or disseminate confidential or privileged information from that person

b. provides that ‘exceptional and compelling circumstances’ be defined as circumstances where there is a serious threat to national security, the community or the life and welfare of a person; and where the information cannot be obtained through any other reasonable means

c. requires that the Chief Commissioner or their delegate must consider formal legal advice before deciding to register a human source with the intention to obtain or disseminate confidential or privileged information from that person

d. requires that the Chief Commissioner or their delegate must have regard to any recommendations or submissions on the proposed registration that the Public Interest Monitor has made before deciding to register a human source with the intention to obtain or disseminate confidential or privileged information from that person.

The commission found that a blanket ban was not warranted, as it would not eradicate the risk of confidential or privileged information being provided by a human source and neither would it provide Victoria Police with the skills and framework to be able to respond appropriately when it did occur. Further, lawyers do currently have the ability under the uniform conduct rules to disclose confidential information where they believe on reasonable grounds that there is a risk to any person’s safety, and they can already break that privilege or confidentiality to advise the police or other appropriate authorities.

As I have mentioned, this bill also, importantly, establishes an external oversight model where the Public Interest Monitor provides oversight for registration of those higher risk reportable human sources. IBAC also retrospectively monitors Victoria Police’s compliance with the bill and regulations and also their relevant internal policies. The Victorian Inspectorate will in turn provide oversight of IBAC and of the Public Interest Monitor’s exercise of coercive information-gathering powers. There is currently no external oversight for Victoria Police’s handling of human sources other than IBAC’s existing jurisdiction to investigate police misconduct. According to the royal commission:

Independent, external oversight encourages police officers to use their significant powers fairly and lawfully, and adhere to high ethical and professional standards, including when they are using covert methods and tactics. It helps to hold officers to account when they act improperly, and supports public trust and confidence in policing.

…

Consistent with the views of stakeholders and other available evidence, the Commission considers that external oversight of Victoria Police’s use of human sources would:

• encourage compliance with legal and policy requirements for the registration and use of human sources

• mitigate risks to Victoria Police, human sources and the criminal justice system

• raise policing standards, including by assisting police to balance competing public interests and make ethical decisions

• address a gap in Victoria’s current oversight system, noting that other covert police powers and methods are subject to external oversight

• support transparency and improve public confidence in Victoria Police’s use of human sources.

The report further says that:

While the Commission considers that greater scrutiny is warranted for human sources who might provide confidential or privileged information to Victoria Police, it is also of the view that a broad external oversight function is warranted for all human sources. This recognises the inherent risks and potential intrusiveness of the use of human sources, evidence of historical and ongoing non-compliance with human source management policy requirements among some Victoria Police officers, and the need to assure the community that police manage all human sources ethically and appropriately.

There are very few other pieces of legislation in fact that do contain as much oversight as this bill.

In conclusion, this bill addresses much in the substantive issues investigated by the commission and goes a long way towards ensuring confidence in a system that is fraught with legal, ethical and moral considerations. I congratulate the commission on their investigation recommendations. I also congratulate Victoria Police for their willingness to right their wrongs and the Attorney-General and the government for acting so swiftly and decisively to implement these recommendations. I commend the bill to the house.

Katherine COPSEY (Southern Metropolitan) (14:44): I rise to speak on the Human Source Management Bill 2023. I will touch on some of the issues broadly in my contribution because this bill is in a state of flux. Given there are numerous amendments and potential house amendments being circulated at the eleventh hour, we need more time to consider and consult.

The bill today represents the substantive government response to the Royal Commission into the Management of Police Informants, which concluded in 2020. The royal commission was established because of the Lawyer X scandal: the extraordinary circumstance in which Victoria Police used a lawyer as an informant to work against her own clients over a sustained period of time, which has already resulted in a number of convictions being overturned, with a number of others still in limbo.

With remarkable understatement, the commission concluded that the conduct by Victoria Police officers regarding Lawyer X:

… seems to have fallen short of the behaviour required by their legal, ethical and professional obligations …

The High Court was less equivocal, stating that Victoria Police engaged in:

… reprehensible conduct in knowingly encouraging [Ms Gobbo] to do as she did …

The royal commission further stated:

If the organisation –

Victoria Police –

and systems were flawed, it was because the individuals who made up the organisation and developed its systems, particularly senior leaders, lacked the moral clarity, vision and ability to fix those flaws.

It added:

Much of the conduct … could not have occurred without critical failures of leadership and governance in Victoria Police …

In short, there were systemic failures. This bill attempts to address the systemic failures. The bill proposes a process for the registration, review and deregistration of human sources to ensure that Victoria Police appropriately identify and manage any risks from the use of a person as a human source. The bill also proposes a review capability on applications for registration of reportable human sources via recommendations from the Public Interest Monitor to the Chief Commissioner of Police. The IBAC is also proposed to monitor and report on police adherence to the new process. We welcome the introduction of oversight on the activities and operation of Victoria Police in this regard. However, like many, the Greens are concerned that the oversight provisions detailed in the bill do not go far enough and do not directly prevent a Lawyer X situation from recurring.

We are particularly mindful of the fact that the Lawyer X case was not simply a case of a few bad apples in the lower ranks of Victoria Police. In fact most senior members of the Victoria Police command not only were aware of the Lawyer X situation but also had full awareness of the ramifications and consequences for the entire legal system of engaging with Ms Gobbo in this way. Yet we are currently being asked to believe that the culture within Victoria Police has turned around pretty much overnight, that Victoria Police is capable of change and that Victoria Police will act with impeccable integrity from this point onwards. While recently Victoria Police have stated positive things about cultural change, the Greens are concerned about how deeply these public words match the reality.

Recently IBAC completed a perceptions of corruption survey covering the public sector, including Victoria Police. An overwhelming majority, 84 per cent of police and police personnel, agreed with the assertion that police misconduct happens in Victoria. Eighty-five per cent of respondents thought that there was a high or medium risk of breaches of professional boundaries, and almost 50 per cent thought that there was a high or medium risk of Victoria Police personnel being involved in perverting the course of justice. While the survey did report that a large majority of police thought the ethical culture of Victoria Police was either strong or moderate, the majority of police personnel who thought the ethical culture was weak were those who had been in the organisation for less than 10 years, so recent. When asked to elaborate on this, many personnel felt that there was:

… a recurring theme that senior staff set the standards but do not necessarily adhere to them.

This sounds worryingly familiar to those who are aware of the royal commission’s findings. These results tell us that there is a large cohort of Victoria Police personnel who do not trust their own organisation to act with integrity, but today as a Parliament we are being asked to have such trust.

The issue of trust is particularly relevant to the two most controversial issues of this bill in its original form: one, its failure to impose narrower limits or an outright prohibition on lawyers acting as human sources regarding legally privileged client information; and two, the fact that Victoria Police and the chief commissioner retain final decision-making on who can be registered as a human source. These are two substantive concerns that have been raised consistently across Victoria’s peak legal bodies and even those in other jurisdictions, including the Law Council of Australia. These are issues that the opposition amendments seek to address. We believe they have developed some good amendments that we understand are supported by the Law Institute of Victoria and other key stakeholders.

On the other hand, we are also aware that the royal commission did not explicitly recommend an outright prohibition on lawyers being used as human sources and decided, on balance, not to support an independent agency, person or court making the final decision as to whether or not to register a human source. The government have now also come forward with their own house amendments that may go some of the way towards resolving these issues, but we are yet to fully assess this.

Resolving these issues is further complicated by two recent developments – first, media reports this week confirming that both Justice Margaret McMurdo, who led the royal commission, as well as the counsel assisting the royal commission Chris Winneke KC have concerns with the original bill as it stands. I understand that the Attorney-General met Justice McMurdo this week, and while it has not been reported exactly what the specific concerns of the former commissioner are, it seems unwise for us to approve this legislation in its current form prior to these concerns being properly aired and resolved, especially because the Attorney has made it clear she would like to see this bill accurately reflect the findings and recommendations of the royal commission, which I believe by extension means the opinions and intentions of the royal commissioner subsequent to the finalisation of the report. So the Greens will seek further assurances that former commissioner McMurdo’s concerns have been resolved.

That leads me to the second development, which is the ongoing refusal of Victoria Police to release 11 sensitive human source files to the Office of the Special Investigator (OSI) with a view to checking them for potential miscarriages of justice. We know already that Victoria Police disappointed the royal commission by refusing to provide them with all of the relevant requested human source files for auditing, saying that 11 files were too sensitive to be audited and using the same public interest immunity that they tried to use to prevent the Lawyer X scandal being revealed. It was this refusal that led the royal commission to make a specific recommendation, recommendation 6:

That the Victorian Government, within three months, appoints a suitably qualified and independent person to review the 11 Victoria Police human source files subject to a claim of public interest immunity.

To its credit, the Victorian government effectively acquitted its side of this recommendation by creating the OSI, with a budget of $13 million, to achieve recommendation 6. The only problem is that Victoria Police still will not release the files, despite the clear and unambiguous intention of what needs to occur in recommendation 6. Now, like with the Lawyer X scandal, resolving the matter of those additional 11 files looks like it will end up in the High Court. The fact that Victoria Police, in spite of the royal commission and the explicit direction of recommendation 6, still believe that checking human source files for miscarriages of justice is not in the public interest is a significant issue of whether the Greens can support this bill in its current form. How can we take Victoria Police at their word that they have changed and will now cooperatively comply with independent oversight and external recommendations – that are not binding in the original bill – as prescribed in this bill if they themselves are fighting the implementation of the royal commission recommendations in the courts? Moreover, how can the Parliament accept the government’s position that the royal commission recommendations and intentions should be respected and followed when apparently this does not apply to Victoria Police? But I do believe that the Attorney and her office are genuinely committed to delivering the best human source laws that they can. The Greens will continue to work through the government’s most recent draft house amendments and potential additional house amendments to resolve any problems in this bill.

I will also briefly summarise the Greens’ important amendments before I conclude for today. The Greens believe that the safeguards outlined in the bill are not sufficiently robust to adequately protect children interacting with Victoria Police when they are being registered or used for human source activity, so we have amendments to strengthen these protections. I ask that these now be circulated.

Amendments circulated pursuant to standing orders.

Katherine COPSEY: The Greens’ proposed amendments 1 to 4 have since led the government to make house amendments to have the same effect. I thank the government and the Attorney’s office for acting on our feedback and introducing those house amendments. The remaining Greens amendments are similar to those we circulated in the other place and mandate the presence of an adult in all interactions with police in respect of a child’s role or potential role as a human source. I will have more to say in committee, but I just remind those considering our amendments that we are dealing here with a new bill that seeks to improve the future operational standards of Victoria Police – and so we think this demands us legislating the highest standards possible – yet at the same time the bill does not impose reasonable standards of protection for children in what we all would agree is one of the most vulnerable situations that any child could find themselves in when in contact with police officers.

We believe this means it is entirely reasonable to say that Victoria Police can and should do better to guarantee, not just take reasonable steps, that children are adequately protected in relation to their involvement in human source issues. I expect the next 48 hours to be busy, but I do want to thank the Attorney-General and her office as well as the Shadow Attorney-General in the other place for their genuine and constructive engagement with the Greens on this bill to date – and those stakeholders that have participated in engagement as well.

This is a difficult and complicated bill dealing with difficult and complicated issues, and there is work to be done. But the Greens are committed to helping deliver the best legislation possible.

Tom McINTOSH (Eastern Victoria) (14:56): I rise to contribute to the debate on the Human Source Management Bill 2023. This bill sets out the process for dealing with informants in a responsible manner in legislation. At the moment, this process is done internally by Victoria Police. The introduction of the bill increases oversight of this process, firstly by legislating the framework of who needs to be registered, under what circumstance, who signs off and what exceptions there are but also by establishing an external oversight model, with the Public Interest Monitor, the PIM, and the Independent Broad-based Anti-corruption Commission, IBAC, across all human source activity involving Victoria Police. This strengthens the system in Victoria for registering and dealing with police informants or human sources and makes sure this is done in an ethical and justifiable manner.

The bill delivers 25 of the recommendations of the Royal Commission into the Management of Police Informants, which was brought about by the revelations about former criminal defence barrister Nicola Gobbo, being a registered Victoria Police human source. That situation highlighted risks with the use of people with professional privilege by Victoria Police, the need for oversight to be legislated and the need for that oversight to be accountable to independent bodies.

The bill deals with recommendations 8 to 18, 46 to 56 and 58 of the royal commission into the management of human sources, which were directed to the Victorian government. Some of the recommendations that are worth noting are recommendation 8 to implement:

… legislation for Victoria Police’s registration, use and management of human sources, to provide a clear framework for police to obtain and use information from human sources and to ensure they are used in an ethical and justifiable manner.

That is what we are here to debate today with the introduction of the Human Source Management Bill 2023.

Recommendation 10 is that the Victorian government:

… defines ‘reportable human sources’ as a class of people who are prospective or registered human sources and who are reasonably expected to have access to confidential or privileged information.

To be clear, this class of human sources deemed reportable does not include all police informants. It does not include people who are not likely to have professional or privileged information. This bill does not require a person to be registered as a human source if they fall within other categories of people who provide information to Victoria Police, such as witnesses and anonymous tip-offs. A person who approaches Victoria Police to confidentially volunteer information on a discrete occasion is also not a human source under the bill unless they are reasonably expected to have access to privileged information, are under the age of 18 or have a serious medical or mental health condition.

So there are three categories of human source informants under the bill: those offering one-off information to police and who do not meet any other risk criteria; registered non-reportable sources, being those who have an ongoing relationship with police and do not meet other risk criteria; and registered and reportable sources, who are deemed higher risk.

Recommendation 11 is that the Victorian government:

… establishes clear decision-making arrangements that demonstrate alignment between the seniority of the decision maker and the level of risk posed by the registration of human sources.

This specifies that this should be the Chief Commissioner of Police or the delegate who is an officer at or above assistant commissioner.

Recommendation 12 says that the chief commissioner must be:

… satisfied that in registering any human source, the registration is appropriate and justified, including that:

the use of the person as a human source is necessary to achieve a legitimate law enforcement objective and is proportionate to that objective

the risks associated with the person’s registration have been identified and can be adequately managed.

This is an important safeguard, particularly for sources who are under the age of 18 or may have access to privileged information.

Recommendation 13 says that the chief commissioner may ‘impose conditions’ on the registration of human sources and they must determine a period of registration and a review of that registration.

Recommendation 14 is that people that may have access to confidential information be deemed a reportable human source.

Recommendation 15:

the Chief Commissioner … must consider formal legal advice before deciding to register a reportable human source

and have regard to any recommendations from the public interest monitor.

This is in response to the royal commission’s findings that despite the extraordinary circumstances of a criminal defence barrister becoming a human source against the very people she represented, neither the officers who registered her nor their superior officers sought legal advice as part of the registration process.

Recommendation 16 – and this is a recommendation that I will come back to – says:

… the Chief Commissioner … must be satisfied that there are exceptional and compelling circumstances to justify the registration of a human source where Victoria Police intends to obtain or disseminate confidential or privileged information from that person

… there is a serious threat to national security, the community, or the life and welfare of a person; and where the information cannot be obtained through any other reasonable means

Recommendation 18:

… allows the Chief Commissioner of Victoria Police or their delegate to make an emergency authorisation of a reportable human source. This power should only be used in circumstances where: there is a serious threat to national security, the community, or the life and welfare of a person; the threat is imminent; and the information is not able to be obtained through any other reasonable means.

As is often the case when it comes to justice, the bill is about balance. The bill balances the right of a victim for justice to be served. This means punishing people who have done the wrong thing under our laws. In fact the community may think this is the only consideration. Commissioner the Honourable Margaret McMurdo AC even noted this in the final report – that on the surface it would seem that we should take whatever means necessary to hold people who have done the wrong thing to account. Prosecuting people, even people who are in fact found guilty of doing terrible things, must be done in accordance with the strictest standards of our justice system, including the right to have it ensured that any information about the case was collected in a responsible and accountable way, including the right to the best representation to put forward your case.

At the heart of the debate on this bill is the treatment of professionals with access to privileged or confidential information as human sources. Under what circumstances should they be allowed, if at all, to break with that professional duty to inform police about matters they have received under privilege? That is of course the reason this legislation is being introduced – because of the actions of a particular lawyer and the real consequences of this in terms of the carriage of justice.

In the bill:

privileged information means information subject to the following legal obligations of privilege –

(a) client legal privilege;

(b) journalist privilege;

(c) medical privilege;

(d) religious confession privilege;

(e) parliamentary privilege;

(f) judicial privilege;

(g) public interest immunity –

but does not include –

(h) the privilege against self-incrimination; or

(i) privilege that attaches to information relating to settlement negotiations as referred to in section 131 of the Evidence Act 2008 …

Of great focus is the role of lawyers, and rightly so, due to their essential role in the justice system as advocates for the people that they represent. In Victoria lawyers have obligations to their clients and to the court itself. This bill does not take the extra step of legislating to exclude lawyers from being registered as human sources.

Going back to the reason for the bill in the first place and the way the system has currently operated under Victoria Police policy and procedure, lawyers are not currently excluded, so there is not a change in what can happen with the introduction of this bill. The bill does not make it easier for lawyers to inform police. In fact the opposite is true, and strict safeguards and measures are being put in place through this bill to ensure this is only done under exceptional and compelling circumstances. The commission reasoned that there may be exceptional and compelling circumstances, such as the need to respond to a significant threat to community safety, where it would be appropriate to register a lawyer as a human source. This has resulted in recommendation 16, which I have touched on above, which allows people with access to privileged information to become police informants, including lawyers. Again, recommendation 16 states:

… the Chief Commissioner … must be satisfied that there are exceptional and compelling circumstances to justify the registration of a human source where Victoria Police intends to obtain or disseminate confidential or privileged information from that person

… there is a serious threat to national security, the community or the life and welfare of a person, and where the information cannot be obtained through any other reasonable means

The government has accepted the commission’s findings and committed to implementing the recommendations, including recommendation 16. The commission considered that a blanket ban was not warranted as it would not eradicate the risk of confidential or privileged information being provided by a human source, nor would it equip VicPol with the skills to respond appropriately when it does occur.

This bill embeds significant checks and balances for those rare occasions where there may be exceptional and compelling circumstances. It is important to note that the legal profession already has established obligations to maintain legal privilege and where it would be appropriate to break privilege for community safety. This bill mirrors those obligations but sets up a mechanism for Victoria Police to receive any privileged information as well as the appropriate safeguards to ensure that it is appropriate to do so.

Lawyers currently have the ability under uniform conduct rules to disclose confidential information where they believe on reasonable grounds that there is a risk to any person’s safety, in which case they can break privilege or confidentiality provisions to advise the police or other appropriate authorities. It is not the best outcome for the bill to take the extra step of excluding lawyers, going above what is currently in place and making no consideration for exceptional and compelling circumstances. There is always the possibility of unforeseen circumstances where a provision like this could save lives, and that could be a lot of lives. This needs to be considered amongst all of the safeguarding that goes along with it. Remember, the systemic failing in the Nicola Gobbo case was that Victoria Police did not have an adequate understanding of the risks related to privileged information and was not equipped to appropriately manage a human source who had access to privileged information. This bill sets up a framework for Victoria Police to receive any privileged information as well as the appropriate safeguards to ensure that it is appropriate to do so. The bill balances the need to ensure the interest of justice is maintained against the ongoing need to protect our community.

A key concern is that by not conducting these registrations properly and properly preparing for the legal risks of using certain people as informants there could be potential consequences for the case when it is finally heard in court. The commission highlighted that cases have been overturned because of what happened with Nicola Gobbo and went further by indicating that an eye-watering number of convictions could be affected. To ensure justice is carried out this guidance must be in place and it must address the inherent risks that are there as a matter of fact when dealing with human sources. These are the safety risk to a human source, the risk to prosecution and administration of justice, and the risk of undermining trust in professional relationships. The use of human sources or informants is an important part of policing and information gathering, and the bill delivers the appropriate balance between mitigating these risks and ensuring Victoria Police can continue to use these fundamental police practices in an accountable way.

There are other vulnerable groups used as human sources that will have extra oversight and protection because of the bill. The bill will provide strong protections for young people who are used as human sources. Firstly, though, can I say when I reflect on what we are talking about here, I really do hope no young person is in a position where they ever have information to give to police in an important criminal proceeding that would meet the criteria. The thought that children know or are involved with people planning terror or significant actions to harm the community is truly awful, and I would hope that other safeguards in our society are able to step in and ensure that children are not exposed to this sort of stuff in the first place.

To register a young person as a human source Victoria Police must show that there is a serious threat to national security, the community or the life and welfare of a person or that a serious offence is being investigated. There must also be no other way of obtaining the information. Young people must be treated as higher risk reportable human sources, meaning the Public Interest Monitor and a senior police officer must be involved in the registration decision. This gives the use of young people external oversight to ensure their wellbeing. In addition, there is a requirement for specialist advice to be considered before a young person can be registered as a human source, such as from a psychologist or a social worker.

The bill sets out the process for dealing with informants in a responsible manner in legislation. At the moment this process is done internally by Victoria Police. The introduction of the bill increases oversight of this process, firstly by legislating the framework – who needs to be registered and under what circumstances, who signs off and what exceptions there are – and also by establishing an external oversight model by the Public Interest Monitor and IBAC of all human source activity involving Victoria Police. This strengthens the system in Victoria for registering and dealing with police informants, or human sources, and makes sure this is done in an ethical and justifiable manner. The bill delivers 25 of the recommendations of the Royal Commission into the Management of Police Informants, which was brought about by the revelations about former criminal defence barrister Nicola Gobbo being a registered Victoria Police human source. The bill delivers recommendations 8 to 18, 46 to 56 and 58, which were directed to the Victorian government.

Sheena WATT (Northern Metropolitan) (15:11): I rise today to continue debate on behalf of this side of the chamber on the Human Source Management Bill 2023, which is an important step to fulfilling the Victorian government’s commitment to implementing all recommendations of the Royal Commission into the Management of Police Informants. This was already expressed in the minister’s second-reading speech, but I would like to reiterate that the bill is the first legislation of its kind in our nation and is comparable to a similar legislative scheme in the United Kingdom. It sets out the process for the use and management of Victoria’s police informants, also known as human sources, and establishes an external oversight mechanism and model to ensure that human sources are used in an ethical and justifiable manner. This bill delivers on several recommendations of the royal commission by establishing a legislative framework to regulate Victoria Police’s use of human sources.

For those curious as to why we need this bill, the use of police informants is a practice used by Victoria Police in criminal investigations to help prevent, detect, investigate and solve crime. The current processes for the use of police informants by Victoria Police are regulated by the organisation’s own internal procedures and policies. We can see how this could be subject to misuse. That is what happened, and that is what the royal commission found. This bill sets out to establish that legislative framework, currently missing, to regulate Victoria Police’s use of human sources.

By way of history, the government established the Royal Commission into the Management of Police Informants in December 2018. This announcement followed a 2018 High Court decision which unmasked Lawyer X and revealed former criminal defence barrister Ms Nicola Maree Gobbo was a registered Victoria Police informant. The royal commission delivered its final report, containing 111 recommendations, in November 2020, of which 54 were directed to the Victorian government. In May 2021 the Victorian government released its response to the royal commission’s final report. This is where the Victorian government reiterated its commitment to implementing every single one of the royal commission’s recommendations. This bill acquits 25 recommendations in setting up a legislative framework for the registration, use, management and external oversight of Victoria Police’s human sources, thereby addressing recommendations 8 to 18, 44 to 56 and, further, 58 from the royal commission’s final report. The royal commission found that while police informants play an important and instrumental role in both investigating and preventing crime, the use of a person as a human source can also create substantial risks. Victoria Police’s use of Ms Gobbo as an informant exposed systemic issues within the organisation and had far-reaching and detrimental consequences for the justice system in our state.

The royal commission also identified that the covert nature of a human source relationship increases the risks of Victoria Police officers engaging in corruption and misconduct and can expose individuals to significant safety risks. Using informants with access to privileged information can also undermine public trust in important professional relationships, such as relationships between lawyers and clients, not to mention a lawyer’s duty of confidence. While Victoria Police has made significant progress in updating its internal human source management policies since the beginning of the royal commission, Victoria Police’s internal policies are not enough on their own to prevent the sorts of events that gave rise to the royal commission from happening again. The royal commission made 21 recommendations to Victoria Police to update its internal policies relating to human source management, and all of these have now been delivered.

But to come back to my earlier point, in contrast with other covert powers exercised by Victoria Police, there is no statutory regulation or independent external oversight of the organisation’s informants or human source program. Policy alone is insufficient to instil confidence in our broader Victorian community that the risks brought about by the use of human sources will be appropriately managed, and new legislation is required. The royal commission in its work identified that, and that is what brings us to this bill before the chamber today. ‘Why does that in fact bring us here?’, some may ask. Part of the royal commission’s recommendation is that the government introduce legislation to regulate the use and management of human sources by Victoria Police and establish an external oversight regime for the use and management of human sources and police informants. The royal commission emphasised the importance of a clear legal framework to facilitate the effective use of police informants and human sources to investigate and prevent criminal activity, and that is while ensuring at same time that their use is ethical, called for and justified.

The bill before us sets out the process for the registration, use and management of Victoria Police’s human sources by providing necessary powers, responsibilities and decision-making processes to Victoria Police. The bill requires Victoria Police to go through a formal registration process before they can use a person as a human source. Victoria Police further is required to register a person as a human source if Victoria Police wishes to use the person to gather information or provide assistance to Victoria Police and the person has a reasonable expectation that their identity or relationship with Victoria Police will be kept confidential.

The royal commission also highlighted the importance of independent external oversight as an important check and balance against the use of police powers, ensuring that Victoria Police is held accountable while maintaining the Victorian people’s trust and confidence. This bill sets out to establish the legislative framework for the registration, use and management of Victoria Police’s human sources, with external oversight to be conducted by the Public Interest Monitor, or PIM, as he or she is known, and of course the Independent Broad-based Anti-corruption Commission, which we know as IBAC. It establishes the external oversight model, where the Public Interest Monitor provides oversight for the registration of higher risk reportable human sources, and IBAC retrospectively monitors Victoria Police’s compliance with the bill regulations and of course the relevant internal policy. The Victorian Inspectorate will in turn provide oversight of IBAC and of the PIM’s exercise of coercive information-gathering powers to respond to the royal commission having identified that the covert nature of human source relationship increases the risk of Victoria Police officers engaging in corruption and misconduct and can expose individuals to significant safety risks. The bill takes a risk-based approach to the management of police informants, seeking to balance the mitigation of these risks with ensuring police can continue to use this important aspect of policing. The identified risks which were taken into consideration for this bill include the risk to the safety of the human source, the risk to the prosecution and administration of justice and the risk of undermining trust in professional relationships.

The bill has been developed in close consultation with a broad range of stakeholders, including Vic Police, including the PIM and including IBAC. This also further includes the Victorian Inspectorate, the Commission for Children and Young People and Victoria Legal Aid. Also I note there was the Victorian police informants royal commission implementation monitor. From this consultation process the bill finds the appropriate balance between mitigating some real risks and ensuring Victoria Police can continue to use this important aspect of policing: preventing, investigating and ultimately solving crime. This bill ensures Victoria Police’s use of people who have access to privileged or confidential information as human sources will be appropriately constrained and will only be utilised when it is absolutely necessary and only if it is ethically called for and justified. Consultation for this bill has ensured that the settings in this bill are broadly supported, operationally feasible, realistic and workable for Victoria Police and consistent with the royal commission’s recommendations and overall intent. That is of course what this bill is for, after all.

I have got a further note to say that the bill has a commencement date of 30 September 2024 to provide the necessary involved agencies with time to prepare for its implementation. I would like it to be noted that agencies have indicated that they will require time to update and align internal policies, deliver new training, recruit staff and agree amongst themselves on information-sharing protocols. Regulations may also need to be developed to support secure information sharing between the agencies, recognising that Victoria Police has been using human sources really for some time. This bill includes transitional arrangements to ensure that the existing human sources are re-registered under the bill before us today. Higher risk reportable human sources will need to be re-registered within six months of commencement, while non-reportable human sources will need to be re-registered within 12 months of commencement.

To come back to where it all started – with Ms Gobbo – the royal commission reasoned that there may be exceptional and compelling circumstances, such as the need to respond to a significant threat to community safety, where it would be appropriate to register a lawyer as a human source, and thereby recommended that Victoria Police could register a person who may have access to privileged information, and this does include lawyers. This bill therefore embeds significant checks and balances in those rare occasions where there may be exceptional and compelling circumstances, where it would be appropriate to break privilege for the safety of the community.

My friend and colleague a member for Southern Metropolitan Region has already gone to great lengths to describe the specifics of the bill, and can I thank him for his contribution. Of course there have been other contributors from our side as well. I would like to acknowledge a member for Western Victoria and a member for South-Eastern Metropolitan Region. With that, I will just note that I will not repeat some of their earlier remarks, but I thank them for speaking to the depth of this bill and its impact on our community. But I will take this opportunity to give recognition to former Attorney-General the Honourable Jill Hennessy and the work she did with the royal commission, which made this bill before the chamber today possible.

To finish off – and I am almost at the conclusion of my remarks today – the bill before us introduces a comprehensive regulatory framework to ensure Victoria Police uses human sources in an ethical and justifiable manner, subject to external oversight. The bill, the Human Source Management Bill 2023, includes robust safeguards for instances where Victoria Police wish to use vulnerable people as human sources or where the use of a person as a human source could result in a breach of privilege. This bill before us represents another important step in increasing and restoring confidence in Victoria’s justice system, ensuring that the events that led to the royal commission can never occur again.

I know that there are a number of further speakers on the bill before us today, from all sides of this chamber in fact, as I understand.

A member: Not all sides.

Sheena WATT: Well, perhaps not all sides, but a number of speakers representing different views, and I do welcome the opportunity to hear more contributions on the important bill before us, the Human Source Management Bill 2023. Thank you so much for your patience as I delivered my remarks. I commend the bill to the chamber.

David ETTERSHANK (Western Metropolitan) (15:25): I rise to make a contribution on behalf of Legalise Cannabis Victoria on the Human Source Management Bill 2023. This bill sets out to regulate Victoria Police’s registration, use and management of human sources and to provide a framework for police to obtain and use information from human sources in an ethical and justifiable manner. We are all aware of the context: the reprehensible conduct engaged in by Victoria Police and Nicola Gobbo that fundamentally breached foundational principles of our criminal justice system in a way that should never, ever be repeated. That conduct led to a royal commission, and this bill delivers on 25 of the 111 recommendations that followed. I do congratulate the government for causing that royal commission and for its commitment to those recommendations.

There is no doubt that a framework must be established to manage the use of human sources and to ensure that gross Gobbo mistake is never repeated by police in this state. However, this bill in its original form was almost unanimously criticised and seemingly would have enabled the holders of privileged information, including lawyers, to be registered as human sources in certain circumstances that may well have provided a pathway to permit exactly what this bill should have been seeking to prevent. It seemingly contradicted the views of the High Court and the Supreme Court of Victoria and was widely opposed by stakeholders. I thank Liberty Victoria, the Centre for Public Integrity and others for their consultation on these matters. We too should be very respectful of the significant work of the royal commission and the heavy weight that its recommendations bear. It is the highest order of inquiry that can be conducted in this state, and we should not forget that fact.

We could not have supported this bill in its original form, but the concerns of stakeholders are significantly addressed by amendments foreshadowed in this house, including quite fulsome house amendments from the government that go to the heart of many concerns that we and others in this place have identified. We are also sympathetic to the concept that, just as lawyers’ professional conduct rules allow now, there are some circumstances where lawyers should be able to pierce their veil of confidentiality to, for example, alert police to a serious and imminent threat to someone’s life. We would not want to see a situation where the laws we make today inadvertently prevent that from occurring or contradict legal profession uniform conduct rules.

But there are points on which we will not compromise. Children should never be tasked by police as human sources. Lawyers should never be tasked by police as human sources. The piercing of any legal confidence should be a matter for the legal professional and only where it is consistent with their existing professional obligations and in circumstances of a serious and imminent threat to save a life or lives or prevent serious harm. The ultimate decision-maker, should a lawyer be registered for the purpose of that type of information disclosure, must be judicial, not the Chief Commissioner of Police. It is utterly implausible to believe that oversight of the commissioner of police in real time should be the commissioner of police. In that sense we consider it not negotiable that critical oversight be provided by an independent and eminent third party of suitable standing.

In no way should we permit confidence in our criminal justice system to be undermined by interference in the lawyer–client relationship and the requirement that the lawyer act in the best interests of the client. We cannot jeopardise the client’s right to a fair hearing and the integrity of the administration of justice. As I stand no amendments have been circulated in the chamber, and it is probable that we will need more time to consider all the moving parts of this important legislation.

Ryan BATCHELOR (Southern Metropolitan) (15:29): I am very pleased to make a further contribution on the Human Source Management Bill 2023 in the chamber today. It is a bill that obviously, as many of my colleagues have discussed in great detail, does address some very significant and serious issues in the operation of Victoria Police and their practices and also in the administration of justice in the state of Victoria.

It is a matter which obviously the government has given very serious consideration to over the last few years and a matter the wider community have had the benefit of seeing and hearing about via the evidence and reports of the Royal Commission into the Management of Police Informants into this topic following the High Court of Australia’s decision in AB v. CD, EF v. CD in 2018, published in December of that year. Certainly what you saw in the High Court’s decision was a very detailed and thorough consideration of these matters. The government clearly at the time took the view that they were very serious matters that were being raised. The response that the government – the Premier and the then Attorney-General – gave upon the publication of the High Court’s decision in early December 2018 I think underlines the significance of and the gravity with which the government treats the matters that the High Court considered. They requested, at the Governor’s hand, the convening of a royal commission into the management of police informants. That commission, over the course of its deliberations, certainly went to a number of matters, received detailed evidence and made a number of recommendations.

In the consideration of the legislation that is before us we need to reflect upon the seriousness with which the deliberations of that royal commission took place and the antecedent causes of the royal commission so that we, in deciding on the legislation before us and whether this is a matter that warrants the passing of new laws, can reflect on the benefit and the wisdom of that royal commission. We know that the royal commission, after its extensive investigation and deliberations, made 111 recommendations to improve the circumstances that led to this particular set of circumstances in relation to Lawyer X and in its final report, handed down in late November 2020, made 54 recommendations directed at the Victorian government for implementation.

Importantly for us in the debate today we might reflect on the fact that it was the commission itself that recommended that the government introduce legislation to regulate Victoria Police’s use of human sources. This is not something that has just come from the government; this is something that was recommended by a royal commission – a royal commission which spent years deliberating on these issues. With all of the gravity and responsibility of the royal commission, which the commissioner contained in all of her recommendations, what we saw here was a recommendation that the government legislate to regulate Victoria Police’s use of human sources – and that is exactly what this bill does. It acquits 25 of those recommendations in setting up a legislative framework for the registration, use and management of external oversight of Victoria Police’s human sources. Indeed it is going to be, as other members have noted, the first of this kind of legislation in Australia. It is comparable to a similar legislative scheme that exists in the United Kingdom.

Obviously the royal commission in its deliberations considered whether it was appropriate, what were the circumstances and what was the nature of the framework that should regulate Victoria Police’s use of human sources. It did not recommend that there be a blanket ban on classes of persons, particularly those holders of information which could be subject to lawyer–client privilege should be precluded from registration as a human source. It is a very complex and sensitive matter. The commission reasoned in its final report, on page 107, volume 1, that there may be exceptional and compelling circumstances where it would be appropriate to register a lawyer as a human source, such as the need to respond to a significant threat to community safety. That discussion and deliberation by the commission resulted in recommendation 16: that Victoria Police can in fact, under the proposals put forward by the royal commission, register a person as a human source who may have access to privileged information. However, what this bill does is introduce a range of safeguards – oversight mechanisms and, for the first time in the state of Victoria, a regulatory framework to facilitate that occurring.

The Victorian government, in the preparation of this legislation, has accepted the commission’s findings and recommendations and is ensuring that there is not an absence of a framework to govern Victoria Police in these circumstances and provide Victoria Police with the skills and framework to respond appropriately when sets of circumstances relevant to matters of the registration of human sources who may have access to lawyer–client privilege make it appropriate. I think the bill in the regulatory framework that it sets out embeds significant checks and balances in those circumstances where there may be exceptional and compelling reasons for the registration of such a human source. It is important that we continue to acknowledge the royal commission’s deliberations on that matter and the safeguards that are put in place. Mr Ettershank, in his prior contribution, obviously made reference to the fact that there are already, under the uniform rules for the legal profession, established circumstances where, under obligations to maintain legal privilege, it may be appropriate to break that privilege in certain circumstances, particularly in relation to community safety. That is a practice that is widely understood and observed within the legal profession. What the bill is trying to do is establish a framework so that it is very clear what the process and procedures are and what the law is with respect to how this should occur in the future.

The bill, in setting out this regulatory framework, the first of its kind in Australia, will seek to regulate how Victoria Police manages its informants by setting out the necessary powers, responsibilities and decision-making powers within Victoria Police for this practice. In keeping with the concept that we need to have this practice checked at appropriate levels, the bill establishes an external oversight model where the Public Interest Monitor provides oversight for the registration of high-risk reportable human sources and provides the Independent Broad-based Anti-corruption Commission with the powers to retrospectively monitor Victoria Police’s compliance with the terms of the registration framework set out in this bill, its regulations and relevant internal policies and provides for the Victorian Inspectorate to, in turn, provide oversight of IBAC and of the Public Interest Monitor’s exercise of its coercive information-gathering powers.

In setting out this framework, the bill takes a risk-based approach to understanding how human source management will occur within Victoria Police by identifying the risks, such as the safety risk to the human source, the risk to the prosecution and the administration of justice and the risk of undermining trust in professional relationships. In setting up a risk-based framework, the bill provides the police with sets of circumstances. For example, sources providing one-off information to Victoria Police that do not meet any other sort of risk criteria and do not need to be registered; other forms of registered but non-reportable sources – those who have an ongoing relationship with police but do not meet other risk criteria; and sources deemed registered and reportable who are deemed as higher risk. They include people in a range of categories, including those, and this has been subject to a lot of consideration in debate today, who could be reasonably expected to have access to privileged information. Even if they are providing one-off information, people who have access in those particular circumstances require registration. It is about identifying the particular sets of vulnerability, identifying the particular sets of circumstances that we are most concerned about and requiring registration even if that information is only being provided on a one-off basis.

The bill also places obligations on the Chief Commissioner of Police with respect to understanding that level of risk and requires the Chief Commissioner of Police to consider legal advice, advice from the Public Interest Monitor and any retrospective advice received from IBAC in deliberations on the administration of the human source registration scheme.

Obviously we think the bill has been the subject of very detailed consideration within government and by the royal commission over the course of what has been – my maths is not always great – the four or five years since these matters were first brought to light. There are a lot of questions around how Victoria wants to take forward its administration and regulation of reportable human sources by our law enforcement community.

The other thing that I think is important in the context of the debate here, and certainly others have raised these issues, is that the bill does provide protections for vulnerable people, including young people, who are to be used as human sources. Younger people are treated as higher risk, and there is a range of specialist advice that needs to be taken into account. Clearly there are sets of circumstances where people over the course of debate both in this chamber and in the other place have been asking questions about how the bill will work in practice. People, including our friends on the crossbench, are concerned about the extent and scope of the oversight model that is in place so that we as legislators can be confident that the laws we are passing have sufficient protections and external oversight within them so that in the administration and the powers that we are granting from the Parliament to the members of the executive to undertake actions and obligations under the law they are doing so in a way that we deem as legislators to be suitable.

There has been that kind of conversation taking place, and I think what we have demonstrated is that the government takes these matters so seriously that it has been engaging in good faith with members of Parliament who are concerned about some of the matters identified here, who do want to see some of the processes and procedures that the bill seeks to develop strengthened in key ways. We have indicated our intention to move some house amendments clarifying a couple of those matters, including stricter rules about the tasking of human sources where information is subject to client legal privilege, and as part of the registration process in those sets of vulnerable circumstances, some amendments that would seek to strengthen the process for the Chief Commissioner of Police in authorising registration as human sources persons who may reasonably be expected to have access to lawyer–client privileged information. I think what you have seen over the course of the government’s consideration of these issues in the last five years is that we take it seriously. They are important matters that need to have a legislative framework put in place so that the registration and use of human sources in Victoria can be done properly and within a legal framework that is robust.

Adem SOMYUREK (Northern Metropolitan) (15:46): Given the Lawyer X scandal it is prudent for the government to come back with a piece of legislation which has as its objectives to regulate Victoria Police’s registration, use and management of human sources. Unfortunately the government seems to have ignored a key component of the Royal Commission into the Management of Police Informants report, which states in chapter 12 that the reforms should be ‘drafted carefully and in consultation with Victoria Police and other justice and legal profession stakeholders’. I certainly consider the Law Institute of Victoria, the Law Council of Australia, the Australian Bar Association and the Centre for Public Integrity as key stakeholders, yet all these organisations have serious concerns with the current drafting of the bill.

There are two main points of contention. First is that police will continue to use lawyers as sources against their own clients, which is exactly what happened in the Lawyer X scandal. Secondly, the bill allows for police to use children as human sources, which is not appropriate. I therefore will support the opposition and the Greens amendments to the bill. Lawyer–client privilege is a fundamental tenet of our legal system, and the dilution of that tenet will have serious ramifications in undermining confidence in the administration of justice in this state. So I would urge the government to reconsider whether it should rectify the bill to address those two points of contention.

Lee TARLAMIS (South-Eastern Metropolitan) (15:48): I move:

That debate on this bill be adjourned until the next day of meeting.

Motion agreed to and debate adjourned until next day of meeting.