Thursday, 4 May 2023

Bills

Human Source Management Bill 2023

Danny PEARSON, Michael O’BRIEN, Nina TAYLOR, Danny O’BRIEN, Meng Heang TAK, Chris CREWTHER, Dylan WIGHT, Annabelle CLEELAND

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Human Source Management Bill 2023

Council’s amendments

Message from Council relating to following amendments considered:

Clause 3, after line 27 insert –

“client legal privilege includes legal professional privilege;”.

2. Clause 3, page 3, line 7, after “23,” insert “30C,”.

3. Clause 3, page 6, line 32, omit “application;” and insert “application; or”.

4. Clause 3, page 6, after line 32 insert –

“(d) an application to the Supreme Court under section 30A;”.

5. Clause 3, page 7, line 6, after “23” insert “or 30C”.

6. Clause 4, line 33, after “register” insert “, or apply to the Supreme Court for authorisation to register,”.

7. Clause 10, line 14, omit “23;” and insert “23 or 30C;”.

8. Clause 10, after line 14 insert –

“(ab) the power to approve the making of an application under section 30A;”.

9. Clause 12, line 2, omit “aged 14 years or under”.

10. Clause 12, lines 4 and 5, omit “who is aged 14 years or under”.

11. Clause 15, line 2, omit “14 years of age or under”.

12. Clause 15, line 4, omit “aged 14 years or under”.

NEW CLAUSE

13. Insert the following New Clause after clause 15 –

“15A Prohibition on tasking a human source where information subject to client legal privilege

A police officer must not task a human source who is registered for the purpose of a police officer obtaining, or obtaining and disseminating, information from the human source that is subject to –

(a) client legal privilege; or

(b) client legal privilege in respect of which there is an exception to the privilege.”.

14. Clause 16, lines 8 to 12, omit all words and expressions on these lines and insert –

‘(1) A police officer, during any interaction with a child concerning the potential registration of that child as a human source, must ensure the presence of at least one of the following –

(a) an Australian legal practitioner;’.

15. Clause 16, lines 24 to 31, omit all words and expressions on these lines and insert –

‘(2) For the purposes of subsection (1), the police officer must –

(a) consult the child before determining who will be present during the interaction; and

(b) if an Australian legal practitioner is not to be present during the interaction, inform the child and the child’s parent, guardian or independent person that the child may express their wish to have an Australian legal practitioner present at any time; and

(c) take reasonable steps to facilitate the child’s wishes in this regard before any interaction with the child takes place or before any further interaction with the child takes place (as the case requires).’.

16. Clause 17, lines 3 to 8, omit all words and expressions on these lines and insert –

‘(1) A police officer, during any interaction which constitutes human source activity with a child who is a human source, must ensure the presence of at least one of the following –

(a) an Australian legal practitioner;’.

17. Clause 17, lines 20 to 33, omit all words and expressions on these lines and insert –

‘(2) For the purposes of subsection (1), the police officer must –

(a) consult the child before determining who will be present during the interaction; and

NEW CLAUSE

18. Insert the following New Clause after clause 17 –

‘17A Protections for a child – emergency registrations

(1) A child is entitled to the presence of the following persons during any interaction between the child and a police officer concerning the potential registration of that child as a human source –

(a) an Australian legal practitioner;

(b) either –

(i) a parent or a guardian; or

(ii) if a parent or guardian is unavailable or it is not appropriate for a parent or guardian to attend, an independent person.

Example

It is not appropriate for a parent or guardian to be present if the child is to provide information about the parent or guardian or the presence of the child’s parent or guardian may place the child or any other person at risk.

(2) A human source registered on an emergency registration who is a child is entitled to the presence of the persons specified in subsection (1)(a) and (b) during any interaction between the human source and a police officer concerning the child’s role as a human source.

(3) A human source registered on an emergency registration who is a child is entitled to request the presence of a person referred to in subsection (1)(a) or (b) (or both) during any other interaction between the human source and a police officer.

(4) A police officer must inform the child of the entitlements in subsection (1) before any interaction concerning potential emergency registration of the child takes place between the human source and the police officer.

(5) A police officer must inform the child of the entitlements in subsections (2) and (3) before any interaction concerning registration or deactivation takes place between the human source and the police officer.

(6) The police officer must take reasonable steps to facilitate the presence of each person entitled to be present under subsection (1) or (2) or whose presence is requested under subsection (3).’.

19. Clause 18, line 8, after “register” insert “, or apply to the Supreme Court for authorisation to register,”.

20. Clause 20, after line 34 insert –

‘(3A) If it is not appropriate for the parent or guardian to give consent to the child’s registration, a police officer must ensure that an independent person is present at the time the child gives informed consent.’.

21. Clause 21, page 22, before line 1 insert –

“(1A) A police officer must not apply to the Chief Commissioner to register as a reportable human source a person who is reasonably expected to have access to information that is subject to client legal privilege or information in respect of which there is an exception to client legal privilege, for the purpose of obtaining, or obtaining and disseminating, information of that kind.”.

22. Clause 23, after line 22 insert –

“(1A) The Chief Commissioner must not register a person as a reportable human source under this section if –

(a) the person is reasonably expected to have access to –

(i) information that is subject to client legal privilege; or

(ii) information in respect of which there is an exception to client legal privilege; and

(b) the purpose of the registration is for a police officer to obtain, or to obtain and disseminate, information that is subject to client legal privilege or information in respect of which there is an exception to client legal privilege.”.

23. Clause 24, line 22, after “Monitor” insert “to the Chief Commissioner”.

24. Clause 25, line 28, after “source” insert “under section 23”.

25. Clause 25, page 26, line 7, after “source” insert “under section 23”.

26. Clause 25, page 26, line 10, after “source” insert “under section 23”.

27. Clause 26, page 27, lines 5 to 8, omit all words and expressions and insert –

“(2) Subsection (1) does not apply if the information that the person is to be registered to provide is subject to –

(a) client legal privilege; or

(b) an exception to client legal privilege or any other privilege.”.

28. Clause 27, line 12, after “source” insert “under section 23”.

29. Clause 28, line 3, omit “The” and insert “Subject to any conditions imposed by the Supreme Court under section 30B, the”.

30. Clause 29, line 12, after “months” insert “or, if applicable, the period fixed by the Supreme Court”.

31. Clause 29, line 15, omit “the registration” and insert “a registration under section 23”.

NEW CLAUSES

32. Insert the following New Division after Division 3 of Part 3 –

“Division 3A – Application to Supreme Court to register a person as a reportable human source for certain purposes

30A Application to Supreme Court for the registration of a person as a reportable human source for certain purposes

(1) A police officer, with the approval of the Chief Commissioner, may apply to the Supreme Court for an order authorising the Chief Commissioner to register a person as a reportable human source for the purpose of a police officer obtaining, or obtaining and disseminating, information that is subject to client legal privilege or information in respect of which there is an exception to client legal privilege if the police officer is reasonably satisfied –

(a) that the use of the person as a human source –

(i) is necessary to achieve a legitimate law enforcement objective; and

(ii) is proportionate to that objective; and

(b) that the risks associated with the person’s registration as a human source have been identified and can be adequately managed; and

(d) of either of the following –

(i) that –

(A) there is a serious and imminent threat to national security, the health or safety of the public or a section of the public, the life of a person or of serious physical harm to a person; and

(B) registering the person as a reportable human source is immediately necessary to respond to the threat; and

(C) the information or assistance that the person is expected to provide if registered as a reportable human source cannot be obtained through any other reasonable means; or

(ii) the information is subject to an exception to client legal privilege of a kind that permits its disclosure to law enforcement officers.

(2) An application must –

(a) specify the name of the applicant; and

(b) specify the name of the person in respect of whom the application is made; and

(d) specify the reasons why the information is likely to be the subject of client legal privilege or subject to an exception to client legal privilege; and

(e) specify the required duration of the registration; and

(f) if the application is made in writing, be signed by the police officer making the application; and

(g) unless the police officer making the application reasonably believes it would be impracticable to do so, be supported by an affidavit setting out the grounds on which the application is made.

(3) If the police officer making an application under this section reasonably believes that it is impracticable for the application to be made in person, the application may be made by telephone or other electronic communication.

(4) An application that is made without a supporting affidavit must be accompanied by any information requested by the court.

(5) A police officer who makes an application without a supporting affidavit must provide a supporting affidavit within 24 hours after making the application.

30B Supreme Court may authorise the registration of a person as a reportable human source for certain purposes

(1) The Supreme Court may make an order of a kind referred to in section 30A(1) only if the court is reasonably satisfied –

(a) that the use of the person as a human source –

(i) is necessary to achieve a legitimate law enforcement objective; and

(ii) is proportionate to that objective; and

(b) that the risks associated with the person’s registration as a human source have been identified and can be adequately managed; and

(d) of either of the following –

(i) that –

(A) there is a serious and imminent threat to national security, the health or safety of the public or a section of the public, the life of a person or of serious physical harm to a person; and

(B) registering the person as a reportable human source is immediately necessary to respond to the threat; and

(C) the information or assistance that the person is expected to provide if registered as a reportable human source cannot be obtained through any other reasonable means; or

(ii) the information is subject to an exception to client legal privilege of a kind that permits its disclosure to law enforcement officers; and

(e) in the case of an application that is not made in person, that it would have been impracticable for the application to be made in person; and

(f) in the case of an application that is not supported by an affidavit, that it would have been impracticable for an affidavit to have been prepared and sworn or affirmed before the application was made.

(2) In considering whether the court is reasonably satisfied of the matters specified in subsection (1), the court must consider the following –

(a) whether the person is reasonably expected to have access to privileged information or privileged information in respect of which there is an exception to the privilege and, if so, whether that information is related to the information the person is expected to provide to a police officer if registered as a reportable human source;

(b) whether the person is reasonably expected to have access to information that is subject to a legal obligation of confidentiality and, if so, whether that information is related to the information the person is expected to provide to a police officer if registered as a reportable human source;

(d) the person’s age;

(e) the person’s health, including the person’s mental and physical health;

(f) the purpose for which the person is proposed to be registered as a reportable human source;

(g) the conditions that would be imposed on the registration;

(h) the length of time for which the person is proposed to be registered as a reportable human source;

(i) mitigation of any risk to the safety of the person if the person is registered as a reportable human source;

(j) the adequacy of the risk assessment and any other material provided in support of the application;

(k) any rewards that are proposed to be given to the person if registered as a reportable human source;

(l) if the person is a child –

(i) whether registration as a reportable human source is in the best interests of the child; and

(ii) any expected impact of registration on the child’s wellbeing; and

(m) any submissions made to the court by the Public Interest Monitor.

(3) An order must specify –

(a) whether the information that is proposed to be obtained, or obtained and disseminated, is likely to be subject to client legal privilege or an exception to client legal privilege of a kind that permits its disclosure to law enforcement officers; and

(b) the purpose for which the Chief Commissioner may register the person as a reportable human source; and

(d) the maximum period for which the registration of the person in respect of whom the application is made may be in effect, being a period that is not longer than 7 days; and

(e) any conditions to which the order is subject.

(4) An order must not –

(a) authorise the registration of a person as a reportable human source for the purpose of tasking the person; or

(b) be varied, extended or renewed.

(5) If an order is not made in writing, the court must provide the police officer with a copy of the order as soon as it is practicable to do so.

(6) An application under this section must not be heard in open court.

30C Chief Commissioner may register a person as a reportable human source following court order

(1) The Chief Commissioner may register a person as a reportable human source if the Supreme Court makes an order under section 30B authorising the Chief Commissioner to register the person.

(2) Before registering the person, the Chief Commissioner must ensure that the person has given informed consent to the registration and that the Chief Commissioner has a record of that person’s informed consent, as required by section 20.”.

33. Clause 38, line 18, after “registration” insert “or a registration under section 30C”.

34. Clause 38, line 30, after “registration” insert “or a registration under section 30C”.

35. Clause 40, after line 20 insert –

“(1A) A police officer must not apply to the Chief Commissioner for emergency registration of a person as a human source a person who is reasonably expected to have access to information that is subject to client legal privilege or information in respect of which there is an exception to client legal privilege, for the purpose of obtaining, or obtaining and disseminating, information of that kind.”.

36. Clause 41, after line 21 insert –

“(1A) The Chief Commissioner must not register a person as a human source on an emergency registration application if –

(a) the person is reasonably expected to have access to –

(i) information that is subject to client legal privilege; or

(ii) information in respect of which there is an exception to client legal privilege; and

37. Clause 45, after line 20 insert –

“(4) Despite subsection (3), in the case of a registration under section 30C that is the subject of a further application to the Supreme Court under section 30A, the Chief Commissioner must suspend the registration of the human source at the expiry of the registration period determined under section 29(1) until the further application has been determined by the court.”.

38. Clause 47, page 44, line 2, after “registration” insert “unless a human source registered under an emergency registration has unexpectedly provided information which is subject to client legal privilege or information that is subject to client legal privilege in respect of which there is an exception to the privilege”.

39. Clause 50, line 24, after “23,” insert “30C,”.

40. Clause 52, line 8, after “source” insert “under section 23”.

41. Clause 52, after line 17 insert –

“(ab) to appear at the hearing of an application under section 30A to test the content and sufficiency of the information relied on and the circumstances of the application;”.

42. Clause 52, page 47, line 20, omit “(a).” and insert “(a); and”.

43. Clause 52, page 47, after line 20 insert –

“(c) for the purpose of performing the function under subsection (1)(ab) –

(i) make submissions to the court by telephone or other electronic communication; and

(ii) ask questions of any person giving information in relation to the application; and

(iii) make submissions to the Supreme Court as to the appropriateness of granting the application.”.

44. Clause 54, line 11, omit “an application” and insert “any application”.

45. Clause 54, after line 12 insert –

“(1A) The Chief Commissioner, as soon as practicable after the making of an application under section 30A and in accordance with the regulations (if any), must provide the Public Interest Monitor with –

(a) a copy of the application; and

(b) a copy of any affidavit in support of the application and of any information provided to the court.”.

46. Clause 54, line 18, after “is made” insert “to the Chief Commissioner or the Supreme Court”.

47. Clause 54, line 19, after “Commissioner” insert “or the Supreme Court”.

48. Clause 54, line 20, after “application” insert “(as the case requires)”.

49. Clause 55, line 5, after “source” insert “under section 23”.

50. Clause 55, line 17, after “source” insert “under section 23”.

51. Clause 62, page 55, after line 13 insert –

“(ga) the number of times the Public Interest Monitor was notified under section 54 of an application to the Supreme Court under section 30A; and”.

52. Clause 65, after line 12 insert –

“Note

See section 5 of the Independent Broad-based Anti-Corruption Commission Act 2011 in relation to the meaning of police personnel misconduct.”.

NEW CLAUSE

53. Insert the following New Clause after clause 72 –

“72A Chief Commissioner to report on applications to the Supreme Court

The Chief Commissioner must give a report to IBAC at least once every 3 months which specifies the number of applications made under section 30A and, of those –

(a) the number that were granted by the court; and

(b) the number that were refused and the reasons each was refused.”.

Danny PEARSON (Essendon – Minister for Government Services, Assistant Treasurer, Minister for WorkSafe and the TAC, Minister for Consumer Affairs) (11:06): I move:

That these amendments be agreed to.

In doing so, I would like to speak briefly in relation to these amendments. As members would know, the Human Source Management Bill 2023 introduces the most robust human source management framework in Australia, and it does acquit the 25 recommendations of the Royal Commission into the Management of Police Informants. This framework now means that decisions made by the police to register human sources will consider the risks and provide appropriate levels of oversight. The bill does not change lawyers’ existing obligations to confidentiality. I also point out to the house that it is the government’s position, as it has always been, that lawyers should not be informing on their clients. What this bill does is give Victoria Police a clear framework on what to do when they get highly sensitive information, instead of relying on internal policies. Unfortunately this is a point that was missed by the opposition. This bill actually makes it more difficult for lawyers to give information to police. It will be the only jurisdiction in Australia with this level of oversight and this level of rigour. Indeed, as I indicated earlier, it is consistent with the findings of the royal commission.

The opposition voted against this bill when it came before the house and subsequently moved amendments in the other place, which were comprehensively defeated. I know the member for Malvern will, I dare say, follow my contribution, but the opposition proposed an alternative model for how this bill could operate – namely, to restrict the use of lawyers as human sources. The effect of this change would have actually made it easier for people – this is an important point – with access to legally privileged information to be used, because it would have left people such as paralegals without the necessary and highest levels of safeguards. There may be very rare circumstances where Victoria Police could consider the registration of a person who has access to privileged information, such as a lawyer. It is a clear finding of the royal commission and a point the commissioner has repeatedly supported. Under this bill, they will be subject to multiple stages of independent oversight with regular reporting, as specified in the government’s amendments, which we developed in close consultation with the crossbench – and we thank the crossbench for their consideration and work on the amendments that have been passed in the other place.

I will go into a bit more detail on the amendments that the government is agreeing to. The new application process to the Supreme Court for information subject to client legal privilege, division 3A – we acknowledge that the new application process goes beyond the process set out by the royal commission. It does so in response to stakeholder feedback. The robust system of safeguards will ensure that appropriate scrutiny is applied to police use of the source – this includes a maximum registration period of seven days; that the registration is necessary to achieve a legitimate law enforcement purpose; that it is proportionate; and that there is a serious and imminent threat to national security, to the health or safety of the public or a section of the public, to the life of a person or of serious physical harm to a person. The court must also consider submissions made by the Public Interest Monitor. The effect is that this will be the hardest jurisdiction in Australia to register lawyers.

The second amendment relates to the prohibition on tasking a human source where information is subject to client legal privilege. This means the police are prohibited from asking people with access to client legal information to proactively undertake activities that would benefit police, such as wearing a wire. We have also clarified the definition of ‘legal privilege’. This avoids any doubt about the nature of information protected.

In relation to those amendments moved by the Greens political party in the other place, the government has supported these amendments, which introduce additional protections for children who interact with police and clarify IBAC’s existing functions with regard to monitoring compliance with the framework introduced by the bill.

I want to take the opportunity to thank the Attorney-General for her work on this. I know an enormous amount of work went into landing this outcome. I know she worked incredibly hard to try to ensure that the recommendations of the royal commission were addressed, while also working with stakeholders to come up with a workable solution. It is for those reasons that the government is very happy to accept those amendments moved in the other place.

Michael O’BRIEN (Malvern) (11:11): I think the Assistant Treasurer would regard himself as being a logical man and an intelligent man, but did he really listen? Did he really read what he just read out? Because he said the government’s position is that lawyers should not be used as human sources against their clients, yet he has introduced amendments to this place which allow exactly that to happen. You cannot have it both ways. If the government’s position is that lawyers should not be acting as informed sources, as human sources, against the interest of their own client to whom they owe professional, ethical obligations, then why on earth is the government allowing it to occur?

The better answer would have been to accept the opposition’s proposals, which say lawyers cannot wear two hats. You cannot represent a client and inform on that client to police as a human source. Just to knock on the head any suggestion that our position would put public safety at risk, legal rules already provide that a lawyer not only may, but really should inform police when their client advises them of anything which is going to be an imminent threat to the life or safety of any other person. So when I was practising, if a client said to me, ‘I can’t stand that person. That person’s going to be a witness against me. I’m going to deal with them’, I would have an obligation to report that to police. But – and this is important – I cannot then keep acting for them. If you are going to inform on your client, you stop acting for your client. That is the rule, and that is the way it should be.

This government is arrogantly putting Victoria on a collision course with the High Court of Australia, because the High Court has made perfectly clear that it will not and does not accept lawyers informing on their clients to police. From the Lawyer X Nicola Gobbo judgement, whatever you like to call it – formally called AB v. CD; EF v. CD by the full court of the High Court of Australia – let me just read an extract from that judgement, a unanimous judgement, at paragraph 10. The court had previously talked about, usually, the importance of protecting the identities of police sources, but the court made a different decision in this case. Where I refer to ‘EF’, we now know that the person referred to as ‘EF’ in this judgement was in fact Nicola Gobbo:

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.

Could you get a more damning indictment, unanimously by the highest court in this country, of a practice which this government proposes to allow, facilitating it through this bill? Why would you not respect the decision of the High Court that you cannot get away with this instead of trying to legalise it? But that is exactly what this arrogant government is seeking to do.

What have been the consequences of Lawyer X? Criminals have walked. People who have been locked up for a long time have had convictions quashed. We still have Tony Mokbel, that notorious drug dealer, now trying to get out of jail based on what happened with him where his lawyer acted against him for the police – and this government wants to allow that to happen all over again. The government cannot say, ‘We don’t think lawyers should inform on their clients’ and then introduce a bill which allows exactly that to happen.

In Victoria’s Court of Appeal, in the case of FarukOrman v. the Queen, 26 July 2019, President Maxwell, Justice Niall and Justice Emerton had to consider one of Gobbo’s former clients, who was informed on by Gobbo to the police, which resulted in his conviction. Here is what the Court of Appeal of Victoria said:

The Director –

meaning 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. We refer, as did the Director, to the following statement of the High Court in Tuckiar v The King:

Our system of administering justice necessarily imposes upon those who practise advocacy duties which have no analogies, and the system cannot dispense with their strict observance.

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.

Why is this government – this Andrews Labor government – flying in the face of what the High Court of Australia and Victoria’s Court of Appeal have said: if you use a lawyer as an informant against their own client and you pursue a conviction on that basis, you have perverted the course of justice, you have undermined the right to a fair trial, you will not get the conviction and, if you get it, it will be quashed. How many crooks, how many murderers, how many drug traffickers are going to walk free in Victoria because this government is arrogantly dismissing the decisions of the High Court of Australia and the full Court of Appeal?

Brad Rowswell: Shame!

Michael O’BRIEN: It is absolutely a shame, member for Sandringham. I have never seen a government so arrogant. It is there in black and white. Surely to goodness there are enough lawyers in the Labor Party that can read a judgement and understand you cannot do this – you cannot get away with it. I do wonder how many months or years it will be, but at some point a court will have to come back and read Hansard on this bill. Let me say to those future judges: we know what you meant – we know what the Court of Appeal meant, we know what the High Court meant. We know that this is wrong. We know that what the government is proposing will undermine the rule of law, will subvert the right to a fair trial. We know it and we have warned the government about it, but they and the Greens are so arrogant they believe they know better than the courts of this country and the courts of this state. It is on the government’s head. When people are locked up unjustly, it is on the government’s head. When criminals who should be locked up walk free, is on the government’s head. When every Victorian, when they are speaking to their lawyer in what should be a position of utmost trust and confidence, now has to worry ‘Is my lawyer going to rat me out to the police?’ it is on the government’s head.

The Victorian Bar Council does not support this government’s bill. The Law Institute of Victoria does not support this government’s bill. The Centre for Public Integrity does not support the government’s bill. This is what happens when the government is so arrogant it believes it does not have to listen to anybody. I am not suggesting the government should necessarily listen to me, but listen to the bar council, listen to the law institute, listen to the Centre for Public Integrity. These are important civic organisations. They do not have a political agenda. They support the rule of law and the right to a fair trial, and this government has ignored them. The government says, ‘Oh, we’re putting in safeguards.’ If the police want to use a lawyer to inform against their own clients, you cannot just tick and flick. It is a process. You do not have a process for something which is fundamentally wrong. If anything is more obvious as a conflict of interest, it is that when you go to a lawyer that lawyer acts for you. A lawyer has an obligation to the court first and foremost, and they have an obligation to their client second. They cannot be compromised in those fundamental duties and obligations by also being an informer to the police – not if they want to continue acting to represent that client. This is so obvious it should go without saying, but the government does not seem to care.

The purported safeguards contained in these amendments do not fix the mischief in the bill. This is a bad bill. It is the wrong bill. It will lead to undermining the rule of law in this state. It will lead – I have no doubt – to people going to jail who should not, and it will lead to people who should be in jail getting out. This is on the heads of the Andrews Labor government, because the Liberal and National parties do not support this bill. This bill is wrong. The High Court has told you, the Victorian Court of Appeal has told you, we are telling you, and you should be ashamed of yourselves.

Nina TAYLOR (Albert Park) (11:21): I am very pleased to speak on the Human Source Management Bill 2023 amendments today. I did hear the word ‘arrogant’ a lot, but I would like to speak to the subject matter of the bill because that is what we are here to discuss rather than lots of flourish and flounce when in fact it is really a sensitive and serious matter. I am concerned that the member for Malvern is actually debating the Royal Commission into the Management of Police Informants final recommendations. He has made a lot of allegations here, but actually what has he just been doing for the past few minutes? That is what I find perplexing. I think we should think about the time line here because that is highly relevant. The royal commission was established after these High Court decisions and took these matters into account in its final report. They also specifically recommended no blanket ban on any profession but rather to ensure a clear framework.

It is actually deeply troubling. It is as if the member for Malvern is pretending we did not establish a royal commission that provided 111 recommendations. I do not know what is happening here and why he has elected to go down that pathway. Perhaps it is because the serious weaknesses in his proposals have been unveiled, and maybe that is making it a little bit concerning for him to have to speak to this particular bill and where it has landed with where we are at here and now.

I should say that we acknowledge that this amendment goes beyond the process proposed by the royal commission. If you look at the extent of the rigour, we should not be diffusing and diminishing in any way the extent of the rigour that has been undertaken to get us to this point in time with this bill. The commission considered concerns around allowing lawyers to be human sources in its final report but concluded that while it is rarely appropriate for police to seek privileged information from a human source – this is the clincher – there might be ‘exceptional and compelling circumstances’ where it is appropriate to do so, such as a need to respond to a significant threat to community safety.

Are we meant to just walk away and pretend that such a risk could not prevail? Yes, it could. I think any lawyer knows – I say this with the greatest respect, and I completely appreciate the sensitivity of this legislation and the subject matter – that we have to account for all foreseeable circumstances. The need to respond to a significant threat to community safety is, arguably, absolutely foreseeable and hence cannot be ignored in these circumstances. And I will reiterate: a blanket ban – here is the second limb that is absolutely vital in this discussion – would not eradicate the risk of confidential or privileged information being provided by a human source, nor would it equip officers with the skills to respond appropriately when this occurs.

Another matter that I did want to cover is that the bill does not change lawyers’ existing obligations to confidentiality, but it gives Victoria Police a clear framework for what to do when they get highly sensitive information instead of relying on internal policies, and that is absolutely paramount and that is why this legislation is so very important. In the rare circumstances – because I think there was a lot of embellishment and exaggeration about the likelihood of these circumstances occurring, but we do allow for those, so I should say ‘in the rare circumstances’ – in which Victoria Police may be allowed to consider the registration of a person who has access to privileged information such as a lawyer, they will be subject to multiple stages of independent oversight and regular reporting to the Attorney-General and Parliament and will be required to consider legal advice, all of which was not there before.

We know that this bill introduces the most robust human source management framework in Australia. If we had listened to the previous discussion from the member for Malvern, we would have thought completely the opposite. And it acquits 25 recommendations of the Royal Commission into the Management of Police Informants. The reason why I am emphasising that is because I think, out of respect also for the incredible work of the Attorney-General, the dismissive nature of that discussion of the legislation and where it is today is almost offensive, to be honest with you, because it diminishes the incredibly nuanced and sensitive work, and also the work of the royal commission, because it is putting down the 111 recommendations that were put forward as if ‘Oh, well, they don’t mean anything’. We know that it is exactly the opposite. This framework means that decisions made by the police to register human sources will consider the risks and provide appropriate levels of oversight. That is also fundamental – it is that oversight that we must not be so dismissive of simply for political gain or win. I think there is risk of that, and we do not wish to go down that path, I would have thought, on a subject matter that is so very serious.

I would like to take the house through the concerning amendments proposed by the opposition. For the benefit of the house, let us examine them. I will say, respectfully, I appreciate the member for Malvern’s intent with his amendments – I do appreciate that – but we note that there were significant technical issues. So rather than flounce or flourish, let us go to those technical issues. Firstly, amending the definition of ‘privilege’ would have removed critical safeguards. We note that his proposed new clauses 11A and 11B would have restricted the use of lawyers, but this would weaken protections for other people who are reasonably expected to have access to privileged information. You can see here I am explaining technical flaws, as opposed to flounce and flourish. Secondly, the commission emphasised the importance of focusing on the kind of information a person has access to rather than their profession when assessing the risks of registering the person as a human source, and this is where we see the difference in what has been proposed by the member for Malvern. For example, a paralegal could have provided legally privileged information without the appropriate levels of safeguards of the requirements for police to obtain legal advice or advice from the Public Interest Monitor (PIM). It would have also meant less regular reporting to IBAC. This would have significantly lowered the threshold of oversight from what the commission recommended.

I think it is incumbent on us – and we have taken this absolutely on board – to follow recommendations from the royal commission. Using a former judge as part of a new entity for registering reportable human resources would have lacked clarity, would have had financial implications and would have been inefficient. It is also unclear whether the issuing authority would have been subject to the direction of the minister or independent from such direction. This is inconsistent with other establishing acts and does not provide sufficient detail on the type of entity the issuing authority would constitute under the Public Administration Act 2004.

The appointment provisions did not provide for situations where the issuing authority may wish to resign or for their suspension or removal from office, and here we can see foreseeable elephants that must be taken into account. It also did not account for situations where the position of the issuing authority may be vacant. The issuing authority would have had no oversight or role in key points of risk during a reportable human source’s registration. For example, the issuing authority would have had no role when the Chief Commissioner of Police exercised their power to change the conditions of a human source’s registration – again, keeping on the technical elements, standing away from the political flounce and flourish. You can see where I am headed here.

There were insufficient provisions for the issuing authority to receive and deal with the highly secretive information. This is in contrast to existing arrangements for sharing information between police, the PIM or IBAC, which have been developed over considerable time and are supported by complex legislative and regulatory frameworks, policies and systems.

Danny O’BRIEN (Gippsland South) (11:32): I am pleased to rise to say a few words on the amendments to the Human Source Management Bill 2023, but I begin by indicating to the house that I start at a bit of a disadvantage because I missed the start of the Assistant Treasurer’s contribution. But I did catch the member for Malvern explaining that the Assistant Treasurer had said that the government’s view is that lawyers should not inform on their clients. I am sorry, member for Malvern, that does not make any sense. That cannot possibly be what he said, because that is exactly what this bill does. This allows them to do so. I am astounded. As I heard the member for Malvern say, we would have thought that the Assistant Treasurer is a man of logic, a man of some intelligence, but clearly not. How can you say that the government’s policy is that lawyers should not inform on their clients to police and then introduce legislation that not only allows that but codifies that – puts it into the law – I might add in the context of behaviour that the High Court has already found is wrong and indeed ‘reprehensible conduct’? This is just astounding, and from a government that I am sure prides itself on being pretty politically savvy, pretty across these things, it is really quite bizarre that the government is doing this, that in response to the scandal that was a high-profile lawyer informing on her clients with obviously the full cooperation of Victoria Police the government’s response is to make sure we do it better. That is the thing that astounds me.

I said in my contribution to the substantive debate that there are I am sure many of us who look at these situations and say, ‘Well, the cops got the bad guys, that’s the good thing. Let’s not worry about it.’ But, as the member for Malvern has very eruditely presented, this is a fundamental legal privilege situation, and one of the conventions that have been the bedrock of our legal and political system for centuries is that there is a privilege relationship between the client and the lawyer. The bill obviously extends to areas further than that to include doctor–patient relationships, faith leaders and their parishioners, and potentially journalists and their sources. The very strong difference with journalists and their sources is that a journalist is not meant to be representing that source. When it comes to the lawyer situation, a lawyer is meant to be looking after the interests of their client, and if they are then informing on that client to the prosecution, that is a fundamental breach of the lawyer–client relationship and, as the High Court said, an example of reprehensible conduct.

The other couple of things I would like to pick up from the Assistant Treasurer’s brief comments are that he noted that this legislation with the amendment there we are now debating will make this situation in Victoria the strongest of all the states. With respect, Assistant Treasurer, the other states have not had the problem of the Lawyer X scandal. To suggest that somehow we are now leading the nation when we are the laughing stock of the nation when it comes to the issue of lawyers informing on their clients is just a debacle. And the political commentary that I would like to add for the Assistant Treasurer is just the unfathomable hypocrisy of the cosy relationship that the government has with the Greens. We see the Assistant Treasurer time and time and time again get up in this place and excoriate the Greens on every possible issue, and yet ‘When we need a couple of votes, we’ll do a cosy little deal with them’ – a cosy little deal, even if it allows a continuation of activity that the High Court has indicated is ‘reprehensible conduct’. It is embarrassing for the government, but I cannot let the Greens go unnoticed. They are paragons of virtue and integrity when it suits them, but when the government tickles their tummy they roll over every time and just do exactly what the government wants.

So these amendments, I think, the government stands condemned for. It is an amazing situation to have the government strongly pushing this legislation and now these amendments in the face of opposition from so many organisations. As the member for Malvern said, you do not just have to worry about what the opposition says when you have got the Victorian Bar Council, the Law Institute of Victoria, the Centre for Public Integrity, the High Court – which has ruled very, very clearly 7–0 in this situation – and the Victorian Court of Appeal. To have the government pushing this is just a disgrace and a surprise. So the amendments that we are debating now will go some way perhaps to making a very bad bill slightly better by providing that Supreme Court oversight rather than just having the Chief Commissioner of Police authorising the use of an informant, but that in itself does not make it right. It certainly improves it, but it does not make it right. I am staggered that the government is pursuing this line of inquiry. It is clear that only the government and perhaps Victoria Police are in favour of this, and I think quite rightly various other organisations with no political interest in this other than the interest of the legal system are strongly opposed to it.

I place on record again our support for Victoria Police. We support them in principle, and we will always support the requests of police for more resources and for changes to legislation where appropriate, but it is not a 100 per cent one-way street. The action that was taken in the Lawyer X scandal has rightly been condemned, and to actually have the government bringing forward legislation and now these amendments to legalise that conduct is a very sad day for our legal and political systems. The government I think will come, one day, to rue this legislation.

Meng Heang TAK (Clarinda) (11:39): I am pleased to rise once again to address the house on the Human Source Management Bill 2023. I am glad to see this legislation before us here again today with some further amendments. This bill, as well as multiple pieces of previous legislation, demonstrates the government’s dedication to implementing all of the recommendations made by the Royal Commission into the Management of Police Informants. These recommendations are crucial as they address the core of the Victorian justice system and the manner in which the police utilise informants who have confidentiality obligations. As I have mentioned on several occasions here in this place regarding the justice amendments and the like, lawyer–client privilege is a cornerstone for our legal profession and is vital to maintaining the integrity of our justice system.

As we know, lawyer–client privilege enables clients to have open and honest conversations with their lawyers, knowing that what is discussed will be kept confidential. This privilege also allows lawyers to offer their clients the most effective legal counsel possible. It is a crucial aspect of ensuring that clients can freely and sincerely communicate with their legal representatives, and it promotes trust and faith in the legal profession and in our judicial system. As we have heard, the Royal Commission into the Management of Police Informants uncovered significant historical shortfalls in the criminal justice system. The government has been working to deliver the recommendations of the royal commission to address those shortfalls and to strengthen and restore public confidence in our justice system.

In the progress report tabled in December we heard from the Attorney-General that the government has delivered so far, in full, 23 of the 55 recommendations directed to it. We will see that increase significantly here today with another 25 recommendations. The report also cites that work is well progressed to deliver the recommendation to introduce mandatory reporting requirements for lawyers to report suspected misconduct as well as to progress amendments to the Inquiries Act 2014 to ensure documents subject to public interest immunity claims can be produced to royal commissions. Overall, 63 of the 111 recommendations have been delivered by responsible agencies and significant progress has been made on the remaining recommendations.

As mentioned, some of the recent significant achievements include the establishment of the Office of the Special Investigator and an independent implementation monitor as well as delivering reforms to enhance and strengthen disclosure practice. So again, the government’s commitment here remains clear: we are committed to delivering each of the recommendations directed to us and to supporting the delivery of all of the commission’s recommendations. This important work continues here today with the Human Source Management Bill, ensuring further and final consideration.

I just would like to revisit the bill’s objective, which is to regulate Victoria Police’s registration, use and management of human sources, to provide a clear framework for police to obtain and use information from human sources and to ensure that they are used in an ethical and justifiable manner. The bill sets out the process for the registration, use and management of human sources by providing all necessary powers, responsibilities and decision-making processes to Victoria Police. As we have heard, the bill includes a rigorous registration and oversight framework which is aimed at preventing the events that led to the commission from ever happening again. In the rare circumstance in which Victoria Police may be allowed to consider the registration of a person who has access to privileged information such as a lawyer, they will be subject to multiple stages of independent oversight, with regular reporting to the Attorney-General and to Parliament and will be required to consider legal advice – all of which was not a requirement previously.

I thank members of the other place for their contributions to the bill. The government has worked with all the members there, answering their questions. It heard their concerns, and we see some of the resulting amendments here today. These include a new application process to the Supreme Court for information subject to client legal privilege, division 3A – namely, where Victoria Police intend to register a person with access to legally privileged information as a human source. The police must be authorised from the Supreme Court. If authorised, the extensive system of safeguards will ensure that appropriate scrutiny is applied to police use of the source. Further to this, the amendments include prohibitions on tasking a human source where the information is subject to client legal privilege, meaning that police are prohibited from asking people with access to client legal information to proactively undertake activities that would benefit police – for example, wearing a wire. There is also clarification of the definition of legal privilege, as well as further protections for young people, all of which I am pleased to support here today.

As we have also seen, there has been extensive consultation in the creation of this bill. Key justice stakeholders, including Victoria Police, IBAC, the Public Interest Monitor, the Victorian Inspectorate, Victoria Legal Aid, the Commission for Children and Young People, the police informants royal commission implementation monitor and the Commonwealth Department of Home Affairs, were consulted during the bill’s development. The consultation process was conducted through various channels, including regular meetings of the implementation task force recommended by the commission, and this bill has garnered widespread support among those stakeholders and others.

I just would like to finish by saying that I again express my gratitude to the diligent members of the Victoria Police force for their exceptional efforts in safeguarding our community. The most recent crime statistics are a testament to their hard work, and we have seen a significant decrease in crime rates due to the highly visible and proactive policing efforts across our community, supported by the government’s record investment of $4.5 billion in Victoria Police. I am very proud that this investment is providing Victoria Police with the necessary resources and tools to keep our community safe, including the ability to respond to incidents of family violence and provide better outcomes for those affected by it.

The number and rate of family violence incidents have also decreased, and we are also prioritising the challenge of family violence with a $2.9 billion investment implementing every recommendation of the Royal Commission into Family Violence to reform family violence systems and support victim-survivors while holding perpetrators accountable. We have seen the commitment of this government to delivering the recommendations of both royal commissions, ensuring the safety of Victorians and ensuring trust and confidence in our justice system. This bill marks another crucial step toward that process, and I commend the bill to the house.

Chris CREWTHER (Mornington) (11:48): I rise again to speak on the Human Source Management Bill 2023 with amendments by the Legislative Council. I also rise in support of the comments and speech made by the Shadow Attorney-General and member for Malvern, as the Shadow Parliamentary Secretary for Justice and Corrections, and also the comments and speech made by the member for Gippsland South. This bill, with the amendments, includes a new clause 17A, which is an amendment that ensures that children are accompanied by adults when they are registered or used as human sources and are interacting with police. This bans police from ‘requesting, procuring or inducing’ children to become human sources and prohibits officers from tasking children who are human sources.

This bill still gives police discretion though to register lawyers, journalists, doctors, priests, parliamentarians and judges as human sources, albeit with a higher threshold. There are numerous injurious consequences to allowing lawyers to act as human sources, which have already been discussed at length. As communicated by many legal professionals, this should only be in exceptional circumstances, and we have had organisations such as the Victorian Bar Council, the Law Institute of Victoria and many others outline how potentially dangerous this bill is, even in its current form, to the way our legal and justice system works and indeed the rule of law.

As the member for Malvern mentioned as well, this bill still in its current form will result potentially in situations where people go to jail who should not and people do not go to jail who should. Primarily, there may be irreparable damage to the perception and reality that the individuals involved in criminal or civil proceedings are independent from the prosecution. And there are many consequences to allowing lawyers to act as human sources, which have already been discussed at length. As noted, it undermines our justice system, and as mentioned when I spoke previously on this bill, it essentially frames the trial as a contest between the prosecution – the state’s representative – and the defendant, tipping the scales of justice even more in favour of the state. Clients who go to a lawyer should be able to trust that their communications are kept confidential, that their interests will be promoted by their legal advocate and that the advocate will always disclose to them any conflicts of interest that may compromise the advocate’s ability to freely and fearlessly advocate on their behalf. To sabotage this sacred relationship of trust and to allow cracks in the foundation of the house of justice will surely have an impact on our justice system as a whole because of this piece of legislation.

I know that many lawyers are concerned, including a number of lawyers that I have worked with in the past when I as a lawyer represented clients in criminal law matters before the court. I certainly would be concerned, if I were still working in the future, with this bill as to the client and lawyer relationship that should be there and should be protected. The Legal Profession Uniform Conduct (Barristers) Rules 2015 and the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 – the uniform rules – also provide that barristers and solicitors owe a primary duty to the court and the justice process. They also provide that lawyers and barristers must not disclose client information. Dr Matthew Collins QC, the former president of the Victorian Bar association, said that:

All Australians are entitled to know that, when they seek legal advice, the information they provide to their lawyer will be treated in the strictest confidence.

Of course client legal privilege is not meant to be strictly absolute, and there are circumstances where a lawyer can disclose confidential client communications, particularly if the client threatens the safety of another person and there is a reasonable perception of risk to any person’s safety. In the case of Nicola Gobbo, Ms Gobbo’s communications were not limited to discrete instances where her clients threatened imminent harm. The information that she provided acted in breach of the rules relating to confidentiality, loyalty and acting in the client’s best interests. This legislation with the amendments does now impose a higher threshold of serious and imminent threat to national security, the health or safety of the public or a section of the public or the life of a person or of serious physical harm to a person. Again, though, it is important that we protect the lives of all, and when we are reasonably convinced that lawyer–client privilege should be lifted to save a life, this is permissible. Yet in other circumstances, ones that do not necessarily threaten the lives of others in a substantial way, it is hard to justify. As noted by the member for Malvern, once a lawyer has informed on a client – when they find out that they might harm or kill someone – they stop acting for them.

This bill not only targets the lawyer–client privilege relationship but also other important relationships of trust, subverting journalistic privilege, doctor–patient privilege and religious privilege. A strong journalist–source privilege is essential to the maintenance of an independent press and ultimately to a well-functioning society. A strong priest or pastor and parishioner privilege ensures that all people of faith can trust their faith leaders to carry out their religious obligations, and a strong doctor–patient privilege ensures again that people can trust their doctors. Each of these privileges are rooted in the philosophy that open communication is important to the functioning of society. In the absence of a privilege, such communication will be inhibited and the cost to the legal system, in particular of losing access to privileged information in unexceptional circumstances, is ultimately outweighed by the benefit to society of open communication.

Delving deeper into the Human Source Management Bill and these amendments, we have got, as mentioned before, the important clause 17A, which as mentioned before imposes further protections for children concerning their registration as a source. Clause 15A prohibits police officers from tasking a human source subject to client legal privilege, exception or no exception, with higher thresholds where there is a serious and imminent threat to national security, the health or safety of the public or a section of the public, the life of a person or of serious physical harm to a person, as mentioned before. While I see that these amendments will provide further protections to the relevant parties, I still fear that the bill will give rise to another Lawyer X predicament with the criteria above, specifically the threshold for which a human source can be registered being too broad and encompassing a number of different situations.

I want to emphasise again that this bill, despite the amendments, still gives police discretion to register lawyers, journalists, doctors, priests, parliamentarians and judges as human sources. And as I have previously raised, there are a number of consequences to allowing lawyers to act as human sources, which should only be done in extremely rare circumstances. Primarily I am concerned with the irreparable damage that this legislation would likely do to the perception of the public that those involved in criminal proceedings are independent from the prosecution and are protected by their lawyers.

Ultimately with this bill there could be another circumstance where the leviathan of the state will contest with vulnerable and/or under-resourced citizens. Clients who go to a lawyer should be able to trust that their communications are kept confidential and that their best interests are looked after. Sabotaging this sacred relationship of trust, allowing cracks in the foundation of our justice system, will certainly be a risk with this piece of legislation. So again I join the comments in the speeches made by the member for Malvern and the member for Gippsland South, and I ask that the chamber and fellow parliamentarians note my concerns and the concerns of fellow colleagues about this bill.

Dylan WIGHT (Tarneit) (11:57): I too rise to speak on the amendments to the Human Source Management Bill 2023. Indeed, as previous speakers have suggested and as the Minister for Government Services suggested in his opening remarks, this bill introduces Australia’s most robust human source management framework, indeed the most robust framework of any jurisdiction in this country. In the state of Victoria and indeed in Australia we have royal commissions for a reason. You know, there is an issue that happens in the community, and we go and have a royal commission. So after doing that, and the royal commission making its recommendations, it confuses me why we would then ignore those recommendations. What this piece of legislation does and what the amendments do is acquit 25 recommendations of the Royal Commission into the Management of Police Informants, and it is incredibly appropriate to do so.

This framework means that decisions made by police to register human sources will consider all of the risks and of course provide appropriate levels of oversight as well. What this bill does not do, however, is change a lawyer’s existing obligations to confidentiality, which is an incredibly important aspect of this. What it does do, however, is give Victoria Police a clear framework on what to do when they get highly sensitive information. It puts in place that framework in legislation so they are not just relying on internal policies. In the very rare circumstance in which Victoria Police may be able to consider the registration of a person who has access to privileged information, such as a lawyer, they will be subject to multiple stages of independent oversight, with regular reporting to the Attorney-General and Parliament, and they will be required to consider legal advice.

This is not the first time that we have debated this bill in this place. It obviously got sent to the other place and has come back with amendments. As always, this government has engaged with the crossbench in the other place. It has done so in this case, and as I said, the government has worked with members of the crossbench on the bill to answer some of their incredibly important questions and also to hear their concerns. We listened to these concerns, and as a result a number of amendments have been proposed for the bill. The government introduced amendments adding a further, stricter layer of scrutiny for the very rare and exceptional instances where a lawyer would be used as a human source. Given the recommendations that came out of the royal commission, I think those amendments are incredibly appropriate.

Where Victoria Police intends to register a person with access to legally privileged information as a human source, police must obtain authorisation from the Supreme Court. If authorised, a robust system of safeguards will ensure that appropriate scrutiny is applied to the police’s use of the source. I just thought I would run through the safeguards quickly in some of the time that I have remaining. The safeguards include that a lawyer may only be registered to provide information subject to client privilege for a maximum period of seven days, after which the source registration must be deactivated. There must be satisfaction that registration is necessary to achieve a legitimate law enforcement purpose and is proportionate, and that there is a serious imminent threat to national security, the health or safety of the public or a section of the public, the life of a person or of serious physical harm to a person. There must be consideration by the court of submissions made by the Public Interest Monitor. This process now significantly raises the threshold for what must be satisfied before registering a lawyer as a human source. As we spoke about earlier, it is the highest threshold and has the most robust safeguards of anywhere in this country.

What I would like to do finally is once again acknowledge the work of the Royal Commission into the Management of Police Informants. It is entirely appropriate that we acquit those 25 recommendations made by that royal commission. Indeed these further amendments go even further than those recommendations made by the royal commission, and for that reason I would like to commend this to the house.

Annabelle CLEELAND (Euroa) (12:03): I rise today to speak on the Human Source Management Bill 2023, which we have seen return to the Assembly after some tweaking in the other place. I believe the aim was to improve the contents of this bill and ensure we do not see incidents like those which this piece of legislation is designed to stop ever occurring again, but frustratingly these amendments do not go far enough. I note when this bill was in this place back in February a reasoned amendment was moved by the Shadow Attorney-General and member for Malvern which was unfortunately defeated by the government before the bill was put in front of the Council. This proposed amendment was important to improving the functioning of this legislation. It was clear this bill needed some work, with both the Victorian Bar and the Law Institute of Victoria expressing concern over the contents of the bill off the back of the Royal Commission into the Management of Police Informants.

This bill is designed to implement a framework for the registration, use and management of human sources by Victoria Police, provide for external oversight of Victoria Police’s use of human sources and consequentially amend the Victoria Police Act 2013. The language used in February by Law Institution of Victoria president Tania Wolff was strong:

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

She also outlined how the use of lawyers as sources is contradictory to the trusted role they play in the integrity of our legal system:

We are opposed to the idea that lawyers could ever be used as human sources or that they should covertly inform against their clients. To do so is contrary to a lawyer’s role as an officer of the court and violates many other ethical duties that a lawyer owes to their client.

As outlined by the member for Malvern, when this bill was first presented to the house there was no check against the type of appalling behaviour or, as the High Court called it, ‘reprehensible behaviour’ engaged in by Victoria Police and Nicola Gobbo. Of concern was also the lack of guarantee that a court would allow evidence gathered through the subversion of privileged information to be used, given how strongly this has been denounced by both the High Court of Australia and the Victorian Court of Appeal.

I thank the member for Malvern for his extensive consultation on this bill, which was consistently negative, driving the amendments originally placed before this house. What we see is that the government is set to allow this bill to become legislation and allow for Victoria Police to register a lawyer as a human source and breach the legal privilege owed to a client. The bill in front of us allows this conduct to continue – a fundamental undermining of legal processes. As outlined in the other place, the coalition provided support for a broad range of amendments to improve the functioning of this bill, despite the amendments moved by the coalition with support of certain crossbenchers being defeated.

Providing some broader context to this bill, it is important to remember why this bill is before us, what occurred leading up to today and why further changes were needed. This bill arose following the Royal Commission into the Management of Police Informants, which delivered its final report to the government in November 2020. This royal commission was established in light of the Lawyer X fiasco, something that drew considerable scrutiny and media attention and introduced new concerns over legality and due process. In the Lawyer X situation criminal barrister Nicola Gobbo was used by Victoria Police as a human source to provide information in relation to criminal investigations, including against the interests of her own clients. While being used as a human source, Ms Gobbo gave police information about her own clients, which resulted in several convictions. Her involvement was not disclosed at the time of the trials of her clients either.

The High Court of Australia’s examination of the matter declared that acting as an informer against a client involves fundamental and appalling breaches of the obligations of a barrister and described the actions of Victoria Police as ‘reprehensible conduct’. I do want to add that while the actions of the police in this situation were well below what is expected, I want to thank all our officers for the excellent work they do in keeping our community safe. The fallout from the Lawyer X fiasco led to the overturning of several convictions which had been facilitated through the use of Ms Gobbo as a human source.

In its final report the royal commission recommended the Victorian government implement legislation to regulate the registration, use and management of human sources by Victoria Police and establish an external oversight regime much like what has been put forward in this bill. In total the royal commission made 111 recommendations, with 55 of those directed to the state government. Then Attorney-General Jill Hennessy announced on 30 November 2020 that the government would implement all of these recommendations. While we have seen some of these recommendations introduced and implemented, there is still so much to be done, and this bill falls short in key areas.

Rather than prevent it, this legislation would permit the type of appalling behaviour – the ‘reprehensible conduct’, as the High Court called it – engaged in by Victoria Police and Nicola Gobbo. The bill will provide police enormous power to subvert relationships of trust and confidence, such as between a lawyer and client, a doctor and patient or a faith leader and parishioner. But it is the trust in these well-enshrined relationships that is essential to their success. There already exist provisions in place that allow a lawyer who receives privileged information about a future threat to the safety of a person or persons to report that to authorities. This is not something that requires further codifying.

The bill also gives sweeping powers to the Chief Commissioner of Victoria Police, with effectively no room for appeal. The oversight suggested from the Public Interest Monitor and IBAC is limited to recommendations which the chief commissioner can choose to ignore. The question needs to be asked if a court would even allow evidence gathered through privileged information. Both the High Court of Australia and the Victorian Court of Appeal have already made it very clear where they stand on that matter.

The member for Malvern has attempted to give this government an opportunity to strengthen this bill and protect Victorians’ right to a fair trial. He raised that lawyers should not be used as human sources, yet this bill goes so far as to encourage this practice. If this is the case, this legislation would not even achieve the purpose the government intends. We have also seen an overwhelmingly negative response from the stakeholders who were consulted. Legal professional bodies, journalists, former judges and many more have strongly criticised the bill. The only support seems to be from Victoria Police and the Labor government. While the government has said the bill is consistent with the recommendations of the royal commission, this legislation would instead enshrine and safeguard an appalling practice that has led to several miscarriages of justice, the ramifications of which are still working their way through the courts. Due to the several shortcomings in the legislation, we strongly oppose this bill.

Motion agreed to.

The ACTING SPEAKER (Michaela Settle): A message will now be sent to the Legislative Council informing them of the house’s decision.

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Thursday, 4 May 2023

Human Source Management Bill 2023