Thursday, 12 September 2024

Bills

State Civil Liability (Police Informants) Bill 2024

David LIMBRICK, Evan MULHOLLAND, Sarah MANSFIELD, Jaclyn SYMES, Nick McGOWAN, Trung LUU, Jeff BOURMAN, David DAVIS

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Bills

State Civil Liability (Police Informants) Bill 2024

Committed.

Committee

Clause 1 (14:12)

The DEPUTY PRESIDENT: I have been advised that because Mr Limbrick’s amendment changes clause 1 and the answers will be different if it is not accepted by the house, the minister would like Mr Limbrick to move his amendment first so that we can deal with the clause, whether it is amended or not amended, in its entirety. Mr Limbrick, I ask you to move your amendment 1, which is a test for all your remaining amendments.

I move:

1. Clause 1, lines 3 and 4, omit “extinguishing causes of action” and insert “providing for a maximum cumulative amount of damages or other monetary compensation”.

As I stated in my second-reading speech, the objective of this amendment is to remove the extinguishment parts of the bill and replace it with a limit on damages, also to remove the human rights charter override allowing cases to proceed and also to ensure that the bill is not ignoring the Victorian Charter of Human Rights and Responsibilities.

Mr Limbrick, your amendment 1 seeks to replace the extinguishment of causes of action with a damages cap. How can you justify putting a price on the justice of those affected by such reprehensible conduct, capping damages at $1 million regardless of the severity of harm?

I think you are asking for an opinion on that, aren’t you, Mr Mulholland? What we are doing here is we are trying to enhance the right of people to take things to trial. The initial bill did not allow that, through extinguishment. What I have tried to come up with here is a compromise. The idea of limiting damages is not unique to this bill, and in fact it was pointed out by the Attorney-General in her speech, where there are other references. So I would say that having a limit is recognising the fact that the taxpayer resources of this state are not infinite.

How did you come to the $1 million cap, as in the price, and what analysis or research has been conducted to show that is fair compensation for those that have had their rights trampled on by the state?

I have consulted with a number of people about this. To my knowledge in other areas where there are caps there is no empirical justification. Ultimately, it is a matter of perception. The Attorney-General has already put on the record that she would have preferred it to be a lower figure, and I have consulted with others that believed it should be a higher figure. I believe that the value that I am proposing, $1 million, sits somewhere in the middle of that and believe that it is an appropriate balance.

Given that there are tests, I will ask some questions on the other clauses as well. On clause 5(2A)(a) of your amendment ensures that non-economic damages remain limited by the Wrongs Act 1958. What is the evidence to support this approach?

The intention of this is – it is more of a technical thing – to ensure that we do not inadvertently change the function of the Wrongs Act. That is why we are putting that in there.

By omitting clause 6 you seek to remove the exemption of this bill from the Charter of Human Rights and Responsibilities Act 2006. How do you plan to reconcile this change?

The human rights charter does not make any assurances of specific damages or remedies. Section 39 of the charter says that a person has a right to seek a remedy, but the charter is completely silent on the terms or limits of such remedies. If such a limit were incompatible with human rights, then limitations on remedies in the Wrongs Act and the Defamation Act 2005 would also be incompatible with human rights.

I would have thought that there would be no limit, given the substantial breaches of human rights that have been undertaken – but anyway, I digress. Your proposed amendments to clause 5 suggest that the maximum payout for any victim would be capped at $1 million. How can you explain why victims of the Lawyer X scandal should be subjected to an artificial limit when their lives have been so irreparably damaged by state-sanctioned misconduct?

The limitation to certain classes of people is something that is contained in the substantive bill and is not the subject of my amendment.

Mr Limbrick, the royal commission found significant wrongdoing in the use of human sources under the Labor government’s watch. Do you really believe that limiting damages will bring closure to victims and restore trust in the Victorian justice system?

No, I do not. I think there are many further things that could happen. It is outside the scope of this bill and certainly outside the scope of this amendment, but I think there are many things that need to be done in this state to clean up the police force and clean up the justice system. I know the Attorney-General has spoken about some of those things, but I certainly think that absolutely more needs to be done.

Mr Limbrick, your amendments shift the focus from accountability to budget management. How can you justify this shift when the integrity of the justice system and compensation for egregious breaches of legal rights are at stake?

The intent of the amendment is to actually enhance the rights that were originally going to be extinguished in the bill, and therefore we are allowing, through this amendment, any cases to proceed that anyone would wish to take to court. This is not stopping cases going to court. That would be my response.

Mr Limbrick, aren’t your amendments an example of government overreach that is placing arbitrary caps on compensation that only go to support state governments overstepping or even breaching their lawful responsibilities?

When we talk about money here, it is not the government’s money. It is taxpayers money.

We have been advised that the state’s legal costs in defending these matters will likely exceed any damages sought. If the intention of your amendments is to save taxpayers money, why have you not sought to cap or limit the state’s legal defence costs rather than just the damages?

It is actually an interesting proposal that you are talking about there. It is certainly outside the scope of the bill and this amendment, but it is also something that I am open-minded about. It is also worth stating that under model litigant rules it is expected that the state would try to resolve these disputes in a manner that is least impactful on all parties, including economically, and the state’s obligation to model litigant rules should be adhered to in this regard.

Given that the focus or the rationale for your amendments is really based on savings, can you advise on the estimated savings that your proposed damages cap will likely deliver to the state?

I think the big unknown here is – no, I cannot provide that. I do not think the opposition can provide that. I am not even sure the government can provide that. That is why I am so concerned about the potential liability and why I am trying to do this. I do not think we know the answer to that.

You partially addressed this in a response to Mr Mulholland, but the degree of the impact of Lawyer X has varied quite significantly on individuals. It goes from very serious impacts involving wrongful conviction and serious periods of imprisonment to relatively minor and insignificant impacts. So how did you come to a single round figure of $1 million as a damages cap for all individuals affected?

It is a similar question to what Mr Mulholland asked. But further to that, I would also say that hopefully the government will adhere to the model litigant rules and that these things will be settled before they go to court, as per the rules. Therefore as the Attorney-General has said, she would have preferred a different figure to what I have come up with. Other people have said that it should be another figure. Other people have said there should not be caps at all. I have come up with what I think is in the middle of what that range of opinions is.

Just to confirm, in terms of coming to that decision it was several different opinions about what the right amount should be. Have you read and considered the royal commission report or consulted with lawyers on both sides of the civil matters in terms of informing the cap you have arrived at?

The royal commission actually made no recommendations on damages or remedies, and the economic risk of Victorians in the face of expensive litigant costs was never part of the scope of the royal commission. I might add that our party supported the recommendation to establish the Office of the Special Investigator and also that members of Victoria Police who have committed criminal wrongs against people as part of Lawyer X should face the consequences for doing so. That would be my answer.

Victoria Police pays out millions of dollars in damages every year, separate from the Lawyer X matters, so if the intention is to save taxpayers money, why have you limited the cap to Lawyer X matters and not all police damages, which are far more substantial in terms of the financial impact on taxpayers?

I would respond by saying that that sort of limitation would substantially expand the scope of the bill. But I would note on the comments from Dr Mansfield earlier in the debate about having a police ombudsman and enhancing oversight of Victoria Police that I would certainly be very happy to have those sorts of conversations about how we could better manage this in the future. But certainly legal costs are outside of the scope of this.

Have you received any advice supporting the constitutional soundness of the amendments you have proposed, and are you confident that they will stand up to any challenge?

No, I have not received constitutional advice. I would point out that this remains the government’s bill. If the government has concerns about constitutionality, I assume that they will reject it in the lower house. I would note that the Attorney-General pointed out in her contribution similar cases that have survived High Court challenges. But ultimately, on whether or not it would survive a High Court challenge, I do not have the resources to get that sort of advice.

We have heard legal opinion that amendments that you have proposed will almost certainly be challenged on constitutional grounds, which will inevitably end up in the High Court. Do you have any estimate on the likely additional cost for taxpayers on legal costs defending your proposed amendments?

We cannot see into the future. There are a lot of unknowns here. But if a challenge proceeds, that would be a matter for the court. It is a hypothetical scenario that I do not have an answer to.

Mr Limbrick, would I be right in saying your amendments would not stop people bringing their cases to court?

I am not sure I understand Mr Mulholland’s question, but with my amendments the whole intention is to allow cases to go to court.

Mr Limbrick, civil claims allow an offer of compromise to be made, but if a plaintiff fails to accept it before trial the court will give the plaintiff less than what was in the offer and the plaintiff will be ordered to pay costs, likely well over any $1 million cap. Do you accept that this will lead to cases not proceeding to court?

It is my understanding that the Supreme Court has full discretion over how it handles costs and it can choose to award them as it sees fit, including in a scenario different to what you have outlined.

Mr Limbrick, as you will be aware, the government is inclined to support your amendment because it is our desire to do whatever is possible to reduce costs. Can I just confirm your amendment is an upper limit? My view would be that there will be some cases where the plaintiff’s claims are higher than the cap, but in other cases the plaintiff’s claim in any court or settlement outcome would probably be much lower, and those cases would still be assessed in the ordinary way and the cap is just an upper limit. Can you confirm that that is your understanding of how it would apply?

Yes, that is the intent.

Just to be clear, Mr Limbrick, what the Attorney is establishing or trying to do there is ensure that when any judge takes into account any decisions in the future, they are actually creating in the mind of the judge a scale, the end of the scale being a million, being the most. That actually then puts pressure on the judge downwards to ensure that the amount the person may receive would be on a scale that is of the most severe to the least severe. In fact by putting this forward what you are actually admitting to, in giving your answers to the Attorney as you have just done, is that most of the people will not even get in the order of magnitude that is the maximum permissible under your amendment.

I am actually not certain what the question was there. It was more of a statement I think, so I will leave it at that.

It was not a statement. It was a clear question. The question was whether you understood, and clearly the answer was no. Do you know that you are enabling the government’s bill by giving your support and that you will be directly responsible for curtailing the legal rights of hundreds and hundreds of Victorians who have been mistreated by this government under law and by your protection?

Look, if the opposition wants to attack me for defending the interests of taxpayers, then that is their problem; that is their issue. But the fact of the matter here is that I have seen a situation, a bill presented to this house, which I was not happy with, but I understood there were financial implications for the state. I am trying to show leadership here and trying to come up with a solution that is beneficial to the taxpayers of Victoria. The opposition has come up with nothing, so if you want attack me over this, feel free to go ahead.

Far from an attack, what you have actually revealed to this chamber, this Parliament and the state today is that you cannot even say that with any certainty you are actually saving any money, because you do not know how much it will cost. So my question to you is: having already admitted you actually have no costings, no guarantee –

Jaclyn Symes interjected.

Nick McGOWAN: It is not nothing, says the Attorney. This Parliament is completely blind. You, Mr Limbrick, who are bringing forward this amendment, cannot even answer the basic question. You stand in this chamber and you tell us that the reason for your amendment is to save money. You were asked a direct question by the Greens – rightly asked – because if that is the raison d’être for your amendment, you cannot even tell us how much it will save, because you do not know how much you are saving. So how can you possibly substantiate such an answer?

I would retort back with: by opposing this bill, like the opposition is doing, how much financial liability are you exposing the state to? You do not know the answer to that either.

Mr Limbrick, a question for you. I personally do not choose to put a price on justice. Yes, you are right. As far as I am concerned, if somebody has been wronged and the court decides that they are due – that is a court, a judge, a judge probably appointed by this Attorney-General, so I congratulate her on that – I have every confidence that that judge is going to do the right thing and give them an amount which is actually due to them under law. I have no problem with that at all. I do not think the people of Victoria do. All I said was: do you have a problem with that?

I am not sure that question is relevant to the amendment.

Mr Limbrick, parliamentary debates, particularly the committee stages of debates, can be used in court to help discern the intent of particular pieces of legislation. Do you accept this?

That is my understanding, yes.

Do you accept that a judgement or a court may look upon Ms Symes’s questioning about the scale below the cap? Do you accept that that questioning may be looked upon as the intent behind your amendment?

My intent behind the amendment is clear. It is to put a cap on it.

Do you concede therefore, Mr Limbrick, that with the words of the Attorney, the chief law officer of the state, the Attorney herself has made it crystal clear to any judge in the future that the upper limit, the upper scale, of any amount –

Jaclyn Symes: There is no scale.

Nick McGOWAN: The scale is implied, Attorney-General, as you know. The upper limit is now implied by the Attorney-General.

I think maybe that is a question better directed to the Attorney-General, but clearly my intent here is a cap.

If that is your intent, then it may well be that no-one ever gets close to that cap. Nonetheless given that is the case, one of the other questions I have for you is in respect to how you arrived at that sum. The Greens have already asked this question, and I do not think they really received an answer other than perhaps, you know, licking your finger and putting it in the air and coming up with a $1 million figure. I know the Attorney-General expressed a desire for half a million, so the halfway point is $750,000. To give comfort to those who may have to actually go through this horrid, torrid legal process because they have been wronged by the state government, how did you arrive at the $1 million decision?

I have already covered this with questions from Mr Mulholland and Dr Mansfield.

Just further to that question, that is not an answer, because I was here for one of those answers and I watched the other one on TV, and they did not receive an answer. The best I could deduce from what you said was that you just came up with it. I am also not clear. Therefore the question for you is: how many lawyers did you actually consult when you came up with this amendment, excluding the Attorney-General?

As to how many lawyers, I have had numerous people contact me both since the bill was first introduced and since my idea on an amendment became public. Many people have made representations to me with all sorts of ideas on whether it is a bad idea or a good idea. As the Attorney-General stated in her summing-up, she had similar feedback. But as to the exact number, I could not tell you off the top of my head.

If an ordinary citizen were to engage in egregious conduct such as the state engaged in via the Lawyer X scandal, is it not the case that the victim could pursue damages without a cap?

I am not across all areas of law, but certainly, as we have outlined here in some other sections, there are caps on other types of compensation. The answer is: this is a special limitation.

It is a special limitation for government. Why then should the state have a lower ceiling for liability than a person?

The state does not have their own money. The state’s money is Victorians’ money, and therefore it is indeed finite.

Wouldn’t you agree that egregious behaviour by the state upon individuals resulting in, say, 12 years in prison illegally due to actions by the state should result in fair compensation?

As I have pointed out, the intent of this amendment is to improve rights that were not afforded under the original bill, and therefore allowing cases to go to court and seek compensation is an improvement on what the government was initially proposing. The intent here is to improve rights rather than remove them.

Mr Limbrick, I do not intend to keep asking questions. I could do that all day. I have one last question, really, and I will come to it. I hope that you understand that in what you are proposing today and the support you are giving the government, you are enabling. Without you enabling, this bill may not actually proceed. I do not blame the government. They are institutionalised at this point in their tenure, so that is fine; I get it. They have got advice to protect their economic interests; I get that too. I do not blame them in some respects. But to enable that behaviour, and as somebody who represents the Libertarian Party, you are now going to be responsible through this amendment for actually placing one of the greatest, if not the biggest, retrospective curtailments on the legal justice rights of hundreds and hundreds – the Attorney yesterday afternoon spelt out for us I think it was 1000-plus and then 140 or so in her opening remarks for the first reading. You will be directly responsible for that. While you think you may be doing a good deed, this is not a good deed. Whenever you enable the wrong thing to happen, that responsibility rests with you squarely. I hope you realise that.

I do not intend to respond to that.

Wouldn’t you agree that there needs to be a safeguard against false imprisonment, deprivation of liberty and egregious breaches of privacy by the state?

Yes. Although it is outside the scope of this bill, I am well on the record saying that there needs to be better police oversight in this state. In fact I have seen out-of-control policing during the pandemic. In your second-reading speech you had a go at me and also said that I did some good things. I did not see many members of the opposition going out there and bearing witness to it and I did not see many government members bearing witness to it, but I went out there and bore witness to it, and I saw the excesses of the state with my own eyes. Yes, there do need to be better oversight mechanisms in this state.

How do you balance the public interest in this against your cap on compensation?

Not all cases are about money, and this amendment is silent about non-financial remedies. If someone feels it is in the public interest to bring a case to court, then that is exactly what this amendment is enabling.

Yes, but would you not agree that taxpayers have an interest in prudent management of our law enforcement services, thereby negating the need for any action at all?

I agree; I wish that none of this happened myself. It was well before my time in Parliament indeed. I think the government has been very clear on their responsibilities here and what has happened and acknowledging it. I totally agree that none of this should have happened, but it has.

Would you not agree that the current situation, where compensation is not capped, may actually put a check on the egregious breaches of privacy, false imprisonment and deprivation of liberty that the Lawyer X scandal has resulted in?

It is outside the scope of this amendment and bill, but what I would like to see is the people responsible for this charged, and I hope that the opposition agrees with me on this.

Mr Limbrick, as I have already explained, they actually will not be, because the government can just flag a million-dollar offer of compromise to limit its responsibility or damages in individual cases. If they do not accept that and go to court, they can be put to costs, and the claims would be over the million-dollar mark and ruinous for any individual that even tries to go to court. Mr Limbrick, by limiting damages, does your amendment indirectly downplay the severity of the miscarriages of justice caused by the actions of Nicola Gobbo and Victoria Police?

The simple answer is no.

I think it does, because it places a cap on that, and I think every sensible person watching this would know that. Mr Limbrick, clause 5(2A)(b) – for those playing at home – ensures that court powers over costs remain unaffected. Do you expect this to lead to a more protracted litigation as parties may still be incentivised to push cases to court, knowing their legal costs may be covered even if their damages are capped?

The intent of this is to remain silent on the issue of costs and leave that to the courts.

Mr Limbrick, how do you justify retaining the potential for significant legal costs, under clause 5(2A)(b), while limiting compensation for actual victims of Victoria Police’s misconduct?

The intent of this is to enable the ability for claims to go to court. By remaining silent on costs, it leaves it to the court to decide how it proceeds with that.

Mr Limbrick, your amendments propose reducing the long title of the bill to reflect your damages cap rather than extinguishing causes of action. Doesn’t this downplay the seriousness of the state’s misconduct by framing it as a financial issue rather than a question of justice?

The answer is no.

Mr Limbrick, if a damages cap is set at $1 million, how do you expect this amount will be split among multiple claims, particularly if more victims come forward over time?

This is a limit per person, and that is the intent of the amendment.

Back to the question before, in terms of how you justify retaining the potential for significant legal costs under clause 5(2A) while limiting compensation for actual victims of Victoria Police misconduct: I understand you have said that it is your intent for it to remain silent on costs, but don’t you accept that this severely limits the compensation for victims of Victoria Police misconduct but no-one else?

This is not only relating to Victoria Police, it is my understanding, so no.

Just back to a point I went to before on the offer of compromise: an offer of compromise can be made, and then it goes to court. Civil claims usually lead to the successful party having to pay the others’ costs, which often come into the hundreds of thousands and perhaps the millions. Do you accept this may lead to many victims simply not bringing their cases to court due to the $1 million cap, which is an inevitable reality? Do you accept that due to the $1 million cap, this will inevitably lead to cases not being brought to court?

Firstly, that is a hypothetical, but secondly, costs and awarding of costs are at the full discretion of the court.

In relation to the State Civil Liability (Police Informants) Bill, as you mentioned, can this relate to other matters besides the Gobbo case in relation to police informants?

The question that you are referring to does not actually relate to the amendment but relates to the bill itself, and it is quite clear in the bill itself.

In relation to your amendment, it is limited to $1 million in the case of compensation for false imprisonment and other means, and this is limited to the maximum. In relation to the bill, if the victim happened to suffer an incident and during incarceration this was a fatal incident and they were deceased, would that $1 million cap still apply to that victim?

We could go through a range of hypotheticals all day. That is a hypothetical question that I cannot really answer.

But you said this does relate to police informants, so there can be a situation involving other police informants where the victim could sustain incidents with a fatal result; would the cap still apply to $1 million compensation only?

As to which cases this would apply is outside the scope of my amendment and is actually part of the bill, so I would suggest that maybe you direct that question to the Attorney-General at your leisure.

Mr Limbrick, I thank you for putting up with our questions today. Why should a corporation face a greater liability ceiling than the state, despite the fact the state is the most powerful entity in Victoria?

I am not certain how that is relevant to the amendment that I am proposing.

Council divided on amendment:

Ayes (21): Ryan Batchelor, John Berger, Lizzie Blandthorn, Jeff Bourman, Moira Deeming, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Shaun Leane, David Limbrick, Tom McIntosh, Rachel Payne, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Rikkie-Lee Tyrrell, Sheena Watt

Noes (18): Melina Bath, Gaelle Broad, Katherine Copsey, Georgie Crozier, David Davis, Renee Heath, Ann-Marie Hermans, Wendy Lovell, Trung Luu, Sarah Mansfield, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Aiv Puglielli, Georgie Purcell, Samantha Ratnam, Richard Welch

Amendment agreed to.

Ms Symes, now including Mr Limbrick’s amendment, which is now your bill –

Jaclyn SYMES: It has always been my bill.

Evan MULHOLLAND: Yes. The Frankenstein’s monster of the Labor Party and the Libertarian Party’s bill has replaced the extinguishment of causes of action with a damages cap. How does the government justify putting a price on justice for those affected by such reprehensible conduct, capping damages at $1 million regardless of the severity of the harm?

Mr Mulholland, I maintain my position that the government’s version was a better overall option for the taxpayer. As I indicated in my summing-up, we have come to this decision after a lot of thought, and I am comfortable in the decision that I take responsibility for for the benefit of Victorians.

I have a quick question, Attorney-General. Listening to one of the questions earlier from one of the Liberals, you would be led to believe that the $1 million cap was for all claims. That was what I heard. Can you confirm to me it is $1 million per claim, not across all claims?

Per claimant.

I was just making sure. Given the invective I was hearing from the opposition, I reckon it would be really cool if they got their facts right.

The DEPUTY PRESIDENT: I will rule that out.

Ms Symes, for introducing a $1 million cap on damages for all causes of action, as far as you are aware has the government conducted any analysis to show that this is a fair compensation for those who have had their rights trampled by the state? I note that Ms Symes preferred an arbitrary half a million dollars. So have you done any analysis to show that this is a fair compensation for those who have had their rights so egregiously trampled on by the state of Victoria?

Mr Mulholland, you are asking me for an opinion in relation to what I consider fair compensation or not. That is not what this bill is about. This bill is about ensuring that finality for this saga – that it can come to an end for the benefit of taxpayers in the order of reducing the amount of funds that may be payable for claims. When it comes to my comments in relation to a preference of $500,000, what I base that on is that I am concerned that there may be an incentive when you put a $1 million cap in for that to be presented with a view that it is the going rate. For people whose claims may be much less than that, they might be inclined to take a proceeding to court in the hope that they get what they may think is the going rate. I would have preferred a $500,000 cap to disincentivise claims, particularly unmeritorious claims, but I accept that the $1 million upper limit goes a long way to achieving our cost reduction goals.

Cost reduction goals – maybe scrap the Suburban Rail Loop and you can meet your cost reduction goals. I wonder why there was not this kind of bill for liability for the Commonwealth Games cancellation, but anyway. Ms Shing might have considered it; she had the portfolio. It probably was considered, actually. You are probably revealing cabinet discussions there, Attorney.

The bill ensures that non-economic damages remain limited by the Wrongs Act 1958. Do you have any evidence to support this approach?

Mr Mulholland, I do not need evidence. It is for an abundance of caution, so that it is not bumping up the Wrongs Act stuff.

The bill now suggests that the maximum payout for any victim will be capped at $1 million. Can you explain why victims of the Lawyer X scandal should be subjected to this artificial limit when their lives were so irreparably damaged by state-sanctioned misconduct?

Mr Mulholland, I have stated the purpose of this bill. It is to bring finality to the Lawyer X scandal; that was my intention with the bill as proposed. I would point out that the now amended bill provides a $1 million cap for compensation for court orders only.

Ms Symes, the bill now, including its name, shifts the focus from accountability to budget management. How can this shift be justified when the integrity of the justice system and compensation for egregious breaches of legal rights are at stake?

Mr Mulholland, I went over this in great detail in my summing-up.

By now limiting legal damages, is the government indirectly downplaying the severity of miscarriages of justice caused by the actions of Nicola Gobbo and Victoria Police?

Mr Mulholland, again, it has become very clear that no-one other than me and perhaps a few others has read the five volumes of the final report that was delivered by the royal commission just about a week before I became Attorney-General. It was presented to me with the full responsibility of implementing the recommendations that were directed to government. Following my appointment, I have also appointed an implementation monitor to ensure that the recommendations are implemented. I appointed the special investigator, on the recommendation of the royal commission, to see if there was any further work that needed to be done in relation to matters that the royal commission was not able to conclude. There is nothing in this bill that stops any criminal appeals. As you would be aware, there have been some concluded, there are some on foot and there may be some into the future. These matters have been well ventilated. There has been accountability, responsibility and indeed government action.

In preparing for this bill did the government, prior to its introduction and prior to Mr Limbrick’s amendment itself, consider caps?

I did.

What were they? And how did they land on extinguishment? How did you land on that?

Again, Mr Mulholland, I was quite open about the way I came about formulating this bill, and I put on the public record that I considered a range of options before being convinced that full extinguishment was the appropriate course of action.

How do you justify retaining the potential for significant legal costs while limiting compensation for actual victims of Victoria Police’s misconduct?

In the bill as I presented it to the Parliament, full extinguishment would have been the inability to bring civil action, so it would have reduced those costs. As has become apparent, the will of the house was not to support the bill as I presented it. Mr Limbrick proposed an amendment. As I have indicated, in the government’s willingness to support that amendment it is not our preference, but we think that it will go some way to achieving the purposes of the bill that I brought to this house.

Ms Symes, civil claims allow an offer of compromise to be made, but if a plaintiff fails to accept it before trial, the court will give the plaintiff less than what was in the offer and the plaintiff will be ordered to pay costs likely well over the $1 million cap. Do you accept that this will lead to cases not proceeding to court?

Mr Mulholland, I will not be drawn in reflecting on hypothetical individual cases and what different pathways different cases may take, but I do want to be clear that I would expect, in the normal way, many cases will settle before court.

Georgie Crozier: They don’t want this to go to court.

No. Given the concerns raised by the Victorian Bar and the Law Institute of Victoria (LIV) that this bill undermines the rule of law and sets disturbing precedents, how can you justify the caps and also the bill in general?

Mr Mulholland, it is not a matter for me to justify the caps. I have said I accept an amended bill. Of course I have consulted with many lawyers. We have spoken to the bar, we have spoken to LIV. I justify my decision because, as the Attorney-General, I took this to cabinet and convinced my colleagues that it was the best thing to do for Victorian taxpayers, and I stand by my position.

Ms Symes, when did you decide to go with Mr Limbrick’s option of caps rather than yours of extinguishment?

Mr Mulholland, it was not a choice – being able to choose between one or the other. It became clear that the bill would fail if it was not amended. And as explained about why the government has accepted Mr Limbrick’s, it is not an acceptance that his proposal or the model that is a result of his amendment is preferable to the one that I brought to the house. I maintain it is not, but it is better than no bill. It is better than no protection for Victorian taxpayers, which is the position of the Liberal Party.

How can you justify the retrospective legislation to limit the state’s ability, a limit that applies to no-one else in society?

Yes, I can confirm, Mr Mulholland, that it is a very narrow bill applying to a specific cohort of people.

Does the government plan to use these limits as a negotiating tactic with Ms Gobbo?

I will not be reflecting on individual cases, particularly cases that are before the court.

Did you receive any formal advice on your $500,000 number that you came to?

Not formal, no.

Council divided on amended clause:

Amended clause agreed to.

Clause 2 (15:32)

I move:

2. Clause 2, omit this clause and insert –

“2 Object

The object of this Act is to limit the extent to which the State is required to devote further financial resources to responding to the matters that were the subject of the Royal Commission into the Management of Police Informants.”.

Amendment agreed to; amended clause agreed to; clauses 3 and 4 agreed to.

Clause 5 (15:35)

Attorney, it will not surprise you that on this clause I would ask about the section 85 aspects of this, and the Scrutiny of Acts and Regulations Committee has raised issues. I understand you may have some response to SARC’s comments, and I would certainly appreciate that, because it does worry me on two levels. First of all, a section 85 override is never a good thing and needs to be justified. Secondly, it is not done overtly or frankly, but actually I think the SARC material is right and it does have a de facto section 85 effect. In that sense I think particularly you as Attorney-General and the first law officer of the land ought to be aware of the need to diminish the number of section 85 statements and certainly ought to in a, how can I say, model litigant mode make sure that where there is a section 85 override it is frank and clear.

Thank you, Mr Davis, for the opportunity to put on the record that I disagree with you on this one. It is my view that the bill would not alter the jurisdiction, authorities or powers of the Supreme Court of Victoria and therefore does not enliven section 85 of the constitution. Instead the bill comprises an alteration to the substantive law by – it did extinguish, but I would update that – inserting caps in certain causes of action such as to have that effect, and in those circumstances I do not consider that a statement under section 85 of the constitution is necessary in relation to the bill. As I said, I think I am right and you are not, but as I am always of the view that that is not a matter for me to be determinative of, if it gets tested, it will not be by me.

Attorney, I thank you for your comments, but it is not just me who has this concern. It is SARC as a whole, and I just think it may be worth reading this into the record here:

Clause [5] may raise an issue as to the jurisdiction of the Supreme Court.

This is what SARC said in Alert Digest No. 11.

Jaclyn SYMES: It says ‘may’; you said it does.

David DAVIS: Well, I am reading what SARC says, all right. I will keep going. I am being direct and open on this:

Clause [5] may raise an issue as to the jurisdiction of the Supreme Court. While there is case law suggesting the removal of a cause of action does not interfere with the Court’s jurisdiction (at least with respect to statutory causes of action), this is not without doubt in relation to common law causes of action (e.g., relevantly, false imprisonment) in proceedings already on foot in the Supreme Court in which the “cause of action” as defined in the Bill is the only cause of action brought by the person, and therefore clause [5] may functionally require the Court to dismiss (or indefinitely stay) the proceeding in those circumstances.

They cite a series of analogies:

… South Australia v Totani (2010) 242 CLR 1; Attorney-General (NT) v Emmerson (2014) 253 CLR 393, 434 [68]–[69].

They go on to say:

The Second Reading Speech did not address the possible alteration of the jurisdiction of the Supreme Court. The Committee will write to the Attorney-General on whether a statement addressing the alteration of the jurisdiction of the Supreme Court should have been made.

I think there is sufficient doubt on this, Attorney-General, that you cannot just blithely dismiss this. It may well see those with causes of action impacted, effectively limiting their access to the Supreme Court in reality.

It is a statement that Mr Davis has made. But, Mr Davis, we are providing a law. With respect to SARC’s work – and I thank them for their view and the acknowledgement that these issues can be complex, and I do preface the emphasis on the comments that were made – that is often the case when you are legislating to create laws that the courts then go on to interpret. That is exactly what we are doing here. We are providing a law, and there is no impediment on the ability for the court to interpret that. We are just providing a cap for them to interpret the law within and therefore apply the law within. It is not impeding on their jurisdiction. We are just, as we do in many cases, making a law.

I wonder whether you might explain why you have not – or maybe you have – responded to SARC formally in a timely way, given this bill was a bill that began in haste but has actually lingered for a lot longer than originally planned.

Well, as you may appreciate, Mr Davis, the content of the bill has been in a state of discussion between many members of this place and indeed those outside of this place, and when I had a reasonable view or a reasonable prediction of how today would unfold, I responded as best I could to SARC, given that I thought that this bill was likely to be amended. So that is why the SARC response was today.

I thank the minister for that response. I wonder whether she would make that response available to the house. Members may wish to see a copy. Not having had the benefit of seeing your response –

Jaclyn SYMES: I just read out my answer.

David DAVIS: Well, there you are. I thank the Attorney-General for it, and I am going to read it out again, because people should understand that the response to SARC today is simply three short paragraphs:

The Committee has queried whether a statement addressing the alteration of the jurisdiction of the Supreme Court should have been made in the Second Reading Speech for the Bill.

In my view, the Bill would not alter the jurisdiction, authorities or powers of the Supreme Court of Victoria and therefore, does not enliven section 85 of the Constitution. Instead, the Bill comprises an alteration of the substantive law –

which is just what you have said –

by extinguishing certain causes of action such that they are no longer available.

In these circumstances, I do not consider that a statement under section 85 of the Constitution is necessary in relation to the Bill.

Attorney-General, I just think that that is not quite satisfying for the chamber and for the committee. Not only do I think that it would have been better if it had been circulated earlier, but leaving that matter aside, I think the SARC examination there really has not been refuted and has not really been properly disposed of in any meaningful way. It is just simply an assertion by you that they are wrong. The chamber can make up its own mind on one level, but it may well become a matter of jurisdiction. In those circumstances I am always more prepared to be cautious rather than bludgeon ahead without actually taking into account some of the warnings that may have come, in this case from SARC. So I am going to indicate that I think there should have been a section 85 statement. I think the SARC commentary is more persuasive, if I can be honest, than yours, and we may have to agree to differ on that. But in that circumstance I do not believe we should support this clause.

Your comments stand in respect to your views, Mr Davis, and that is fine. I do disagree, but I think it is probably incumbent upon me to explain that I do not just make a statement because I think it is right. I have obtained advice from the department and the Victorian Government Solicitor’s Office (VGSO) to inform my statement and my SARC response.

The minister says she has received advice. I wonder whether she would make that advice available to the committee. That would be helpful.

Mr Davis, I have reflected that advice in my answer to SARC, and the SARC answer stands to reflect the advice from my department, which is informed from the VGSO.

It seems to me that we are again left in a position where we have got a three-paragraph bland assertion from the minister and then an assertion that she has had departmental advice that she appears unwilling to share. Again, in those circumstances, we will have to agree to disagree. I find the SARC material more persuasive than the minister’s position.

Are there any other legal precedents in Victoria, Australia, where such a cap has been applied to cases involving police misconduct?

Mr Mulholland, we are not aware of any. In formulating the policy response to this issue and indeed the thinking around the State Civil Liability (Police Informants) Bill 2024, I went to great lengths to ask for examples of similar legislation or issues that would inform the landing that I could then take to cabinet. As I went through in my summing-up, there are liability limitations in Victoria in the Wrongs Act 1958, the Accident Compensation Act 1985 and the Petroleum Act 1998. But your specific question was in relation to whether any of those or any other matter has affected Victoria Police misconduct cases, and we are not aware of any.

Is the government concerned about potential legal challenges to the $1 million cap, especially if claimants argue that it violates their rights to fair compensation?

I am aware that this bill could be challenged, yes. Like a lot of the legislation that the Attorney brings to the Parliament, you are never beyond reproach of a constitutional challenge on many of those cases. Similar to industrial relations laws that we seek to bring to the chamber as well, we often reflect on what might happen. So it is certainly open, like it is in many pieces of legislation, and I will leave my comments there. I do not have any predictions for you, Mr Mulholland.

And on that note, has the government received advice from the solicitor-general on the potential for legal challenges into the validity of this bill?

Mr Mulholland, I have had extensive conversations with the solicitor-general in relation to this matter.

For the benefit of the chamber, would you be able to table any advice?

Mr Mulholland, legal privilege would apply to any formal advice, but as I have said, I have had many conversations with lawyers, including the solicitor-general, on this matter.

Has the government received constitutional advice on this bill – on the constitutionality of this bill?

Mr Mulholland, I have answered your question.

I will be a bit more specific. Has the government received any advice on the constitutionality of the civil liability cap?

Mr Mulholland, I have received a range of advice for a range of models. I was very interested in understanding all of the options in relation to how I could approach this matter. I am not going to go into detail on any of that advice or I will risk waiving privilege.

How does the government intend to address claims where actual damages may exceed the $1 million cap, given legal costs alone may exceed this?

Mr Mulholland, I am not going to go into individual cases or hypotheticals.

Which stakeholders have the Attorney-General consulted specifically in relation to the civil liability cap?

Mr Mulholland, as you will appreciate, the legislation that the government brought to the Parliament was not a cap. We brought in a bill that did something different. As I have explained, I have had numerous conversations with people about various models, and with different parties. I have had conversations about the merits of full extinguishment versus caps. There have been various stakeholders, both in writing and in conversations, that have discussed a range of these models. The usual suspects – the bar have been engaged and LIV have been engaged, but not specifically detailed about a cap because it only came into existence today.

Well, you did vote for the amendment, and it is now in the government bill. As you have stated in a roundabout way, do you accept that there has not been consultation done on Mr Limbrick’s amendment of a cap?

No, I do not agree with that.

Does the government accept that some claimants may be left worse off from taking action if their legal costs exceed $1 million?

Mr Mulholland, I have stated that it is not my intention to go through hypothetical individual cases and give you an assessment on them.

I just have one follow-up, with the indulgence of the chamber. I thought I had finished this, but I have read further into the Attorney’s letter. She says at a later point:

In my view, this purpose would not be achieved if clause 5 were to exclude proceedings that have already commenced in the courts, given this would result in the continuation of these proceedings and further significant financial expenditure by the State.

It seems to me that the Attorney is quite clearly, in her own letter, seeking to extinguish proceedings. That seems to me to be the essence of limiting the jurisdiction of this case at the Supreme Court.

That is no longer what the bill does.

Well, it caps it, which limits it.

It does not extinguish it. It is the original bill. I had to respond to the original bill.

I understand it is the original bill, and this is another problem with the late arrival of these things. It does cap it, as I understand it, in the new arrangement and this would still apply as I see it.

A member interjected.

David DAVIS: Yes.

No, what you said is wrong – it did not make sense.

We will have to agree to differ.

Forgive me, Attorney-General. I may have missed the nuance before. I heard today you refer to your preference for the $500,000 cap. How did you arrive at that figure? Was the advice that you received that that was the preferable figure for some reason?

I explained my view about $500,000 being an appropriate cap, Mr McGowan, but we are currently now in clause 5 of the bill, which replaces clause 5 that I brought into the Parliament in a substantive way because my proposal was a full extinguishment and now we are looking at a cap. I gave my views in relation to where I would have liked to have seen the cap set, and that is not an amendment that I have pursued. It was merely a comment in relation to my approach to accepting Mr Limbrick’s amendment.

I suppose I am just trying to understand why you would have liked $500,000. Is there a basis for that in policy or was it just a general position in terms of, if you had to have that acceptance, then that was somewhere you found more preferable than your own position initially?

Mr McGowan, for your benefit I have gone through this, but I will repeat it, because I did flag that I had some concerns around $1 million being high. It perhaps would build expectations and encourage higher claims, particularly those that may be unmeritorious. It was my view that $500,000 would be more effective in discouraging claims that lack merit or are poorly framed. I was also concerned that $1 million might create an expectation that that is the going rate for matters that would not ordinarily have sought or believed to have been of value of up to $1 million. All of that, however, is moot, because I have chosen not to move an amendment to Mr Limbrick’s amendment and have accepted his proposal of a $1 million cap.

I am not quite sure whether I am any clearer as to your rationale. I heard the earlier answers in terms of the preference for the $500,000, but I will move on, nonetheless. Now that it is $1 million, what sort of financial implications does that have for the state? Presumably there have been some figures. We were unable to be enlightened by Mr Limbrick, so presumably you may have perhaps, I hope, some figures that you can share with this place in terms of what we the people of Victoria might expect now to be a financial consequence of this amendment and, more broadly, the bill when it becomes an act.

It is our view that the bill, as amended, will reduce the financial impost on the state, which is the intention of the original bill. We believe that the original bill would have had a greater effect in reducing the drain on the taxpayers’ finances. We are concerned about legal costs, court resources, department resources, and we would have liked to have had the ability to limit those. This will go some way perhaps to being a disincentive for some claims. There is nothing to stop anyone bringing a claim forward under the amended bill.

The ability for the government to calculate how much this would cost if we did nothing, if we fully extinguished or with the cap is really difficult to calculate. A full extinguishment is obvious, but to date we have spent hundreds of millions of dollars on this saga. That is the motivation for this bill to bring that to an end. As the royal commission identified, there are 120-odd directly impacted people from the misuse of Ms Gobbo as a police informant and 1011 people who are indirectly impacted. There could be a range of civil actions of various people that are caught in that cohort as identified by the royal commission who may seek to make a claim against the state, and in that sense we do not know who would and we do not know the merit of their claims, and I sought to ensure that there was no incentive for people to roll the dice to take action against the state.

That is what the extinguishment would have had the potential to do and therefore protect the finances. We do not have a clear answer in relation to the question that you have asked. Obviously there are some matters on foot. I cannot disclose the details of those matters, but obviously that is a basis for what we think certain individuals may seek to claim. But I repeat: the bill’s intention was not about penalising individuals, it had the broader purpose of reducing the financial burden on the state and bringing this saga to an end.

Excluding the matters on foot, have you asked for and received advice in respect to the financial exposure the government would expect to have should this bill not have passed, or be about to pass – the actual magnitude of that?

We have certainly sought to obtain that information. It is not clear, particularly as no civil cases have come to a conclusion in the courts, so there could be people waiting to see what happens. As I said, we know that there are 124, I think, directly impacted people who may have claims and over 1000 who have been incorrectly impacted who may have claims. In that instance it is difficult to put a number on this. I think the cap will go some way to reducing the financial burden. Had we not done anything, I think that the costs could be substantial, but they were unable to give me a figure that I can provide to you.

Thank you, Attorney-General, for the answer. I suppose today has perhaps given us some clarity in that respect, though, because as you say, in very rough maths and basic calculus, if each of the 1000 claimants did lodge a claim and were successful in obtaining the uppermost limit, that is a billion dollars just there – with change of course, because it would be upward of a billion dollars. But that would represent the maximum exposure this government might now have, potentially.

That is an unrealistic worst-case scenario. I think I went to this in my questioning of Mr Limbrick’s amendment, but for those who would not have a cause of action, they would get advice that it was less than $1 million, say $100,000. But my concern about a cap is that they might be encouraged to see if they can get more than what they would be advised is probably the ordinary amount for the harm that they were seeking compensation for. But we will have to wait and see.

I am just following up from Mr McGowan’s question. You said that you were not quite sure what the liability was. But I recall sitting in, as I usually do for most bills, on the government’s bill briefing, where we were advised that there was an estimated $45 million liability for the combination of cases. Who is right? Where did that figure come from? How did that eventuate? Or are you now unsure of what the total figure is?

I do not think you will find anyone that can be sure about the total figure, Mr Mulholland. Looking at legal costs, trial costs and the ‘known knowns’, a minimum of $45 million is the advice that I have been provided, but that is only based on the information that we have at hand. That has not factored in the possibilities of what we do not know.

Through this bill and clause 5, is the government admitting that the extent of the damages caused by egregious behaviour of the state to the victims is actually greater than, in your case, $500,000 and, in Mr Limbrick’s case, $1 million?

Mr Mulholland, you are asking me for an opinion.

Through the insertion of the cap, which is now government endorsed, does the government accept that the extent of the damages caused to victims is greater than the $1 million cap?

Mr Mulholland, you are attempting to draw me on individual matters. It will depend on each case. As I have clearly set out, the acceptance of Mr Limbrick’s amendment brings in a cap that applies to the courts.

You spoke before about the cost to government and, I notice, the ability to fund government services, and the framing of this now government-endorsed bill seems to have moved from justice to cost management. Is it now, as part of this bill, government policy that through the prism of costs and I guess the economic dividends to the state the damages to victims are now considered by the government as greater than $1 million?

Mr Mulholland, I will respond by drawing you back to the objects of this bill. It is the government’s intention to limit the extent to which the state is required to devote further human and financial resources to responding to the matters that were the subject of the Royal Commission into the Management of Police Informants and to promote finality in relation to those matters. Our object and aim is that. It always has been and has not changed.

Does the Attorney-General acknowledge that imposing a cap on compensation could be perceived as undermining the justice system’s ability to fully compensate victims for the wrongs committed against them by the state?

Mr Mulholland, my intention was to bring finality to this matter and to limit the extent to which the state is required to devote financial and human resources. Under the amendment that object is obviously limited in some way, but that remains my motivation.

Has the government requested advice on the legality of limiting the costs payable to an individual that has a cost order made in their favour?

No. You might want to give me some context for that question, but the answer is no.

I am happy to repeat the question. Has the government requested advice on the legality of limiting the costs payable to an individual that has a cost order made in their favour?

The answer is no. Given there are matters on foot, we did not want to act in a manner that was unfair.

Attorney, how much taxpayer money does the government anticipate saving through the implementation of these cost caps?

As I think I have answered this question, Mr Mulholland, it is difficult to say, but we are confident that it will result in a reduction in the financial burden to the state.

Did the department classify this bill as low risk in legal terms?

I did not ask that specific question, Mr Mulholland.

I move:

3. Clause 5, line 10, omit “extinguished” and insert “– limit on amount of damages or other monetary compensation that may be awarded”.

4. Clause 5, lines 11 to 14, omit all words and expressions on these lines and insert –

“(1) The total maximum cumulative amount of damages or other monetary compensation that may be awarded to a person in respect of any and all causes of action against the State relating to, arising from or in connection with the provision of information or other assistance to Victoria Police by a specified human source must not exceed $1 000 000.”.

5. Clause 5, page 5, after line 11 insert –

“(2A) Nothing in this section –

(a) increases the maximum amount of damages available for non-economic loss that is specified in section 28G of the Wrongs Act 1958; or

(b) affects any power of a court to order costs in a proceeding; or

This amendment has already been discussed at length.

Council divided on amendments:

Amendments agreed to.

Council divided on amended clause:

Amended clause agreed to.

Clause 6 (16:21)

The DEPUTY PRESIDENT: Mr Limbrick is seeking to omit this clause, so if you are supporting Mr Limbrick’s proposal you would vote no to this clause.

For the sake of clarity, this clause in the original bill installed a human rights charter override, so I will be opposing this clause 6.

I have some comments in relation to this. The charter override was always only an avoidance-of-doubt provision acknowledging interference with rights. With the new proposal we are comfortable that the override can now be removed from the bill in its original form. It is my view that any limitation on rights from the amended bill can be justified and that the bill is compatible with the rights set out in the charter. We are okay with this amendment.

Clause negatived.

Clauses 7 and 8 agreed to.

Long title (16:23)

I move:

7. In the Long title, omit “extinguishing” and insert “providing for a maximum cumulative amount of damages or other monetary compensation which may be awarded in”.

This amendment merely changes the description of the new operation of the bill. That is all it does.

Amendment agreed to; amended long title agreed to.

Reported to house with amendments, including amended long title.

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (16:24): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

Third reading

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (16:24): I move:

That the bill be now read a third time.

Council divided on motion:

Motion agreed to.

Read third time.

The PRESIDENT: Pursuant to standing order 14.28, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill with amendments.

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Thursday, 12 September 2024

State Civil Liability (Police Informants) Bill 2024