Wednesday, 14 August 2024

State Civil Liability (Police Informants) Bill 2024

Second reading

Debate resumed on motion of Anthony Carbines:

That this bill be now read a second time.

Michael O’BRIEN (Malvern) (14:55): I rise to speak on the State Civil Liability (Police Informants) Bill 2024. You can stand up in this place and say that you believe in equality before the law and the rule of law or you can vote for this abomination of a Labor bill – but you cannot do both. It is the role of courts to settle disputes between individual citizens and indeed to settle disputes between individual citizens and the state. This is a judicial function – not a legislative function and not an executive function. Yet this bill before the house seeks to supplant our courts and remove their jurisdiction to settle disputes by proclaiming that a particular class of dispute is now off limits. This is the Labor government seeking to use its political power to take away the rights of individual citizens who have been done wrong by this state and by this state government. For those who claim to have an affinity for the union movement and for standing up for the rights of people who have had power used against them, it is extraordinary that a government that claims to represent those values would bring a bill like this before the Parliament. This is nothing else but the exercise of naked political power at the expense of the rights of other people.

Let us go through the entire sorry saga that has led to this. Nicola Gobbo, former Labor student activist and criminal barrister, was recruited by Victoria Police to act as an informant against her own clients. Not only did Ms Gobbo entirely trash her professional and ethical obligations, but she acted contrary to her obligations as an officer of the court. But the actions of Victoria Police in recruiting somebody they knew to be a barrister, to seek information against her clients to use against those clients, was as the High Court held, reprehensible conduct. This was a very sorry saga which Victoria Police sought to try to keep secret for years and years and years. It was only with the final decision of AB v. CD in 2018 that the High Court put a stop to the charade where Victoria Police had knowingly used a criminal barrister as an informant against her own clients. In a unanimous judgement the High Court said:

Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF –

Gobbo –

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 consequence of this a number of convictions that were secured using the tainted evidence of Gobbo were then quashed. Victoria’s Court of Appeal went on to say in the case of Faruk Orman:

… 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.

Mr Orman served 12 years in prison – 12 years in jail – before his conviction was quashed. The government’s view is that that is a whoopsie. The government’s view is that that was a mistake. ‘We’re super sorry about it, but bad luck. You can’t get compensation. You can’t get recompense.’ He certainly cannot get 12 years of his life back or 12 years of his liberty back. But the government now comes in here with a bill to say, ‘You can’t even receive compensation, because we are going to block you from suing those who did you wrong – those who led for you to be wrongfully convicted and imprisoned for over a decade.’ That is the moral compass of this government – there is not one. It is about the naked exercise of political power and nothing else.

As a consequence of the exposure by the High Court of the disgraceful conduct of Victoria Police and Gobbo a royal commission was held, which found enormous wrongdoing was done. As a consequence of the royal commission there was a two-year investigation by the Office of the Special Investigator, former High Court justice Geoffrey Nettle. A more eminent jurist and a more eminent and respected legal figure you will not find in this country. And yet after two years of investigation, after millions and millions and millions of dollars, after 5000 pages of admissible evidence had been put together and after Justice Nettle’s recommendations that charges be brought because people had perverted the course of justice, what happened? The Labor-appointed Director of Public Prosecutions denied any charges to go forward. The DPP said no – she knew better than a High Court judge who had spent two years gathering 5000 pages of evidence.

The idea that you can have what the High Court called reprehensible conduct and what our own Court of Appeal said was conduct which went to the very foundations of the system of criminal trial and subverted a right to a fair trial and nobody was guilty – really? This government did not want anything to happen, so this government has already squared it away. It has already whitewashed on the criminal side, because there have been no criminal prosecutions. Nobody has been held criminally accountable for the greatest legal scandal in this state’s history. Nobody has been held criminally accountable for the fact that a man spent 12 years in prison when he should not have.

And that was not enough. Having whitewashed the criminal responsibilities of these matters, the government now brings this bill into this house to seek to whitewash the civil aspects of these matters. It will be a grand slam of whitewashing if this bill passes. No charges, no compensation – sweep it under the carpet. Bad luck about those 12 years in jail, Mr Orman – tough luck. This government says, ‘We’re bringing in this bill because we’re very worried about taxpayers.’ I am sorry, the taxpayers who paid $1.3 billion not to build the east–west link. I do not think the government was too worried about taxpayer money then. The government that paid over $600 million to not host the Commonwealth Games –

Danny O’Brien interjected.

Michael O’BRIEN: Same taxpayers, same government. I do not think the government was too worried about taxpayers money then. Now the government says, ‘Up to $45 million could potentially be at risk if these matters were allowed to proceed to trial.’ A government that has set fire to $2 billion of taxpayer money has got no standing to come in here and talk about preserving taxpayer money. I do not believe this is about preserving taxpayers money at all, I believe this is about protecting the government from the embarrassment of what might come out of a trial. That is why I think this bill is before the house. That is what I think is motivating the government: a desperation to avoid peeling off those scabs and further embarrassment for a Labor government that was in government during Lawyer ‍X and has been in government since it has been exposed. It wants it all to go away, and it is prepared to ride roughshod over the rights of individuals in order to do it.

I was just looking at this bill. This government made a great song and dance – and I was in the chamber at the time – in 2006. This government introduced the Charter of Human Rights and Responsibilities Act 2006. They were very keen on saying how important the Charter of Human Rights and Responsibilities Act was and how it was going to protect the rights of Victorians and that all Victorians would be equal before the law. Well, let me take you to clause 6(1) of this bill:

The Charter of Human Rights and Responsibilities Act 2006 has no application to this Act.

A government that trumpets its commitment to human rights through this charter now says, ‘Actually, it’s inconvenient. We know we’re taking away people’s rights, and we don’t give a damn. So let’s just pretend that pesky little charter never applied. Let’s just excise it; let’s just exclude it through clause ‍6.’ What a pack of hypocrites.

I never want to hear any member of the Labor Party come into this place and ever talk about the Charter of Human Rights and Responsibilities, because we all know it is just a convenient ruse for you when you feel like it.

As I said, former Labor student activist Nicola Gobbo – I hold no brief for Nicola Gobbo. I hold no brief for Faruk Orman. In many ways they are not very sympathetic characters, but that is the point of the law. It is the point of the rule of law and equality before the law. It is not about whether I like them or not. It is about the fact that they have rights, and who is this government to come in here and seek to extinguish their rights – to take them away because of a political inconvenience or a financial inconvenience, because that is what it amounts to.

And who says it ends here? If this bill passes, the precedent is established. Any time a Labor government runs into a problem which is politically inconvenient or financially inconvenient, they can just pass a law to take away rights. Relied on the government to do something which the government failed to do? We can legislate, take that away. Suffered childhood sexual abuse in a government school? Well, what is to stop the government stepping in here and taking away your rights too? This is a horrific precedent, and you cannot say it is a one-off, because this is a precedent. It is a precedent because it is, as the Victorian Bar has said, unprecedented. I am quoting from their media release:

Legislation of this kind is unprecedented in this country –

not just Victoria, unprecedented in this country –

and incompatible with the Victorian Charter of Human Rights and Responsibilities Act 2006.

The bar went on to say:

It would also set an extremely disturbing precedent for Parliaments that might in future seek to extinguish people’s rights against the State in other areas if it becomes financially or politically expedient to do so.

So this bill is wrong, but the precedent it sets is devastatingly wrong. I will just put on the record:

The Victorian Bar is fundamentally opposed to the State Civil Liability (Police Informants) Bill 2024 …

What about the Law Institute of Victoria? A media release from Adam Awty, the chief executive of the LIV, states:

… the LIV believes that this fundamentally undermines the rule of law and administration of justice. The State has enormous power over its citizens, and for it to legislate out of liability when the power is wielded improperly is wrong.

So this bill has got no support from the bar and no support from the Law Institute of Victoria. Australian Lawyers Alliance spokesman Greg Barns SC said the bill set a ‘dangerous precedent’. I could go through all the experts, but this government knows in its heart that this is the wrong thing to do, but it does not care. It is a naked exercise of political power to fix a political embarrassment at the expense of the rights of others. That is what it comes down to, and this government should be ashamed of itself for proposing it and ashamed of itself for voting for it. This is not what democracy and the legislature are supposed to be about.

And by the way, it is not our job to take the place of courts. It is the job of courts to decide disputes. It is not for us to say, ‘Sorry, courts, you can’t look at this one because it’s a bit inconvenient for us.’ And by the way, do not expect if this bill passes – and I hope it does not – that this will be the last we hear of it. As sure as eggs is eggs this will wind up in the High Court, and the High Court will have to determine whether it is constitutional for a Labor government, a Labor-dominated legislature, to effectively take over the business of courts and to decide that it will determine who can bring disputes to court and who cannot.

We know this government does not have a very happy track record when it comes to going to the High Court. They went to the High Court trying to stop the Ombudsman from investigating red shirts. It is extraordinary that the government would go all the way to the High Court trying to stop the Ombudsman from doing her job to expose corrupt conduct by Labor members of Parliament.

Danny O’Brien interjected.

Michael O’BRIEN: ‘How did it work out?’ the member for Gippsland South says. Well, funnily enough, the High Court said, ‘Ombudsman, you do your job. Labor government, you get back in your box.’ Then of course the Labor government thought, ‘We could be smart. We’ll put a tax on electric vehicles. We’re super smart. We know better than the High Court, than tax experts, than constitutional experts. We’ll put a tax on electric vehicles.’ How did that work out, member for Gippsland South?

Danny O’Brien: I don’t think that went very well either.

Michael O’BRIEN: No, it did not. It was struck down as being unconstitutional – as being an excise, which state governments do not have the power to impose, which anybody who had actually read the Ha judgement back before 2000 and had bothered to advise the government before they introduced their EV tax could have told them. It was as clear as day. But of course this government in its arrogance thought they would not get called on it, or maybe they hoped they would have federal Labor mates that would have stacked the High Court by then – who knows? But no, they lost in the High Court on that one as well, and now they are going to go for another one. Let us see if they can go three from three. The older this government gets, the more arrogant it gets and the worse it gets.

Danny O’Brien interjected.

Michael O’BRIEN: Well, you would think it is a try-on. I do wonder, member for Gippsland South, whether this is all posturing from the Labor government, because we do know that the Gobbo compensation matter is set to go to trial in September. Maybe the government is simply introducing this in the hope of scaring the plaintiff in that matter and her legal advisers: ‘Well, if you don’t settle with us now and stop this matter ever going to court, maybe we’ll go through with this legislation and you’ll get nothing.’

That is the way this government operates. They do not care about rules and regulations and ethics and procedures; it is about the naked exercise of political power to get what they want. I say this because the government has got a track record; it has got form on this. I remember after Labor was elected in 2014 the then Premier Mr Andrews running around saying, ‘If the east–west link consortium are not nice to us, if they don’t play ball with us, we’ve got legislative options’ – threatening to use legislation to void a contract to avoid paying compensation. That is the way this government works. They try and use political power to bully anyone who gets in their way. They are the political offshoot of the CFMEU. It is about using political thuggery to get their way. So that is where we are. This is an extraordinary piece of legislation, and it reflects very poorly on all who have brought it before this place.

Jack Rush AO KC is a very respected member of the Victorian legal community – he is a very respected member of the Victorian community full stop. He was counsel assisting on the 2009 Victorian Bushfires Royal Commission and did an outstanding job, and I think a lot of Victorians, particularly from country Victoria, have still got a great amount of respect and gratitude towards Jack Rush for all his work there. He is also a very eminent barrister, and at the moment he is acting as counsel for Faruk Orman, the man who was improperly jailed for 12 years as a result of the Lawyer ‍X scandal. I asked Mr Rush what his view on this position is, and he has given me permission to note these comments. He said:

Not only, as stated, does this extraordinary legislation act retrospectively to strike down Orman’s claim, it means the police involved are unaccountable in any way for their “reprehensible” conduct. The effectiveness and proper operations of any disciplined service, whether it be Police or ADF, demands such accountability to ensure compliance with standards and in the end the safety of the community. At law claims such as this are seen as fulfilling that purpose.

The justification of the Government, as best it can be discerned, is something along the lines of “..it is time to put an end to this disgraceful chapter in Victorian policing”. That is no justification for the injustice involved to those who have suffered by removing, retrospectively, a right to be compensated by a court for the damage the police conduct has caused upon proving their case. The precedent set is profound and disturbing. This is not a matter of what one thinks about Orman; respectfully I would contend this legislation could not be supported.

Jack Rush is right. It is not about what you think of Faruk Orman or Nicola Gobbo or the other two cases that are currently on foot or the cases that may come; it is about the principle of the rule of law and equality before the law.

Can anybody else in society pass a law to say, ‘We did the wrong thing, but we’re not going to be held liable for it’? No. Governments should be as equal before the law as citizens are, but the government is saying, ‘We are above the law. We would normally be held accountable; now we’re going to be changing the law so we’re not accountable. Everyone else has to be held to standards under law, but not this Labor government, because we’ve changed the law to make sure we aren’t.’ That is not equality before the law, and it fundamentally undermines the rule of law.

One of my favourite plays and one I studied in year 12, which was many, many years ago, was AMan for All Seasons by Robert Bolt. It chronicles part of the life of Sir Thomas More, and Sir Thomas is the patron saint not only of lawyers but also of politicians. One would say that it may be that lawyers and politicians need patron saints on our side. I would like to quote a little bit of that play, because it is very apt to the bill before us today. Sir Thomas More is having a conversation with his son-in-law William Roper, and they are talking about the importance of the law, and Roper says:

So now you’d give the Devil benefit of law!

Sir Thomas More:

Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper:

I’d cut down every law in England to do that!

Sir Thomas More:

Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

You do not have to like Nicola Gobbo or Faruk Orman or anything they did or did not do, but if this house, this Parliament, passes this bill to take away their rights for the wrongs done to them or the wrongs that a court may find were done to them, then this government is cutting down the laws for its own sake, and once you start doing that there is no going back.

The manner in which this bill has been brought to Parliament is quite extraordinary – to be second-read so the bill is circulated this morning, for debate to be brought on at about 3 o’clock or slightly before, and for it to be on the parliamentary guillotine at 4 o’clock. An unprecedented piece of legislation, in the words of the Victorian Bar – not just unprecedented in Victoria, unprecedented in this nation – is to receive approximately 1 hour and 10 minutes worth of debate. Can anybody opposite actually justify that? You would think when such an extreme measure is proposed to take away people’s rights against the state that it is something that should be discussed and debated and consulted about, but no, again it is being rushed through – a naked exercise of political power to serve the interests of the Labor government. They do not care about the rights they trample on. They do not care about the ethical norms of this place. They simply want to engineer an outcome.

Whatever you think about the actions of people like Gobbo and Orman, they deserve their day in court. Every Victorian deserves their day in court, and especially when your claim is against the state of Victoria – the government, with all its power, with all its resources. An independent judiciary is supposed to be one of the last bastions to help protect the individual citizen against the might and power of the state. What is happening here is the government is saying, ‘We’re going to remove even that. You are entirely exposed to our political power, because it suits our political purposes.’ And that cannot be justified. That is why, as I flagged, I do indicate that this is likely to go to the High Court and, given this government’s track record, it is likely to fail.

The government has said that this is about putting an end to these matters, ruling a line under them. It will not, and I will tell you why it will not: not only because of the appalling precedent this sets but also because last year the Labor government passed legislation that specifically allows lawyers to act as informants against their clients. The Human Source Management Bill 2023 was passed over our strenuous objections because it allowed lawyers to be used as informants against their clients. The government said that there are a couple of safeguards. If the Chief Commissioner of Police wants to use a lawyer to inform on their own client, they have to get some legal advice. Are you serious? Telling the police they need to go and find a lawyer who will tell them ‘Yes, it’s fine. Go and do it’ is enough to be able to keep having lawyers ratting on clients. We know where this ends.

The High Court of Australia has made it clear: you cannot do it. The Court of Appeal has made it clear: you cannot do it. It undermines the right to a fair trial. It does not matter how much the police want it to happen; the courts have said it cannot. Yet this arrogant Labor government continue to ignore what the courts tell them, and they have set up a regime to allow police to continue using lawyers to inform on their clients – Nicola Gobbo all over again. I guarantee that this bill, if it passes, will not put an end to anything. It will not rule a line under anything. It is going to perpetuate bad behaviour and perpetuate injustice all for the political benefit of the Labor Party, and that is disgraceful, absolutely disgraceful.

You come into this place and you hope to make a difference in your community. You hope to make a difference in your state and maybe, through that, you hope to make a difference for your country. I did not come in here to pass laws specific to a handful of people to say, ‘You had the wrong thing happen to you. You’ve been put in jail wrongly, and now we’re going to take away your rights to get compensation.’ That is not why I came into Parliament, to take away the rights of people that have had horrible things done. Can you imagine what it would be like spending 12 years in prison for a crime that the High Court found you should never have been convicted of? Twelve years of your life – imagine that. Imagine the pain that you have endured. There are things that have been lost by some of these people that they will never get back, and now this government wants to take away their one chance to get a little bit of solace, a little bit of fairness, a little bit of equity and a little bit of compensation for the terrible wrongs done to them. This government says, ‘No, you’re politically inconvenient. Things you might say at a trial might be a bit politically embarrassing for us, so we want to pass a law specific just to you to say you aren’t allowed to sue the state government.’ That is not what democracy is about.

I see we are joined by some young people in the gallery. This is Parliament at its worst; this is not what we should be about. We should be standing up and enhancing the rights of Victorians, protecting the rights of Victorians, not taking them away, but that is what this Labor government bill is going to do. The Liberals and Nationals will stand up for Victorians, for their rights, for their principles. We will stand up for equality before the law because governments should have no more rights than any individual in Victoria. We will stand up for the rule of law, because courts and judges should make these sorts of decisions, not politicians. We will stand up for a precedent that says no Victorian should have their rights taken away by a government purely because they are politically inconvenient. This is an appalling bill. It disgraces those who brought it before this chamber, and the Liberals and Nationals are implacably opposed to it.

Nina TAYLOR (Albert Park) (15:25): I am pleased to rise to speak on the State Civil Liability (Police Informants) Bill 2024. As we have heard and as is the case when of course we have the democratic institution of Parliament, each side or the various opinions are allowed to be put forward, as they are very transparently in the chamber, so that those who might be watching in the gallery or through the direct line into Parliament are able to see exactly what is being debated, and that is a very important part of democracy. I feel it is incumbent on me to perhaps clarify the ambit and the purpose of the legislation before us, because I did hear a number of tangents and a number of very large statements, grand statements – and I am not saying that they should not be made either. Again, that is the purpose and the merit of debate, that each side gets to put the various aspects or, as they see fit, to put forward various arguments either for and against – or maybe there is congruence, and we do hope for and do seek congruence as often as we possibly can. It might not always appear that way to those watching us in the chamber, because there are a certain amount of theatrics et cetera. However, I will be very specific when I say that particularly with regard to the subject matter, the very sensitive subject matter, that we are discussing today I think less theatrics and more specifics are perhaps appropriate. But then again it is not for me to define how each person in the chamber presents their particular arguments. That is absolutely at their discretion within the appropriate and balanced behaviour of the chamber.

What I do want to do, though, is come back to the fundamental question: why do we need this bill? The bill is necessary – and I was hearing some different assertions about why it has been put forward; again, democracy says that you can put various assertions to the chamber, but I hope that I can provide some clarity in that regard – to limit the state’s ongoing financial exposure due to Victoria Police’s use of Ms Nicola Gobbo and Mr Joseph Acquaro as human sources. This includes not only the exposure arising from any successful legal claims against the state but also the significant legal costs and public resourcing impacts of managing and responding to current and anticipated litigation. You can see from the way that I have presented those particular elements that no-one is glossing over or in any way resiling from the core tenets of the legislation that is before us here. On the contrary, it is quite precise, and I will note – not that it is perhaps the most important element of the legislation, but it is not unimportant either – that it is a fairly succinct bill, and so in that way in defining the ambit or the purpose we can also be fairly succinct. Hopefully, in that regard, in the discussion we are having here in the chamber, we can be clear about what this actually means for our state of Victoria.

Indeed let me refer to the bill proper and look at the purpose. I am reiterating the point because I just want it to be really clear and well understood. I do not say that to be patronising in any way, shape or form, noting the very sensitive nature of the subject matter that we are discussing here today, but just to be absolutely clear about the purpose of this legislation before us, I quote from the legislation:

The purpose of this Act is to limit the civil liability of the State by extinguishing causes of action in relation to the provision of information and other assistance by specified human sources.

So I hope that that provides some clarity for those opposite as to the actual purpose of the legislation. I did hear some discussion about east–west link and some other matters.

However, for the purposes of this debate I contend that it is appropriate to focus on what the fundamental purpose is of us debating and seeking to pass this legislation in the chamber as we speak. I note that there were some rather emphatic statements about whatever the destiny of this bill may or may not be, but I think for the purposes of here and now – MPs debating and discussing, as we should, as is fit and proper, the legislation before us – it is important that we know the purpose for which this legislation has been put forward to the chamber. It is certainly, I would argue, important legislation, and I have reiterated twice – once more broadly and then actually going to the heart of the legislation itself, so that it is very clear – that no-one is resiling from what the purpose of this legislation is. We are not talking about freeways et cetera; we are talking about the matter before us, the State Civil Liability (Police Informants) Bill 2024.

You might say, ‘Well, you’re being a little bit laborious with that subject matter. I mean, surely it’s clear to the chamber.’ Well, I am not absolutely certain it is, because I did hear a number of tangents being straddled in the previous presentation to the chamber. I am not saying that should not happen, but at the same time, owing to the innate sensitivity of the matters which the bill refers to, I feel it is very important for the betterment of all in this chamber and indeed anyone in the Victorian community who may happen to be tuning in at this point in time – whether it is journalists, whether it is students, whether it is relatives and staffers, whoever it may be, or whether it is in fact the legal profession, who may have a keen interest in the subject matter at hand – that it is very clear exactly what is being transacted and the fundamental purpose that underpins this discussion here in the chamber.

I certainly respect the fact that different sides of the chamber may have a differing perspective on these matters. That is absolutely to be respected, and it is certainly an inherent element of democracy that different points of view can be debated within the chamber. That being said, I would contend that the government is being very clear and very up-front under the circumstances with regard to the purpose for which this legislation is being brought forward and why it is being brought forward in the manner in which it is here in the chamber. As we debate these important matters, noting that this is right and proper under the circumstances – certainly the purpose for which this legislation has been brought forward is for the greater good; I would like to say for the greater good of Victoria and the Victorian community – there is a sound and well-reasoned rationale behind the particular legislation that we are debating here in the chamber at this point in time. Noting the history and the sensitivity of the subject matter at hand, none of this has been taken lightly, not by even the remotest possibility. On the contrary, there is absolute respect for being absolutely prudent but also very transactionally correct and transparent with the legislation that we are debating here as we speak in the chamber at this point in time. It has certainly been my goal to be absolutely clear and to clarify the ambit of the legislation and the purpose which underpins it being discussed in the chamber here today and not take some of the other interesting tangents that were explored along the way, whether they be freeways or otherwise, but actually have regard to the bill proper before us in the chamber.

Danny O’BRIEN (Gippsland South) (15:35): I think I said in the debate on the Human Source Management Bill 2023 last year that this was putting to bed the sorry saga of the Lawyer X scandal. Sadly, I was wrong, because here we are again addressing an issue that has brought great shame on the state of Victoria and, sadly, on Victoria Police, who I have the utmost respect for in every other sense. Now we have this extraordinary piece of legislation, and you can tell by the number of speakers, the time allocated for speaking on this legislation and the lack of interjections by those opposite that this government’s heart is not in this bill at all. This government is very embarrassed about this, as it should be. The government is introducing this legislation to take away people’s rights before the courts. I quote from the Attorney-General’s press release, which says:

… the Bill will protect taxpayers from further costs associated with this appalling chapter of police informant misuse.

I could sum up my response to this bill and possibly that of many of us on this side as: now you care about taxpayers dollars. It is extraordinary that the government is now introducing this virtually unprecedented legislation on the basis that it cares about saving taxpayers dollars. We have seen 10 ‍years of complete disrespect for taxpayers and their dollars time and time and time again, whether it is the issues that the member for Malvern highlighted – the $1.3 billion spent to not build a road, the east–west link; the $600 million so far that it has cost this government not to hold the Commonwealth Games; or the $40 billion in cost overruns on the Big Build projects, in part thanks to the government’s friends in the CFMEU. I mean, it is simply extraordinary now for the government to say, ‘We care about taxpayers dollars, and as a result we’re going to introduce legislation that removes the legal rights of a certain class of citizen irrespective of what the background of those citizens might be.’

Those of us on this side believe in the principle of equality before the law, and it is very clear that this government have decided to try and put to bed a political issue. I actually think they will not do that anyway. Despite the headline of the Attorney-General’s media release about drawing a line under the royal commission into police informant spending, the very clear likelihood, as evidenced also by the briefing provided by the government, is that this will end up in the High Court as well and quite possibly will be struck out.

As the member for Malvern has also indicated, it is likely to happen again because the government not only is trying to draw a line under the Lawyer X scandal but also has actually legislated to allow it to happen again – to allow conduct to occur again that the High Court described as ‘reprehensible’. And yet the government sits there and says, ‘Oh, we’re going to draw a line under it.’ This is an extraordinary piece of legislation, so it is no surprise that this legislation is friendless at the moment – that the Australian Lawyers Alliance is opposed to it, that the Law Institute of Victoria is opposed to it and that the Victorian Bar has indicated it is ‘unprecedented in this country’, let alone in Victoria. It is quite extraordinary that the government is going to these ends.

As the member for Malvern indicated, some of the people involved in this scandal are not people that we necessarily would be usually supporting. I think I said in the Human Source Management Bill discussion that there will be some people in the public who will say, ‘Well, whatever means to put the crooks behind bars; whatever means it takes for the police to do that.’ They might also be thinking the same with this: ‘Ah well, they were crooks. They were part of the criminal underworld, and so they shouldn’t have any rights to sue the state.’ To that I say to the public and to the government: imagine it was you. Imagine you had been convicted and spent 12 years in jail for a crime that the High Court said you should never have been convicted of, and now, having spent that time in jail, you have no recompense because the Parliament of Victoria has passed legislation to specifically preclude you and anyone else in the same circumstances, involving just two people, from taking action against the government. That is a misuse of state power, and that is a fundamental breach of the democratic norms that we have in this state and the right to a fair go in particular in Australia.

I want to go to in particular the hypocrisy that this bill reveals in this government, because they are saying, ‘This is costing us too much, it’s inconvenient and so we need to remove people’s rights,’ yet we saw this government sit idly by for 10 years while green activists took legal action after legal action against VicForests. The Labor government failed to act on that, and not only failed to act on it when it could have done so but actually agreed and legislated to shut down the sustainable native timber industry in the face of lawfare. I go to that point because when we asked the former Premier Mr Andrews about this last year, I asked him why he would not act to codify aspects of the timber harvesting model, and the Premier then said, ‘We have got Victorian government solicitor advice, senior counsel advice, that we cannot do so.’ He said it was not legally certain or legally safe. We have already been told that this is not legally certain or safe and that it is more than likely to end up going to the High Court. When I asked the former Premier ‘Will you provide that legal advice to the public?’, because timber workers were saying ‘Well, you could have done something; you could have legislated the timber harvesting situation to ensure that that industry could continue in the face of legal threats,’ he said, ‘No. We will not provide that advice.’ So on the one hand the government failed to support for 10 long years a sustainable, job-creating industry in regional areas when it could have acted to provide some certainty in the face of legal challenges, and on the other hand we have the government shutting down something completely embarrassing to this government simply for political purposes. The hypocrisy is just astounding in this.

I am extremely concerned at the actions of this government in this legislation. I think it is extraordinarily misleading that the government’s line in this, the quote from the Attorney-General in her media release, is that:

We haven’t shied away from confronting the difficult truths that arose from the Royal Commission.

Yes, they are. They are shying away within this legislation. They are shutting down any legal opportunity for those affected by this. It is exactly what the government is doing. They are shying away – that is what this legislation is all about.

As the member for Malvern highlighted, the aspects of this legislation that are in contravention of the charter of human rights just beggar belief. From the lecturing that we heard – I was not here at the time, member for Malvern, but I do remember the former Attorney-General going on about it. Mr Hulls went on for decades about the importance of the Charter of Human Rights and Responsibilities. When it does not suit the Labor Party, they just dump it. They absolutely just dump it, to the extent that the second-reading speech from the minister says:

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

What is exceptional about that? Those things happen all the time. This is just a crock from this government. The government does not have its heart in it. I have not had a single interjection and the member for Malvern did not have a single interjection because those opposite clearly are embarrassed about this legislation, as they should be. They should be embarrassed about this.

I know we are going to hear from the Greens shortly on this legislation. I strongly urge them also to oppose this legislation. The Liberals and Nationals will be opposing this legislation. I urge those in the other place to also oppose this legislation. It is undemocratic, and it should not pass this Parliament.

Tim READ (Brunswick) (15:45): I am sorry if the member for Gippsland South is feeling a little left out with the lack of interjections; we will have to lift our game next time. But I do agree with the member for Gippsland South that this bill does appear somewhat friendless. This bill, which popped up unannounced this week, will stop people from suing for compensation for damages arising from Victoria Police’s use of the lawyers Joseph ‘Pino’ Acquaro and Nicola Gobbo as informants, and in doing so it removes the final means of holding police accountable for their actions. No police officer is likely to be charged for what Chief Commissioner of Police Shane Patton called ‘a profound failure by our organisation’. After the DPP’s decision that police would not be charged and the disbanding of the Office of the Special Investigator, there really is no other remaining mechanism which will hold police accountable for what happened. This is not the only time, unfortunately, where we have seen a failure to address police misbehaviour. Most complaints made to the Independent Broad-based Anti-corruption Commission, or IBAC, about police are referred back to police to investigate, with IBAC itself only able to investigate around 2 per cent of those complaints. IBAC itself has raised concerns about its ability and its resources to oversee police conduct. This government has promised to overhaul police oversight, but this appears to have stalled.

While we wait for a better mechanism of police oversight – and just on that, I might note that some jurisdictions have a fully independent police ombudsman, which if appropriately resourced may be the best solution to problems of this nature. But while we wait for something like that, it is reasonable to ask if litigation is actually a useful accountability mechanism when applied to police actions. In many cases it is not, because of the difficulty of obtaining evidence and because many potential plaintiffs, and likely deserving plaintiffs, lack the funds to proceed with litigation. For those cases affected by this bill, the Royal Commission into the Management of Police Informants has done much of the work, and at least some of those affected have access to funds and lawyers. So why should we deny those affected the opportunity to expose more about how police exploited their choice of legal representation? Another way to look at this is to ask if Parliament should extinguish any right to sue the state for systemic harmful and illegal actions. Hypothetically, what if people were injured because, say, a hospital knowingly allowed a harmful practice to continue? Fear of litigation acts to protect Victorians from malpractice in many different environments. It may not be ideal, but I struggle to see the difference, or an important difference, between extinguishing the right for litigation in this case compared to any number of other scenarios of malpractice by government departments or agencies. If we do not remove the right to sue in other cases, what is different about this one?

I am sympathetic to the government’s desire to avoid expensive payouts when scarce funds should be spent on more urgently needed social and environmental projects, but since the Victorian Auditor-General found that $2 billion was spent on additional police for no apparent reason or positive benefit, I can only agree with advice from the community legal sector that police are well funded and should pay for the consequences of their actions out of their police funding allocation. The royal commission into the Lawyer X affair found that the convictions of over a thousand people – I think it was 1011 – may have been affected because police used Gobbo as an informant. Rather than denying them access to the courts to seek redress, the Greens would be prepared to consider, for example, caps in compensation payments. The government argued in a briefing to non-government MPs that this may not be constitutional, but if that is the case, then I cannot see how this bill is constitutional. Perhaps we should look at other ways to make the process fairer and cheaper for the state, as ad hoc litigation can accumulate costs and some very large payouts, and a common way to approach a situation where you have, say, a thousand people affected would be to consider a compensation scheme.

Money and funding aside, I cannot help but wonder to what extent the motivation behind this bill is to protect police from further adverse publicity. It is hard to find a greater example of the cognitive dissonance of a government that is now making complex policy decisions entirely based on politics and polling than the paradoxical positions of the two justice bills, one in each house of the Parliament this week. As I said earlier today, this bill protects grown-up police from the consequences of their actions while the Premier just yesterday was saying children need to grow up and understand the consequences of theirs.

Unless we see something like an independent police ombudsman, such as is available in Northern Ireland – the Northern Ireland model is held up as an example of best practice – it is hard to see how we can get an alternative to litigation as a way of holding the police accountable for their actions, and for that reason the Greens are not in a position to support this bill.

Jess WILSON (Kew) (15:51): I too rise to speak on the State Civil Liability (Police Informants) Bill 2024, and can I start by thanking the member for Malvern for his contribution in this place and for outlining so clearly why the opposition, the Liberals and the Nationals, vehemently oppose this piece of legislation. It is good to hear that we will be joined by the Greens in opposing this piece of legislation as well.

It is an extraordinary abuse of power to bring this piece of legislation before the Parliament, but to do so in such a rushed and, I quote, urgent manner is even more concerning. To have 1 hour to debate a piece of legislation that will limit the rights of Victorian citizens in terms of how they can approach justice in this state is extraordinary, but unfortunately it is simply not surprising coming from this Labor government, this arrogant government. I think it speaks volumes that we are only going to hear from one member of the government on this piece of legislation this afternoon. Unfortunately, the member for Albert Park drew the short straw, as usual, and had to speak and put on the record outrageous positions on behalf of this government in terms of limiting the rights of Victorian citizens. The piece of legislation before us seeks to use extraordinary powers of the state to shield itself from the damage caused by its own actions. It is both retrospective in nature and unprecedented, and to have only 1 hour to debate it before it is guillotined off this afternoon speaks volumes to the level of embarrassment this government must have in bringing a piece of legislation before this Parliament.

This government time and time again tries to silence its own citizens in terms of the concerns that they have with the approach this government takes and the mess this government finds itself in time and time again. This government is bringing forward legislation this afternoon that completely undermines the rule of law in this state. It completely undermines the idea of equality before the law and suggests that the government itself should be above the law. The opposition this afternoon, as the member for Malvern rightly outlined, is taking a much-needed principled approach to this bill, saying that no government can be above the law and no government can try to silence its critics by using the parliamentary process to ensure that they cannot take action in the courts to find justice in an event where the government has created the mess itself.

As has been spoken to today, no-one necessarily likes or agrees with the people in question named in this bill, Nicola Gobbo and Faruk Orman. They may not be people that we agree with or that we wish to see supported in any way. But they have a right to bring these claims in the courts. In the case of Mr Orman, his conviction for murder has been squashed as a result of the Lawyer X scandal. The fact that his lawyer was also a police informant goes against the very foundations of our system of justice in this state, the very rule of law that we all come into this place to uphold. This piece of legislation is designed to protect the state from compensation claims from Nicola Gobbo and Faruk Orman. This is something that the Attorney-General has described as ‘a dark chapter’ in the state’s history, yet last year in this place the government brought forward the Human Source Management Bill 2023, which sought to in fact put in place a model in which lawyers can continue to be police informants on their clients. So on the one hand we have the Attorney-General saying this is a dark day for Victoria and we need to put an end to this dark chapter, but on the other hand we have actually seen legislation pass through this Parliament, under this government, that allows it to happen time and time again. This is conduct that the High Court has called ‘reprehensible’, and the Victorian Court of Appeal found that:

Ms Gobbo’s conduct … subverted Mr Orman’s right to a fair trial, and went to the very foundations of the system of a criminal trial. There was, accordingly, a substantial miscarriage of justice.

We saw that a royal commission was conducted – a multimillion-dollar royal commission – and a two-year investigation by the Office of the Special Investigator, and of course coming out of that the former High Court Justice Geoffrey Nettle attempted to prosecute a number of people over the criminal conduct in the Lawyer X scandal but was thwarted at every opportunity thanks to the Labor-appointed DPP. We have seen a royal commission that cost millions of dollars. We have seen another two-year investigation. We have seen legislation come to this place that is in fact contrary to the advice of that royal commission and the findings of our highest courts – the Court of Appeal here in Victoria and the High Court – which found it to be reprehensible conduct, yet we now have a situation where the state is trying to legislate its liability away under the Lawyer X scandal.

As the member for Malvern has said, this is a friendless piece of legislation. We have heard from various bodies, including the Law Institute of Victoria, which has said:

… the LIV believes that this fundamentally undermines the rule of law and administration of justice.

The state has enormous power over its citizens, and for it to legislate out of liability when the power is wielded improperly is wrong.

Nothing could be closer to the truth. The state must allow for this to continue. This is not something that has happened overnight – this ‘urgent’ piece of legislation that has come before the Parliament today and must be rushed through and debated for only an hour. These issues have been in question for years. These court proceedings have been in question for years, yet as we get closer to the trial date the government comes in here and tries to limit the liability of these parties. It goes against the very system of justice and democracy in this country and undermines the rule of law that we as members of Parliament are meant to come in here and uphold.

This is an extraordinary abuse of power by this government. We know that they are trying to limit their liability because they are concerned about the cost of what that liability may be at the end of the day. We know that this government cannot manage money, but the result of that cannot be limiting the rights of their citizens and undermining the rule of law at every single opportunity. I do not think it comes as any surprise to any of us on this side of the chamber that this government would approach this bill in this way, but it simply defies the very foundations of our parliamentary system and our legal system to introduce a bill like this to limit the liability of their citizens and to put in place limitations on how citizens can approach justice in this state. We as the opposition oppose this bill and call on others to do so.

The DEPUTY SPEAKER: The time set down for consideration of the State Civil Liability (Police Informants) Bill 2024 has arrived, and I am required to interrupt business.

Assembly divided on motion:

Ayes (50): Juliana Addison, Colin Brooks, Josh Bull, Anthony Carbines, Ben Carroll, Darren Cheeseman, Anthony Cianflone, Sarah Connolly, Chris Couzens, Jordan Crugnale, Lily D’Ambrosio, Daniela De Martino, Steve Dimopoulos, Paul Edbrooke, Matt Fregon, Ella George, Katie Hall, Paul Hamer, Martha Haylett, Mathew Hilakari, Melissa Horne, Natalie Hutchins, Lauren Kathage, Sonya Kilkenny, Nathan Lambert, Gary Maas, Alison Marchant, Kathleen Matthews-Ward, Steve McGhie, Paul Mercurio, John Mullahy, Tim Pallas, Danny Pearson, Pauline Richards, Tim Richardson, Michaela Settle, Ros Spence, Nick Staikos, Natalie Suleyman, Meng Heang Tak, Jackson Taylor, Nina Taylor, Kat Theophanous, Mary-Anne Thomas, Emma Vulin, Iwan Walters, Vicki Ward, Dylan Wight, Gabrielle Williams, Belinda Wilson

Noes (29): Brad Battin, Jade Benham, Roma Britnell, Tim Bull, Martin Cameron, Chris Crewther, Gabrielle de Vietri, Wayne Farnham, Sam Groth, Matthew Guy, Sam Hibbins, David Hodgett, Emma Kealy, Tim McCurdy, Cindy McLeish, Danny O’Brien, Michael O’Brien, Kim O’Keeffe, John Pesutto, Tim Read, Richard Riordan, Brad Rowswell, Ellen Sandell, David Southwick, Bill Tilley, Bridget Vallence, Kim Wells, Nicole Werner, Jess Wilson

Motion agreed to.

Read second time.

Third reading

Assembly divided on motion:

Ayes (50): Juliana Addison, Colin Brooks, Josh Bull, Anthony Carbines, Ben Carroll, Darren Cheeseman, Anthony Cianflone, Sarah Connolly, Chris Couzens, Jordan Crugnale, Lily D’Ambrosio, Daniela De Martino, Steve Dimopoulos, Paul Edbrooke, Matt Fregon, Ella George, Katie Hall, Paul Hamer, Martha Haylett, Mathew Hilakari, Melissa Horne, Natalie Hutchins, Lauren Kathage, Sonya Kilkenny, Nathan Lambert, Gary Maas, Alison Marchant, Kathleen Matthews-Ward, Steve McGhie, Paul Mercurio, John Mullahy, Tim Pallas, Danny Pearson, Pauline Richards, Tim Richardson, Michaela Settle, Ros Spence, Nick Staikos, Natalie Suleyman, Meng Heang Tak, Jackson Taylor, Nina Taylor, Kat Theophanous, Mary-Anne Thomas, Emma Vulin, Iwan Walters, Vicki Ward, Dylan Wight, Gabrielle Williams, Belinda Wilson

Noes (29): Brad Battin, Jade Benham, Roma Britnell, Tim Bull, Martin Cameron, Chris Crewther, Gabrielle de Vietri, Wayne Farnham, Sam Groth, Matthew Guy, Sam Hibbins, David Hodgett, Emma Kealy, Tim McCurdy, Cindy McLeish, Danny O’Brien, Michael O’Brien, Kim O’Keeffe, John Pesutto, Tim Read, Richard Riordan, Brad Rowswell, Ellen Sandell, David Southwick, Bill Tilley, Bridget Vallence, Kim Wells, Nicole Werner, Jess Wilson

Motion agreed to.

Read third time.

The SPEAKER: The bill will now be sent to the Legislative Council and their agreement requested.

At the end of question time the Leader of the Opposition required that the Minister for Tourism, Sport and Major Events withdraw. I ask the minister to withdraw.

Steve Dimopoulos: I withdraw.

Business interrupted under sessional orders.