Wednesday, 8 February 2023

Human Source Management Bill 2023

Statement of compatibility

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:33): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Human Source Management Bill 2023.

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 Human Source Management Bill 2023 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill establishes a legislative framework to regulate the registration, use and management of human sources by Victoria Police, conferring relevant duties, functions and powers on Victoria Police personnel. Victoria Police will be required to register a person as a human source if their identity is known to Victoria Police; Victoria Police wishes to obtain or use information or assistance from the person to assist a criminal investigation or with the gathering of criminal intelligence; and the person has a reasonable expectation their identity or relationship with police will remain confidential. A person will be defined as a human source from the time they are registered and Victoria Police will be prohibited from using information or tasking the person until they have been registered. This is subject to some narrow exceptions (outlined below).

The Bill also establishes an external oversight framework, where the Independent Broad-based Anti-corruption Commission (IBAC) and the Public Interest Monitor (PIM) provide oversight of Victoria Police’s human source management program, and the Victorian Inspectorate (VI) in turn provides oversight of IBAC and coercive powers exercised by the PIM.

Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill

The Bill engages the following human rights under the Charter:

• right to life (section 9)

• right to privacy and reputation (section 13)

• right to protection of children in their best interests (section 17(2))

• right to freedom of expression (section 15)

• right to security of person (section 21)

• right to fair hearing (section 24), and

• rights in criminal proceedings (section 25).

For the following reasons, I am satisfied that the Bill is compatible with the Charter and, if any rights are limited, those limitations are reasonable and demonstrably justified having regard to section 7(2) of the Charter.

Registration of human sources to assist in gathering criminal intelligence or to support a criminal investigation

The Bill will require Victoria Police to go through a formal registration process before using a person as a human source to assist with the gathering of criminal intelligence or to support criminal investigations.

A Victoria Police officer must apply to the Chief Commissioner of Police (CCP) or their delegate to register a person as a human source if:

• Victoria Police wishes to obtain information from the person, task the person, or use or disseminate information obtained from the person; and

• the person’s identity is known to Victoria Police and they have a reasonable expectation that their identity or assistance to Victoria Police will remain confidential. Whether a person has a ‘reasonable expectation of confidentiality’ will be an objective test based on the circumstances, rather than the subjective views of the person or Victoria Police personnel.

The registration process will involve a police officer submitting a registration application to the CCP or their delegate, outlining the reasons for the application and including sufficient information for the decision-maker to determine whether to approve the registration. The Bill will enable the CCP or their delegate to verbally register a non-reportable human source in urgent circumstances, where a delay caused by requiring a registration decision to be made in writing would defeat the purpose of the registration. The Bill will also include a streamlined process for registering a person in ‘emergency circumstances.’ That is, where there is a serious and imminent threat to national security, the community, or the life and welfare of any person, and the information the person is expected to provide cannot be obtained through any other reasonable means.

The Bill will enable the CCP or their delegate to register a person as either a lower risk ‘non-reportable’ human source, or, if the registration or use of the person as a human source poses a greater risk, as a ‘reportable’ human source who will be subject to more stringent regulation. The Bill will require the following people to be registered as reportable human sources:

• those who are under the age of 18

• those who have a serious medical or mental health condition, or

• those reasonably expected to have access to privileged information.

The Bill will not require Victoria Police to apply to register a person who proactively volunteers information to Victoria Police on a discrete occasion if the police officer is reasonably satisfied that the person is not under the age of 18, does not have a serious medical or mental health condition, and is not reasonably expected to have access to privileged information.

Right to life and right to security of a person

Section 9 of the Charter provides that every person has the right to life and has the right not to be arbitrarily deprived of life. Section 21(1) of the Charter further provides that every person has the right to liberty and security.

I consider that the rights to life and security are engaged by the provisions in the Bill enabling Victoria Police to register and use people as human sources. The Royal Commission into the Management of Police Informants (Commission) noted there are significant risks to a person’s safety that may arise when they are used as a human source.¹If a person provides information or assistance to Victoria Police covertly, particularly about a criminal associate, there is a risk of retaliation against that person should the nature of the person’s human source relationship with Victoria Police be suspected or uncovered.

However, for the following reasons, I am satisfied that any interference with the rights to life and security is reasonable and demonstrably justified, and therefore that the Bill is compatible with the Charter.

Providing a legislative framework ensures an appropriately structured pathway for Victoria Police to use human sources to gather criminal intelligence and investigate crime. The Commission noted that human sources play a critical role in detecting and preventing serious crime, particularly as technological advancements and the sophistication of organised crime groups limit the effectiveness of other law enforcement techniques.² There are benefits to policing and community safety that arise from Victoria Police being able to use human sources.

The Bill includes mechanisms to ensure Victoria Police’s power to register and use people as human sources is proportionate to the anticipated impacts on their rights to life and security.

The registration process itself is a key mechanism to manage the risks of using a person as a human source. Until an application to register a person as a human source is approved by the CCP or their delegate, Victoria Police will be prohibited from using a person as a human source. This will prevent Victoria Police from acting on information or covertly tasking the person in a way that may engage the person’s rights to life or security, until such activity has been properly considered by a senior decision-maker within Victoria Police.

Victoria Police will be required to obtain informed consent from a person before they are registered as a human source. If the person who Victoria Police wishes to register is under the age of 18, both the child and their parent or guardian will be required to provide informed consent for the child to be registered, unless it is inappropriate in the circumstances for the parent or guardian to do so (e.g. if the child is providing information to Victoria Police about the parent or guardian). The Bill includes further safeguards for people under the age of 18 (outlined below) to ensure children are appropriately protected if their parent or guardian’s consent is not obtained. These consent requirements will ensure that the human source management framework is voluntary for people to participate in, and that engagement with their rights to life and security is more reasonable.

This consent requirement is subject to only one narrow exception, when a person requiring registration as a human source proactively volunteers information to Victoria Police on a discrete occasion where it is also an emergency. In such cases, the CCP or their delegate will be able to register the person and act on the information without obtaining informed consent, ensuring that Victoria Police can respond quickly to the emergency. Other safeguards will apply to appropriately manage the risks involved, including:

• the requirement to satisfy the high threshold for emergency registrations, outlined above

• an emergency registration will only be valid for the duration of the emergency. Once the emergency circumstances have subsided, Victoria Police must either temporarily suspend the human source’s registration pending a further application, or permanently deactivate the human source, and

• retrospective external oversight of emergency registrations by IBAC and the PIM, with the PIM responsible for overseeing emergency registrations of reportable human sources (see further below).

The registration process will also specifically require the CCP or their delegate to consider the risks of registering and using the person as a human source before approving a registration application. The decision-maker must be satisfied that:

• using the person as a human source is necessary and proportionate to achieving a legitimate law enforcement objective

• the risks associated with registering the person have been identified and are capable of being adequately managed, and

• registration is otherwise appropriate and justified.

In determining whether the ‘appropriate and justified’ threshold is satisfied, the CCP or their delegate are required to consider several factors, including the seriousness of the offence to which the person’s information relates; the likelihood of being able to obtain the information through other investigatory or intelligence methods; and conditions that would be imposed on the person’s registration. The Bill also draws attention to the CCP’s existing obligations under section 38 of the Charter, to ensure proper consideration is given to the potential impact of registration on a person’s human rights.

The Bill will include additional requirements for registering a person as a reportable human source. These decisions may only be delegated by the CCP to an officer at or above the rank of Assistant Commissioner. By aligning the seniority of the decision-maker with the level of risk posed by the registration, the Bill provides a clear process to ensure that the use of a person as a human source is appropriate and justified.

In addition to the ‘appropriate and justified’ threshold outlined above, the CCP or their delegate will only be able to register certain reportable human sources in exceptional and compelling circumstances. To register either a child, or a person for the purposes of obtaining or using privileged information, the CCP must be satisfied that:

• there is –

o to register people to obtain privileged information – a serious threat to national security, the community, or life and welfare of any person, or

o to register children – either a serious threat as outlined above, or a need to investigate a serious offence, and

• in both cases – the information the person is expected to provide cannot be obtained through any other reasonable means.

This additional requirement will assist in ensuring vulnerable people, or those whose registration poses a higher level of risk to the administration of justice or personal safety, will only be registered as human sources where it is proportionate to the risks involved and where there are no other policing methods available to achieve the law enforcement objective.

When considering whether to register a person as a reportable human source, the CCP or their delegate will also need to consider specialist advice. For children, this could be advice from a social worker or adolescent psychologist. For a person with a serious medical or mental health condition, this will be advice from a mental health or medical specialist. For a person reasonably expected to have access to privileged information, this will be legal advice.

The PIM may also make recommendations that the CCP or their delegate must consider before making a decision to register a person as a reportable human source. Victoria Police must notify the PIM of the application to register a person as a reportable human source and provide the PIM with all relevant information to assist the PIM in making recommendations to Victoria Police.

The PIM will provide retrospective oversight of emergency registrations of reportable human sources, noting that these registrations are time critical and require Victoria Police to respond urgently. The CCP or their delegate will be required to provide the PIM with all information relevant to the emergency registration within two business days after registration, to enable timely oversight.

The provision of specialist advice, as well as advice and recommendations from the PIM, will further ensure Victoria Police’s decision to register a person as a human source is informed by a thorough risk assessment and is proportionate to any human rights impacts.

When approving a registration, the CCP or their delegate may impose conditions on how the human source will be used. This will enable Victoria Police to tailor the planned activities of the human source in a manner proportionate to the potential criminal offences being investigated and risks posed to their life and security.

The Bill also includes maximum periods for which a person may be registered as a human source (12 months for a non-reportable human source and six months for a reportable human source), and minimum periods for registration to be reviewed during that time (quarterly reviews for non-reportable human sources and monthly reviews for reportable human sources). The Bill enables Victoria Police to re-register a person upon the expiry of a registration period. Maximum registration periods and required review periods ensure that the risks to a human source’s life or security are managed appropriately, including where those risks change over time.

IBAC will also provide broad external oversight of the human source management framework by retrospectively monitoring Victoria Police’s compliance with the Bill, any regulations, and relevant Victoria Police policies. IBAC’s oversight will ensure that the Bill’s requirements in relation to registering and using people as human sources are upheld by Victoria Police and that any trends towards non-compliance that might endanger a human source’s life or security are identified and addressed.

Right to privacy, right to fair hearing and protection from self-incrimination

Section 13(1) of the Charter provides that every person has a right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 24(1) of the Charter provides that a person charged with a criminal offence has the right to a fair and public hearing by a competent, independent and impartial court or tribunal. Section 25(2)(k) protects the right of a person charged with a criminal offence not to be compelled to testify against themselves or to confess guilt.

While section 25(2)(k) of the Charter refers to ‘a person charged with a criminal offence’, courts have interpreted the protections as extending to a person who has not been charged.³ This interpretation acknowledges that the privilege against self-incrimination can be infringed by using evidence in criminal proceedings that a person was compelled to give prior to being charged.

I consider that these rights may be engaged by the Bill in relation to persons whom human sources are used to investigate (targets). The Bill provides a legislative framework for Victoria Police to use human sources to covertly gather information about a target, without the target’s knowledge, to assist with criminal investigations. The target may unwittingly provide self-incriminating information to the human source. However, for the following reasons, I am satisfied that any limitation on the target’s right to privacy is lawful and not arbitrary. Any limitation on rights to a fair trial or freedom from self-incrimination is reasonable and demonstrably justified, and therefore the Bill is compatible with the Charter.

As noted above, the CCP or their delegate may only approve an application to register a person as a human source if satisfied that it is necessary and proportionate to achieving a legitimate law enforcement objective; the risks can be adequately identified and managed; and registration is otherwise appropriate and justified. Additionally, one of the factors to be considered when determining whether the registration is ‘appropriate and justified’ is the likelihood of being able to obtain the information through other investigatory or intelligence methods. The elements of the registration test ensure that the use of human sources to obtain information is proportionate to the offences being investigated, and is proportionate to any limitation on the rights of persons being investigated.

Registration and use of people under the age of 18 as reportable human sources

As noted above, the Bill empowers the CCP or a delegate at or above the rank of Assistant Commissioner to register children as reportable human sources, where satisfied that certain criteria have been met. The Commission urged Government to include children as reportable human sources in the legislative framework, recognising the welfare and ethical risks associated with their use as human sources and the framework’s role in mitigating these risks.⁴

Right of children to protection in their best interests

Section 17(2) of the Charter states that every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

I consider that the right of children to protection in their best interests is limited by the provisions in the Bill enabling Victoria Police to register and use children as human sources, given the risks to individual safety that arise when doing so. However, for the following reasons, I am satisfied that any limitation with the right is reasonable and demonstrably justified, and therefore that the Bill is compatible with the Charter.

The Bill provides for the registration, use and management of children as human sources, to ensure they are afforded the important safeguards offered by the legislative framework, including the more stringent protections for reportable human sources. If a child provides information to Victoria Police and Victoria Police are prohibited from registering them as a human source, those protections would not be guaranteed and the interactions with Victoria Police would lack both internal and external oversight.

The Bill includes measures to ensure that using a child as a human source is proportionate and justified, recognising that it may limit the right to protection in their best interests. As outlined above, the registration process itself serves as a key mechanism through which the rights of children are safeguarded in the Bill. The registration process ensures that Victoria Police must first go through a formal risk assessment and approvals process before using a child as a human source. As part of this process, Victoria Police will securely store information about the child to protect their identity. Registration therefore provides strong protections to prevent the child’s identity and status as a human source from being disclosed in an unauthorised way. It is also an offence under the Bill to disclose a person’s status as a human source (see below), which is an additional protection for all human sources, including children.

The Bill also provides a range of robust safeguards at the registration phase. In addition to those outlined above (e.g. the ‘exceptional and compelling circumstances’ threshold and the requirement to consider specialist and PIM advice), the Bill requires the CCP or the delegate determining a registration application to specifically consider whether:

• the person subject of the application is a child and if so, whether the registration is in best interests of the child, and

• the expected impacts on the child’s wellbeing.

Further protections are also provided in the Bill for children following registration (e.g. maximum registration and minimum review periods). Together, these safeguards serve to protect the right of children to protection in their best interests by:

• narrowing the circumstances in which a child can be registered and used as a human source

• ensuring the registration and use of children as human sources is informed by advice and consideration of factors that specifically address the risks to children, and

• ensuring the conditions governing the use of a child as a human source remain commensurate to the risks.

Given the particular vulnerabilities of children aged 14 or younger, the Bill will limit Victoria Police’s ability to use children in this age range as human sources. The Bill will prohibit Victoria Police from initiating contact with children aged 14 years or younger for the purpose of requesting, inducing or procuring them to become human sources, only enabling such children to be registered as human sources where they have approached Victoria Police. If a child aged 14 years or younger is registered as a human source, Victoria Police will be prohibited from tasking the child to gather information or provide assistance, and may only obtain or disseminate information where the child has proactively approached Victoria Police with that information. These safeguards ensure that the use of children aged 14 years or younger as human sources is strictly confined and proportionate to the risks involved.

Additionally, children will be entitled to have either a parent, guardian or independent person present during interactions with Victoria Police. The child will also have an entitlement to a lawyer for interactions relating to registration, tasking or deactivation, recognising that these are points in the human source relationship where key decisions are made, and significant risks arise. Victoria Police will be required to notify the child of their right to have a lawyer present prior to any interactions where the entitlement arises. These provisions will ensure Victoria Police’s ability to use a child as a human source is reasonable, by providing children with adequate support and protection in the process.

Functions and powers of IBAC and the PIM

To assist in performing their oversight functions under the Bill, both IBAC and the PIM will have the power to:

• access or inspect relevant material

• request information from Victoria Police personnel, and

• require Victoria Police personnel to provide them with answers or documents if necessary.

Victoria Police will also have obligations to report proactively to the PIM on any applications to register a person as a reportable human source and to IBAC on:

• general registration application matters, such as the total number of registration applications submitted and total number of applications approved

• emergency registrations and urgent registrations, and

• emerging issues, such as material contraventions of the human source management framework, instances where Victoria Police used a human source to access to privileged information, and Victoria Police’s implementation of IBAC’s recommendations.

To facilitate the full and free provision of information by Victoria Police to oversight agencies and best ensure they are able to perform their functions, the Bill overrides secrecy laws and does not allow for Victoria Police to claim client legal privilege or public interest immunity (PII) where information is required, requested or directed to be provided by Victoria Police to the PIM or IBAC.

Where the PIM or IBAC direct Victoria Police personnel to provide information, the privilege against self-incrimination will also be specifically abrogated.

Both the PIM and IBAC are required to report annually to the Attorney-General on the performance of their functions under the Bill. For the PIM, annual reporting obligations will include reporting on the number of times they have been notified about an application made by Victoria Police to register a person as a reportable human source, including in emergency circumstances. For IBAC, annual reporting obligations will include reporting on the extent of Victoria Police’s compliance with the human source management framework. Both IBAC and the PIM are empowered to provide special reports to the Attorney-General at any time outside of this reporting period, on any of the same matters. Following provision of their reports, the Attorney-General is required to table these in Parliament within 14 sitting days.

Additionally, IBAC and the PIM are required to notify the VI where they have exercised a power to require Victoria Police personnel to provide them with information to support their oversight functions. In turn, the VI is required to report on the performance of its functions in its annual report.

Right to fair hearing and right to freedom from self-incrimination

I consider that the Bill’s abrogation of the privilege against self-incrimination where the PIM or IBAC requires Victoria Police to provide material may engage the right to fair hearing in section 24(1) and the right to be free from self-incrimination in section 25(2)(k) of the Charter. However, for the following reasons, I am satisfied that any limits imposed by those clauses on those rights are reasonable and demonstrably justified.

Enabling IBAC and the PIM to compel information from Victoria Police personnel is critical to ensure the oversight agencies can access the material required to perform their oversight functions. Preventing claims of privilege in these instances will also give Victoria Police personnel comfort that they may provide sensitive human source information to oversight agencies lawfully, and without breaching statutory secrecy provisions. The power to obtain necessary information to perform the oversight functions will ensure improved accountability in Victoria Police’s human source management framework.

The Bill includes four significant protections for Victoria Police personnel who are compelled to provide information to the PIM or IBAC where the privilege against self-incrimination is abrogated.

First, the abrogation of the privilege against self-incrimination is limited to instances where either the PIM or IBAC direct Victoria Police personnel to provide answers or documents, rather than where information is requested by oversight agencies. This provides the PIM and IBAC with an avenue to access information from Victoria Police personnel without abrogating this privilege (that is, by requesting the information first) and discretion over when the privilege against self-incrimination is abrogated.

Second, the Bill also limits how information can be used where the privilege against self-incrimination has been abrogated. Consistent with other legislative schemes (e.g. section 84 of the Independent Broad-based Anti-corruption Commission Act 2011), if a member of Victoria Police personnel is compelled to provide information, the Bill expressly prohibits that information being used as evidence against the person who provided it before any court or person acting judicially, except in proceedings for:

• perjury or giving false information, or

• breach of discipline by a police officer.

Third, in addition to the information itself being largely inadmissible, the Bill also provides a derivative use immunity, which prevents any evidence obtained as a direct or indirect consequence of the coercively obtained material from being admissible as evidence against the person who provided it in a criminal proceeding or proceeding that imposes a penalty.

These immunities recognise that, while it may be appropriate for the privilege against self-incrimination to be abrogated to enable the PIM and IBAC to perform their oversight functions under the Bill, it would disproportionately limit a person’s rights to a fair hearing and freedom from self-incrimination to enable such information to be used to prosecute or gather further evidence against them.

Fourth, the Bill further provides that both the PIM and IBAC must notify the VI when they have exercised a power to compel Victoria Police personnel to provide material. This requirement will ensure the VI can monitor the lawfulness of the PIM and IBAC utilising coercive powers. Once the VI has assessed the exercise of these coercive powers, it may make recommendations to the PIM or IBAC around any action they should take to remedy conduct that may have been unlawful. This will assist in ensuring coercive powers are exercised in a way that is proportionate to a person’s rights under sections 24(1) or 25(2)(k) of the Charter.

Right to privacy

In my opinion, the right to privacy is engaged by the Bill providing for Victoria Police to give information to IBAC and the PIM where required, requested or directed to do so. Given the provision of information in these circumstances is subject to the abrogation of certain privileges and an overriding of secrecy laws restricting information sharing, the material could include personal information relating to individuals involved in the human source management program.

The right to privacy is also engaged by the requirement in the Bill for IBAC and the PIM to provide information in their reports to both the Attorney-General and the VI, and by the VI being required to include information on the performance of its functions under the Bill in its annual report. Such reports could include a limited or high-level form of material provided by Victoria Police personnel and, in subsequently being tabled, could result in that material being made publicly available.

However, for the following reasons, I consider that any interference with this right is lawful and not arbitrary, and therefore that the Bill is compatible with section 13 of the Charter.

The requirements for Victoria Police to provide information about human source management to IBAC and the PIM, as well as the oversight agencies’ reporting requirements, are intended to promote greater accountability and transparency of Victoria Police’s human source management program.

Information relevant to a decision to register a person as a reportable human source is likely to be subject to PII. Legal or specialist advice obtained as part of the registration process may also be subject to client legal privilege. Preventing claims of privilege is therefore critical to the PIM and IBAC’s ability to perform their respective oversight functions.

To balance these objectives with human rights, the Bill includes protections to safeguard the right to privacy for a person involved in Victoria Police’s human source management program.

The Bill explicitly prohibits IBAC, the PIM and the VI from including in their annual reports information that could tend to reveal the person’s involvement in the human source management program. Agencies are required to omit from their reports information that could reasonably be expected to disclose a person’s identity or location, or otherwise compromise their security, if:

• Victoria Police has applied to register the person as a human source (including where an application is yet to be determined or has been rejected), or

• the person is currently or was previously registered as a human source.

Before reports are provided to the Attorney-General, the PIM and IBAC will be required to provide a copy to the CCP, who may recommend the removal of sensitive information outlined above.

Offence of unauthorised disclosure of human source information

The Bill creates offences for a person to disclose information that reveals, or is likely to reveal, that another person is registered as a human source, has previously been registered as a human source (but has since been deactivated), or is someone who Victoria Police has applied to register as a human source. The purpose of these offences is to ensure that a person’s potential, current or former involvement in Victoria Police’s human source management program is not made publicly known in a way that could jeopardise their safety. This offence protects the identities of individual human sources or people who have been involved in the human source process without limiting transparency around Victoria Police’s use of human sources.

The offence is modelled on section 30 of the Crimes (Assumed Identities) Act 2004 (Assumed Identities Act), which makes it an offence for a person to disclose any information that reveals, or is likely to reveal, that an assumed identity acquired or used by another person is not the other person’s real identity. The offence in the Assumed Identities Act provides a relevant model for the offence in the Bill, given both legislative schemes deal with circumstances where a person is involved in covert activity with Victoria Police and their true identity and the nature of the assistance they are providing is hidden from the public.

The Bill includes exceptions to the offence where a person discloses information for a purpose permitted under the Bill. These exceptions include disclosing information for the administration of the Bill, for the purpose of legal proceedings (including obtaining legal advice), or where the information is disclosed in accordance with any other law.

Rights to life, privacy and security of a person

In my opinion, the new offences will assist in promoting a human source’s right to life (section 9), right to privacy (section 13) and right to security of person (section 21).

By broadly prohibiting disclosure of information that could reveal their involvement in Victoria Police’s human source management program, the Bill will protect human sources against the risks to their life or security that could arise if this information is disclosed. By capturing information about people who Victoria Police has applied to register as human sources and people who were previously registered as human sources (rather than only people who are currently registered as human sources), the offence appropriately mitigates these risks at all points where they may arise throughout the human source relationship with Victoria Police, not just from the point of registration.

Right to a fair hearing and freedom from self-incrimination

In my opinion, the operation of the offence provisions in the Bill will also help promote the right to a fair trial (section 24) and freedom from self-incrimination (section 25) for persons who human sources are used to investigate.

The exceptions to the offence provisions ensure that information about the use of a human source may still be disclosed where this is required in criminal proceedings.

Right of freedom of expression

Section 15 protects a person’s right to seek, receive and impart information freely. Section 15(3) states that lawful restrictions on this right may be necessary to respect the rights and reputation of other persons, or to protect public safety, order, health or morality. By prohibiting the unauthorised disclosure of information revealing or tending to reveal a potential, current or former human source relationship, the Bill may limit the right of freedom of expression in section 15 of the Charter.

However, in accordance with section 15(3) of the Charter, I am satisfied that the offences of unauthorised disclosure in the Bill are lawful restrictions on a person’s rights under section 15 that is reasonably necessary to protect the rights of other persons. Accordingly, I consider the unauthorised disclosure offences to be compatible with the right to freedom of expression.

The Commission recommended the creation of these offences, given ‘the critical need to protect the identities and safety of human sources.’⁵ If disclosure of such information was permitted under the Bill, there would be a real risk of retaliation against the person, endangering their rights to life, security and privacy.

The scope of the unauthorised disclosure offence is narrowly confined in its application to information that reveals or is likely to reveal a person’s potential, current or former human source relationship with Victoria Police. This ensures the offence targets information that poses the greatest risk to a person’s safety if disclosed, rather than broad categories of information which might not necessarily reveal a person’s particular relationship with Victoria Police (e.g. a person’s name or location alone).

Consistent with the offence under section 30 of the Assumed Identities Act, the unauthorised disclosure offence applies only to a person who reveals information about another person’s relationship with Victoria Police. That is, the offence does not capture disclosure of information by a person that reveals they could be, are, or were previously a human source. This ensures the offence does not unreasonably infringe on the freedom of expression of those it is specifically designed to protect.

Additionally, the exceptions to the offence included in the Bill ensure that information about Victoria Police’s use of human sources can be disclosed where there is a legitimate reason to do so, or where disclosure is otherwise permitted by law. Circumstances in which disclosure will be permitted include where:

• a person wishes to make a public interest disclosure to IBAC about a member of Victoria Police personnel engaged in the human source management program, or

• the use of human sources is required to be disclosed in criminal proceedings.

To ensure the exceptions to the offence continue to appropriately capture reasonable and justified disclosures, the Bill will enable regulations to prescribe further exceptions to the offence. As noted above, the exceptions to the offence ensure it remains focused on protecting the safety of people who could potentially be, are currently, or have previously been registered as human sources, rather than unreasonably infringing on freedom of expression around Victoria Police’s use of human sources. In my opinion, the Bill therefore appropriately balances the interest in protecting the safety of human sources with the Charter rights to freedom of expression.

The Hon. Anthony Carbines MP

Minister for Police

Minister for Crime Prevention

Minister for Racing

¹ Royal Commission into the Management of Police Informants, Final Report, 30 November 2020, volume III, 131.

² Royal Commission into the Management of Police Informants, Final Report, 30 November 2020, volume III, 131.

³ See, for example, Re an application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415, [162]–[163].

⁴ Royal Commission into the Management of Police Informants, Final Report, 30 November 2020, volume III, 138.

⁵ Royal Commission into the Management of Police Informants, Final Report, 30 November 2020, Final Report, volume III,138.

Second reading

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:33): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

Introduction

The Human Source Management Bill 2023 (the Bill) is an important step to fulfil the Victorian Government’s commitment to implement all recommendations of the Royal Commission into the Management of Police Informants (the Commission).

This Bill delivers recommendations 8–18, 44–56 and 58 of the Commission by establishing a legislative framework to regulate Victoria Police’s use of human sources.

The Bill is the first of its kind in Australia. It sets out the process for the registration, use and management of Victoria Police’s human sources and establishes an external oversight model to ensure that human sources are used in an ethical and justifiable manner.

I note that the Bill is substantially the same as the Bill of the same name that was introduced to the Legislative Assembly on 16 August 2022, which lapsed upon expiry of the last Parliament. Apart from minor technical amendments, the only substantive change that has been made to the Bill is to update the default commencement date from 30 June 2024 to 30 September 2024. The updated commencement date reflects the time that has passed since the Bill’s initial introduction into Parliament.

The Commission’s recommendations

The Government announced the establishment of the Commission on 3 December 2018. This announcement followed the publication of the High Court’s decision in AB v CD, EF v CD [2018] HCA 58, which revealed former criminal defence barrister, Ms Nicola Maree Gobbo, was a registered Victoria Police human source.

The Commission delivered its final report containing 111 recommendations on 30 November 2020. On 7 May 2021, the Government released its response to the Commission’s final report and reiterated its commitment to implement the Commission’s recommendations.

The Commission found that while human sources play a critical role in 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 a human source exposed systemic issues within Victoria Police and had far-reaching and detrimental consequences for the Victorian justice system.

The Commission identified that the covert nature of the human source relationship increases the risks of Victoria Police officers engaging in corruption and misconduct and can expose individuals to significant safety risks. Using human sources with access to privileged information can also undermine public trust in important professional relationships, such as the relationship between a lawyer and their client.

The Commission noted that while Victoria Police has made significant progress in updating its internal human source management policies since the Commission, Victoria Police’s internal policies are insufficient on their own to prevent the recurrence of the events that gave rise to the Commission. In contrast with other covert powers exercised by Victoria Police, there is no statutory regulation or independent external oversight of Victoria Police’s human source program.

The Commission emphasised the importance of a clear legal framework to facilitate the effective use of human sources to investigate and prevent criminal activity, while simultaneously ensuring that their use is ethical, proportionate and justified. The Commission also emphasised that independent, external oversight is an important check and balance on the use of police powers, ensuring that Victoria Police is held accountable while maintaining public trust and confidence.

The Commission therefore recommended that the Government introduce legislation to regulate the use and management of human sources by Victoria Police and establish an external oversight regime.

I now turn to the Bill.

Registration and management processes

The Bill requires Victoria Police to go through a formal registration process before they can use a person as a human source. Victoria Police 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 purpose of the registration process prescribed in the Bill is to ensure a senior officer within Victoria Police formally assesses whether using a person as a human source is appropriate and justified. To achieve this, the Bill includes robust safeguards in the registration process, including requiring:

• registration decisions to be made by an officer whose seniority aligns with the level of risk posed by the registration

• the decision-maker to be satisfied that the registration of the person as a human source is necessary to achieve a legitimate law enforcement purpose and that any risks have been identified and can be adequately managed

• the person’s informed consent to be registered as a human source to be obtained prior to registration, and

• appropriate boundaries to be set for the human source relationship, including establishing the purpose of the registration and any conditions to be placed on the registration.

The Bill has been carefully constructed to recognise the numerous ways in which people provide information to police, to ensure it does not inappropriately capture circumstances that do not pose the level of risks inherent with using human sources. The Bill does not require a person to be registered as a human source who falls 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.

The Bill prohibits Victoria Police from using a person as if they are a human source unless the person has been registered as a human source. The Bill also prohibits Victoria Police from using a human source for a different purpose from the purpose approved at registration.

Reportable human sources

The Bill requires Victoria Police to apply to register certain categories of people as ‘reportable human sources’ because they are particularly vulnerable or using them as a human source poses a heightened level of risk to the administration of justice. The Bill specifies more stringent registration requirements for reportable human sources, including approval by a more senior officer within Victoria Police, requirements to consider legal, medical or other specialist advice, and involvement of the Public Interest Monitor (the PIM) in registration decisions.

Stricter registration requirements for people who are reasonably expected to have access to privileged information

The Bill requires a person to be registered as a reportable human source if they are reasonably expected to have access to privileged information. This reflects the significant risk to the administration of justice if Victoria Police use a human source to obtain information in breach of obligations of privilege, as demonstrated by the use of Ms Nicola Gobbo as a human source.

If a person is reasonably expected to have access to privileged information, the Bill requires the decision to register the person as a human source to be made by the Chief Commissioner or a delegate of or above the rank of Assistant Commissioner. The Bill also requires the Chief Commissioner or their delegate to consider formal legal advice and any recommendations by the PIM when making a registration decision.

The Bill only allows Victoria Police to intentionally use a human source in breach of obligations of privilege in very rare circumstances. If the person will be registered as a human source for the purpose of obtaining privileged information, the Bill only permits registration if the Chief Commissioner or their delegate is satisfied that there is a serious threat to national security, the community, or the life and welfare of a person, and that the information cannot be obtained through any other reasonable means.

Stricter registration requirements and additional safeguards for people under the age of 18 and people with a serious medical or mental health condition

The Bill also requires a person to be registered as a reportable human source if they are under the age of 18, or they have a serious medical or mental health condition. This requirement reflects the additional welfare and human rights risks associated with using people in these categories as human sources.

If children and people with a serious medical or mental health condition provide information to Victoria Police, it is important that the Bill allows them to be registered as human sources. Registration will ensure Victoria Police can give children and vulnerable adults certain protections, including concealing their identity and ensuring their relationship with Victoria Police is overseen by the PIM and the Independent Broad-based Anti-corruption Commission (IBAC).

If a person is a under the age of 18 or has a serious medical or mental health condition, the Bill will permit only the Chief Commissioner or their delegate at or above the rank of Assistant Commissioner to make the decision to register the person as a human source. The Bill requires the consideration of advice from a medical professional or other specialist, as well as any recommendations made by the PIM, before registration.

Importantly, the Bill includes additional protections for children. The Bill only permits a person under the age of 18 to be registered as a human source for the purpose of investigating a serious offence, or where there is a serious threat to national security, the community, or the life and welfare of a person, and the information cannot be obtained through any other reasonable means. The Bill also prevents Victoria Police from approaching a child aged 14 years or younger for the purposes of recruiting them as a human source or tasking them to seek out further information. The Bill entitles all children to have a lawyer and a parent, guardian or independent person present during key interactions with Victoria Police.

Streamlined processes in emergencies or urgent circumstances

The Bill recognises the need for Victoria Police to act quickly in emergencies to respond to imminent and serious threats to the community, national security, or the life and welfare of a person. The Bill includes a streamlined process for registering a person as a human source in these circumstances, allowing the registration decision to be made verbally and removing requirements to obtain legal, medical or specialist advice before registration.

As soon as the emergency circumstances have passed, Victoria Police must deactivate or suspend the registration, and cannot continue to use the person as a human source until they are re-registered through the standard registration process for either reportable or non-reportable human sources.

To ensure that the emergency registration process is only used where appropriate, the Bill requires Victoria Police to notify the PIM within two business days of all emergency registrations of a person as a reportable human source. The Bill then empowers the PIM to make retrospective recommendations to Victoria Police about the appropriateness of the registration. The Bill also requires Victoria Police to notify IBAC of all emergency registrations on a quarterly basis. The Bill then empowers IBAC to select a sample of emergency registrations to assess whether Victoria Police has complied with the Bill and whether the emergency registrations should have been made.

Normally, the decision to register a human source must be made in writing. The Bill will allow verbal registrations of non-reportable human sources if a person provides time-critical information that would assist police to respond in urgent circumstances. Like emergency registrations, urgent registrations will be reviewed by IBAC quarterly.

Requirements for ongoing management of human sources

Once a human source has been registered, the Bill recognises the importance of ongoing risk management throughout a human source’s involvement with Victoria Police.

The Bill therefore requires Victoria Police to conduct regular reviews of a human source’s registration to ensure it remains appropriate and justified. The Bill requires a human source to be deactivated after 6 months if they are a reportable human source, or 12 months if they are a non-reportable human source. However, Victoria Police can re-register a human source after these periods in line with the risk assessment, decision-making and oversight processes in the Bill.

The Bill also includes safeguards if a human source unexpectedly provides privileged information during their registration, or if a human source develops a serious medical or mental health condition. In these circumstances, the Bill requires Victoria Police to immediately quarantine the information the human source provided and either deactivate the human source or suspend their registration until a fresh registration application is approved.

External oversight

The Bill also establishes an external oversight regime involving tiered levels of oversight by the PIM and IBAC across all human source activity involving Victoria Police. The Bill empowers the PIM to be involved in Victoria Police’s decision-making process for registering reportable human sources. The Bill also empowers IBAC to retrospectively monitor Victoria Police’s compliance with the human source management framework, including the Bill, any regulations and Victoria Police’s internal policies. Finally, the Bill empowers the Victorian Inspectorate to have oversight of some of the PIM and IBAC’s oversight powers under the Bill.

PIM involvement in registration decisions

The Bill gives the PIM new functions and powers to support their oversight role. The Bill gives the PIM new functions to:

• inform Victoria Police’s decisions to register a person as a reportable human source by assessing registration applications and making recommendations about whether the registration is appropriate and justified, and

• provide retrospective oversight of Victoria Police’s decisions to register a person as a reportable human source in an emergency by assessing the registration application and making recommendations to Victoria Police on whether the person should have been registered.

The Bill places certain obligations on Victoria Police to assist the PIM to perform these functions. The Bill requires Victoria Police to notify the PIM of an application to register a person as a reportable human source, provide the PIM with all information relevant to that application, and provide any other reasonable assistance the PIM might require. The Bill also empowers the PIM to ask questions, require Victoria Police personnel to provide information, and share information with IBAC.

IBAC compliance monitoring

The Bill also gives IBAC new functions and powers to support its oversight role.

Under the Bill, IBAC will retrospectively monitor Victoria Police’s compliance with the Bill and Victoria Police’s internal policies and procedures in relation to the registration, use and management of human sources. These functions include conducting regular inspections, receiving regular reports, and making recommendations to Victoria Police to support compliance with the Bill.

The Bill empowers IBAC to conduct regular inspections of Victoria Police records relating to human sources. As part of each inspection, the Bill requires IBAC to select a sample of human sources and assess whether the decisions relating to each of those human sources complied with the Bill and should have been made.

The Bill also requires Victoria Police to provide regular reports to IBAC about the receipt of privileged information from human sources and any material contraventions of the human source management framework. A material contravention is any breach of the human source management framework that is likely to undermine the integrity of Victoria Police.

After receiving these reports, IBAC must assess whether Victoria Police has put in place adequate measures to manage the risks associated with receiving privileged information and whether they have taken appropriate steps to prevent a recurrence of the material contravention.

To support its compliance monitoring functions, the Bill gives IBAC broad powers to require Victoria Police personnel to provide it with information or assistance, and to make any recommendations IBAC considers appropriate.

Victorian Inspectorate oversight of PIM and IBAC’s coercive powers

The Bill gives both the PIM and IBAC the power to compel a member of Victoria Police personnel to provide information to support their oversight functions. While unlikely, it is possible that the information a member of Victoria Police personnel must provide may incriminate them. To protect the human rights of Victoria Police personnel, the Bill ensures that any self-incriminating information a person is compelled to provide cannot be used in legal proceedings against that person. The Bill also requires the PIM and IBAC to notify the Victorian Inspectorate whenever they exercise this power to compel information. The Bill empowers the Victorian Inspectorate to make recommendations to the PIM and IBAC to ensure the powers are only exercised lawfully.

Protecting sensitive information in the oversight regime

The Bill also includes safeguards to ensure that sensitive information that Victoria Police provides to the PIM and IBAC is handled securely. The Bill requires the PIM and IBAC to return documents to Victoria Police as soon as reasonably practicable after performing their functions.

Reporting functions

The Bill requires the PIM and IBAC to prepare annual reports to the Attorney-General on the performance of their functions. The PIM and IBAC may also report directly to the Attorney-General, at any time considered appropriate, on any matters relating to the performance of their duties and functions.

The Bill requires the Attorney-General to table these reports in the Victorian Parliament and publish them on a Victorian Government website.

Given the sensitivity of human source information overseen by the PIM and IBAC, the Bill prohibits sensitive information from being included in reports to the Attorney-General, including information that could identify a human source. The Chief Commissioner of Police must also be provided with the reports and may recommend sensitive information be removed before they are provided to the Attorney-General.

Criminal offences

The Bill creates new offences to protect the safety of human sources and the integrity of investigations involving human sources. These offences prohibit the unauthorised disclosure of human source information, which includes information that is likely to reveal that a person is a human source, or has previously been registered as a human source, or that Victoria Police has applied to register the person as a human source. The Bill includes a more serious offence if a person discloses human source information with the intention of prejudicing a criminal investigation, intelligence-gathering, or a criminal prosecution.

The Bill provides appropriate exceptions to these offences. For example, it will not be an offence to disclose human source information when required to in criminal proceedings or between law enforcement agencies.

Conclusion

This Bill introduces a comprehensive regulatory framework to ensure Victoria Police uses human sources in an ethical and justifiable manner, subject to external oversight.

The Bill includes robust safeguards where Victoria Police wishes 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.

The Bill represents another important step forward in increasing confidence in Victoria’s justice system and ensuring that the events that led to the Commission can never occur again.

I commend the Bill to the house.

Cindy McLEISH (Eildon) (10:33): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 22 February.