Thursday, 23 February 2023

Bills

Human Source Management Bill 2023

Second reading

Debate resumed on motion of Anthony Carbines:

That this bill be now read a second time.

Michael O’BRIEN (Malvern) (11:29): I rise to speak on the Human Source Management Bill 2023. When you turn to the purposes of the bill – and I will read them out:

The main purposes of this Act are –

(a) to provide for the registration, use and management of human sources by Victoria Police; and

(b) to provide for the external oversight of the use of human sources; and

(c) to consequentially amend the Victoria Police Act 2013 –

you might be forgiven for thinking that this is a fairly regular, almost meat-and-potatoes, type of bill, but it is far from it. This bill is a far-reaching bill because it fundamentally seeks to change the basis of our system of criminal justice in this state, and I cannot really discuss the bill without going into the circumstances which led to it coming before this house: the infamous use of a barrister by Victoria Police as an informant against her clients.

The barrister was Nicola Gobbo. The use of Ms Gobbo as a police informant against her clients by Victoria Police led to none other than the High Court of Australia ultimately passing judgement. How it got to the High Court was Victoria’s Independent Broad-based Anti-corruption Commission provided a report to the Chief Commissioner of Police regarding Victoria Police’s use of Ms Gobbo as an informant. That report was also provided to the Director of Public Prosecutions. The DPP was not previously aware that evidence that had been used to obtain convictions against certain individuals had been obtained through Ms Gobbo, very much contrary to the interests of those clients she purported to represent. The Director of Public Prosecutions rightly realised that this put the very convictions into doubt and felt obliged to seek to share elements of the IBAC report with those convicted persons. This was strongly opposed by Victoria Police, who failed in their bid to suppress that report or those names in the Victorian Supreme Court, then in the Court of Appeal and then ultimately before a Full Court of the High Court of Australia.

The High Court’s judgement, a unanimous judgement, was handed down on 5 November 2018 – sorry, I believe that is when the matter was heard. Here is what Their Honours said – obviously the context being that in this particular passage ‘EF’ was the pseudonym that was used for Nicola Gobbo:

Here the situation is very different, if not unique, and it is greatly to be hoped that it will never be repeated.

I will come back to that sentence time and time again because that is important, because, sadly, this bill will seek to repeat it. But let me give you the whole context:

Here the situation is very different, if not unique, and it is greatly to be hoped that it will never be repeated. EF’s actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF’s obligations as counsel to her clients and of EF’s duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system.

I do not think I have ever heard a more damning indictment by the highest court in this country of the actions of Victoria Police and of a barrister, in this case Nicola Gobbo. The consequences of Victoria Police’s use of a barrister, a lawyer, as an informant against her own clients without disclosing it to those clients, without disclosing it to the court, has had far-reaching ramifications. It has led to the quashing of a number of convictions, including for murder. I refer the house to the statement of the Victorian Court of Appeal on 26 July 2019 in the matter of Faruk Orman v. the Queen. The court was composed of President Maxwell and Their Honours Justices Niall and Emerton. In paragraphs 11 and 12 the court says:

The Director –

being the Director of Public Prosecutions –

concedes that Ms Gobbo, while acting for Mr Orman, pursued the presentation of the principal evidence against him on the charge of murder. Self-evidently, that conduct was a fundamental breach of her duties to Mr Orman and to the court.

…

On the facts as conceded, Ms Gobbo’s conduct subverted Mr Orman’s right to a fair trial, and went to the very foundations of the system of criminal trial. There was, accordingly, a substantial miscarriage of justice. The appeal must therefore be allowed.

So we have had complete denunciation by not only the High Court of Australia but also Victoria’s Court of Appeal of the use by Victoria Police of a lawyer as an informant against the interests of the clients she was purporting to represent.

This bill seeks to facilitate that happening again. This bill seeks to regularise what is not just irregular but fundamentally corrupts the very notion of a right to a fair trial. A lawyer cannot wear two hats. We have been talking about conflict of interest a lot in the house over the past couple of days, but you do not have to be a lawyer to get the fact that your lawyer should act for you, not for the police. You cannot wear two hats, but that is what this bill seeks to allow. I do not think many Victorians would have concerns with the police using informants – members of the criminal community informing on each other for their own benefit or to settle scores; I do not think that many of us have real concerns about that – as long as it is properly regulated, and that is what this bill seeks to do. So my concern is not what this bill does in relation to non-reportable human sources, although the oversight is still lacking. But when it comes to what this bill terms as ‘reportable human sources’, which is not just those who have access to privileged information but also people under the age of 18, this bill fails.

As a result of the discovery of what Victoria Police and Ms Gobbo had been engaged in, the government announced a Royal Commission into the Management of Police Informants, and it was quite proper that that be done. The royal commission was announced by the then Attorney-General, Jill Hennessy, on 3 December 2018. Then a former Queensland judge Her Honour Margaret McMurdo was appointed as a commissioner, along with former South Australian police commissioner Mal Hyde. Mr Hyde subsequently had to withdraw from that royal commission when it was discovered that in fact he had worked at Victoria Police at the same time as Nicola Gobbo was being used by Victoria Police as an informant, so the bulk of the work was done by Her Honour former Justice McMurdo.

The government will say that in bringing this bill forward the government is simply implementing recommendations of that Royal Commission into the Management of Police Informants, and that is true, but that is no answer to what is a bad piece of legislation. It is no answer to what would fundamentally change, and I say corrupt, the notion of a right to a fair trial in this state. Government is not about contracting out your responsibilities to others. I have great respect for Her Honour, and I have great respect for the work she did through the royal commission, but if the interpretation of Her Honour’s recommendations is to allow police to continue to repeat what has been so widely condemned by courts, then the government has got it wrong. And, with respect, if that was what Her Honour intended, I disagree – respectfully – with that, because you cannot have a situation where your lawyer, your doctor or your priest or minister or rabbi or imam, somebody with whom you have a relationship of trust and confidence and to whom you give information on the basis of that, then uses that against you. That is not right. And the High Court and our own Court of Appeal have said it is wrong – and not just a little bit wrong; it is fundamentally wrong. People have had convictions for murder overturned as a result of that behaviour, and this government now seeks to perpetuate it – and it is the wrong call. I move:

That all the words after ‘That’ be omitted and replaced with the words:

‘this house refuses to read this bill a second time until:

(1) the government consults with organisations representing persons whose interests would be affected by the undermining of privileged communication facilitated by the bill;

(2) the government provides for proper oversight of the power of the Chief Commissioner of Police to register a reportable human source; and

(3) the government satisfies the house that what the High Court of Australia described as “reprehensible conduct” by Victoria Police in using a lawyer as an informer against her own clients in a manner which “debased fundamental premises of the criminal justice system” would not be facilitated by this bill’.

The reasoned amendment I have just moved is the nub of the Liberals’ and Nationals’ concerns with this legislation. To allow police to continue using not just lawyers but a lot of other professionals who have access to privileged information, to be able to use those people against the interest of their clients, of their patients, of their parishioners, is wrong. Let us say a lawyer hears information that their client is going to go and kill somebody or their client may be going to go and put a bomb in a public place. Isn’t it important that the lawyer be able to tell the police? And of course the answer is yes, but the law already permits that. It is already contained within legal professional rules that lawyers have the ability to advise authorities of information that they get from clients where somebody’s life would be at risk.

Concession is probably using a pejorative term, but the confirmation perhaps from the briefing that I received from the Attorney-General’s office and the department of justice confirmed that this bill does not go further than that. They said it is on the other side, it is how police deal with information and deal with people providing information. This is not about protecting national security. This is not about keeping Victorians safe from imminent murders or acts of terrorism, because anybody who has access to that information already has an ability to provide that to authorities, so we are not talking about that. This is about the use of police, of doctors, of psychiatrists, of journalists, of judges – people who have access to forms of privileged information. It is about police using them as informants against the interests of those they have a duty to represent and to act for, and that is where I think the government has got this very wrong.

In relation to the use and abuse of privileged information, this bill does not have many friends. I have already put on the record the views of the High Court and the Court of Appeal in Victoria. I will take the house now to some other commentary that independent people have made regarding this bill. In a joint media release from the Victorian Bar council and the Law Institute of Victoria, here is what LIV president Tania Wolff said:

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

Victorian Bar president Sam Hay KC said:

The registration of lawyers as informants will lead to precisely the same conduct that gave rise to the Royal Commission in the first place.

The roles of informant and lawyer are fundamentally opposed. One person cannot ethically wear both hats at the same time.

The Law Council of Australia and the Australian Bar Association issued a statement on 10 February headed ‘Law Council of Australia and Australian Bar Association extremely concerned over police informants legislation’. The Law Council of Australia president Luke Murphy said:

Lawyers being used as human sources and allowing them 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.

Liberty Victoria, not surprisingly, are very opposed to this bill. This is a statement from Michael Stanton, the president:

Liberty Victoria opposes the Human Source Management Bill 2023 (Vic) in its current form.

Robinson Gill Lawyers is a firm that has a particular practice in police misconduct, and not surprisingly, they are not very big fans of this bill. I refer to correspondence from Jeremy King and Sarah Condon of Robinson Gill Lawyers. They noted:

Read as a whole however, the intention of the Bill is clear – it intendsto allow for the scandal involving Gobbo and Victoria Police to be repeated, effectively sanctifying corruption of the criminal justice system.

…

The Bill hands total power, without safeguard or mechanism for recourse, to the Chief Commissioner of Victoria Police to register lawyers as human sources. We hold grave concerns about the proposed ‘oversight’ measures (through the Public Interest Monitor … IBAC and the Victorian Inspectorate). These bodies are tasked by the Bill to ‘inspect’, ‘consider’, ‘recommend’, and ‘report’ on extremely complex, legal, ethical or medical considerations with human sources, all while being prohibited from keeping any copies of documents from Victoria Police. These ‘safeguards’ are toothless and hobbled.

The former Court of Appeal judge in Victoria the Honourable Stephen Charles KC is now a board member at the Centre for Public Integrity, and he was on ABC radio this week. He was being interviewed by, I think it was, Ali Moore, and there were some comments he had to make about this bill:

There should be judicial oversight of a body of this kind, and the oversight by the monitor is completely inadequate.

He went on:

… any lawyer who becomes aware of a threat to national security doesn’t need to be a source to go to the police to tell them about it. And likewise, an imminent threat to someone’s life …

He went on:

If I had been the judge when information obtained in this way had come before me, I would be raising hell about it in court, I can assure you.

That is another real concern that I have with this bill. While the government is seeking to sanction the use and abuse of privileged information by lawyers, by doctors, by journalists and by other professionals, there is absolutely no guarantee that a court is going to suddenly change its mind and say ‘We now accept this sort of evidence as being okay’. The High Court could not have been clearer in its condemnation of what happened in the Lawyer X scandal. The Court of Appeal could not have been clearer in its condemnation of what happened in the Lawyer X scandal. What makes the government think that all of a sudden the High Court and the Court of Appeal are going to turn around and say ‘You’ve passed this bill. That makes it all okay’? It is not okay. I repeat the words of the Court of Appeal:

On the facts as conceded, Ms Gobbo’s conduct subverted Mr Orman’s right to a fair trial, and went to the very foundations of the system of criminal trial.

There was a substantial miscarriage of justice. The Court of Appeal could not be clearer: you cannot get your evidence this way – and yet the government seeks to allow that. Even if this bill passes – and I hope that it will not, at least not in its current form – I would not want to be the first prosecutor fronting up to a court with tainted evidence from an informant who has obtained access to privileged information and is giving it to police against the interests of the person they are purporting to act for, because the courts have made it really clear: this will not fly.

Ruth Parker, who is the principal at Galbally Parker – and of course Galbally Parker is a successor of the great Galbally and O’Bryan law firm, which is very well known in Victorian legal circles and very well known as criminal lawyers – has put together a very useful paper that goes through this bill in detail. But probably the most important element is the summary, which I now turn to:

What does this Bill really do?

1. It violates both the case law handed down by the Court of Appeal and High Court of Australia;

2. It undermines, violates, disregards and damages the fair operation of the criminal justice system;

3. It gives total power, without safe guards, to Victoria Police to register lawyers as human sources to use privileged information against their former and current clients;

4. It removes all accountability for this corruption;

5. It is so poorly drafted and opaque that it essentially sanctions many different forms of corruption …

The paper goes on, but in deference to the fact that I have only a few minutes remaining, I cannot put more of that paper on the record. It is very hard to find a friend for this bill. The legal establishment, if you like, are very opposed to it. Those who are not part of the legal establishment are also very opposed to it, so the government has done a rare thing: they have united all parts of the legal profession. Former judges have spoken out about it. You have the Centre for Public Integrity speaking out about it. I would love to know whether the government actually consulted with medical professionals. I would love to know if the government consulted with faith leaders on this bill, because of course their privilege is also undermined by this bill. What happens in a confessional normally, you would think, would stay in a confessional, but under this bill your priest, your rabbi or your imam can use that information against you with police. Normally what you say to a doctor, a psychologist, a psychiatrist or any other medical professional would be confidential, would be privileged, but under this bill that information that you have given up to your medical practitioner can be used against you by Victoria Police, and that is fundamentally wrong.

The government will say, ‘Well, there are safeguards in the bill against the misuse of the information.’ My first point is you cannot safeguard something which the High Court and the Court of Appeal have already said is fundamentally wrong. You cannot put lipstick on a pig. I am trying to think of other analogies. There are probably some slightly cruder ones which I will not use, but this bill is trying to make proper what is fundamentally improper, and you cannot do it. The government will talk about safeguards. If the Chief Commissioner of Police wants to register what they call a ‘reportable human source’, there are three categories of reportable human source. There is somebody who has access to privileged information, there is somebody who is under 18 and there is somebody who has a serious medical or health condition. So I suppose you would call those special categories of human sources. For the chief commissioner to register a reportable human source, yes, they need to advise the Public Interest Monitor and consider any recommendations of the PIM. Yes, they need to get legal advice and consider any recommendations that arise from that legal advice, but fundamentally the decision to register somebody as a reportable human source remains solely with the chief commissioner and his or her delegate. There is no oversight of that. Nobody can say, ‘Well, that’s the wrong call and we’re going to make you undo it.’ That power does not exist. This gives complete and total power to the Chief Commissioner of Police to make that decision about registering a reportable human source. Yes, there can be advice, yes, they can be recommendations, yes, there can be reports to the Attorney-General or to Parliament, but at the end of the day the power of the chief commissioner to register a reportable human source is absolute, because nobody can challenge it. You can recommend against it, you can report about it, but you cannot challenge it, and that gives the Chief Commissioner of Police a scary amount of power.

With the whole Lawyer X scandal, do you know how many members of Victoria Police were involved in what the High Court described as ‘reprehensible conduct’? Do you know how many members of Victoria Police lost their jobs over that scandal? I will tell you: none. Not a single member of Victoria Police who was involved in that scandalous behaviour lost their job over it, and yet this government says we should invest all this power in the Chief Commissioner of Police. My comments are not a reflection on the current holder of that office, because this law, should it pass, will apply to any future chief commissioner. We do not know what that person will be like. We do not know what their character will be like. We do not know whether they could be trusted with this sort of power. I do not think anybody should be trusted with this sort of power.

This is why His Honour from the Centre for Public Integrity was so clear in making his point that there should be some judicial oversight of this: a retired judge or somebody of that stature, who can actually say, ‘No, chief commissioner, you’ve got this one wrong. You should not be registering this person as a reportable human source.’ So we have significant problems with this bill as regards its use of reportable human sources.

I also think the bill as drafted does not really understand how things work in the real world. The bill at clause 5 provides what constitutes informed consent to registrations as a human source. Clause 5(b) requires that a person must give:

… consent to registration as a human source freely without undue pressure or coercion by any other person.

I do not think there are too many lawyers or doctors or ministers of religion who would just front up to the police and go, ‘You know what, I would love to inform on my client, I would love to inform on my patient, I would love to inform on my parishioner.’ Generally police obtain human source information because they are able to leverage a source’s own misbehaviour. It may be that a human source has engaged in criminal conduct themselves and police are able to use the threat of prosecution for that to incentivise them to provide intelligence against others. I think you do not have to be too much of a fantasist or have watched too many episodes of TV police procedurals to understand that in the real world you very rarely get human sources prepared to inform on those to whom they owe an obligation of confidentiality. Normally it is the police using leverage against that person to get them to inform – to get a bigger fish, as it were.

So how does that tally with this bill’s definition of informed consent? I did ask the government whether this would prevent police from being able to use somebody’s own criminal actions against them to encourage them to become a police informant. I have to say that the answer effectively regurgitated a lot of what is in the act; it did not actually answer the question. So there are fundamental reasons why I think this bill is poorly drafted. The oversight is completely inadequate. But, more fundamentally, this bill flies in the face of the scandal that was Lawyer X, the scandal that was Nicola Gobbo, and what she did with Victoria Police against the interest of her own client; it flies in the face of what Victoria’s own Court of Appeal has said was a miscarriage of justice and undermined the right to a fair trial; and it flies in the face of a 7–0 decision of the High Court of Australia which says that not only was this reprehensible conduct but ‘it is greatly to be hoped that it will never be repeated’. Well, if this bill passes in this form, this reprehensible conduct will be repeated time and time and time again, undermining the right to a fair trial in Victoria, undermining the rights of individual citizens to have privileged discussions with lawyers, doctors, ministers of religion and others. I support the reasoned amendment but not the bill.

Darren CHEESEMAN (South Barwon) (11:59): It is not some pleasure this afternoon that I rise to make my contribution on the Human Source Management Bill 2023. I do so as someone who has not come to this place having been a barrister or a lawyer or someone who has been intimately involved in any shape or form with the criminal justice system. However, as someone who has taken a great interest in the political discourse of this state for a considerable period of time and of course has taken an interest, at least in a superficial way – with all that we have read and endured particularly over the last couple of decades – in organised crime and the way that that so spectacularly and tragically played out in our lounge rooms through what we saw on the news, I think it is fair to say that every single Victorian would have an opinion on how our criminal justice system works.

What I would certainly say with the observations that I have made from the conversations that I have had is that Victorians very, very much want to have a criminal justice system that they ultimately have confidence in that is conducted with a set of rules, a set of laws, that make very, very clear the roles of the police, the roles of the courts and indeed the roles of informants. What we have seen through of course the Lawyer X story, as it so sensationally broke a number of years ago now, is that lines that ought to have been properly regulated and properly protected in our system did not exist or, if they did exist, did not exist to the extent that they should have. It is clear from my observations, whilst I am not someone that has legal training and certainly someone that has not been caught up in the criminal justice system as a criminal, it is fair to say that Victorians were pretty appalled by what they saw, and all of the judgements that we have seen and indeed all of the various findings that we have read indicate that a whole bunch of lines in the sand that I think Victorians thought existed did not exist.

That is why this bill is very, very important for our Victorian justice system. I am looking forward of course to seeing it pass, and I am looking forward to seeing this government continuing to make a considered response to these types of challenges when indeed they do occur. From my perspective there were significant lines that were absolutely crossed. We need to make sure that we listen and respond where appropriate; that we do put in place arrangements that are clear to everyone, whether it be in the first instance the police and whether they are asking the very precise questions that they ought be asking themselves at each and every opportunity that they choose to engage with criminals around how those criminals might act with the justice system to leverage the intelligence that they may have and do it in a way that is beneficial to the people of Victoria, beneficial to our justice system, but in a way that is understood clearly, with appropriate sets of oversight and regulation; that we are making, importantly, the investments right at the top of Victoria Police – right at the very, very top office – to make sure that it is done at the highest possible level; and that there are appropriate mechanisms in place to ensure that those lines are not crossed.

Again, I am not a lawyer, I am not a barrister, I am not legally trained, but as far as I can tell we have not had a circumstance in this state before where barristers or lawyers have ever been used by Victoria Police as, in effect, snitches or informants – whatever the word is that you wish to use – on crimes that have already been committed. We have seen no doubt lawyers and barristers appropriately informing the police when they are gravely aware that a serious crime might be about to take place, particularly things such as murder and other things, and that, I assume, does happen semiregularly. But in terms of crimes that have already been committed, as far as I am aware, as someone who is not legally trained, that has not happened before.

Victorians quite rightly want to see a strong and functioning criminal justice system. They want to see the Victorian police have the tools that they need to be successful in their job of catching people who have committed crime or who are about to commit crime. Having informants has historically been a key feature of the work that they do and there are certainly any number of cases that have been successful on any one day, and we want to see that continue as a key feature – a key, if you like, policing tool – to enable them to do the work that they want. But I think also Victorians well and truly expect that our officers of courts – our barristers, our lawyers et cetera – have a responsibility to act in good faith for those that they are representing. Of course what we have seen play out spectacularly around the Lawyer X circumstances is a whole lot of likely convictions where those lines in the sand were crossed, where the regulation and underpinning legal arrangements were not adequately in place, and that may well lead to people who ought otherwise to be prosecuted and convicted and sentenced potentially having those sentencing arrangements overturned. I hope that does not happen. I think every single Victorian hopes that does not necessarily happen, particularly if they have a sense that these people have committed crimes. But we absolutely need to make sure we have got new arrangements.

Danny O’BRIEN (Gippsland South) (12:09): I am pleased to rise to speak on the Human Source Management Bill 2023 and to support the member for Malvern in his comments but also in the reasoned amendment that he has moved. Like the member for South Barwon, I am not a lawyer, not legally trained. Indeed I am an ex-journalist who became a politician, so one day I hope to get an honest job.

A member: Real estate.

Danny O’BRIEN: A real estate agent, yes, or a car salesman. As an ex-journalist, following the member for Malvern, I feel a bit like Justin Bieber following Pavarotti. This is a very complex but serious legal bill –

Michael O’Brien interjected.

Danny O’BRIEN: That was not a reference to any physical attributes of course, member for Malvern. Jokes aside, this is a very serious piece of legislation. Victorians will remember the Lawyer X saga, and indeed journalists do and people like me who follow media. As an ex-journalist, like an ex-smoker, I am most critical of the journalism. I do remember the series of articles leading up to the Lawyer X scandal breaking. There were some very difficult to understand headlines about things that the Herald Sun was not permitted to print. We were all wondering what the hell they were referring to. There were these sort of carefully worded front-page stories which ultimately became Lawyer X and the story of what the police had been doing in using Lawyer X as a human source came out. Ultimately Nicola Gobbo was revealed to be Lawyer X, but it took a long time and a lot of legal practice, and naturally the police did not want that information to come out.

As a punter, as a member of the community, and without knowing all the legal ins and outs, there is probably a bit of a feeling sometimes of ‘Well, we got the crooks. We got these guys who were gangsters and drug runners and murderers and we put them away. Isn’t that a good thing?’ and that the police went to whatever means necessary to do so. That sounds right in theory but not in principle, and certainly not in practice, because everyone in Victoria is entitled to fair representation in the law, particularly of course from their lawyer. We saw that absolutely not occur in the Lawyer X scandal, which, as the member for Malvern indicated, the High Court condemned as reprehensible conduct. Indeed it was. I think we all would like to think that if we were ever charged with something – and I am sure we would all say we were innocent, as most people who are charged do – the system was not stacked against us and that the people that were meant to be representing us were not working for the other side. That is really what this boils down to.

As the member for Malvern has indicated, this is not just about lawyers. It extends to other types of privilege, including journalistic privilege, doctor–patient privilege and that of faith leaders. That in itself is a concern – the fact that this legislation effectively would condone all of those people breaching the privilege that they have, whether that is with their client as a lawyer, with their parishioner as a faith leader, as a doctor or a medical professional with their patient, among others, indeed journalists as well. Not only that but as this legislation also makes it an offence for anyone to disclose the identity of a human source, we also have a situation where not only could the Lawyer X scandal occur again under this legislation but nobody would ever know about it. That is the concern that we have on this side with this bill. It is truly quite astounding that the government has gone ahead to draft this legislation, which, as the member for Malvern has pointed out, is pretty friendless. With the exception of the government and Victoria Police, there are not too many supporters of this legislation. We can see why.

It is all well and good to say there are safeguards in the legislation. Indeed I think we have got the Public Interest Monitor, we have got IBAC and we have got the Victorian Inspectorate all involved in the oversighting of human source management under this legislation, but only in an advisory sense. There is no compunction on the Chief Commissioner of Police or even the Attorney-General to accept the advice of IBAC. They can advise, they can make recommendations, but ultimately is up to the chief commissioner to make decisions with respect to human source management under this bill. We do not believe that is enough oversight or there are enough checks and balances in the system. That is why I certainly support the member for Malvern’s reasoned amendment that the government needs to go back and consult with those who would be impacted by this bill and that it should provide better oversight. As I said, the oversight now is literally that, oversight, but not actually any power to deal with issues of concern. This is the key point: the government needs to satisfy this chamber that this legislation will not result in a repeat of the Lawyer X scandal.

I certainly do not believe the government can do that. So we are effectively saying that this bill is wrong both in principle and in fact and the government needs to go back to the drawing board in that respect. I know that government members will say, ‘Well, we are implementing the recommendations of the McMurdo royal commission.’ It is an issue that I have always been uncomfortable with with many of the royal commissions that the government have implemented, where they have given terms of reference and then said, ‘We will implement all the recommendations of the royal commission.’ I have always been uncomfortable with that. How can you say ‘I’m going to do whatever they tell me’ when you have got no idea what they will tell you? This is a case in point where my fears are well founded. To just accept blindly the recommendations of a royal commission, which has of course assessed all the evidence, has assessed many circumstances and many different opinions and come up with recommendations – no royal commission is infallible. I think in this situation it is rather strange, in investigating the scandal that was Lawyer X, in which the High Court again, in a 7–0 judgement, found what the Victoria Police did to be reprehensible conduct, for then the royal commission to say, ‘But if you want to make it legal, here’s how you do it’, which is effectively what this legislation is now doing. I think that is wrong, so with respect to the royal commissioners, this is not something that we can support. Indeed it is a logical fallacy, when you think about it, to say that we have had a royal commission in this scandal, that we, the High Court and the Victorian Court of Appeal found how outrageous the actions were and that we then came up with a process that would allow it to occur again – and indeed, as I said earlier, not only would allow it to occur again but would stop anyone from ever finding out, because it becomes an offence to reveal the identity of a human source.

I say all this with full support for the efforts of Victoria Police, if not always the actions. We on this side support our police. We want to make sure that they are supported financially, legally, ethically, morally and politically, and we did that through the last couple of years when things were pretty difficult and there was a lot of criticism of the police. But that is not a blank cheque; that needs to come with appropriate checks and balances. Yes, we will always talk to the police about what we can do to help them do their job and keep the community safe, but that must be balanced against the rights that have been developed over centuries in our legal system – the privileges and the practices that ensure access to a fair trial, a presumption of innocence and legal professional privilege with a person’s lawyer as it extends to those other areas of privilege that I mentioned before.

So we are certainly very concerned about this legislation and will not be supporting it in in its current form. It is not to say that we do not support our police, and we will work with them as best we can, but we do think that this bill goes too far. I congratulate the member for Malvern for his contribution but also this reasoned amendment, which I strongly support.

Sarah CONNOLLY (Laverton) (12:19): I too rise to speak on the Human Source Management Bill 2023. The purpose of this bill is to continue our government’s implementation of the recommendations from the Royal Commission into the Management of Police Informants. Indeed the bill does acquit a further 25 recommendations, chief of which is to implement a new legislative framework which is actually going to go ahead and regulate how Victoria Police can use human sources.

Before I go any further, I want to give a big shout-out to the Victoria Police. They do a tremendous job. It is not an easy job being in the police force. It is also not an easy job, I imagine, being married to someone who dedicates so much time and is so committed to the community as a police officer, and I want to give them a big shout-out here today. I also want to thank them for the incredible work that they actually did at the Sunshine Business Association’s Lunar New Year festival a couple of weeks ago. There was plenty on display. They were walking around and enjoying socialising and interacting with the community whilst also keeping them safe while we had that wonderful festival in the heart of Sunshine.

When we talk about implementing a new legislative framework to regulate how VicPol can use and manage human sources, we are really talking about something that is the first of its kind in Australia, and we want to make sure that the events that gave rise to that royal commission can never happen again in this state. We know that the issues identified have the potential to go ahead and jeopardise justice. They undermine confidence in the ability of our police to do their jobs and keep our communities safe. They also undermine the public’s confidence – this is really important – in our legal system and the relationship between a lawyer and their client, something that many, many moons ago I was taught at the University of Queensland while doing my bachelor of laws: the relationship between a lawyer and their client.

The trust in our legal and our justice system is incredibly important. It is something that must be upheld and improved where it can. That is why the recommendations from this royal commission are so important, and we are getting on with the job of making these changes. Now, 111 recommendations were made in the final report, 54 of which require government action, and I am very pleased and proud to stand here today to say our government has made it emphatically clear that we will implement each and every single one of these recommendations.

In 2021 we established the office of the implementation monitor, whose role is to assist the government with working through and implementing each of these recommendations, and I am very pleased to hear that Sir David Carruthers has since filled this role and has already provided a report to this Parliament on the implementation process and how that is faring. This bill builds on this reform to deliver half of the recommendations that require government action, so we are not only taking action, we are taking it very quickly.

How does this bill make good on those recommendations? The most important aspect of this bill is the human source management framework. Whilst we know that Victoria Police have done good work in regard to internal reform themselves, it will be a key recommendation that a legislative framework be adopted in order to provide direction and, importantly, oversight as to how the police manage their sources. Under the current rules there is no statutory regulation or independent oversight of how the police manage human sources. These are instead managed internally by Victoria Police’s procedures and policies. It is really important that this change – hence the introduction of this new management framework – will now mean that Victoria Police have to go through a process in order to register a person as a human source. This in turn will require senior officers to assess, importantly, the appropriateness of a prospective source. The framework will also include several safeguards, chief of which is the requirement for informed consent of the person to be registered as a human source. Other protections include levels of seniority required to approve registration relative to the level of risk imposed on the source, the necessity of using a source to achieve a legitimate law enforcement purpose and the management of associated risks.

This does not include other ways that people do and are able to provide information to the police on a regular basis, such as by being witnesses and through anonymous tips. These people naturally, common sense would say, do not have to be registered as human sources. As a result of these new safeguards it will be an offence for police to use a person for all intents and purposes as a human source unless they have been registered as such, and I think that is really important. It is important for the community to understand and know what we are going ahead with and doing. It will also be an offence for police to use a human source for a different purpose to that which they are registered for. This is an important deterrent to the misuse of human sources, and that is really important because it can, and often does, go to the heart of what erodes that trust and confidence in the community that Victoria Police are doing their job and confidence in our justice system to go ahead and have justice prevail.

In many instances when we talk about human sources they are putting their safety at risk and even their lives on the line to help report and put a stop to criminal activity. Whilst in this house we do not exist in those sorts of realms in the community – where these sorts of terrible crimes and things might be happening and human sources are being used; understanding and living and breathing that level of criminal activity – very sadly it does exist in our community and continues to exist, and it needs to be stamped out. So the safety of these human sources is paramount, and it should be.

To further protect these individuals, police will also be required to categorise certain sources as ‘reportable human sources’. They are people that are highly vulnerable and pose a high risk to the administration of justice. The legislation also requires that other categories of people be included as reportable human sources. This is where someone is reasonably expected to have access to privileged information as well as when police are dealing with a human source, importantly, that is under the age of 18. In this instance the requirement reflects the fact that there are additional welfare and human rights risks inherent in using young people as human sources. But what we do know is that if there is a chance that a human can assist in reporting and stopping serious crime, as a human source, the bill must allow them to do so. They will be afforded certain protections, such as having their identity concealed and having their relationship with the police monitored. The same protections apply for someone who has a serious mental or medical health condition. These sources will only be able to be approved by the Chief Commissioner of Police or a delegate with the equivalent authority to the assistant commissioner. Additionally, children under the age of 18 can only be registered as a source for the purpose of investigating a really serious offence or if there is a serious risk to national security, the community or the life and welfare of a person where the information cannot be obtained through other means. So really children under the age of 18 being registered as a source is if we are unable to get the information any other way, and it is for an incredibly serious offence. When we are talking about serious crimes, we are talking about prospective terrorist attacks, conspiracies to murder and truly abhorrent crimes like that. When a child has the potential to stop this from happening, police should have the means to obtain that information from them. It is in cases like these that we know it can and does often save lives.

This bill delivers really important reforms to the way in which Victoria Police manage human sources. These are people who are taking a great risk to themselves, their friends and their families – sometimes it will be life altering for them – in order to help put a stop to really serious crime in our community, in our state and in this country. It is incredibly important that their activities as a source of information for the police are managed by police in an appropriate manner, with strong protections and oversight mechanisms. I think that is what this bill does deliver. It ensures that the shortfalls and the mistakes made, as described by the royal commission, are never able to happen again. We launched this royal commission to uncover what went wrong with informants and how they were being managed, and we are determined to deliver the change necessary to go ahead and ensure that something like Lawyer X and the situation that unfolded there stays in the past and is not part of our future. That is why I commend the bill to the house.

Brad BATTIN (Berwick) (12:29): I rise on behalf of the coalition as well with the Human Source Management Bill 2023. I note we have had a couple speakers from the other side who on both occasions said they ‘think’ this bill is in the right direction to make the changes that were required according to the Royal Commission into the Management of Police Informants. I would actually say you would want more than ‘think’ when you are bringing in legislation around some of the biggest issues we have had with human source management here in this state. When I say you have to do more than think, the first thing you could do is consult – go out and speak to those that understand this the best. So many of them have come forward already and said the reasons why they do not trust this bill to deliver on what it was promised to do.

The other element of it was talking about who can be consulted, how the process is going to get put in place and who we can trust. I think the government, with all persons, and I imagine this will continue with their speakers, will start with that first line of ‘The Andrews Labor government is implementing every recommendation from this royal commission’ – a commitment made before the royal commission was completed, a commitment made before they saw the recommendations and a commitment made before they went and consulted with the organisations who are going to be ones impacted by this legislation put forward.

I think it is really important now that they take a step back, and I implore them today to take that step back, go back and consult and find out why this legislation is so poor. I understand this was brought into this place obviously because of the Lawyer X, known as the Gobbo, incident that happened with human source management. Now we see people who were in the jail system for serious crimes no longer in the jail system because of what happened and how it was handled, and there is potentially more to come from that as well.

The royal commission was put in place because of the illegal activity that had happened with human source management that allowed a lawyer to go and give evidence. I do not comprehend why a royal commission would then come and state with a recommendation ‘Here’s how we can legalise that’. I think that is actually something we should be seriously concerned about. There is a matter of privilege for a reason, and that privilege is there to protect those in our justice system. It is supposed to be a justice system. It is a legal system to ensure that people in our state can get justice. If you are going to a lawyer and that lawyer is handing off information that can be directly used against you, that is a problem.

There were in place ways that this was supposed to be protective for our community. There were protections in place to ensure human source management was handled properly. Unfortunately – and this is nothing against our current Chief Commissioner of Police – it went as high as the chief commissioner’s office in our state. This happened; it was signed off under a chief commissioner. I know what Victoria Police want, and speaking from the experience of having been a police officer I could not think of anything better than getting information from a lawyer. However, looking at it from this side I can tell you it is just blatantly wrong, and I do not think we should be in a position where that could happen. There are already provisions to ensure that community safety is paramount. When we are taking into consideration the information of a lawyer, a minister, a priest or anyone else who has got that privilege, there are already protections in place to ensure community safety is the first and foremost thing on their mind when they come forward with information.

But we need to make sure that we take that step back on this. That is why I wholeheartedly support the member for Malvern’s reasoned amendment, and I think the first section of that reasoned amendment is around that consultation. We have seen a list here of some that I know the member for Malvern has either spoken to or gone out and requested information from. I have spoken to the Police Association Victoria. We have got so many organisations that have come forward, and not just privately, which obviously happens on occasion. They are publicly saying that these are issues that they think need to be rectified before the government rush through legislation around this.

That the government provides for proper oversight of the power of the Chief Commissioner of Police to register a reportable human source is something we are very, very passionate about, and again it goes back to the fact that we always want to have faith and trust in our police. We always want to have faith and trust in the management system, but sometimes things go wrong. That is not a political thing. That is not Liberal or Labor. We have had commissioners and chief commissioners put in place that were not there for the right reasons or did things when they got in there for any other reason. We need to make sure that those practices are there to protect them, and the government has to satisfy the house, given the High Court 7–0 described this as ‘reprehensible conduct’ by Victoria Police in using Lawyer X as an informer against her own clients ‘in a manner which debased fundamental premises of the criminal justice system’, that such would not be facilitated by this bill.

Again, this goes back to the core integrity of what we need to make sure of, that any legislation coming forward does protect both sides, and whilst Victoria Police have openly said that they welcome and support this bill, I have to think the changes we want to make, the changes that the member for Malvern has put forward, will protect Victoria Police. The current situation is putting a lot of pressure back on them. I know there will be management and there will be oversight of that, but as stated by the member for Gippsland South, that oversight is just going to put forward recommendations. It cannot actually make a lot of big decisions on it. It is just to make recommendations to maybe look at changing in the future.

The system that is being set up with this legislation is opening up what happened in the past. It is going to allow human source management to continue in the way it has been going previously, or reimplement it as it was previously, but we are now going to have oversight that could make a recommendation after something has happened and could put at jeopardy another case where we have people who are in the justice system or in detention or jail already for serious crimes against people in Victoria that could get out. If the recommendation came post a decision being made about a human source management position, if a recommendation from IBAC came after to say, ‘We don’t think this should have been supported’, what happens then? Is that evidence no longer available? Are we going to end up with someone in the court system?

Let us not forget that the people that this is genuinely against as a rule are very wealthy criminals. They have the best lawyers. Obviously, they made one bad choice, which led to the royal commission. But they have the best lawyers; they have got the money to buy the best lawyers in this state, because their goal is to not go to jail. Those lawyers’ job is to keep some of the worst people and offenders out of jail. Every time they succeed at that the next bad bloke wants to use them, because that is the person you want to make sure that you have got on your side. If we end up in a position where they can use this legislation in their favour, I would not put it past them doing that in the future, and therefore we are going to put the whole justice system at risk. I myself think that is something that needs to be very much looked at, and we should be going back and reviewing this to ensure that it sits in the right place.

There are other parts of it in relation to age. If someone is under the age of 18 – I think obviously it is a greater risk using someone under the age of 18 as a human source anyway – there has to be genuine oversight and protection. People who are vulnerable, people with disability or mental health issues: the stats are there for everyone to see – nearly 50 per cent of people within our prison system at the moment have mental health issues. They have got mental health concerns already – the numbers are staggering. When you look at the youth justice system, we have got up to 80 per cent who have reported mental health issues – 50 per cent acute mental health issues. These are the people that must be protected and generally are the ones that are going to end up in our human source management at some time in the future. I think everyone in this room would agree we must wholeheartedly put our passion and our views into that to ensure the legislation is there to protect them and that they are not used by Victoria Police or any other agency to give evidence when it could put them at risk. We need to start weighing that into it as well.

There are parts of the bill that I think overall would bring in some positive changes around protecting those young people, protecting people who are the most vulnerable, and they are commonsense things. However, the item raised by the member for Malvern specifically around effectively what the High Court has ruled is the worst behaviour you could imagine, when a lawyer working for someone is effectively working against them – being paid by them and working against them – is what the High Court was trying to see changed.

I do say to the government: I understand you have on a few occasions before gotten ahead of yourself and said, ‘We’re going to deliver everything within a royal commission.’ It is the same for us in opposition – we unfortunately do not see legislation until usually two weeks prior to us debating it. When we are asked in the media ‘Do you support this legislation?’ our answer generally is ‘We need to see it first, because otherwise we’re going in blind’. As I explain to schoolkids when they turn around and say, ‘Are you going to ban homework?’ – which the kids love – I say, ‘We might ban homework.’ I turn around and go, ‘But what happens if it says you’ve got 20 hours at school every day, seven days a week?’ ‘Oh, we didn’t read that.’ That is exactly the same as what we are saying with the royal commission – when the recommendations come out you cannot say ‘We’re going to implement them all’ because some of those implementations will be wrong, some of those recommendations will not be accurate, and I think on this occasion this is a prime example.

Will FOWLES (Ringwood) (12:39): Acting Speaker Crugnale, you are on fire today, and it is a delight to see you in the chair. Homophones are words that sound the same but are different in meaning or spelling, like the word ‘bat’ – it can mean the flying rodent thing, or it can mean a cricket bat. ‘Source’ is one such word, and I have got to tell you, if you were following along at home and you thought that this bill was about human sauce, S-A-U-C-E, you might be (1) a little confused and (2) perhaps amused by what is under discussion today. It is not human sauce like tomato sauce, it is human source, S-O-U-R-C-E. I submit that ‘informant’ would perhaps be a better descriptor for those people engaged in this part of the justice system.

I want to commence by picking up on a couple of things that both the member for Malvern and the member for Berwick raised in their contributions. I think there is sort of this assumption here that privilege, legal professional privilege, is somehow absolute at the moment, that there are no circumstances under which it can be breached, and in fact that is just not right. Lawyers are permitted to disclose confidential client information to police already under the Solicitors’ Conduct Rules, rule 9.2, and the Barristers’ Conduct Rules, rule 82.

The member for Malvern had a career as a barrister before he came into this place. I am sure he is familiar with the rule, and I just think it is a bit disingenuous to sort of imply that this privilege is absolute and should never be pierced. There are circumstances in which that privilege ought to be pierced, and to avoid the probable commission of a serious criminal offence or to prevent serious harm to a person’s safety are examples of the sets of circumstances where that ought to be contemplated and in fact happen. If you are going to have a circumstance where a barrister or a solicitor can disclose confidential client information, the question then goes to how do you manage those circumstances, what checks and balances do you put around those circumstances and what are the appropriate mechanisms for police to manage that information and to manage the source of that information, and that is exactly what this bill does.

There are a few other matters that the member for Malvern addressed in his speech on this bill. A fair bit of weight has been given to this High Court decision, the 7–0 decision. I think it was a very good decision; it was an entirely appropriate decision. I am not seeking to cast any shade on that decision at all, but we need to be really clear: the Royal Commission into the Management of Police Informants was called in response to that. The royal commission was called exactly in response to that, and the suggestion that somehow we are not taking that decision seriously or we are not cognisant of the decision or that this is not a legislative response to that decision is just plain wrong. The royal commission was established in response. That royal commission made 111 recommendations, and every single one of those that relates to the Victorian government, 54 of those recommendations, is being picked up by the government – all of them are being implemented – and many of them are being implemented quite specifically by this bill.

In terms of the relationship between the royal commission and this confidential client information issue, recommendation 16 allows for someone who has access to that privileged information to be registered as an informant – a human source, not tomato sauce – as a human source in the very rare case where there are exceptional and compelling circumstances. We have set up a process for that very rare case to make sure that the checks and the oversight are in place.

We cannot rule out the possibility that it is in ultimately the public interest for a lawyer to disclose that sort of information, and that, as in so many things in government, is a balancing exercise between the public interest in faith in the profession, between the public interest in clients being able to disclose things to their lawyers without fear of them travelling further, balanced against the public interest in disclosing information that may thwart the commission of a very serious offence. I think in that balancing exercise the royal commission was right. This bill is the correct response to the royal commission’s view, and I do not think derogating that or seeking to cast shade on that is necessarily the right approach.

What Nicola Gobbo did was wrong. What Victoria Police did in partnership with Nicola Gobbo was wrong, and I think there is bipartisanship around that threshold issue. But we have got to be clear: you cannot legislate against criminality and expect that all criminality will therefore be abolished. Murder has been illegal in Victoria since the colony was founded, but there are murders – they still happen. To assume that we in this place can legislate a fix to every single social ill anywhere on the spectrum from littering through to murder is a fantasy.

Laws against conduct do not guarantee it will not occur. They provide deterrence but they provide no guarantees, and I think what is really clear here is that there is not going to be one magical solution to stop a Nicola Gobbo scenario happening again, and even with 111 recommendations being implemented, that is not going to guarantee that it never happens again. Ms Gobbo was in breach of her ethical obligations, and the entire arrangement was in breach of a whole range of rules. Are we strengthening the regime around that scenario? Yes, of course we are. That is an entirely appropriate thing to do, and it is entirely appropriate not least because the royal commission thinks it is so. But what we cannot achieve is mandating that people behave 100 per cent ethically 100 per cent of the time. What we cannot achieve is that no crime will ever be committed by anyone ever. I think there is any amount of evidence that will tell you that the human condition is such that people have either frailties or malice in their hearts, and things happen that nonetheless we as a society – as a civil society – say ought not happen, but we accept that they might and provide a set of consequences if and when they do. That is exactly what this bill sets out to achieve. There is little doubt that everything that can be done must be done to ensure these circumstances do not arise again, but not labouring under some sort of fantasy that we can cure every ill in the world merely by the promulgation of an act.

We support the royal commission’s work, and we agree with the royal commission that it is almost never appropriate for a lawyer to provide information on a client – almost never, but not never. In the same way that the rules currently provide the ability for that obligation to be pierced, we accept that there are some situations, such as the commission itself identified – the very rare circumstance, the truly exceptional circumstance – where providing information might be necessary. That is compelling public interest; for example, a threat to national security or a threat to the community or the life and welfare of any person. If a hypothetical client with a lawyer says, ‘I’m about to go out and kill X’, that is a circumstance where, on the balance of all of these competing factors, we say that the public interest is in that in fact being disclosed rather than not disclosed. I do not think as a government or as a legislature we should make any apologies for that. That is the right assessment of the balancing of those duties – our duties to the integrity of the justice system but our duties also to the safety of Victorians.

Community safety, the integrity of the lawyer–client relationship, the management of those issues – they are not without complexity. My fear is that those opposite are seeking to simplify or oversimplify some of these issues as a means of political expedience, but it is really important that we strike the sensible balance and make sure that the appropriate safeguards, checks and balances are in place for us to deal with these matters as best we can. This is not a case of inventing a regime around police informants. I do not think we would even claim to be perfecting a regime around police informants. Rather, we are doing the best we can with the tools that we have to minimise the risk of the Lawyer X scenario popping up once again. This bill is delivering on recommendations 8 to 18, 44 to 56 and 58 of the royal commission, and I commend it to the house.

Cindy McLEISH (Eildon) (12:49): I am delighted to be able to speak on the Human Source Management Bill 2023. I am going to outline the purposes because, whilst they are noble, I do not think they hit the mark at this time. The purposes include providing for the registration, use and management of human sources by Victoria Police. Typically when we think of human sources, most of us would look at that as being informants, and in certain circumstances or circles perhaps it would be ‘snitches’ that people would relate to more directly. Other purposes are to provide for the external oversight of Victoria Police’s use of human sources and to make other consequential amendments to the Victoria Police Act 2013.

We note that the Shadow Attorney-General, the member for Malvern, who is himself a lawyer and has practised as a barrister and who has a great deal of expertise in this area, has moved a reasoned amendment, and that is an amendment that I will support. There is more work to be done here. But I will refer to that a little later.

The context behind this is the fiasco of Lawyer X. It was something that dominated headlines in all newspapers across the country for a considerable period of time. People talked about it in great detail, and the name Nicola Gobbo in many households was a household name. The government embarked on a royal commission, which reported on 30 November 2020. There were quite a lot of things that happened in that royal commission – we had a number of withdrawals due to conflicts of interest et cetera.

All of us want the police to do the best job that they can so that we have a safer society. We want the baddies put away, and the real baddies we want kept there, and the police do too. They go all out to make our lives as safe as possible – you see that in small towns or in the city – and they have a pretty tough job. But unfortunately, because of the matters here of their management of the human sources, of the informants, we have seen the worst thing happen: we have seen some of the people that they have put away now have been released. That is just not what we want. To think that this legislation will allow that to continue is, I am sure, not what we as a society want, which goes to the nexus of our reasoned amendment.

They got it wrong. We need to make sure that the government do the work that they need to do rather than rush this through, which is why we have the reasoned amendment which has been proposed, because greater consultation is required with the organisations that are representing the persons whose interests are affected by the undermining of privileged communication facilitated by this bill. And this is so important: the privileged information that is obtained through that lawyer–client relationship.

We also need to make sure that the government provides for proper oversight of the power of the Chief Commissioner of Police to register a reportable human source, and I will talk a little more about this. The High Court of Australia described the conduct of Victoria Police in using a lawyer as an informer, putting a different hat on against her own clients, as absolutely reprehensible. It debased fundamental premises of the criminal justice system, and this will not be fixed in this bill. We understand and accept that police need informants and that police will use informants and regularly do. That is all fine. We know that they might have identified a person who has particular information that can help them get a prosecution or they might leverage information from somebody who is on the inside or who they might be looking at charging so that they can do a bit of a deal. This sort of thing happens all the time.

We have a registration process here. There are three tiers of registration. We have got the one where there is a one-off tip-off, a discrete piece of information which is not required to be registered, but we also have non-reportable and reportable sources, and the reportable sources relate to those who have access to confidential information. That would be lawyers in this instance. Now, if you think about the role of a lawyer, a defence lawyer – I am certainly not a lawyer, but I was registered as a psychologist, and I know that you can obtain privileged information through that role as well – the client has a right to have a privileged conversation with their lawyer, and this is something that has been widely accepted for a very long time. They are not expecting that when they have that conversation their lawyer is going to turn around and dob them in and inform police of that information. They are not expecting that. We have safeguards already if there is something that is going to threaten public safety – if they were going to put a bomb at the spring carnival or something like that and someone has access to that. That is already accounted for, so we know that. Now, equally it might not just be a lawyer that has access to privileged information; it could be doctors, medical practitioners, psychiatrists, psychologists or faith leaders.

Going back to the lawyers, because this is all about the Lawyer X situation, a lawyer’s primary obligation is to the court, then to the client, and it would be such a breach of professional ethics for a lawyer to compromise the interests of their own client by informing the police. What we had here in the Gobbo case, in the Lawyer X case, was she was representing her clients, having that information, and then passing that on to the police.

There are so many issues with the bill that has been put forward, and I guess one of the most compelling is when we look at what the High Court have said in this case. This matter was challenged, and it went to the High Court. Seven members – a full bench, 7–0 – talking about the conduct of Victoria Police in this situation, found that it was reprehensible conduct. This bill is going to allow this to continue. Every challenge from the Court of Appeal to the High Court is going to allow this to continue. As I have said, if a lawyer has privileged information about a future threat, there are already mechanisms in place. This bill gives an enormous amount of power to the Chief Commissioner of Police, and as I have said, there is no guarantee that it is going to prevent this from happening.

On this side of the house, the Shadow Attorney-General has done an enormous amount of consultation with the Australian Bar Association, the Australian Medical Association, the Centre for Public Integrity, the Criminal Bar Association, numerous lawyers who are experts in this field, Liberty Victoria and different legal services, because he knows how important this is. I support the reasoned amendment, and we will be opposing this bill because more needs to be done.

Nick STAIKOS (Bentleigh) (12:57): Once again it is my job to take us to lunch. This happened last sitting week as well. I have an absolutely brilliant contribution prepared on this bill, but I would be detracting from it if I really commenced in any substantial way now. I will start by thanking everyone involved in the Royal Commission into the Management of Police Informants, particularly the head of that royal commission. Our former Attorney-General Jill Hennessy appointed someone to head that royal commission removed from the judicial system of Victoria, and that person was the former president of the Queensland Court of Appeal the Honourable Margaret McMurdo. I thank her for what has been a very considered piece of work that came up with 111 recommendations, and this bill, the Human Source Management Bill 2023, implements 25 of those recommendations.

I have listened to all of the contributions today on this bill. I think all of them were very, very considered contributions, but nothing is as considered as the work that the royal commission did, because the royal commission received hundreds of submissions. They spent many hours hearing from expert witnesses, and their 111 recommendations have been very well considered and have formed the basis of this bill. We have heard in contributions from those opposite, ‘Where is the consultation?’ That is what you have a royal commission for. You have a royal commission because you recognise that you do not have all of the answers to a problem and you seek expert opinion. That is why we had the royal commission.

After the lunchbreak I will be addressing the member for Malvern’s reasoned amendment. It is a pity that the opposition have chosen not only to ignore the royal commission, but also in effect to denigrate the royal commission by saying that they got it wrong. In a couple of the –

The ACTING SPEAKER (Jordan Crugnale): Order! It is to time suspend for lunch. The member can continue his contribution when we resume the debate later in the day.

Sitting suspended 12:59 pm until 2:01 pm.

Business interrupted under standing orders.