Thursday, 2 November 2023

Bills

Special Investigator Repeal Bill 2023

Second reading

Debate resumed on motion of Jaclyn Symes:

That the bill be now read a second time.

Evan MULHOLLAND (Northern Metropolitan) (09:59): I am actually pretty loath to get up to speak to this bill, because it is a shameful bill. It is an absolutely shameful bill. Members of the government should be hanging their heads in shame because of this sorry saga and because of this absolutely shameful bill. It represents Labor’s attempts to sweep the Lawyer X scandal under the carpet. I want to start by thanking my colleague Michael O’Brien, the Shadow Attorney-General in the other place, for the work he has done over the years on this matter.

The Lawyer X scandal is a stain on Victoria’s legal system. The Lawyer X scandal was a decision by Victoria Police to use Nicola Gobbo, a criminal barrister, to inform against her own clients and help secure special convictions. It was an appalling decision by Victoria Police and demonstrated an appalling lack of judgement. It betrayed the fundamental principles of our criminal justice system. In an adversarial legal system it is important for these two sides, the Crown and the defendant, to be separated. The system cannot work if the defendant’s lawyer is acting in the interests of the prosecution. People need to know that their lawyer is on their side. The actions of Nicola Gobbo betrayed the interests of her clients and the principles of our legal system.

Victoria Police tried to stop this coming to light. It did, because there was an IBAC investigation conducted by former Supreme Court judge Murray Kellam. He reviewed Victoria Police’s human source management and found there was a high degree of negligence by Victoria Police in its management of human sources. Having conducted the review, IBAC advised the Director of Public Prosecutions of this. The DPP formed the view that Victoria Police should let some of those convicted on their barrister’s secret evidence know. Victoria Police spent millions of dollars on suppression orders to stop journalists uncovering this scandal. I am a strong believer in media freedom and transparency, and to see the lengths that they went to in order to shut journalists up, stop them and use taxpayers money through the legal system to stop this ever getting out was also quite shameful. Eventually it ended up in the High Court, and a unanimous judgement was handed down on 5 November 2018. According to the High Court:

EF’s actions –

Nicola Gobbo’s pseudonym –

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.

This is a damning indictment of Victoria Police and Nicola Gobbo. It led to the convictions being quashed and overturned. Not only were Victoria Police’s actions unethical and reckless, but they did not achieve the intended results, because people have now walked free from jail because they were convicted on tainted evidence. One example of this, where a person who had been convicted by Gobbo’s evidence was appealing, is Faruk Orman v. The Queen. A statement by the Court of Appeal of Victoria says:

The Director 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.

It goes on to say:

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.

Faruk Orman walked free. Tony Mokbel is seeking to use what happened in this scandal to get freed. How many serious crooks will be released into the community because of this scandal?

Following this shameful scandal this government was forced into announcing a royal commission. Initially it made a misstep and appointed former South Australian police commissioner Malcolm Hyde, who worked for Victoria Police during the same period Gobbo had been working as a paid informant. The commission continued with former Queensland Court of Appeal president Margaret McMurdo AC, and its recommendations were handed down on 30 November 2020.

One of its recommendations was that Victoria develop legislation to establish a Special Investigator within 12 months, with the necessary powers and resources to investigate if there was sufficient evidence to establish criminal offences conducted with Victoria Police’s use of Ms Gobbo as a human source for current and former police officers named in the royal commission’s final report or incomplete and unredacted submissions of counsel assisting. In October 2021 the Parliament passed the Special Investigator Act 2021. The government appointed former High Court justice Geoffrey Nettle AC KC as Special Investigator. Justice Nettle is one of the most eminent legal figures in this country – a great choice. The Office of the Special Investigator, the OSI, was given significant budget and powers.

The OSI developed multiple briefs of evidence. One example has over 5000 pages of admissible evidence, hours of audio recordings and multiple witness testimonies pointing to crimes that have been committed. However, the government set up the OSI such that it was unable to bring charges itself, despite the fact that other far more mundane organisations can bring charges, such as WorkSafe and even local councils. The OSI had to provide briefs to the DPP. The problem with this is that the DPP and the Office of Public Prosecutions have an inherent conflict of interest, whether it be perceived or actual. The OPP and Victoria Police work together closely on criminal matters daily. It was not appropriate that the DPP, who work so closely with Victoria Police, should be deciding if charges should be brought against Victoria Police. Despite thousands upon thousands of pages of evidence, the DPP decided not to bring any charges. It just simply is not a good look. It is unfortunate that the government put the DPP in this position.

The OSI tabled a special report in Parliament last year. Justice Nettle, who as I was mentioning is one of the most eminent legal figures in Australia, explained how he was blocked at every turn to see charges brought. There are many excuses the DPP appears to have for not bringing charges, including in relation to the passage of time. It appears that the DPP believes that there should be no accountability for the conduct of those involved in the Lawyer X scandal. This is despite the fact there is no statute of limitations for criminal matters. In conclusion, Justice Nettle said that the OSI should be wound up because there is essentially a nil chance of the DPP approving any of the briefs of evidence. Again, millions of dollars have been spent, there are thousands upon thousands of pages, audio recordings and evidence, and the DPP says, ‘Oh, it was too long ago.’ That is not an excuse; it is not a legal excuse. It is a disgrace that after years of work, thousands of pages of evidence and millions of dollars of public money the government basically said that nobody did anything wrong and ‘Move along’. As reported by the Age:

Former Supreme Court judge Stephen Charles, along with a former top prosecutor and a veteran defence barrister –

Gavin Silbert KC –

… expressed dismay and confusion over the decision of DPP … not to bring charges …

as recommended by Nettle. Charles said:

The failure to start the prosecutions recommended by Justice Nettle is an open invitation to the police to repeat their appalling misbehaviour.

Gavin Silbert KC said:

Gobbo offered to plead guilty and give evidence now. What more do you need than that?

This DPP will not even take a guilty plea at its worth.

The government wants to sweep it under the carpet and pretend that nothing happened. The former Premier Mr Andrews has a sordid history of smearing eminent individuals in our community. I think we all know that to be the case; even those opposite would probably admit that privately. My colleague Michael O’Brien has spoken at length about Mr Andrews’s disgraceful treatment of Robert Redlich. Unfortunately, it does not end there. He attacked Geoffrey Nettle, a former High Court judge, who was the Special Investigator. Mr Andrews said:

Investigators don’t make good prosecutors … There needs to be a separation. If you have investigated the matter, you are altogether too close to it to be making decisions about whether a conviction is likely.

It is Mr Andrews that set the OSI up, in a way. You have got organisations like WorkSafe and local councils that can put together a brief of evidence and bring charges, yet –

Melina Bath interjected.

Evan MULHOLLAND: Exactly. He is saying that a former High Court judge is wrong. Apparently the former Premier’s legal expertise surpasses Nettle’s. Who knew?

In response there was an open letter signed by around 30 senior Victorian barristers. An excerpt from the statement reads:

… these statements published in The Age ought never to have been made in respect of such a distinguished and well respected jurist as Mr Nettle. They ought to be retracted and a public apology published.

And:

… they are misguided, wrong and inappropriate.

‘Misguided, wrong and inappropriate’ – interesting words. It basically sums up the Lawyer X scandal. The government really believes that after a High Court case, a royal commission, setting up an OSI, years of investigation and thousands of pages of documented evidence, audiotapes and videotapes, the answer is it all goes away, nothing is supposed to happen. Seriously, this is a massive slap in the face to Victorians who believe that we have a justice system that works. It is a massive slap in the face for Victorians who believe they are all equal under the law. There is no equality before the law here. If you are mates with Labor, if the government wants to keep you onside, they are not going to push too hard. That is the reality. This is the greatest legal scandal in the state’s history, and the government’s response is basically that nobody is accountable. Nobody pays the price except for Victorians, with the millions of dollars of taxpayer money, legal fees to chase this to the High Court, a High Court decision, a royal commission, setting up an OSI, bringing thousands of pages in evidence, audiotapes, videotapes, everything else, to have a respected former High Court justice like Nettle say –

Melina Bath: Nothing to see here.

Evan MULHOLLAND: nothing to see here. The government could have allowed the OSI at any point in time, including right now today, to press charges. Why have the DPP do it? Clearly they have shown they are not up to it. The passage of time is too far for the greatest scandal in the state’s legal history. That is just not an excuse, and it is typical of this government. They make the mistakes, and it is Victorians that pay the price – or even worse, they intentionally make Victorians pay for their mates. Public confidence in the justice system must be assured and is at stake. We oppose this bill strongly, very strongly. To that end I ask that a reasoned amendment in my name be circulated. I move:

That all the words after ‘That’ be omitted and replaced with the words ‘this bill be withdrawn and instead the government puts in place measures to ensure that those responsible for the Lawyer X scandal are held to account.’.

There has got to be some accountability here. How can the government just wash its hands of the greatest scandal in Victorian legal history? You have had a High Court case. You have had a royal commission which recommended the OSI be set up. You have had the OSI set up, millions of dollars spent, millions of taxpayer money. You have had over 5000 pages of evidence, audiotapes, videotapes. You have even had Ms Gobbo saying that she would plead guilty and cooperate. But the DPP, who does work with Victoria Police every day, says, ‘Oh no, there’s not enough. The passage of time is too much.’ It is absolutely shameful, and this government just washes its hands of it.

Melina Bath: It’s convenience.

Evan MULHOLLAND: It is convenient. It is convenient to protect their mates. I think that it is not appropriate for the government to wash its hands of this state’s and possibly this country’s greatest legal scandal. We strongly oppose this bill.

Sonja TERPSTRA (North-Eastern Metropolitan) (10:19): I rise to make a contribution on this bill, the Special Investigator Repeal Bill 2023. It is a bill that by way of background is an important bill, but it brings I guess you could say a full stop to a period of history that related to the Lawyer X investigation and police informants. If you look at the history of this issue, the Office of the Special Investigator was established as a result of the Royal Commission into the Management of Police Informants to carry out and deal with all of the recommendations that came from the royal commission, and principally the OSI has done its work. Effectively, this bill is about repealing that office, but also whilst it is repealing that office, the functions of the OSI are being handed over to the state. I will go through that in a bit more detail, but that is effectively it in a nutshell. The bill implements the government’s decision and commitment to decommission the Office of the Special Investigator, and the bill will do all things necessary to wind up the OSI and provide for the continuation of critical protections and oversight and make a range of consequential changes to accommodate the repeal. The government publicly announced that the OSI would be decommissioned on 27 June 2023, following the tabling of a special report in Parliament by the former Special Investigator Geoffrey Nettle on 21 June 2023, which recommended that the OSI be wound up.

The OSI was established as a result of the royal commission, but it was established by the Special Investigator Act 2021, as recommended by the royal commission, to investigate potential criminal conduct and disciplinary breaches in relation to the Lawyer X matter. Where the OSI determines relevant offences may have been committed, its role extends to compiling briefs of evidence to be filed alongside recommended changes for determination by the Victorian Director of Public Prosecutions. The OSI has carried out its work in line with the commission’s recommendations, and the royal commission implementation monitor, who was appointed to oversee the implementation of the recommendations, is satisfied that all recommendations relating to the OSI have been acquitted and supports the decommissioning of this office. So you can see that is the scope of and the background to this bill and why it is a necessary bill. We have taken the advice and followed the recommendations of the royal commission, so despite what might be put in contributions by members in this place today, despite them saying there is nothing to see here, there literally is nothing to see here in the context of the recommendations having been acquitted, and the advice to government is to decommission the OSI.

In terms of this bill, the bill will make changes to wind up the OSI and remove the statutory role of the Special Investigator. It will importantly transfer all rights, assets, liabilities and obligations formerly of the OSI to the state, preserve protections for OSI records and former OSI officers, continue oversight arrangements to enable the investigation and finalisation of any residual complaints following the decommissioning and repeal a range of amendments made to various other acts by the Special Investigator Act. As I said, it is putting a full stop at the end of a period of time in history which dealt with a particular matter.

Just by way of history and further background, the royal commission reviewed the Lawyer X matter and the government committed to implementing all the recommendations, as I said, and the royal commission was established in December 2018 to investigate matters that go to the heart of Victoria’s justice system and how police use informants with confidentiality obligations. As we know, one of the informants turned out to be Lawyer X, so it specifically went to issues around the use of lawyers as informants. The commission’s extensive and detailed inquiry uncovered significant historical shortfalls in the criminal justice system, and government committed to address those shortfalls to ensure that this could never happen again. Government has followed through on this commitment, and the OSI, completing its work in line with the commission’s recommendations, is a key part of that, adding to significant work already undertaken by government. The work includes the implementation of a wide range of changes, including to Victoria’s police practice, policy, structure and culture in the use of human sources.

The government has made key changes to Victoria’s disclosure regime in criminal proceedings in the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Act 2022, and work is currently underway to implement the Human Source Management Act 2023, which passed Parliament in May of this year. It establishes a legislative framework that will ensure Victoria Police’s use of human sources remains appropriate and justified, provides for independent external oversight and ensures stringent protections to manage risks, particularly where high-risk informants are involved. The act makes sure that another Lawyer X situation cannot happen again. It includes very limited exceptions for lawyers to be registered, with rigorous safeguards that in fact go beyond the commission’s recommendations. These exemptions require the approval of the Supreme Court of Victoria and can only be granted where essential to combat an immediate and serious threat to national security or public safety. For example, the Supreme Court could authorise the registration of a lawyer to help foil an imminent threat of a terrorist act. This is appropriate and necessary, and the opposition’s suggestion that it leaves the way open for another Lawyer X situation is really false.

These reforms make Victoria the only Australian jurisdiction with legislative safeguards against lawyers being registered as informants. So rather than pretending it can lead to another Lawyer X situation, really what we want to see from the opposition is an acknowledgement that this is the most stringent system in the country. To date 49 of the 55 recommendations directed to government have been delivered, and work to deliver the remaining recommendations is also on track. So the work continues, and it will continue until it is completed.

The former Special Investigator tabled a special report in Parliament on 21 June 2023 which recommended that the OSI be wound up. The OSI has completed its work in line with the commission’s recommendations, having investigated potential criminal conduct and disciplinary breaches and subsequently prepared and referred extensive briefs of evidence for consideration by the DPP, and I would like to take this opportunity to thank Mr Nettle and his office for their thorough and considered work to acquit the recommendations of the royal commission in relation to the OSI. The implementation monitor, who was responsible for overseeing the implementation of all of the recommendations, has confirmed that he considers all recommendations relating to the OSI to have been acquitted. The implementation monitor was also consulted in the drafting of the bill and also supports the decommissioning of the OSI.

Just in regard to prosecutorial decisions, I heard Mr Mulholland’s contribution about this, but I can say that any prosecutorial decisions were independently and carefully made in regard to this matter. Per the recommendations of the royal commission, the decision about whether to prosecute on the basis of evidence referred by the OSI is entirely a matter for the Director of Public Prosecutions, the DPP. Prosecutorial decisions are made independently of government in all jurisdictions as is appropriate. There are agencies such as IBAC and WorkSafe which have legislative power to lay serious criminal charges, but in practice they often do not. Instead, they refer the decisions on whether to prosecute to the DPP in recognition that as investigators they are too close to the evidence to be objective. That is entirely appropriate. It is critical that these decisions are made independently and objectively and there is another set of eyes or another agency that has the ability to assist with a fresh look at whether charges would be appropriate and could be made. It would not be appropriate for government to insist on prosecutions that have no prospects of success. To insist on a show trial for political theatre would simply be wrong. Again, this is the point about making sure we have independent agencies who have the skill and appropriate authority to be able to make those judgements and then act on their own behalf.

The DPP carefully considered the briefs of evidence provided by the OSI, and her reasoning is detailed in her response to the former Special Investigator’s special report. I will not go over all of those here, but in short the DPP, along with the chief Crown prosecutor and an additional Crown prosecutor, carefully considered the evidence and they determined that there were no reasonable prospects of success and a prosecution would not be successful. This assessment was based on gaps in available evidence, the reliability of potential witnesses and legal limits on what evidence is in fact admissible. In fact this was foreshadowed by the royal commission, which noted that:

Even if there is sufficient evidence to bring charges, the DPP’s decision may be difficult. These events occurred long ago. Records may be incomplete and memories may have faded. Ms Gobbo was encouraged in her behaviour by police and now lives in fear of being murdered. The current and former officers acted within what Victoria Police accepts was a failed system …

Insisting that a trial be pursued at significant cost to the taxpayer without reasonable prospects of success is just a political stunt at best.

In terms of any suggestions that the DPP and the OPP are conflicted and unsupported, the royal commission explicitly considered whether the DPP would be adequately independent in deciding whether to prosecute and concluded that the DPP is appropriately independent. The DPP and the OPP have regular conflict of interest procedures to ensure decision-making is not compromised, and the DPP and OPP regularly consider and proceed with charges against police officers. There is no basis for suggesting that the DPP and OPP are conflicted. Similarly, the DPP has made a public statement rejecting that she is conflicted due to previous dealings with Simon Overland, not least because, as she notes, not only has she never acted for him, she has never met him. Similarly, she has neither met nor acted for any of the police officers that were the subject of an OSI brief.

They are just a few important and very salient matters that go to the heart of this bill. It is a critically important bill. As I said, the government has acted on the recommendations from the royal commission. This bill is yet another step in working through the recommendations. The decommissioning of the OSI will not mean everything stops here, but the very important functions of the OSI and the legacy associated with that office will be passed down to the state, and so those things that were established as a result, the OSI and the royal commission recommendations, will continue to be shepherded by the government as appropriate.

There are many other things I could say in regard to this bill, but I note the clock is beating me and I also need to jump into the chair, so I will conclude my remarks there and commend this bill to the house, but without amendment.

Melina BATH (Eastern Victoria) (10:33): I am pleased to rise to make my contribution on the Special Investigator Repeal Bill 2023. First of all, I want to put on record that the Nationals will oppose this bill, but we certainly support the reasoned amendment put forward by Mr Mulholland on behalf of the Nationals and the Liberals. I also want to put on record my very great thanks to the rank-and-file Victorian police officers who serve our state so diligently and carefully, keeping us safe and locking up criminals – and I know complete endless piles of paperwork. We thank them very much. Particularly in my Eastern Victoria electorate, we thank those large and bustling stations. We thank those police stations that have a single police officer, which are potentially quite under threat from the Labor government at the moment, and we value their frontline services and their dedicated work. Indeed I regularly, where I can, attend Police Remembrance Day, which is on 29 September, and I am pleased to have gone to that at a number of locations – in Warragul this year, Drouin in the past, Traralgon and the like – to show my gratitude for those Victorian police officers who have died and paid the ultimate price in the line of their duty. We thank them and their families for carrying that burden in the line of duty.

I draw a line between those good people and the people that we are speaking about today in this bill or part of this whole scenario, this stained scenario, of the very slim but unscrupulous behaviour of a minority, a few, in the upper echelons of police command – and not only them but a lawyer who thought it would be a good idea, whether coerced or otherwise by this group of upper echelon Victorian police command, to do something that is quite outside any normal practising lawyer’s behaviour: to dob in and communicate to police about her clients’ work. There should be a separation of powers and there should be trust in the legal system, and this whole case, which is some 15 years long, has been a debacle. One is being distorted – I think there has been a distortion of the separation of powers – and the other has been abused by the failings of the Labor government, which has led to this bill today.

In terms of the historical context, we saw those gangland wars back in the 1990s and 2000s. We saw underworld figures that are household names and 36 people dead – thugs and murderers. We saw, as is required by law, legal representation, in one case by Nicola Gobbo, categorised as Lawyer X, a criminal barrister who was used as a human source to inform on her clients. These are bad people that she was representing and they deserve to go to jail, but they also deserve to have a proper process, which was totally distorted.

Unfortunately, at the end of this we are not keeping Victorians safer because of this whole debacle. Millions of dollars of taxpayer money has been spent. Labor was boxed into a corner, and IBAC certainly came out and, using its powers to investigate serious police misconduct, instigated the Kellam review back in 2014. Indeed former Supreme Court judge the Honourable Murray Kellam reviewed that human source management. Subsequently, Mr Kellam decided that there was a high degree of negligence by Victoria Police and directed VicPol to provide a report to the Director of Public Prosecutions. There was tainted evidence. The DPP formed the view that certainly there should be that level of transparency. This led to VicPol trying to suppress information, and again we have seen millions of dollars being spent on this in saying no to media releases and no to the release of names.

Enter the High Court. The High Court came in and unanimously ruled that Gobbo’s identity should no longer be suppressed. In their judgement Their Honours collectively said Gobbo’s actions in purporting to act as counsel for the convicted persons while covertly informing against them were fundamental and appalling breaches of Gobbo’s obligations as counsel to her clients and the duties of the court. This is scathing, in effect. We also see the High Court judges saying that likewise:

Victoria Police were guilty of reprehensible conduct in knowingly encouraging …

Gobbo. So we see a direction in which this has gone wrong. The names were published, and I know there were many in the media who drilled down and worked very diligently to provide that context to the Victorian population, and it was a scandal.

Really, Labor again was forced into a corner. We had this royal commission and we had Lawyer X. It was a chequered start from the beginning. We saw one investigator exit due to a conflict of interest, and here is where this same scenario runs time and time again – a perceived conflict of interest is a conflict of interest in the wider context. We all take ourselves out and note if there is a conflict of interest in any meeting we have; as members of Parliament or the community, we state it.

The royal commission was down to one, the Honourable Margaret McMurdo. She was seen to be quite at arms length, and I congratulate her. She is a former president of the Queensland Court of Appeal. She moved down from 2018 to 2020, and two years later the royal commission reported, in November of 2020. One of its recommendations, 92, was that the Victorian government within 12 months establish legislation to set up a Special Investigator with the necessary powers and resources.

So that is where we are up to in the historical context of this saga. Enter the Special Investigator Bill 2021. The Special Investigator Act 2021 was passed by state Parliament in October of that year, and this is the act that Labor is seeking to repeal today in this house. Labor at the time limited the powers of the Special Investigator, whereby to instigate charges they had to go via the route of the Director of Public Prosecutions. They did not have the power to instigate charges themselves.

It was Parliament that instigated it, but it was Labor that drove the bill. And indeed, let me say when the former High Court judge Justice Geoffrey Nettle AC KC was selected, this is what Labor’s Attorney-General the Honourable Jaclyn Symes said:

Justice Nettle’s extensive and wide-ranging experience at the highest levels of the legal system will ensure a comprehensive, independent and fair investigation is completed into these matters.

And she was right. The Honourable Justice Nettle investigated incredibly thoroughly. There were a number of briefs that he and the team behind him investigated. They did forensic investigation to elucidate a compelling case that had to go via the DPP. They had the perjury brief, the Spey brief, the Operation Charlie brief – thousands of documents, and as we have heard, audio as well. There was a compelling case to substantiate charges and move them forward. He said, ‘Let’s press charges,’ but it had to go through the Office of Public Prosecutions.

We now have the DPP, the Honourable Kerri Judd KC. What we see is the idea – and I have heard conversations about this even in our house today – around being at arm’s length or not too close to the evidence to be objective. The very nature of the Director of Public Prosecutions is that they interact with Victoria Police on a regular basis. That is part of their mandate: they interact. So what should have happened was the withdrawal of her running that system, to have an independent investigator. We do know that there are many other areas that do that, and indeed the Ombudsman Deborah Glass has taken on an investigator from interstate to have that arm’s length, to provide that clarity that there is no perceived conflict, but that is not what happened here.

Then we see the DPP come out with the conversation about this concern about whether the passage of time would diminish the prospect of conviction. She queried the potential lack of public interest in the largest scandal that has rocked Victoria in the last X many years, from Lawyer X, and that there could be protracted criminal proceedings. This is odd and perplexing in the extreme.

Moving forward to this year, in 2023 we have the OSI in its report saying:

… it now appears to me that the director will not grant OSI permission to file any charge of relevant offence, I consider it to be pointless for OSI to continue. In my view …

it is appropriate to wind up the OSI. The Premier walked into this drama, and he dug the boots in. We have got on one hand, in June 2021, the Attorney-General pumping up the tyres – and rightly so ‍– of the Honourable Geoffrey Nettle, and then we have got the former Premier Daniel Andrews, who was a bit keen on digging the boots in at times, who said this:

Investigators don’t make good prosecutors … There needs to be a separation. If you have investigated the matter, you are altogether too close to it to be making decisions about whether a conviction is likely.

Well, I tell you there are many people in my Eastern Victoria electorate that said Mr Andrews did not make a good leader. And we see this from senior figures – 37 senior figures, senior barristers, signed an open letter condemning the Premier’s comments as misguided, wrong and inappropriate. Again I concur with Mr Mulholland: this is the whole dirty scandal of this and what this government has done. The Labor Party just wanted to kick this under the table: ‘Nothing to see here’. The Honourable Geoffrey Nettle found that there was sufficient evidence to secure convictions on criminal charges. What we see is that there is no date on corruption. There is no expiry date for those perverting the course of justice to come and be held accountable. This is not a bottle of milk – its time is not over now. We know that there are cases brought before the courts many years after their actual execution. Victorians certainly deserve better, and it will leave a bitter taste in Victorians’ mouths for years to come.

This bill is the demise of the Office of the Special Investigator. We on this side do not believe that it should be wound up. We believe that there is more work to be done. We also believe that there should be a refresh of the DPP’s perspective to separate that perceived conflict of interest. Justice is not served in this bill. Our legal system is weaker because of this whole dirty saga. Crooks should be behind bars; that is the contention I am putting forward. They warp our state, and they diminish our safety.

I thank my colleague the Shadow Attorney-General Michael O’Brien for his contribution on the bill, and I appreciate the work that he has gone through in this. Michael O’Brien also says the Human Source Management Act 2023 is certainly not the panacea. This is what the government will say: ‘But hang on, we’ve got this other act in Parliament.’ My concern is, and I concur with Mr O’Brien, that this precisely allows for the Lawyer X scandal to happen again. We oppose this bill.

Jacinta ERMACORA (Western Victoria) (10:48): I am pleased to express my support for the Special Investigator Repeal Bill 2023. This bill is necessary to enact the government’s commitment to decommissioning the Office of the Special Investigator, OSI. It will undertake the essential steps to wind down the Office of the Special Investigator, and it will ensure the continuation of crucial safeguards and oversight. It will make a range of consequential changes to accommodate the repeal.

The government publicly announced the decommissioning of the OSI on 27 June 2023. This followed the tabling of a special report in Parliament by the former Special Investigator Geoffrey Nettle on 21 June 2023. This report recommended the winding down of the OSI. The OSI was originally established through the Special Investigator Act 2021 in line with the recommendations of the Royal Commission into the Management of Police Informants. Its primary purpose was to investigate potential criminal activities and disciplinary violations related to the Lawyer X case. This is important context behind this bill.

Where the OSI determines relevant offences may have been committed, its role extends to compiling briefs of evidence to be filed alongside recommended charges for determination by the Victorian Director of Public Prosecutions, the DPP. The OSI has carried out its work in line with the commission’s recommendations and has been overseen by the royal commission implementation monitor Sir David Carruthers. He was responsible for the overseeing and implementation of the Royal Commission into the Management of Police Informants recommendations and has confirmed that he considers all recommendations relating to the OSI to have been acquitted. The implementation monitor further supports the decommissioning of the office.

This bill will therefore bring about the following changes. It will officially repeal the Special Investigator Act and dissolve both the Office of the Special Investigator and the statutory position of Special Investigator. It will transfer all assets, property, rights and liabilities from the Office of the Special Investigator to the state. It will facilitate the transfer of all records from the Office of the Special Investigator to the Department of Justice and Community Safety and subsequently, when necessary, to the Public Record Office Victoria. This will ensure records are handled in a manner consistent with the OSI’s practices. It will maintain the existence of two offences outlined in the Special Investigator Act. It will preserve specific oversight powers of the Victorian Inspectorate over the OSI for defined periods. It will make revisions to other acts to eliminate references and provisions related to the OSI. Despite the opposition continuing to oppose this bill, it cannot be stated strongly enough that the Royal Commission into the Management of Police Informants systematically reviewed the Lawyer X matter, and the government has made all legislative changes required to ensure implementation.

There is a time line and logical sequence behind the Special Investigator Repeal Bill, and I will provide some background here. The Royal Commission into the Management of Police Informants was established in December 2018. Its purpose was to delve into the critical aspects of Victoria’s justice system and in particular police use of informants with confidentiality obligations. This was due to the revelation that Nicola Gobbo, a prominent and experienced criminal defence barrister, was registered with Victoria Police as a human source on three occasions between 1993 and 2010. Within that period Ms Gobbo provided information to Victoria Police about her clients and their associates, and it is estimated that Victoria Police filed more than 5000 written reports from her information, which assisted police to make nearly 400 arrests I reference an article by Josie Taylor and Rachael Brown from Trace on 9 September 2020.

The royal commission heard from 82 witnesses, which included over 50 police members and over 129 days of hearings. During the commission’s extensive and detailed inquiry it unveiled significant historical shortcomings within the criminal justice system. The government has pledged to address these shortfalls to ensure that this can never happen again. The government has followed through on this commitment, and the OSI completing its work in line with the commission’s recommendations is a key part of that, adding to significant work already undertaken by the government. This effort is a crucial component of the broader initiatives undertaken by the government. They include a wide range of reforms, including changes to Victoria Police’s procedures, policies, organisational structure and cultural approach to the use of human sources. Notably the government introduced key amendments to Victoria’s disclosure regulations in criminal proceedings through the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Act 2022.

Furthermore, ongoing works are in progress to implement the Human Source Management Act 2023. As we all know, this received parliamentary approval in May this year. This act establishes a comprehensive legislative framework to ensure that the use of human sources by Victoria Police remains appropriate and justified. It incorporates provisions for independent external oversight and stringent safeguards, particularly when dealing with higher risk informants. Critically, this act aims to prevent a situation like Lawyer X from ever happening again. The act includes very limited exceptions for lawyers to be registered as informants, with rigorous safeguards that surpass the commission’s recommendations. I repeat that: the rigorous safeguards surpass the commission’s recommendations.

Further, these exceptions necessitate approval from the Supreme Court of Victoria and can only be granted in cases where there is an immediate and serious threat to national security or safety. For instance, the Supreme Court could authorise a lawyer’s informant registration to thwart an imminent terrorist attack. Contrary to the opposition’s claims, these measures are both appropriate and necessary. The very suggestion that they leave the door open for another Lawyer X situation is entirely unfounded.

These reforms make Victoria the only Australian jurisdiction with legislative safeguards against lawyers being registered as informants. Processes have been systematically reviewed and put in place due to the Lawyer X case, and the opposition should now recognise that this system is the most rigorous in the country. To date the government has successfully delivered 49 out of the 55 recommendations received. Work to implement the remaining recommendations is proceeding as planned, demonstrating this side of the house’s commitment to comprehensive reform and justice.

In this light it must also be said that prosecutorial decisions were independently and carefully made. Following the recommendations of the royal commission, the decision about whether to prosecute on the basis of evidence referred by the OSI is a matter for the Director of Public Prosecutions. It is a fundamental principle in all jurisdictions that prosecutorial decisions are made independently of the government. While agencies such as IBAC and WorkSafe possess the legislative authority to bring serious criminal charges, in practice they never do. Rather, they refer the decision on whether to prosecute to the DPP. This recognises that as investigators they are too close to the evidence to be objective. This is appropriate, as it ensures prosecutorial decisions are reached independently and objectively. It would not be appropriate for the government to insist on prosecutions that have no prospect of success or to use legal proceedings as political theatre. In this case the DPP conducted a thorough evaluation of the evidence provided by the OSI. Her rationale is extensively documented in her response to the special report submitted by the former Special Investigator.

In summary, the DPP, along with the chief Crown prosecutor and an additional Crown prosecutor, meticulously assessed the evidence and concluded there were no reasonable prospects of a successful prosecution. This determination was founded on factors such as gaps in the available evidence, the reliability of potential witnesses and legal restrictions regarding admissible evidence. In fact the royal commission had already anticipated this, noting that:

Even if there is sufficient evidence to bring charges, the DPP’s decision may be difficult. These events occurred long ago. Records may be incomplete and memories may have faded. Ms Gobbo was encouraged in her behaviour by police and now lives in fear of being murdered. The current and former officers acted within what Victoria Police accepts was a failed system …

Demanding the pursuit of a trial, incurring significant costs to the taxpayer without reasonable prospects of success, is at best a political manoeuvre. It looks like it is designed to draw attention away from the opposition’s perhaps lack of ideas, lack of policies and lack of solutions.

It is also important to note that without this bill, records security would be at risk, legal obligations may not be met and pointless expense will be incurred. With the Office of the Special Investigator having completed its unique work, it is essential to dissolve the office to safeguard the security of highly sensitive records and prevent incurring additional costs that offer no public benefit. If the bill does not take effect by 1 February 2024, the security of the OSI records will be compromised because there will be no legal custodian of these documents. Furthermore, the appointment of a new Special Investigator is required, as without one the OSI cannot fulfil its remaining obligations. This could result in unacceptable delays and increased costs borne by the public and potentially hinder individuals with legitimate claims.

There are also additional wasted costs to consider, including expenses related to employees, IT support and the storage, protection and maintenance of records. Also, delays in accessing OSI documents for legal proceedings could incur further costs. Importantly, all of these potential expenses would serve no public benefit. This is precisely because the OSI is not currently conducting any investigations, nor does it anticipate doing so in the future. To conclude, ultimately the recommendation to wind up the OSI was made by Justice Nettle himself, underscoring the importance of proceeding with the dissolution of the office.

Ryan BATCHELOR (Southern Metropolitan) (11:03): I am very pleased to rise and speak on the Special Investigator Repeal Bill 2023, which is legislation the government has brought before the Parliament to repeal the Office of the Special Investigator, which was established in the wake of the Royal Commission into the Management of Police Informants, which arose because of what is undoubtedly one of the more scandalous chapters of Victoria’s police and legal history, the Lawyer X scandal. That is an appropriate term to use, and it was undeniably a period that everyone involved in law enforcement and the legal community in this state should reflect on for a long period of time. It is certainly of such importance that we had a very, very significant decision, following extensive consultation and contemplation, I should say, from the High Court, which was released in early December 2018, and an exceptionally swift response from the government at the time to recognise the severity of the matters that were outlined in the High Court’s decision and the wideranging implications that may have for the criminal justice system but also for individuals contained therein.

Very swiftly in December of 2018 the government announced the establishment of the royal commission. The royal commission commenced at that time, and as my colleague Ms Ermacora has outlined quite extensively – and I will not go through and repeat all of the numbers – it heard significant evidence from a range of sources over the course of its deliberations, and its final report in November 2020 outlined what were undoubtedly and subsequently recognised by the Supreme Court and Court of Appeal as miscarriages of justice that occurred for individuals, and many of those individuals have pursued their rights, as they should, in the courts.

The question before us today though is whether it is appropriate now to follow the advice of the Special Investigator and wind up the Office of the Special Investigator. The bill seeks to repeal the Special Investigator Act 2021, which was passed by this Parliament just two years ago, and to disband that office. And the central contention in the debate today and the positions that the opposition have been advocating essentially come down to the question of what is an appropriate structure for prosecutorial decision-making in this state. I think it is an important point of principle that we actually should spend some time debating, because we have acknowledged and we do acknowledge the absolute scandal that was Lawyer X, the seriousness with which the government took the conduct and the allegations contained therein and the speed with which we moved to set up the royal commission and then the Office of the Special Investigator, and we are now at a point where a series of eminent and independent lawyers, former justices and prosecutors have assessed all of the material that has been put in front of them and have made independent professional decisions.

What we are seeing in the course of this debate today is a wholesale questioning of the independence of that decision-making, and that worries me a lot. And that, I think, is one of the more important things that we have got to address in the course of this debate – whether it is appropriate for members of Parliament, for the Parliament, to be second-guessing the independent prosecutorial decision-making of a system that was established on the basis of independent recommendations and supported unanimously by this Parliament less than two years ago. That is what we have got. The conduct critiqued here by the contributions of members opposite is that they do not agree with the decision of the Director of Public Prosecutions that there was not a reasonable prospect of success in criminal charges being brought against those that were investigated by the Office of the Special Investigator arising out of the royal commission, and they are angry at that decision and they want it overturned somehow. And all we have seen is a kind of floundering set of arguments from those opposite grasping at outrage rather than upholding important principles of independence of prosecutorial and judicial decision-making, which are at their core fundamental to our democracy.

The reasoned amendment moved by Mr Mulholland seeks to effectively oppose the bill and, in its words, ‘ensure that those responsible for the Lawyer X scandal are held to account’ – which is a big set of words but does not have a lot of meaning behind it other than an implication that somehow the Parliament or the executive should sit in judgement on alleged criminal offenders, which is not a principle that our democracy has been based upon ever and as a principle is something that we must always reject – that it is up to politicians to decide when crimes should be prosecuted, or it is up to politicians to decide who is guilty or not. Never, ever is that appropriate in our democracy. Even if the circumstances make us feel a little bit uncomfortable, even if after a significant scandal and extensive period of investigation, with however many hours of questioning and however many thousands of tapes we have got, it should be up to independent officers to be making their independent decisions about prosecutions, not politicians, because if we go down that path it only goes to bad places. In all circumstances, even those that might make us feel a little bit uncomfortable, we think that is a principle of our judicial system that we must uphold, so I do not support the reasoned amendment moved by Mr Mulholland. In fact I think we need to reject it in the strongest possible terms.

I also want to make just a few comments about some of the other contributions that have been made in the debate. Mr Mulholland said – and I could not tell from listening whether they were his words or words that he was quoting from another – that the decision not to prosecute by the DPP was ‘not a good look’. Again I am a little worried by the use of that phrase in the context of making decisions about who should be prosecuted or not, because I do not think that the test for whether someone should be prosecuted for a crime is whether or not it is a good look.

Michael Galea: Or a politician says so.

Ryan BATCHELOR: Or whether a politician says so or repeats the words of someone else who says so, because that is not the standard by which our criminal justice system should operate. It should not be decided on whether it is a good look or not.

The other thing that I am a little bit worried about is some comments that Ms Bath made in her contribution saying that – we will come to the question – more work needs to be done. I might come back to that. But she made the comment that there needs to be a refresh of the DPP’s perspective, and the reason I take issue with that is I think it is very chilling for the Director of Public Prosecutions to have a member of Parliament stand up and seek to refresh their perspective on their independent prosecutorial decision-making. I think it is beholden upon others in this debate to refute the implications of what those opposite have been saying, to defend the independent decisions of the Director of Public Prosecutions and to say that we are not in her shoes, we do not have her expertise, we do not have her independence and we should not be the ones that should be casting judgment on how she exercises those decisions.

What we should be doing is respecting the independence, and I say that because these decisions about prosecutions arising from the Office of the Special Investigator did not just occur because the DPP thought it was a good idea, the Premier thought it was a good idea or the Attorney-General thought it was a good idea. They came about because of a law. They came about because the procedure for determining who should be prosecuted out of the investigations of the Office of the Special Investigator, arising out of the findings and the recommendations of the royal commission, was established by law. It was not the Premier who made the decision, as Ms Bath seemed to be alluding to in her contribution. In fact it was the Parliament that decided in a law that prosecutorial decision-making arising in these circumstances would be handled by the DPP.

What is more interesting, I think, than just the fact that it was a law, a bill that came before this chamber less than two years ago, is that at the time the opposition did not have a problem with it at all. They did not have a problem at the time with the recommendation of the royal commission that said, ‘Actually, having weighed up all of these issues, having weighed up how this should be advocated, we believe that after the Office of the Special Investigator have completed their task a decision about prosecution should be made by the DPP.’ That was the recommendation of the royal commission. That was the recommendation that was tabled and considered, with thoughtful consideration given to the way that this should be taken forward, and it was the recommendation of the royal commission that the government adopted and brought to this place in November 2021.

I appreciate that Dr Bach is in the chamber to hear this contribution, because he spoke on that legislation to establish the Office of the Special Investigator on 19 November 2021 that contained the very arrangements that his colleagues today stand up and criticise. ‘And what was his position on the bill at the time?’ I hear you asking in the chamber. ‘I would love to know.’ I do not have the time to go through all of it, but I think one phrase sums it up. Dr Bach said in that debate, ‘We wholeheartedly support this bill.’

Having had the opportunity to read the recommendations of the royal commission, Commissioner McMurdo, having very thoughtfully considered the question of who should have prosecutorial discretion arising out of the Office of the Special Investigator, decided in her recommendations that decision should be made by the DPP, largely because the Office of the Special Investigator often is too close to the conduct of these investigations and also may be exposed to and influenced by inadmissible evidence, and that it was important that there be an arms-length decision about charges being brought, and that is what this Parliament considered less than two years ago with the wholehearted support of the opposition. So to see them today stand up and say for inexplicable reasons that somehow the prosecutor got it wrong and the DPP needs to ‘refresh her perspective’ is an attack on the independent operation of our prosecution service which we should not allow to stand unremarked upon. That is the path the opposition is going down in the conduct of their debate on this bill.

There is no denying the Lawyer X scandal was an absolute scandal. It deserved a royal commission. It deserved investigation. But it does not deserve the kind of politicking and undermining of our judicial system that we are seeing from those opposite today. That does no-one any good.

John BERGER (Southern Metropolitan) (11:18): Today I rise to contribute to the debate on the Special Investigator Repeal Bill 2023. This bill pertains to the Office of the Special Investigator, an independent statutory body established in the wake of the Royal Commission into the Management of Police Informants, as was recommended by the Victorian government. The bill will repeal the Office of the Special Investigator whilst also introducing transitional mechanisms to ensure a smooth transition for the Office of the Special Investigator. Before discussing the royal commission that led to the creation of the substance of this bill, I would like to begin by commending the outstanding performance of the Office of the Special Investigator in their efforts to achieve an outcome for the Victorian people to restore faith in the Victorian justice system. I would also like to commend the Victorian police for their cooperation with both the royal commission and the Special Investigator and their dedication to seeking an outcome favourable for the Victorian people.

Additionally, I would like to commend the work of the relevant government and judicial agencies and their commitment to achieving outcomes for the Victorian people. These organisations include the Independent Broad-based Anti-corruption Commission, the Victorian Inspectorate and other relevant bodies. Finally, I would like to commend the past and ongoing work of the relevant ministers in this field, including the Attorney-General and several ministers for police, including my good friend Minister Carbines in the other place. The legislative attention that this matter has received is proof that the Allan Labor government is a government dedicated to promoting the law in this great state. The OSI was integral in the recommendations of the Royal Commission into the Management of Police Informants, which I will go into more depth on later.

The Office of the Special Investigator was established as an independent statutory body to investigate any criminal conduct or breaches of discipline that may have related to or resulted from the use of Lawyer X, or Nicola Maree Gobbo, by the Victorian police. The strides made by the Special Investigator, whilst no small feat, were not a solo task. There are a team of people and cooperative organisations that I believe should be commended for their roles in the functioning of the OSI. First, I would like to acknowledge those who worked on the royal commission that set this entire ball rolling. The report by the Royal Commission into the Management of Police Informants will change our state for the better. The Royal Commission into the Management of Police Informants showed the Victorian government and people the far-reaching effects of the use of Nicola Gobbo, a criminal barrister who acted as a police informant.

Despite the ethical and disciplinary implications of such an act on behalf of both police and Gobbo from a lawyer’s use as a source, the royal commission found that Victoria Police’s use of Nicola Gobbo as a human source and other subsequent implications of this within the Victorian justice system were quite far reaching and detrimental. The establishment of the Office of the Special Investigator was a key recommendation from the royal commission as an effort to address the implications and further investigate paths to solve the problems presented in having used Gobbo as an informant. The royal commission also made several other recommendations, 54 of which were directed to the Victorian government and 41 to Victoria Police. Recommendations were also directed to other relevant organisations. I know the Allan Labor government is committed to the implementation of these recommendations to ensure that we maintain fair and equitable judiciary systems here in Victoria.

This includes the Human Source Management Bill 2023, passed earlier this year to address the key recommendations on the management of human sources within our judiciary system. Changes have also been made to reporting, record management, disclosure, oversight and regulation of professionals in the legal system. A simple explanation of the government’s response to and implementation of the Royal Commission into the Management of Police Informants recommendations shows our dedication to the royal commission and our ongoing commitment to ensure the justice system in this great state maintains the principles of fairness, equity and, well, justice. Other recommendations made to the Victorian government include the introduction of stricter laws where needed.

This bill is straightforward. The bill seeks to repeal the Office of the Special Investigator following the conclusion of its work, including winding down the statutory authority and removing the statutory role of the Special Investigator. Primarily, it removes the Special Investigator Act 2021, also known as the SI act, from Victorian law, while making provisions in other acts to ensure the smooth continuation of mechanisms that ensure the investigations otherwise conducted by the Office of the Special Investigator. The decision to repeal the Special Investigator was come to in cooperation with the Office of the Special Investigator, acting on the advice of Mr Geoffrey Nettle AC KC. The Allan Labor government has begun to take steps to finalise operations of the Office of the Special Investigator and transition the office’s responsibilities to other judicial bodies. The bill has been constructed through thorough consultation with the relevant key stakeholders, including the Public Record Office Victoria, the Victorian Inspectorate, IBAC, Victoria Police and of course the Office of the Special Investigator itself. The decommissioning of the Office of the Special Investigator will be a transitional process to ensure minimal disruption of proceedings.

The importance of that commitment to achieve a fair and equal justice system is something I am sure all of us in this place agree on. Whilst there may no longer be a need for the Special Investigator, many of its roles and responsibilities could be conducted in other government agencies to ensure the delivery of a fair and right Victoria. This includes the adoption of the role of accepting complaints being taken by the Victorian Inspectorate. It is of course essential that Victorians have an avenue to report issues in relation to those being investigated by the Special Investigator. Complaints from the OSI and former OSI officers will be diverted to the Victorian Inspectorate. In the same vein, the responsibility of the Office of the Special Investigator to investigate matters in relation to Victoria Police will be returned to the Independent Broad-based Anti-corruption Commission, or IBAC. The IBAC will revert to being the primary agency responsible for investigating complaints.

Additionally, the responsibility of overseeing the maintenance and protection of records and documentation held by the Office of the Special Investigator will be transferred to the Public Record Office Victoria. Another key aspect of this bill will be the provision and the continuation of several protections to those who served in the Office of the Special Investigator and those who assisted in the investigations conducted by the Office of the Special Investigator. These special protections were of course included in the initial Special Investigator Act 2021. These protections exist by way of several punishable offences, the first being an offence of sharing, disclosing or using information acquired by and held by the Office of the Special Investigator. This is to ensure the protection of those assisting the Office of the Special Investigator and providing information, as well as information itself that has been provided.

On the same theme of information sharing, the offence of current or former OSI staff disclosing information provided to or by the Office of the Special Investigator without the expressed authorisation of the Office of the Special Investigator will be retained as a crime. This is also to protect the information provided by the Special Investigator and subsequently in other cases of people who provide the OSI with that information. Finally, the offence of causing and/or threatening harm to those who are assisting the OSI currently or who assisted former officers of the OSI or other specified people was essential to the proceedings of the Office of the Special Investigator and will continue to be essential as the responsibilities are transferred to the Victorian Inspectorate. This is to ensure that no individual is dissuaded from assisting Victorian agencies investigating potential breaches of discipline or criminal conduct. People assisting in the investigation of this matter and others are brave and upstanding citizens, and their bravery should be recognised through the confidence of their protection. That is why it is important that this specific offence, introduced by the initial Special Investigator Act, be maintained in Victorian law.

It should also be noted that the bill gives provisions for the Office of the Special Investigator to operate for up to 18 months – about a year and a half – if need be to ensure the continuation of the OSI for as long as it is needed. Following this, all equipment and responsibilities will be transferred to the relevant bodies. To achieve this this bill seeks to amend several acts. Of course primarily it will repeal the Special Investigator Act 2021 and also repeal amendments to other acts made by the SI act, including the Independent Broad-based Anti-corruption Commission Act 2011, the Police Informants Royal Commission Implementation Monitor Act 2021, the Public Interest Disclosures Act 2012, the Public Administration Act 2004, the Surveillance Devices Act 1999 and the Witness Protection Act 1991. This will ensure that the work of the Office of the Special Investigator is not wasted, and that way we may continue forward as a state having built from this royal commission a justice system that Victorian people can believe in.

This bill marks a new page in Victoria’s history as we continue to ensure future pathways to investigate breaches of discipline. The recommendations of the royal commission are clear, and I want to reiterate them for the public record and associate myself with their findings, as the commission recommended the decision about whether to prosecute on the basis of evidence referred by the OSI is a matter for the Director of Public Prosecutions. As we know, it must stay so – that professionals’ decisions are made independent of government in all jurisdictions – as is appropriate and as is right. As I said two weeks ago, the separation of powers is the foundation of our system of government. We know that there are agencies in government and outside of government, like IBAC and WorkSafe, which have legislative power to lay serious criminal charges, but in practice they never do. Instead, they refer the decisions on to appropriate bodies like the DPP in recognition that in those investigations they are too close to the evidence to be objective. That seems right to me, and it seems entirely appropriate. It is critical that these decisions are made independently and objectively. It would not be appropriate for the government to insist on prosecutions that have no prospects of success, to insist on a show trial for political theatre. We are not about that on this side of the chamber. I would like to keep to the facts and give the chamber the dignity this office and this place deserve.

The DPP carefully considered the briefs of evidence provided by the OSI, and her reasoning is detailed in the response to the Special Investigator special report. I will not rehash those details here, but in short the DPP along with the chief Crown prosecutor – as some may have previously said in this chamber, His Majesty’s most loyal chief Crown prosecutor – and an additional Crown prosecutor carefully considered the evidence and determined that there were no reasonable prospects of prosecution being successful. This assessment was based on the gaps in the available evidence, the reliability of potential witnesses and legal limits on what evidence is admissible. I want to add a quote that was noted by the royal commission:

Even if there is sufficient evidence to bring charges, the DPP’s decision may be difficult. These events occurred long ago. Records may be incomplete and memories may have faded. Ms Gobbo was encouraged in her behaviour by police and now lives in fear of being murdered. The current and former officers acted within what Victoria Police accepts was a failed system …

It would be silly to insist that a trial be pursued. Insisting that a trial be pursued at significant cost to the taxpayer without reasonable prospect of success is a political stunt at best.

In conjunction with other bills that have been passed in recent years, including the Human Source Management Bill 2023, we are strengthening our legislation. I would like to again commend all those involved in the creation of this bill, from the ministers to the Special Investigator himself. This bill will ensure that fairness and equity is achieved in the Victorian judicial system.

To wrap up, the OSI has completed its work. Prosecutorial decisions will be independently and carefully made. Without this bill, records security will be put at risk, legal obligations may not be met and pointless expenses will be incurred. The purpose of this bill is indeed to dissolve the office, preserve the security of highly sensitive records and prevent additional costs from being incurred for absolutely no public benefit. If the bill was not to occur by 1 February next year, in just a few months time the security of OSI records would be impacted, as the reality is nobody would have legal custody of them.

The bill must be passed for the good governance of our state. Without it another Special Investigator would need to be appointed, which is absurd, as their role and function has been fulfilled. This would just be a waste of money. It would lead to new costs for no function or station: unnecessary IT support costs and costs for storing, protecting and maintaining those records. There could be costs associated with delays in proceedings where access to OSI documents is required. That is why Justice Nettle himself recommended that the OSI be wound up, and that is what must be done. All assets, property, liabilities, rights and obligations held by the OSI will transfer to the state to be managed by the Department of Justice and Community Safety, providing the necessary protections for former OSI officers who have done diligent work in their previous stations and roles. I commend the bill to the house and urge my colleagues to vote in support of it.

Michael GALEA (South-Eastern Metropolitan) (11:32): I also rise today to speak on the Special Investigator Repeal Bill 2023, and I note that I believe I am the fourth government speaker in a row on this bill. I am not sure if the opposition members – particularly perhaps after the contributions of Mr Mulholland and Ms Bath, which were quite reckless in nature, as my colleague Mr Batchelor referred to – are recoiling in embarrassment and do not wish to continue participating in this debate. I suspect if they were to recoil in embarrassment, they would probably have to have a level of self-awareness which frankly I do not have the confidence that they actually have. We may yet see a further contribution from members opposite, we may not, but I do wish to reflect on Mr Batchelor’s remarks, which were very prescient and went to the point of the irresponsibility of any member of this place or of the other place across the hall in giving lectures to interfere with the prosecution process.

We do have a very solid system based on very important Westminster principles. Those opposite often like to lecture us that they are the bastions of Westminster traditions and archaic terms, but one of the most fundamental Westminster principles is that separation of powers. I am sure that the good Dr Bach will be able to immerse himself perhaps firsthand in those processes when he very regretfully leaves our good place and heads across to the motherland, as we might call it. I know he intends to pursue a career in education, but I will keep a tab open on the BBC and British Sky News to see if we do see him popping his name forward for preselection or as a candidate over there. I suspect I will be eagerly awaiting that, and I look forward to seeing that happen. Anyway, I do digress.

This bill will provide a legal framework to secure susceptible records. It will maintain compliance with our legal obligations. It will also avoid us incurring unnecessary expenses. It reflects our ongoing commitment to transparency, accountability and the responsible management of public resources. This bill marks a critical moment as we seek to consolidate the significant work that was undertaken by the Office of the Special Investigator, better known as the OSI, in addressing historical police misconduct and upholding the values of justice and of accountability. The OSI has played a critical role in a complex investigation to address historical police misconduct. With its work the OSI has successfully upheld the principles of justice and accountability that are so fundamental to those Westminster traditions. This bill acts as a logical next step following the completion of the office’s mandate.

A significant concern which is addressed by this bill is the protection of the records which the OSI has accumulated over the course of its investigation, somewhere in the realm of, I understand, 10 million records, many of which are of course highly confidential, including relevant information from the Royal Commission into the Management of Police Informants – as Mr Batchelor referred to earlier, the McMurdo royal commission; Independent Broad-based Anti-corruption Commission, IBAC, records; and witness protection records, as well as of course records from Victoria Police. These records are protected by statutory secrecy provisions, privilege claims and various other legal obligations, and this bill will ensure that these records will be transferred to the Department of Justice and Community Safety, thereby guaranteeing the security and proper management of this information.

Failing to provide a legal framework to dissolve the OSI would result in numerous unnecessary costs as well. Without the measures which have been included in this bill, which those opposite apparently oppose, we would need to incur further expenses for employees, IT support, storage, protection and various other aspects related to the maintenance of those records. Additionally, appointing a new Special Investigator would lead to further costs and potential delays in proceedings that require access to OSI documents. This is an important consideration for us to take into account, especially given that the OSI is not currently pursuing any investigations, nor does it expect to do so in the future.

I also note that a recommendation given by Justice Nettle in his role as the Special Investigator was to wind up the OSI. Justice Nettle highlighted the need to avoid such unnecessary costs and the potential legal complications which would have arisen from the lack of a clear legal framework to manage the OSI’s assets, liabilities and other obligations. So this bill responds to that recommendation directly and provides a clear and practical outcome to dissolve the OSI in a manner which is appropriate and to ensure that there is no further unnecessary cost.

As we transition the operations of the OSI to a new phase, we must have a transparent and efficient process for those assets, property, liabilities, rights and obligations that the OSI has to the state. This transfer is essential to ensure that the important work of the OSI is not lost but rather continues to contribute to the work of our justice system. The Department of Justice and Community Safety will be crucial in managing these transferred assets and obligations, with that department, the DJCS, having the necessary expertise and resources as well to handle those complex tasks and to ensure that they are executed effectively and efficiently. The transfer is also essential to ensure access to justice and legal redress for those affected by matters which were handled by the OSI. By preserving the records and the outcomes of the OSI’s work we are safeguarding the rights of individuals and ensuring that they do have the necessary information and resources to seek legal redress if that is what they wish to pursue. This is also a critical aspect of upholding the rule of law and ensuring that justice remains accessible to all.

As previously mentioned, the OSI holds many records crucial to understanding and learning from our past. These include investigative reports, witness statements, legal documents and other materials essential for ensuring accountability and transparency. Having already mentioned the Department of Justice and Community Safety, I note that the Public Record Office Victoria will also have a role to play, which will be crucial in managing and protecting these records. DJCS will be responsible for overseeing the transfer of assets, including records, from the OSI to the state, ensuring that they are preserved and continue to be accessible for future generations. As any one of us would expect, the handling of these records requires a strict adherence to proper processes, legal obligations and security clearances. This is necessary to protect the integrity of the information which is contained within these records and to prevent unauthorised access or disclosure, so this bill serves to meet those obligations and ensure that there is a clear set path for that to happen.

The initial Special Investigator Act 2021 also provided former OSI officers with the necessary protections to perform their duties effectively without fear and without legal ramifications. These protections are integral to the integrity and the functionality of the OSI, ensuring that officers can carry out their responsibilities appropriately in the pursuit of justice. One of the key protections granted to OSI officers under the original SI act is the legal immunity for acts or omissions made in good faith while performing their duties. This legal immunity is essential, as it allows officers to make necessary decisions without fear of legal repercussions and fosters a culture of accountability and integrity within the OSI. This bill seeks to preserve these critical protections, ensuring that former OSI officers continue to receive the support they need to perform their duties effectively.

In addition to the legal immunity afforded, the SI act outlines specific offences and penalties for anyone who causes harm or threatens to provide harm to OSI officers or those assisting the OSI. The penalties for such offences are rightly significant, including a maximum of 1200 penalty units or level 5 imprisonment, which is a maximum of 10 years imprisonment, or both. These stringent penalties remain and are a clear demonstration of the seriousness with which the law treats any threats or harm directed towards OSI officers or those assisting them. The continued operation of these offences and penalties will ensure the ongoing safety and protection of those former OSI officers and those who have provided that valuable assistance during the course of their work.

The Victorian Inspectorate also plays a crucial role in providing independent oversight to ensure that public officials, particularly those with significant powers such as the OSI, are held accountable for their actions. This remains a fundamental aspect of maintaining public trust and accountability within our system, and this bill also recognises the importance of this oversight by extending the powers of the VI to manage any remaining complaints about the OSI or former OSI officers to the Victorian Inspectorate. Specifically, the inspectorate will have the authority to receive complaints for a further six months following the repeal of the SI act. The inspectorate will also be able to investigate those complaints for up to 18 months and make recommendations for up to 24 months. This extension of powers will ensure that there is a robust mechanism in place for addressing any residual issues or complaints that may arise even after the OSI itself has been decommissioned. In addition to these extended powers, the inspectorate will retain access to OSI records to support its investigations. This is critical to ensuring that the VI has all of the necessary information to conduct thorough and comprehensive investigations if it is required to do so. Moreover, they will have the authority to make those recommendations to other integrity agencies for further investigatory or enforcement action. This is also an essential impact of ensuring that any remaining issues can be fully, robustly and properly dealt with.

The SI act, the Special Investigator Act, from two years ago has had far-reaching implications, including influencing various facets of the legal and regulatory framework in Victoria. It has amended a range of legislation to establish the OSI and to ensure it possesses the necessary powers and the ability to collaborate with other integrity agencies to achieve its purposes. Furthermore, the Witness Protection Act 1991, Surveillance Devices Act 1999 and various other acts will be amended, as well as, I believe, the Public Interest Disclosures Act 2012, as appropriate to ensure that there is continuity, as I have talked about, but also to ensure that as these are put in place that will be afforded. For these reasons and for those expressed by my colleagues on this side of the house, who have been willing to participate in this debate, I will conclude my remarks there and commend this bill to the house.

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (11:46): I have got a few remarks in relation to the Special Investigator Repeal Bill 2023. At the outset, it is frankly a very straightforward bill. It does all the necessary things to wind up the Office of the Special Investigator in good order now that its work has been completed. The bill will make sure that critical records remain protected, legal obligations will be met, former staff will remain safe and public money will not be wasted funding an agency whose job is now done. The reason we are winding up the OSI is that, as I have indicated in my opening remarks, the work is finished. It is why the former Special Investigator Justice Nettle recommended in his special report that the office be wound up.

The bill is not, as has been suggested in the other place and at times this morning, a way to sweep the matter under the carpet – it is anything but that. It is this government that established the Royal Commission into the Management of Police Informants. I was bemused by Mr Mulholland’s remarks that this is a government trying to sweep matters under the carpet. He may not have had the pleasure of reading the 1000 pages within the four volumes and the summary. Hopefully he has read the summary, because that is a good overview of the four volumes that I had to get through in my first couple of weeks of being appointed to the Attorney-General portfolio. But these are hardly the actions of a government trying to sweep matters under the carpet. We are a government that committed to implementing every single recommendation directed to government, and we are following through with that commitment.

I note that those opposite now have strenuously opposed at least two clear recommendations of the royal commission and yet claim to be the ones behaving appropriately and in the public interest. Why is it that that those opposite somehow know better than – a word that has been used a lot in this debate I think – an eminent and highly respected royal commissioner who spent hundreds of hours listening to evidence and considering documents? The government set up the OSI with all the powers recommended by the commission to perform all the functions recommended by the commission. The government also appointed an independent implementation monitor Sir David Carruthers, as recommended, and his advice is that all recommendations relating to the work of the OSI have been acquitted. He specifically advised me that there has been sufficient acquittal of those recommendations to allow me to follow the recommendation of the Special Investigator himself to wind up the office.

Opposing the orderly wind-up of the OSI does not mean that there will be more investigations. It does not force more briefs of evidence or increase a greater chance of prosecutions. The OSI is currently not subjected to a repeal bill, but they are not currently pursuing any investigations and they do not have any intention of pursuing more investigations in the future. We have reached the end of the line here. It is the full stop. The royal commission did not consider there was enough evidence to lay charges. Five years before that, IBAC found there was not enough evidence to lay charges, and now the DPP has considered the briefs compiled by the Special Investigator and found there is not enough evidence to lay charges. But the opposition wants us to keep forum shopping. They want a different prosecutor to make the decision. They want an interstate prosecutor brought in to see if they can be pressured into taking a different position. They want anyone who will give them the answer they want to make the decision they want. What the government wants is proper process to be followed and for public monies to be expended reasonably. There is absolutely nothing in my comments that go to anything other than a full condemnation of police actions. But to put that aside and just try and get an outcome of something that you think is inappropriate and put all proper process aside is completely improper, and it is improper to suggest it. The opposition are ultimately seeking a waste of public money on a show trial. We know there are no reasonable prospects of success, and that is what their opposition to this bill is all about.

I want to comment on the opposition’s reasoned amendment. It specifies that they want people to be ‘held to account’. There is no explanation of how that might occur. We already know that four of the state’s foremost and most highly qualified prosecutors have considered the issues and determined that there is no reasonable prospect of successful criminal prosecution in matters that have been investigated to date by the OSI. So how do the opposition propose we are going to hold them to account? Are we going to hold trials that have no reasonable prospect of success? And when there are no convictions, then what? What is the next step that they are proposing? Are they really advocating that we suspend the rule of law and somehow punish people outside established criminal law?

Ultimately, the former Special Investigator Justice Nettle recommended that the OSI be wound up, and the government has accepted that advice. All that opposing the orderly wind-up of this organisation will achieve is wasting public money to appoint and pay a new Special Investigator and staff to meet ongoing operational costs, including for IT and records management, and it will also mean the security of critical OSI documents will be impacted. This is because from February 2024 no agency will have legal custody of them without this act being repealed. All of that, and there is no obvious public benefit. I also note that winding up the OSI does not actually close the door on future action. If in any instance there is new or compelling evidence that emerges, IBAC will be able to consider it and take appropriate action.

I want to touch on some of the commentary that has been made about where the prosecutorial decision sits and how that has been made. The royal commission specifically considered whether the OSI should be able to lay charges directly, and it fundamentally and appropriately, when you look at past practice, rejected that idea and considered that it was not appropriate – one of the recommendations of the royal commissioner that the opposition finds quite inconvenient. They have ignored it actually; they have not spoken about the fact that the royal commission actually recommended this is the way that the body is set up in relation to the process for considering prosecutions. The royal commission recommended that the prosecutorial decision-maker be separate from the investigator because the investigator would have access to non-admissible evidence that might colour their decision.

Independence is critical. The decision-maker’s job is to consider the evidence and assess the prospects of securing a conviction and to consider whether laying charges would be in the public interest and a good use of public money. It is not the decision-maker’s job to charge people just because there are advocates in that respect. The importance of prosecutorial independence is recognised by other agencies that have the power to lay charges, from IBAC to WorkSafe. Something else that the opposition have conveniently ignored is that they all defer their advice to the DPP when considering whether to lay criminal charges is appropriate or not. The separation of investigative and prosecutorial roles is now well recognised in all jurisdictions around Australia. As I mentioned in relation to IBAC, some time ago they established internal procedures to guarantee clear and independent decision-making when it comes to decisions about major criminal matters. So IBAC do not take on their own decisions about prosecuting; they defer to the DPP.

I would remind the house of the very unfortunate Queensland case dating back to 2017 that led to the failure of prosecutions of 28 Logan city councillors in 2019. The Queensland Crime and Corruption Commission was led by an eminent senior counsel, and an attempted prosecution ended up being thrown out at committal stage after they took the decision to prosecute after running their own long investigations into the matter. A subsequent opposition-led bipartisan parliamentary inquiry was scathing of the commission and highlighted the total inappropriateness of the investigators unilaterally also making decisions about prosecutions based on their own work. They formed a view on that experience and came up with a recommendation that the involvement of the DPP in decisions on prosecutions should be the appropriate course of action. I commend that report to those opposite.

The opposition have also alleged entirely unsubstantiated conflicts of interest. They have claimed that because the DPP and Office of Public Prosecutions work with Victoria Police regularly they are all conflicted in any matter involving police. It is a ridiculous notion and one that completely misunderstands the role of the prosecutor. The OPP do not act for the police. They do not act for victims or any other person. They are independent and act for the Crown in the public interest. As the DPP has pointed out in her statement, they regularly prosecute matters in which the accused are police officers, and the OPP certainly independently has strong conflict of interest policies in place.

There have also been suggestions that the DPP is conflicted in relation to former commissioner Simon Overland, despite never having met or exchanged correspondence with him. This is not about a conflict of interest. The opposition and a couple of regular commentators have outrageously and misleadingly alleged a conflict of interest that simply does not exist. They have tried to create a perception of a conflict of interest for reasons that I just cannot fathom. In effect they have sought to call into question the integrity of the DPP and her senior colleagues. I think Mr Mulholland started his contribution today by calling out shameful behaviour. It is shameful for the opposition to attack the DPP. The people of Victoria have a right to expect better from those in this place. They have sought to bring the most basic foundations of the criminal justice system into question for political pointscoring.

I am not alleging a conflict of interest, but no-one has actually drawn a similar bow to what they are trying to do with the DPP having a loose association with Victoria Police. No-one is calling into question a conflict of interest in relation to the former Special Investigator, who was a member of the High Court that concluded that Victoria Police was guilty of reprehensible conduct or atrocious breaches. Justice Nettle had considered and formed a view on these matters as a judge of the High Court. No-one is alleging that Justice Nettle had a conflict of interest, and I certainly am not doing that either. But throwing around conflicts of interest by virtue of someone’s association with an organisation I think is inappropriate, and you are picking and choosing when to do so. In relation to perceptions of conflicts of interest with Mr Nettle, I considered that at the time of his appointment and still considered him to be an appropriate person to perform the role of Special Investigator, and I certainly stand by that decision today. Those opposite say that they are concerned about perceptions of conflict, but because they see some misconceived political advantage, they are able to turn a blind eye to a narrative that is not consistent with their objectives.

I am concerned about the blatant undermining of the DPP. It is unworthy and frankly unforgivable. I take it that the Shadow Attorney-General is quite convinced that he will never be in the role of Attorney-General, because it is untenable to be an Attorney-General that attacks the DPP. The opposition have also tried to misrepresent the careful weighing of evidence publicly outlined by the DPP. They have glossed over the fact that the decision was made carefully by not just the DPP but a panel including the DPP, a Crown prosecutor and a chief Crown prosecutor.

The opposition have also suggested that the decision was made purely due to the passage of time. I assume from the commentary of the only two opposition speakers that that is what the speaking notes say, because they have failed to be a little more considerate in relation to –

Members interjecting.

Jaclyn SYMES: I am not saying we do not all do it; I am just saying you are doing it today. Once again your speaking notes clearly omitted the actual considerations that were detailed in the DPP’s response. Picking and choosing lines to suit your purpose is disingenuous. The DPP said there were gaps in evidence. The reliability of proposed witnesses and the limits on what evidence is admissible all formed part of her reasons in relation to this matter. It also fails to acknowledge that the DPP was very reasonably not prepared to lay charges gambling on the hypothetical prospect of obtaining further important evidence which the OSI for all its work had not yet managed to acquire. The OSI worked diligently for over a year and a half to assemble enough evidence to support the laying of charges and ultimately came up short. It might not be the outcome we wanted, but it is the outcome. It is this very outcome that was actually foreshadowed by the royal commission. They anticipated – (Time expired)

Council divided on amendment:

Ayes (16): Matthew Bach, Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nicholas McGowan, Evan Mulholland, Adem Somyurek, Rikkie-Lee Tyrrell

Noes (21): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Samantha Ratnam, Harriet Shing, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Amendment negatived.

Council divided on motion:

Ayes (21): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Samantha Ratnam, Harriet Shing, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Noes (16): Matthew Bach, Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nicholas McGowan, Evan Mulholland, Adem Somyurek, Rikkie-Lee Tyrrell

Motion agreed to.

Read second time.

Business interrupted pursuant to standing orders.