Wednesday, 11 September 2024

Bills

State Civil Liability (Police Informants) Bill 2024

Statement of compatibility

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (18:09): In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility for the State Civil Liability (Police Informants) Bill 2024:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the State Civil Liability (Police Informants) Bill 2024.

In my opinion, the State Civil Liability (Police Informants) Bill 2024, as introduced to the Legislative Council, may be partially incompatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

Following the High Court’s decision in AB v CD; EF v CD [2018] HCA 58, the Victorian Government established the Royal Commission into the Management of Police Informants (Royal Commission) in December 2018 to inquire into Victoria Police’s use of Ms Nicola Gobbo, a former criminal barrister, as a human source.

The Royal Commission’s final report was published on 30 November 2020 and made 111 recommendations. The report identifies that 1,011 persons may have been affected by the conduct of Ms Gobbo as a human source, with 124 people potentially affected in a more direct way.

Since the Royal Commission delivered its findings, a number of individuals whose criminal convictions were affected by Victoria Police’s use of Ms Gobbo as a human source have commenced civil proceedings against the State of Victoria seeking compensation following successful appeals to overturn their criminal convictions.

The costs incurred by the State to deliver the Royal Commission, and implement its recommendations, have been significant, with over $200 million spent to date. The State also continues to commit considerable resources toward ongoing legal matters arising from the Royal Commission.

In the context of this significant financial expenditure and public concern about ongoing public costs, the objectives of the Bill are to:

• limit the extent to which the State is required to devote further human and financial resources to responding to the matters that were the subject of the Royal Commission, and

• promote finality in relation to those matters.

Clause 5 of the Bill will extinguish all causes of action a person may have otherwise pursued against the State, relating to the provision of information or other assistance by Ms Gobbo or Mr Joseph Acquaro, a solicitor, to Victoria Police.

Specifically, clause 5 provides that any cause of action against the State (which will include current and former members of Victoria Police and the Office of Public Prosecutions) relating to the provision of information or other assistance to Victoria Police by Ms Gobbo or Mr Acquaro is extinguished.

This provision will apply to all legal claims seeking damages or other monetary compensation, whether in tort, in contract, in equity, under statute or common law or otherwise.

The effect of clause 5 is to extinguish legal claims which are currently before the court but have not yet been determined, and future court proceedings that have not yet been initiated. However, the provision will not affect claims that have already been finally determined by a court.

Importantly, the Bill does not apply to any criminal proceedings nor to any person’s right to appeal a criminal conviction or sentence. Nothing in the Bill affects a person’s right to appeal a criminal conviction on a basis related to Victoria Police’s use of Ms Gobbo, or Mr Acquaro as a human source.

Human Rights Issues

The following rights are relevant to the Bill:

• right to a fair hearing (section 24)

• right not to be tried or punished more than once (section 26)

• protection from cruel, inhuman or degrading treatment (section 10(b)), and

• right not to be deprived of property (section 20).

Human rights protected by the Charter that are relevant but not engaged by this Bill

The right to a fair hearing (section 24)

Section 24(1) of the Charter provides that a party to a civil proceeding has the right to have that proceeding decided by a ‘competent, independent and impartial court or tribunal after a fair and public hearing’.

It is well recognised that judicial determination of a person’s civil rights and liabilities is a crucial element of the fair hearing right. This right will be engaged where a person is prevented from having their civil rights or liabilities in a proceeding considered by a court. However, this right does not prevent the State from amending the substantive law to alter the content of those civil rights.

The Bill extinguishes legal claims for damages and other monetary compensation in specified circumstances. It affects the substance of relevant civil claims by extinguishing the underlying cause of action, meaning there remains no civil right over which a court may exercise jurisdiction.

As such, I consider that the Bill does not engage or limit the right to a fair hearing in section 24 of the Charter.

The right not to be tried or punished more than once (section 26)

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which that person has already been finally convicted or acquitted in accordance with the law.

This right enshrines the fundamental common law principle of ‘double jeopardy’ and promotes fairness to persons acquitted or convicted of an offence by ensuring they are not subjected to multiple prosecutions. Section 26 of the Charter therefore guarantees a person finality and certainty in the criminal justice system, by protecting them from being the subject of further prosecutions.

I do not consider that the Bill engages the right not to be tried or punished more than once.

This Bill does not operate to punish a person. While the Bill’s operation will necessarily result in a detriment to affected persons, not all detriment, hardship or distress which may be inflicted on a person by operation of legislation will constitute punishment. Here, the criteria by reference to which the detriment is imposed is not the fact that a person has been finally convicted or acquitted of an offence. Instead, the operation of the Bill will be triggered where a person’s cause of action has accrued in connection with the provision of information or assistance by Ms Gobbo or Mr Acquaro to Victoria Police.

Further, the nature of the detriment is not one ordinarily associated with criminal sanction or punishment, as there is no imposition of any personal liability on a person of any sort. The Bill does not impose a penalty or sanction for breach of provisions which prescribe a rule of conduct and is instead concerned with the extinguishment of civil rights and liabilities. In this sense, it more closely resembles laws with respect to the acquisition of property (considered under the property right below) rather than traditional notions of criminal punishment. The High Court in Palmer v Western Australia (2021) 274 CLR 286 found that laws abrogating causes of action were not concerned either with criminal guilt or punishment.

That this Bill is not punitive is reinforced by reference to the purpose of the Bill which is to limit the extent to which the State is required to devote further resources to responding to the matters that were subject to the Royal Commission, and to promote finality in relation to those matters, rather than being enacted to punish individuals.

Finally, for this right to be engaged, the Bill must punish a person for an offence for which they have been finally acquitted or convicted. In contrast, where a person has had their conviction for an offence set aside on the basis of Victoria Police’s use of Ms Gobbo or Mr Acquaro as a human source they will not have been ‘finally convicted or acquitted’ for the relevant offence. In those circumstances, the principle of double jeopardy could not be engaged in any event.

Human rights protected by the Charter that are engaged but not limited by the Bill

Protection from cruel, inhuman or degrading treatment (section 10(b))

Section 10(b) of the Charter provides that a person must not be ‘treated or punished in a cruel, inhuman or degrading way’.

The law recognises that the protection from cruel, inhuman or degrading treatment or punishment is not confined to physical pain, but also protects against acts that cause mental suffering. This extends to treatment or punishment that humiliates or debases a person, or is capable of breaking moral or physical resistance. The pain and suffering caused by such treatment must, however, meet a minimum threshold of severity before this right will be engaged.

While there has been limited judicial consideration of section 10(b), this right has predominantly been found to apply in situations where severe suffering has been deliberately inflicted, or where a victim has been intentionally harmed, humiliated or debased. The majority of cases have focused on conditions of custody and/or physical harm inflicted on a person. There is no comparative case law that suggests that amending the content of civil rights in this manner engages this right.

I acknowledge that it may be argued that the Bill engages this right by causing distress to a person who has had a civil cause of action extinguished where they have suffered a loss relating to the provision of information or other assistance to Victoria Police by Ms Gobbo or Mr Acquaro (in the context of a wrongful conviction or imprisonment).

However, even if this right is engaged, I do not consider that the minimum threshold of severity is met in order to constitute a limitation on the section 10(b) right. This is because while the Bill may raise concerns of unfairness, it is not directed at intentionally causing any acute or intense harm to an individual. Further, while the Bill extinguishes civil causes of action in certain circumstances, the underlying ability for individuals to challenge their criminal convictions remains unaffected. This suggests it does not attract the necessary qualities of severe suffering or constituting affront to human dignity required to meet this minimum threshold.

Human rights protected by the Charter that may be limited by the Bill

The right not to be deprived of property other than in accordance with law (section 20)

Section 20 of the Charter provides that a person must not be deprived of their property, other than in accordance with law.

In considering whether this right has been limited, a court will consider whether (a) the relevant law ‘deprives’ a person of ‘property’, and (b) that deprivation is not ‘in accordance with law’.

There is no Victorian authority considering whether an accrued cause of action against the State constitutes ‘property’ for the purposes of the Charter. Whilst this term is not defined in the Charter, the Supreme Court of Victoria indicated in PJB v Melbourne Health (2011) 39 VR 373 that it should be ‘interpreted liberally and beneficially to encompass economic interests’. Accordingly, it is likely that a court would find that an accrued right to bring a claim against the State would constitute ‘property’ under the Charter.

Further, it may be argued that the Bill ‘deprives’ a person of this property by preventing that person from obtaining damages or monetary compensation that they may have otherwise been able to obtain against the State.

While such deprivation of property is likely to be considered ‘in accordance with law’ insofar as the Bill is ‘publicly accessible, clear and certain’, existing case law (PJB v Melbourne Health) also requires that it be shown that the Bill does not operate arbitrarily. The Court of Appeal, in WMB v Chief Commissioner of Police (2012) 43 VR 446 in the context of discussing the meaning of ‘arbitrary’ in section 13(a) of the Charter, has stated that a law is arbitrary where it is capricious, unjust, unpredictable or unreasonable in the sense of not being proportionate to a legitimate purpose.

Extinguishing a cause of action that has already accrued, and depriving people of compensation to which they may otherwise be entitled against the State, could be considered to be ‘capricious’ or ‘unjust’. Further, removing a specific cohort’s ability to seek compensation after having been imprisoned for serious criminal offences, and subsequently having their convictions overturned, may also be considered ‘unjust’ and ‘unpredictable’. Therefore, an argument might be made that the deprivation of property under the Bill is arbitrary, so that the right not to be deprived of property otherwise than in accordance with the law is limited.

The limitation on the right to property is reasonably justifiable

Section 7(2) of the Charter provides that a human right may only be subject to ‘such reasonable limits as can be demonstrably justified in a free and democratic society’ in light of all relevant factors including:

• the nature of the right

• the importance of the purpose of the limitation

• the nature and extent of the limitation

• the relationship between the limitation and its purpose, and

• any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

I will discuss each of these factors in turn.

The right to property and a person’s right to commence a claim where there is an accrued cause of action to remedy wrongs are fundamental long standing legal principles.

It is necessary to consider the importance of the purpose of the relevant limitation. As noted above, the Bill’s objective is to limit the extent to which the State is required to devote further human and financial resources to responding to the matters that were subject to the Royal Commission, and to promote finality in relation to those matters. This is in light of the significant human and financial resources the State has already devoted to the Royal Commission.

The Government has incurred significant financial costs to ensure that the events that gave rise to the Royal Commission do not occur again, with $200 million invested in establishing the Royal Commission and the delivering of its recommendations. This includes $110 million to deliver 93 of the Commission’s recommendations for legislative, policy and operational reform and capability development, and for further investigations to establish whether any criminal and disciplinary offences arose from Victoria Police’s use of Nicola Gobbo as a human source.

Of this $110 million, Government has invested $47 million for Victoria Police to support reforms to its human source management and disclosure frameworks. Other significant investments include $5 million for the Independent Broad-based Anti-corruption Commission to plan, implement and embed the new functions recommended by the Royal Commission, $2.03 million to support the appointment of the Police Informants Royal Commission Implementation Monitor, and $20 million to establish and fund the Office of the Special Investigator to investigate possible criminal or disciplinary offences arising from Victoria Police’s use of Nicola Gobbo as a human source. No charges were laid following the work of the Office of the Special Investigator, which was formally decommissioned on 2 February 2024.

With this significant expenditure in mind, and in light of the pressures on the State budget in the post-COVID environment, particularly on the criminal justice system, the critical importance of the Bill’s objectives cannot be understated. As noted above, the Royal Commission identified 1,011 cases impacted by Victoria Police’s use of Ms Gobbo as a human source, 124 of which were more directly affected. Some of these individuals have already commenced civil action against the State, and many other claims may follow. The cost to the State in defending these claims, and if the claim is successful, any subsequent orders for damages or other monetary compensation, is likely to be substantial. The effect of the Bill will allow these funds to instead be directed to fund services that benefit the Victorian community and ensure the efficient and effective operation of the Victorian criminal justice system.

In assessing the nature and extent of the limitation, and its relationship with the Bill’s purpose, it is significant that the Bill has been designed to have limited operation. In particular, it does not broadly extinguish all causes of action against the State, but only operates to extinguish causes of actions related to the particular circumstances set out in clause 5. More specifically, it does not limit the State’s liability in relation to:

• Victoria Police’s use of other human sources, and

• any claims for injury sustained in prison or on remand (where there is no causal connection between the injury and use of Ms Gobbo or Mr Acquaro as a human source).

Further, the Bill does not exclude any claims against Ms Gobbo or Mr Acquaro themselves.

In addition to the Bill being intentionally limited in its scope, the Government has carefully considered all other potential options. For example, Government considered whether the objective of the Bill could be achieved by placing a statutory limit on the amount of damages recoverable or providing a discretion to reduce the amount of damages in accordance with statutory criteria. These options are ultimately inconsistent with the Bill’s objectives, given that they do not give rise to a sufficient level of finality and certainty of human and financial resources to be devoted. Accordingly, I do not consider that there is any less restrictive means of achieving the Bill’s critical purposes.

I therefore consider that any limitation on the right to property can be justified pursuant to the factors in section ‍7(2) if the Charter and conclude the Bill is compatible with the rights set out in the Charter.

Override declaration

However, despite the conclusion I have reached above, it may be open to argue that the Bill limits the property rights of persons with an accrued cause of action and that limitation is not justifiable under section 7(2). Accordingly, a court may find that the Bill is incompatible with human rights. In this exceptional case, the Bill contains an override declaration expressly providing that the Charter does not apply. It has the further effect that the override provisions do not need to be re-enacted every five years. Consequently, the Charter will have no application to the Bill in perpetuity. This is to ensure that the Bill operates according to its terms and that its purpose of achieving finality in relation to causes of action related to the Royal Commission and protect Victorian taxpayers and the State from further Royal Commission related expenditure is met. I also propose to make a statement further explaining the exceptional circumstances which justify the inclusion of the override declaration.

Hon Jaclyn Symes MP

Attorney-General

Minister for Emergency Services

Second reading

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (18:09): I move:

That the bill be now read a second time.

In AB v CD; EF v CD [2018] HCA 58, the High Court upheld the Victorian Court of Appeal’s decision permitting the Director of Public Prosecutions to disclose to potentially affected persons that Victoria Police had used former criminal barrister Ms Nicola Gobbo as a human source.

Following the publication of the High Court’s decision, the Victorian government established the Royal Commission into the Management of Police Informants (royal commission) to inquire into Victoria Police’s use of human sources.

The royal commission’s final report was handed down on 30 November 2020 and made 111 recommendations. The final report identifies that 1011 persons may have been affected by the conduct of Ms Gobbo as a human source, with 124 people potentially affected in a more direct way.

The state has devoted substantial human and financial resources, exceeding $200 million, to establish the royal commission and deliver its recommendations. Of the 111 recommendations made, 93 have been delivered including 49 of the 55 recommendations directed towards the Victorian government. In delivering these recommendations, significant funds have been devoted to reforming Victoria Police’s human source management and disclosure frameworks, establishing new oversight functions for the Independent Broad-based Anti-corruption Commission and appointing an independent implementation monitor to oversee the implementation of the royal commission’s recommendations. Whilst this expenditure has been significant, it has been critical to restore the confidence of the Victorian community in our criminal justice system.

However, royal commission related expenditure should not burden our community more than necessary and government has a responsibility to ensure taxpayer money is channelled towards critical services for the Victorian community.

Considerable financial and human resources continue to be committed by the state toward legal matters relating to the royal commission. Since the royal commission delivered its findings, a number of individuals who were impacted by Ms Gobbo’s provision of information or other assistance to Victoria Police have commenced civil proceedings against the state of Victoria seeking compensation following successful appeals to overturn their criminal convictions.

Section 31 of the Charter of Human Rights and Responsibilities Act 2006

I wish to bring to the house’s attention the proposed override declaration in accordance with section 31 of the Charter of Human Rights and Responsibilities Act 2006.

The bill limits the extent to which the state is required to devote further human and financial resources to responding to the matters that were the subject of the Royal Commission into the Management of Police Informants (royal commission) and promotes finality in relation to those matters. The bill thereby protects Victorian taxpayers against further royal commission related spending.

The way in which the bill limits the financial liability of the state is by extinguishing causes of action that relate to the provision of information or other assistance to Victoria Police by specified human sources, expressly named as Ms Gobbo or Mr Joseph Acquaro. Mr Acquaro, a solicitor now deceased, is also captured within the scope of the bill as the matter of Madafferi v The Queen [2021] VSCA 1 revealed he too provided information to Victoria Police pertaining to a former client.

The government considers that any limitation on the right to property can be justified pursuant to the factors in section 7(2) of the charter and therefore considers that the bill is compatible with the rights set out in the charter.

However, despite the conclusion above, the government accepts that it may be open to argue that the bill limits the property rights of persons with an accrued cause of action and that limitation is not justifiable under section 7(2) of the charter. Accordingly, a court may find that the bill is incompatible with human rights.

In this exceptional case, the bill therefore includes a provision which makes clear that the charter does not apply to the bill, and that this override provision does not need to be re-enacted every five years. Consequently, the charter will have no application to this section in perpetuity.

The charter only permits Parliament to override the application of the charter in exceptional circumstances.

The exceptional circumstance warranting a charter override is the need to promote finality in relation to causes of action related to the royal commission and protect Victorian taxpayers and the state from further royal commission related expenditure.

In the wake of significant financial expenditure of over $200 million to deliver the royal commission and implement its recommendations, it is imperative that there is a mechanism to limit the devotion of further resources and bring finality to matters relating to the royal commission so that funds can be directed to support the Victorian community.

I commend the bill to the house.

David Davis: On a point of order, President, there is a problem with the second-reading speech. The second-reading speech in the view of many does not deal with section 85 issues. The bill clearly limits the jurisdiction of the Supreme Court, and there does not seem to be a proper and fulsome section 85 statement that would deal with these matters.

Jaclyn SYMES: We can do it in the debate.

David Davis: You are required to have such a statement. You do not have a statement.

Jaclyn SYMES: You say I am required to. The solicitor-general has advised otherwise.

David Davis: Well, I do, and so does the Scrutiny of Acts and Regulations Committee.

The PRESIDENT: Mr Davis, that is not for me to determine. It can be determined in the debate, it can be argued in the debate, but it is not for me to determine the fullness of that.

David Davis: President, just further to the point of order, there is a requirement that section 85 statements are made.

Jaclyn SYMES: Which standing order are you relying on right now?

David Davis: I am relying on standing practice of the chamber over many, many years.

Jaclyn SYMES: We can discuss this at another time, not during the second-reading speech.

David Davis: Maybe the minister would like, President, to explain –

Jaclyn SYMES: I have got 40 CFA volunteers waiting for me to return to a meeting.

The PRESIDENT: I do not think we need to have a discussion across the chamber. It is my understanding, Mr Davis, it is not for me to determine. I am happy to review that overnight, but I cannot –

David Davis: It is the appropriate time to raise it because the bill has just been second read.

The PRESIDENT: I am not discarding that. Once again, I am always happy to admit that sometimes I am not aware of everything, so I will take it into consideration overnight.

Georgie CROZIER (Southern Metropolitan) (18:16): 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.