RCMPI

Chapter 11

Victoria Police’s implementation of the Kellam Report recommendations

Introduction

Term of reference 3 required the Commission to inquire into and report on the adequacy and effectiveness of Victoria Police’s processes for the recruitment, handling and management of human sources who are subject to legal obligations of confidentiality or privilege, including:

  • whether Victoria Police’s practices continue to comply with the recommendations of the 2015 report commissioned by the Independent Broad-based Anti-corruption Commission (IBAC) entitled Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Kellam Report)1
  • whether current Victoria Police practices in relation to such human sources are otherwise appropriate.

The adequacy and effectiveness of Victoria Police’s current processes for the use of human sources subject to legal obligations of confidentiality or privilege is discussed in Chapter 12. This chapter outlines historical changes made to Victoria Police’s human source policies and examines its implementation of the Kellam Report recommendations.

As discussed in Chapter 1, the Kellam inquiry was the second confidential external review into the use of Ms Nicola Gobbo as a human source between 2005 and 2009. Led by the Honourable Murray Kellam, AO, QC on behalf of IBAC, the Kellam inquiry examined Victoria Police policies and practices relating to the management and use of Ms Gobbo as a human source.2 The inquiry followed a series of previous reviews and investigations, from 2001 onwards, into Victoria Police’s human source management practices.

The Kellam Report, finalised in February 2015, made 16 recommendations focused on improving Victoria Police’s processes for the use of human sources, including the use of human sources where legal obligations of confidentiality or privilege may arise.

In examining Victoria Police’s implementation of the Kellam Report recommendations, the Commission considered:

  • the effectiveness and timeliness of implementation
  • the extent to which Victoria Police’s actions fulfilled the intention of the Kellam Report recommendations, and addressed the issues and shortcomings raised in the report
  • the extent to which key recommendations were adequately embedded in practice through policy and procedural amendments and training.

Having reviewed the evidence, the Commission considers that Victoria Police implemented most of the Kellam Report recommendations through a series of amendments to its human source policies in 2015, 2016, 2018 and 2020, with some changes introduced in 2014 while the Kellam inquiry was underway. The changes included new requirements for officers to consult with the Victoria Police Legal Services Department prior to registering a human source with legal obligations of confidentiality or privilege, and to subject these registrations to a more rigorous approval process.

While Victoria Police has taken steps to strengthen its policy framework, many of these reforms were implemented in the past two years and remain untested. In particular, policy changes to apply greater safeguards to obtaining and using confidential or privileged information from human sources—directed at one of the most critical recommendations of the Kellam Report and previous reviews—were only introduced in May 2020, following advice from counsel representing Victoria Police during the Commission’s inquiry.3 As detailed in Chapter 12, the Commission has also identified that current human source management processes need further improvement.

The Commission also considers that some policy and procedural changes arising from the Kellam Report recommendations were introduced by Victoria Police in a manner that contributed to operational complexity and uncertainty, and could have been supported by additional guidance and training for police officers.

As noted above, the Kellam Report followed a series of internal and external reviews into Victoria Police’s management of human sources. Many of these reviews made similar findings and recommendations about the need for more effective supervision, additional training and clearer policy requirements—some of which are also made by the Commission in this final report. The persistence of these issues over time suggests that, while Victoria Police has made substantial amendments to its policy over many years, this has not always resulted in improvements in operational practice.

The Commission considers that there are opportunities for Victoria Police to adopt a more robust and considered approach to policy development, implementation and change management, to ensure that future reforms to its human source management framework are considered carefully, communicated clearly and implemented effectively. This includes establishing clear processes for seeking and incorporating operational input, communicating changes across the organisation, and regularly reviewing and evaluating policy changes.

Development of Victoria Police’s human source policy

Victoria Police’s use of human sources is governed by an internal policy—the Victoria Police ManualHuman Sources (Human Source Policy), which outlines requirements for the registration and management of human sources and the information that they provide.4

In Victoria, as in other Australian and international jurisdictions, policies for the use and management of human sources by police have evolved significantly in recent decades. Evidence before the Commission indicated that, while today law enforcement agencies consider human sources to be organisational resources, prior to the 2000s, human sources tended to be managed and ‘owned’ by individual police officers, with little or no policy in place to govern their use.5 Over time, reviews into the use of human sources and broader developments in policing increased awareness about the importance of protecting human sources, managing them ethically, and adhering to robust organisational policies and procedures.6

Changes to and reviews of Victoria Police’s human source management practices since 2003

In 2003, Victoria Police introduced the Chief Commissioner’s Instruction 7/03 Informer Management Policy, the first comprehensive organisation-wide human source management policy that covered recruitment, registration, interaction, payment, deactivation and requests for assistance from human sources.7 The policy was intended, among other things, to encourage greater transparency, professionalism and security at all stages of the human source management process.8 Around the same time, Victoria Police established a centralised unit, now called the Human Source Management Unit (HSMU), with responsibility for overseeing the use of human sources managed by handling teams.9

Policy changes were introduced to reflect ‘best practice’ principles, such as maintaining a ‘sterile corridor’ where possible, to separate the management of a human source from the conduct of any investigations that used information obtained from the source.10 The use of a sterile corridor was thought to attract a number of benefits, such as protecting the identity of human sources and protecting the integrity of police methodology.11 Victoria Police also began issuing an ‘Acknowledgement of Responsibilities’ (AOR) to human sources in 2003, setting out the terms and conditions of their relationship with the police.12 These policy changes, as they relate to the current human source management framework, are discussed in Chapter 12.

In 2004, following a pilot program, Victoria Police established the Dedicated Source Unit, which later registered and managed Ms Gobbo as a human source.13 The Dedicated Source Unit was renamed the Source Development Unit (SDU) in 2006.

Further changes to Victoria Police’s human source management policy were not made until 2007. At this time, Victoria Police established a module in its intelligence and case management system, Interpose, for the electronic management of human source files.14 It also introduced specific requirements relating to the use of high-risk human sources (as determined in accordance with a risk assessment tool); for example, a requirement that handlers seek operational advice and assistance from the HSMU when engaging with such sources and that a sterile corridor be maintained at all times.15 Risk assessment processes were also strengthened.16

Following incremental changes in 2008 and 2010, the next significant set of reforms to policy were introduced in 2014 in response to the Comrie Review, as discussed below.

Many changes to Victoria Police’s human source management framework have arisen in response to internal and external reviews undertaken between 2001 and 2015. While focused on different events, officers and objectives, these reviews consistently highlighted failures, risks and deficiencies in Victoria Police’s human source management policies and practices. Key themes arising from the reviews included:

  • insufficient management and supervision of officers responsible for handling human sources, creating risks of misconduct and corruption17
  • the development of inappropriate and sometimes corrupt relationships between human sources and police officers18
  • insufficient information management controls and leaking of sensitive and secretive information to criminal networks19
  • a lack of compliance with Victoria Police’s human source policy among certain officers and units, including the use of ‘unregistered sources’20
  • a lack of sufficient safeguards and coverage of key issues within the policy framework21
  • inadequate training of officers responsible for handling human sources.22

The findings of these reviews are summarised in Figure 11.1 below. Some of the reviews, including the Kellam Report, were not published at the time of their completion, but redacted versions were later released as part of the proceedings in the Supreme Court of Victoria relating to the use of Ms Gobbo as a human source.23

Figure 11.1: Reviews into Victoria Police’s human source management practices, 2001 to 201524
2001

Internal review

Victoria Police, Review of the Victoria Police Drug Squad (Purton Review)

Identifies failings in the Victoria Police Drug Squad’s handling of human sources, including corrupt relationships. The review recommends an organisation-wide information management system for human sources, the establishment of a dedicated source team, and regular audit and compliance monitoring to address critical risks.

2003

Published external review

Ombudsman Victoria, CEJA Task Force: Investigation into allegations of drug-related corruption – Interim Report

Concludes that the Drug Squad ‘used unstructured, secretive, unaccountable and sometimes unprofessional methods in handling [human sources]’. The report endorses the Purton Review’s recommendations for improvements to human source management and the establishment of a dedicated source team.

2004

Internal review

Victoria Police, Dedicated Source Handling Team’s Project Report

Acknowledges historical mismanagement of human sources and notes that a new policy was introduced in late 2003. References a new approach, the sterile corridor, whereby information is ‘sanitised’ before dissemination to investigation teams, to avoid revealing a human source’s identity.

2004

Internal review

Victoria Police, Review and Develop Best Practice Human Source Management Policy

Finds that in comparison with other international and national law enforcement bodies, Victoria Police’s use of human sources is ‘primitive’. Notes there should be greater emphasis on training, competency assessments and raising awareness of good practice.

2005

Published external review

Office of Police Integrity, Report on the Leak of a Sensitive Victoria Police Information Report

Finds that copies of an information report containing statements by then human source, Mr Terrence (Terry) Hodson, had probably been circulated to criminals and their associates. Concludes that instructions for document security were ‘part of a confusing array of instructions and policies relating to the management of [human sources]’.

2005

Published external review

Office of Police Integrity, Investigation into the Publication of One Down, One Missing

Examines the 2004 publication of a book authored by a serving Victoria Police officer, which disclosed extensive details of police operations, including about human sources. Notes that changes introduced in 2003 were expected to result in greater compliance but that ‘a major shift in Force culture is required’.

2007

Published external review

Office of Police Integrity, CEJA Task Force Drug Related Corruption – Third and final report

Finds that the ‘Drug Squad environment at the time included inadequate supervision with little or no accountability and lack of proper policies or procedures for … managing [human sources]’. Notes that a new policy framework is in place for the management of human sources but requires continued monitoring to determine its effectiveness. These findings echoed those made in the second interim report of the CEJA Task Force Drug Related Corruption by the Ombudsman Victoria, published in June 2004.

2007

Published external review

Office of Police Integrity, Annual Report

Refers to investigations into improper relationships between Victoria Police officers and human sources and concludes that there are ‘critical gaps between the policy and how human sources are actually managed by regional police’.

2008

Published external review

Office of Police Integrity, Report on Investigation into Operation Clarendon

Examines Victoria Police’s involvement with former police officer and barrister Mr Kerry Milte in 2002. Finds significant deficiencies in Victoria Police’s human source policies and notes that ‘there were unacceptable delays in rectifying … deficiencies and developing an appropriate framework for managing this important area’.

2010

Internal review

Victoria Police, Audit of Victoria Police Human Source Management Practices (CMRD audit)

Examines 95 human source files and identifies a number of system, process and managerial shortcomings. Makes 26 recommendations to improve human source management practices.

2012

Internal review

Victoria Police, Covert Services Review

Recommends that the unit primarily responsible for the use and management of high-risk human sources, the Source Development Unit (SDU), be immediately disbanded. Asserts that SDU staff had refused to accept the decisions of management on a number of occasions; did not consider the criminality of human sources; circumvented the rule of law; and refused to follow certain protocols, exposing human sources, the unit and organisation to risk.

2012

Victoria Police commissioned confidential review

Neil Comrie, Victoria Police Human Source 3838: A Case Review (Comrie Review)

Identifies a range of concerns about processes and practices relating to the use of Ms Gobbo as a human source. Makes 26 recommendations focused on strengthening the use and management of human sources with legal obligations of confidentiality or privilege.

2015

IBAC commissioned confidential inquiry

Murray Kellam, Report concerning Victoria Police Handling of Human Source Code Name 3838 (Kellam Report)

Examines the use of Ms Gobbo as a human source by Victoria Police and finds ‘negligence of a high order’. Makes 16 recommendations, 11 of which are aimed at enhancing human source management practices.

Reviews into the use of Ms Gobbo as a human source

Two of the reviews listed in Figure 11.1 examined the use of Ms Gobbo as a human source between 2005 and 2009 and focused particularly on issues arising from the use of human sources subject to legal obligations of confidentiality or privilege: the Comrie Review in 201225 and the Kellam Report in 2015.

The events that led to the Comrie Review and the Kellam Report are detailed in Chapters 1 and 6. The reviews are summarised below.

Comrie Review

On 19 March 2012, Victoria Police engaged former Chief Commissioner Neil Comrie, AO, APM to undertake a confidential review of the use of Ms Gobbo as a human source.26 The Comrie Review assessed the adequacy of Victoria Police’s human source management policies that were in place in 2012 and applied those retrospectively to the handling of Ms Gobbo as a human source between September 2005 and January 2009.27

The Comrie Review identified a number of issues relating to Victoria Police’s use of Ms Gobbo as a human source, including that risk assessment processes used were ‘grossly inadequate’, control measures were not complied with and registration processes were not as robust as they ought to have been.28 The review concluded:

Whilst there may be some issues of concern within the Victoria Police processes, by far and above the most significant issues of concern [regarding the use of Ms Gobbo as a human source] would seem to relate to unsatisfactory management and supervision of process.29

On 30 July 2012, the Comrie Review made 27 recommendations for reform of Victoria Police processes relating to the use of human sources, many of which had also been made in an earlier 2010 audit conducted by Victoria Police’s Corporate Management Review Division (CMRD) but had not been implemented.30 The recommendations of the Comrie Review are detailed throughout this chapter insofar as they informed the Kellam Report recommendations.

Kellam Report

On 10 April 2014, Victoria Police made a notification to IBAC regarding the use of Ms Gobbo as a human source.31 Media at the time had reported on Victoria Police’s alleged use of a human source named ‘Lawyer X’.32

IBAC appointed Mr Kellam to confidentially examine the conduct of current and former Victoria Police officers identified in the Comrie Review in relation to their use of Ms Gobbo as a human source, and the application and adequacy of Victoria Police policies, control measures and management practices during the period 2005–09.33

The Kellam Report, completed on 6 February 2015, highlighted many of the same issues identified by the Comrie Review, including that:

  • handlers had an imperfect understanding of the meaning and extent of legal privilege and confidential information34
  • handlers were not subject to sufficient oversight in their dealings with Ms Gobbo35
  • there was a lack of formal documentation that set out the key risks and boundaries of Victoria Police’s relationship with Ms Gobbo36
  • officers utilised their own subjective assessments to determine what was ethical and appropriate, in the absence of formal documentation.37

Mr Kellam considered that Victoria Police’s receipt and use of confidential and privileged information provided by Ms Gobbo for the purpose of furthering police investigations against her clients, without having first obtained legal advice, was negligent.38

Mr Kellam also suggested that the absence of early legal advice and the failure to establish strict parameters around the acquisition and use of information from Ms Gobbo may have resulted from ‘wilful blindness’ on the part of the SDU, which managed Ms Gobbo, and by those responsible for its oversight.39 He surmised that, had there been adequate documentation to govern the relationship between Ms Gobbo and Victoria Police and a regular review of the risks involved, the need for appropriate legal advice would likely have become obvious and the risks that materialised would have been significantly reduced, if not eliminated.40

Mr Kellam considered that any impropriety on the part of SDU officers was ‘substantially mitigated by the lack of guidance and supervision’ that they should have had from their superior officers.41 He concluded that the:

… conduct by individual police officers resulted not from any personal intention to act with impropriety on their part, but from what I consider to be behaviour constituting negligence of a high order on the part of those responsible for their supervision, guidance, instruction and management in the particular prevailing circumstances of obvious attendant risk.42

The Kellam Report made 16 recommendations, many of which had been made earlier in the Comrie Review. These recommendations and the steps Victoria Police took to implement them are discussed below.

Implementation of the Kellam report recommendations

Since 2014, Victoria Police has made a series of policy changes to implement the recommendations of the Comrie Review and the Kellam Report. Victoria Police also provided information to the Victorian Government and IBAC about these changes in 2015 and 2018, as outlined in Figure 11.2.

Figure 11.2: Key dates and events in Victoria Police’s implementation of the Kellam Report recommendations, 2014 to 202043
2014

1 July: The Honourable Murray Kellam, AO, QC commences an inquiry on behalf of the Independent Broad-based Anti-corruption Commission (IBAC) into Victoria Police’s use of Ms Nicola Gobbo as a human source and the adequacy of human source policies and risk management practices (Kellam inquiry).

29 September: During the Kellam inquiry, Victoria Police issues a new policy, the Victoria Police Manual Policy Rules—Human Sources (Human Source Policy), which reflects several changes in response to former Chief Commissioner Neil Comrie’s 2012 confidential report entitled Victoria Police Human Source 3838: A Case Review (Comrie Review). As part of these policy changes, Victoria Police establishes the Intelligence and Covert Support Command Ethics Committee (Ethics Committee) to, among other things, provide advice and make decisions related to human source matters that have strategic implications or are likely to raise significant community interest issues.

2015

6 February: Mr Kellam produces his confidential report entitled Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Kellam Report). His findings are consistent with several historical reviews and his recommendations focus on strengthening policies and procedures for the recruitment, handling and management of human sources, particularly where legal obligations of confidentiality or privilege may arise.

9 June: Victoria Police issues a further iteration of the Human Source Policy in response to the Kellam Report recommendations.

26 June: Victoria Police writes to IBAC and the Minister for Police advising that all the Kellam Report recommendations have been ‘adopted’.

2016

15 March: Victoria Police issues a further iteration of the Human Source Policy that addresses additional aspects of the Kellam Report recommendations.

2018

18 March: IBAC writes to Victoria Police requesting an update on its implementation of the Kellam Report recommendations.

8 May: Victoria Police issues a further iteration of the Human Source Policy that addresses additional aspects of the Kellam Report recommendations.

9 May: Victoria Police writes to IBAC advising that an internal review identified the need for further changes to the Human Source Policy and that these changes have been made. Victoria Police also advises that all of the Kellam Report recommendations have been ‘acquitted’.

13 December: The Victorian Government establishes the Royal Commission into the Management of Police Informants.

2019

17 February–9 March: Then Assistant Commissioner Neil Paterson, APM, Intelligence and Covert Support Command, travels to the United Kingdom, Canada and the United States of America to better understand each country’s legislation, policy and practices for the management of human sources, including those with legal obligations of confidentiality or privilege.

20 August: For the first time, an issue of legal privilege and/or confidentiality relating to a human source is referred to the Ethics Committee for consideration.

12 December: Victoria Police advises the Commission it is reviewing the Human Source Policy and has commenced several pilot initiatives to strengthen human source management processes and practices.

2020

28 February: Victoria Police produces to the Commission a draft version of a new Human Source Policy. The draft contains provisions that address the Kellam Report recommendations more comprehensively and address issues and risks identified by the Commission during its inquiry. This policy is not implemented.

31 March: Victoria Police advises the Commission it intends to make further changes to the draft Human Source Policy.

28 April: Victoria Police produces to the Commission a new draft version of the Human Source Policy.

4 May: Victoria Police implements its revised Human Source Policy.

7 May: Deputy Commissioner Wendy Steendam, APM, Specialist Operations, appears before the Commission to provide evidence about Victoria Police’s human source practices and its implementation of the Kellam Report recommendations. She advises the Commission that the Human Source Policy was revised in early 2020 after counsel appearing for Victoria Police at the Commission’s inquiry provided advice on the policy.

In assessing Victoria Police’s implementation of the Kellam Report recommendations, the Commission considered:

  • the intent, scope and context of the Kellam Report recommendations (and of the Comrie Review recommendations, where they informed the Kellam Report recommendations)
  • the steps taken by Victoria Police to implement the Kellam Report recommendations and when this occurred
  • the extent to which, based on the evidence available to the Commission, key Kellam Report recommendations were embedded in policy and translated into Victoria Police’s operational practice.

The Commission examined Victoria Police’s implementation of the Kellam Report recommendations primarily against the 2018 version of the Human Source Policy, as this was the policy document in place when the Commission was established in December 2018, until 4 May 2020, when a new policy came into effect.44 Where relevant, this chapter reflects additional changes that Victoria Police made to address aspects of the Kellam Report recommendations in the current Human Source Policy.45

The Commission’s inquiry was also informed by its audit of other human source files (discussed in Chapter 10) and focus groups held with Victoria Police officers who have human source management responsibilities (discussed in Chapter 12).

As noted above, the Kellam Report made 16 recommendations. These covered four areas:

  • safeguards associated with the use of human sources with legal obligations of confidentiality or privilege (Recommendation 1)46
  • improvements to risk assessment practices (Recommendations 2 and 3)47
  • changes to Victoria Police policies and procedures for the day-to-day management of human sources (Recommendations 4–10)48
  • dissemination of the Kellam Report and amended Victoria Police policies to relevant parties (Recommendations 11–16).49

Below the Commission addresses these four key areas, and the adequacy and timeliness of the implementation of recommendations.

Safeguards associated with legal obligations of confidentiality or privilege (Recommendation 1)

Recommendation 1 of the Kellam Report proposed that all Victoria Police human source policies, associated instructions and practice guidelines be revised to clearly reflect:

  1. That special consideration applies to the obtaining, usage and management of information that may be subject to legal professional privilege and/or the subject of confidential information.
  2. That the utmost caution ought to be exercised before engaging a human source who may have conflicting professional duties (eg lawyers, doctors, parliamentarians, court officials, journalists and priests etc).
  3. That prior to the registration of any human source to whom a professional duty may apply, appropriate legal advice must be obtained.
  4. That handlers should not actively seek information from human sources to whom a professional duty may apply if such information would cause the human source to breach such a duty knowingly.
  5. That source handling and management duties provide no indemnification that would allow those performing such duties to disregard confidentiality notices that may be issued for IBAC, [Australian Criminal Intelligence Commission] or similar types of coercive hearings. Contravening such notices, in the absence of formal authority to do so, carries risk of criminal prosecution.50

The Comrie Review made essentially the same recommendation in 2012, albeit referring only to privileged information, rather than privileged and/or confidential information.51

Mr Comrie advised the Commission that part (a) of this recommendation was intended to prompt the introduction of additional safeguards to manage the risk of obtaining privileged information from a human source, regardless of whether that person was themselves in an occupation bound by the relevant professional obligations.52 For example, a person who is not a lawyer, but has access to privileged information and seeks to provide that information to police, would—if managed in accordance with Mr Comrie’s recommendation—be subject to special consideration and safeguards.

Mr Comrie also confirmed that the references to specific professions in part (b) of the recommendation were examples only and not intended to be exhaustive.53

As noted above, Mr Kellam endorsed these recommendations.

The nature and scope of legal obligations of confidentiality and privilege are discussed further in Chapter 4.

Changes to Victoria Police’s Human Source Policy

During the Kellam inquiry, and in response to the Comrie Review recommendations, Victoria Police updated its Human Source Policy in 2014 to include provisions stating that:

  • The HSMU must be contacted for advice when a member becomes aware, through the course of their duties, that
    • an active or deactivated human source is to be the subject of a compulsory hearing before an [authorised] examiner (OCE, ACC, IBAC etc,); and
    • the examination may adversely affect the human source or an investigation

...

  • Where complex, legal, ethical or medical considerations are evident with a human source, such as the human source being occupationally bound by other duties … advice must be sought from the HSMU.
  • Members must be mindful that some sources as a result of their occupations may have professional obligations regarding confidentiality eg. Lawyers, Doctors and Clergy
  • Handlers must consider the legal and ethical implications for the management of these sources and the information or intelligence they transmit in compiling their registration applications.
  • Members must obtain advice from HSMU management as to the method of handling and recording of any such information or intelligence that may conflict with the professional obligations of the source

...

  • The HSMU will obtain advice from Legal Services [Department] regarding the quarantine or use of information or intelligence obtained which may breach a professional obligation.
  • The strict adherence of this policy is not intended to discourage the use of high-risk sources in such circumstances but to effectively manage the relationship and information obtained in accordance with acceptable legal and community standards.54

In May 2018, Victoria Police further reframed its Human Source Policy to refer to the specific occupations included as examples in the Kellam Report and Comrie Review, described by Victoria Police as the ‘Kellam Occupations’. Under the policy, Victoria Police officers were required to be ‘mindful’ that some sources may have professional or ethical obligations regarding confidentiality, specifically ‘lawyers, doctors, parliamentarians, court officials, journalists and priests etc’.55 Further, it prohibited handlers from actively seeking information from ‘sources to whom a professional obligation may apply if such information would cause the human source to breach such a duty knowingly’.56

The updated Human Source Policy 2018 also required that applications to register human sources with legal obligations of confidentiality or privilege be referred to the Ethics Committee for review and a decision.57 It also expanded instructions for officers on how to manage human sources who had appeared (or were to appear) before coercive or compulsory hearings before law enforcement agencies such as IBAC or the Australian Criminal Intelligence Commission. This included advice on how to manage the risk of obtaining information subject to a confidentiality notice.58

The policy referred to the existence of certain laws and rules requiring confidentiality, such as legal privilege and the medical Hippocratic oath.59 It did not include further guidance about how to identify confidential and privileged information or explain the laws and rules that apply to specific persons or occupations.

The Human Source Policy 2018 did not contain requirements relating to human sources in other occupations that may be subject to legal or ethical obligations of confidentiality or privilege (that is, occupations that fell outside the ‘Kellam Occupations’). Nor did the policy address the risks of obtaining or using confidential or privileged information from human sources who were not themselves in an occupation subject to legal obligations of confidentiality or privilege but were sharing such information (for example, a friend or family member of a lawyer who provided police with privileged information obtained from the lawyer).

In a statement to the Commission, then Assistant Commissioner Neil Paterson, APM, Intelligence and Covert Support Command, advised that a prospective human source who is not themselves bound by legal obligations of confidentiality or privilege, but who may access confidential or privileged information, would also be referred to the Ethics Committee under the Human Source Policy 2018.60 In the absence of a clear policy direction, however, it is unclear how officers would have been prompted to make this referral.

Changes to Victoria Police’s Interpose System

Victoria Police uses Interpose to record information relating to the registration of human sources, their contact with police officers, and officers’ dissemination of intelligence received from human sources.

In October 2019, Victoria Police updated Interpose to support the identification of legal obligations of confidentiality or privilege during the process of registering a human source.61 These changes included a series of questions that officers must answer when seeking to register a person as a human source, as outlined in Box 11.1.62

BOX 11.1: SYSTEM PROMPTS RELATING TO LEGAL OBLIGATIONS OF CONFIDENTIALITY OR PRIVILEGE

When commencing a new application in Interpose to register a human source, police officers involved in human source management are required to answer ‘Yes’ or ‘No’ to whether the prospective source could be subject to a legal obligation of confidentiality or privilege (whether they belong to one of the Kellam Occupations) or whether the registration could breach such an obligation. If ‘yes’ is selected, the officer is notified that the registration must be discussed with the HSMU and the officer cannot proceed with the application.63

Police officers are also required to answer questions relating to a prospective human source’s employment:

Does this occupation have an obligation regarding confidentiality or privilege?

Could the information being provided during this registration be as a result of their occupation and lead to a breach of disclosure or confidentiality? 64

If the police officer selects ‘yes’ to these questions, a message appears indicating that the officer must contact the HSMU.65

The Interpose system also requires the officer to select the prospective human source’s occupation from a drop-down field. This field was introduced in Interpose in 2006 but only became mandatory to complete in October 2019.66

Mr Paterson advised the Commission that the new features in Interpose enable the HSMU to actively monitor new registrations and to report any issues to the Central Source Registrar (CSR) and the Ethics Committee.67

Currently, Interpose does not support the identification of circumstances where a prospective human source is not in an occupation subject to legal obligations of confidentiality or privilege, but nonetheless has access to, and may provide, confidential or privileged information.68

Through focus groups with Victoria Police officers and an audit of selected human source files, the Commission considered the practical effect of the policy and system changes outlined above.

The Commission’s audit highlighted inconsistencies in officers’ identification and management of potential legal obligations of confidentiality or privilege when considering and registering human sources. In several cases, Victoria Police officers did not identify potential obligations of confidentiality or privilege; in other cases, these obligations tended to be identified later in the process by the HSMU or the CSR, rather than by the handler seeking to register the person.

Observations from the Commission’s focus groups with Victoria Police officers are outlined in Box 11.2.

BOX 11.2: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: SAFEGUARDS ASSOCIATED WITH LEGAL OBLIGATIONS OF CONFIDENTIALITY OR PRIVILEGE

The Commission observed varied levels of understanding among focus group participants about legal obligations of confidentiality and privilege.

When asked about the applicable policy requirements, some participants mentioned the ‘Kellam Occupations’ listed in the Human Source Policy 2018, while many others mentioned occupations that did not feature in the policy and are not considered by Victoria Police to hold legal obligations of confidentiality or privilege; for example, bankers, financial services employees and school employees. Some participants indicated that these types of human sources would require approval of the Ethics Committee, yet this was not a requirement under the Human Source Policy 2018.

Some focus group participants said that in assessing whether legal obligations of confidentiality or privilege apply, it is necessary to consider the context in which a person came to obtain the information. Some participants cited hypothetical examples of lawyers providing information to police that they obtained in a social rather than a professional setting, suggesting it might be permissible to use the information in the former scenario.

Some participants with human source management and supervision responsibilities pointed to the inherent complexity of the concepts of confidentiality and privilege. Many questioned how far a legal obligation of confidentiality might extend, citing examples including hotel employees and security guards employed under contracts carrying commercial obligations of confidentiality.

According to participants, the Interpose system changes introduced in October 2019 assisted police officers to consider the origin of information provided by a registered or prospective human source. Most participants indicated that to identify a potential legal obligation of confidentiality or privilege, they would generally ask a prospective source about their current employment and/or where they obtained the information. One participant indicated that they would also ask the person about their previous employment. Several participants said that they would consult the HSMU if unsure about any issues relating to the use of confidential or privileged information.

Changes introduced during the Commission’s inquiry

In May 2020, Victoria Police issued a new version of the Human Source Policy, which requires Ethics Committee approval not only for the use of prospective human sources employed within a ‘Kellam Occupation’—defined in the Human Source Policy as Category 1 sources— but also for people who have a ‘connection to’ one of these occupations.69 These are people who:

  • previously worked in a Kellam Occupation
  • are likely to receive confidential or privileged information from someone in one of these occupations; or
  • work in a similar occupation where they are likely to receive confidential or privileged information.70

These types of human sources are explained in Chapter 12. The Human Source Policy does not contain guidance on how to identify these individuals.

In a statement to the Commission in April 2020, Deputy Commissioner Wendy Steendam, APM, Specialist Operations, stated that training courses were being revised to assist officers with the identification of human sources with a legal obligation of confidentiality or privilege, as well as those with a connection to these persons.71

The current Human Source Policy removed the requirement introduced in earlier versions to address Recommendation 1(d)—that officers must not actively seek information from human sources that would knowingly cause the human source to breach a professional obligation. Ms Steendam told the Commission that, notwithstanding the removal of this provision, ‘the extensive registration approval requirements’ contained in the policy make clear to officers that in ‘almost no circumstances’ should they seek information from a human source with legal obligations of confidentiality or privilege.72

Improvements to risk assessment practices (Recommendations 2 and 3)

Risk assessments are intended to identify all known or potential risks associated with a prospective human source, to help determine whether their registration and use as a human source is appropriate. Reviewing risk assessments on an ongoing basis after a human source has been registered helps to inform Victoria Police about whether to continue using the human source or deactivate them.73

Prior to the completion of the Kellam Report, Victoria Police’s Human Source Policy required risk assessments for each source registration to be documented, comprehensive, and subject to a formal and ongoing monthly review.74 Despite this, as the Kellam Report notes, there were only two documented risk assessments on Victoria Police’s file relating to its use of Ms Gobbo as a human source between 2005 and 2009.75

Mr Kellam found that the risk assessments completed in relation to Ms Gobbo were insufficient, with neither referring to the potential ethical and legal issues associated with using a criminal defence barrister as a human source.76 These observations were consistent with the findings of the Comrie Review.77

Both the Comrie Review and the Kellam Report recommended that Victoria Police develop a more robust human source risk assessment process to address identified shortcomings.

Recommendation 2 of the Kellam Report was based on a recommendation in the Comrie Review, which was in turn based on findings of an internal review of Victoria Police’s human source management practices, conducted by the CMRD in 2010.78

Recommendation 2 stated that the:

… lack of risk assessment insight, and lack of revisiting risk assessments must be the subject of sustained remedial action, and … regular periodic review and regular audit and for more detailed and proximate oversight by senior officers than was the case under consideration in this inquiry.79

Recommendation 3 of the Kellam Report required Victoria Police’s risk assessment processes to be amended to ensure:

  1. Clear particularisation of the purpose for engagement of the human source and instructions that if there is any change to this purpose, or any form of ‘bracket creep’ in original intentions, then a new and full risk assessment process must be undertaken.
  2. That where complex legal and ethical considerations are evident, such as the source being bound occupationally by other ethical responsibilities, then consultation must occur with the [Victoria Police] Director Legal Services or Victorian Government Solicitor prior to completion of the risk assessment process.
  3. That where other complex issues are recognised, such as health or mental health matters, then appropriate professional advice is obtained.
  4. That any risk assessment reliant on positive obligations to utilise a source must be subjected to the utmost scrutiny to reflect upon the issues of proportionality and necessity. Positive obligation reliance must be for [a] specific purpose only and approval must lapse upon fulfilment of this purpose. Where positive obligations are to be relied upon consultation must first occur with the [Victoria Police] Director Legal Services.
  5. That source registration cannot occur until the Local Source Registrar (LSR) has endorsed the risk assessment document to indicate their satisfaction that all perceivable risks have been identified, that the risk controls are sufficient and that any change to risk profile must trigger a new risk assessment process.
  6. That for high-risk source cases the [LSR], as a component of the monthly inspection process, must endorse current risk assessments to reflect that no new risks have arisen that would require a revised risk assessment being conducted and that the current risk assessment remains fit for purpose. The LSR must also document the checks and inquiries undertaken in order to make such a determination.
  7. That for high-risk source cases there is sufficient capability and capacity to service the relationship and maintain reporting requirements.80

The concept of ‘positive obligation’ is explained below.

According to Victoria Police, all aspects of these recommendations were implemented through:

  • changes to the Human Source Policy in September 2014
  • a revised Human Source Risk Assessment’ template implemented in May 2015
  • clarifying amendments incorporated in the Human Source Policy 2018.81

Under both the Human Source Policy 2014 and Human Source Policy 2018, human sources with occupations attracting legal obligations of confidentiality or privilege were automatically regarded as high-risk.82

The Human Source Policy 2018 required:

  • Risk assessments to clearly articulate the purpose for engaging a human source and a full new risk assessment to be undertaken, if there was any change to that purpose or any movement from original intent.83
  • Decisions regarding human source management that had strategic implications, involving complex ethical, legal or medical issues, to be referred to the Ethics Committee for consideration, which could obtain relevant legal advice.84
  • As part of the approval process for human sources, advice to be obtained from the HSMU where complex medical considerations were evident or where a human source had medical or mental health issues. In those circumstances, the HSMU was required to obtain advice from a medical officer or psychologist.85
  • Advice to be obtained from the HSMU where a registered human source, who was in a position to which confidentiality obligations or professional privilege applies, voluntarily offered information to police that was or appeared to be in breach of that privilege. The HSMU was required to obtain legal advice.86

Other aspects of Recommendation 3 and the steps Victoria Police took to implement the recommendation are outlined below.

‘Positive obligation’

As noted above, the Comrie Review and Kellam Report recommended that Victoria Police’s revised processes ensure that risk assessments relying on a positive obligation to use a human source ‘must be subjected to the utmost scrutiny to reflect upon the issues of proportionality and necessity’.87 The concepts of necessity and proportionality are discussed below.

In the context of risk assessments, a positive obligation arises where Victoria Police considers it has a duty to act on information for the broader protection of the community.88

The term was first referred to in the Comrie Review when detailing the two documented risk assessments on file for Ms Gobbo.89 The Comrie Review suggested the content of these risk assessments could imply that Victoria Police was prepared to justify its engagement of Ms Gobbo regardless of any recognisable moral and legal barriers or other risks.90 It noted a provision of a policing manual used at the time as a possible basis used by officers to justify the views articulated in the risk assessments related to Ms Gobbo’s registration and use as a human source. This provision read:

Positive obligation to use or register source

  1. Will the decision not to use or register the Human Source increase the risks to the public? 91

Mr Comrie considered that this provision was poorly and incompletely expressed and that a positive obligation to act on information (that is, to protect the community) should not be interpreted as giving just cause to override other considerations, such as the legality of actions.92 Both the Comrie Review and Kellam Report recommended that risk assessments that rely on a positive obligation to register a human source must be for a specific purpose only, that approval must lapse upon fulfilment of that purpose and that consultation must first occur with the Director of Victoria Police’s Legal Services Department.93

The recommendation applied to risk assessments relying on a positive obligation in respect of any human source. It was not directed specifically to those human sources subject to legal obligations of confidentiality or privilege.

On 26 June 2015, in its reporting on the implementation of the Kellam Report recommendations, Victoria Police advised IBAC that it understood that a positive obligation ‘relates to a need to register a human source in circumstances where a failure to do so could result in serious harm to members of the public, even though the source may represent an unacceptable risk in normal circumstances’.94

The Human Source Policy 2015 did not refer to the term positive obligation. The Ethics Committee’s original terms of reference, dated 19 March 2015, referred to its role in reviewing the registration of human sources in cases where a positive obligation exists, though this provision was later removed.95

The term was first explicitly referenced in the Human Source Policy 2018.96 In place until 4 May 2020, the policy contained the following provision:

The definition of positive obligation is ‘where information is provided by a source who is bound by legislation or rules of their profession (i.e. legal/professional privilege, medical Hippocratic oath) or provided in circumstances where Victoria Police would not normally accept the information, but which is of such high community impact that it is proportionate and necessary to be utilised’.97

The policy also specified that where a positive obligation applies, legal advice is to be obtained, and decisions are to be escalated to the Ethics Committee for endorsement.98

The Human Source Policy 2018 did not include further information or guidance about the term or how officers responsible for human source management were expected to identify the existence of a positive obligation.

In late 2019, Mr Paterson advised the Commission that Victoria Police intended to remove the term ‘positive obligation’ from its Human Source Policy because it was not well understood by officers.99 The term was removed in May 2020.

Although the current Human Source Policy does not specifically refer to a duty on Victoria Police to act on information provided by a human source, it refers to a category of people whom Victoria Police ‘would not ordinarily register’ but whom an officer wants to register because the information is of ‘extraordinarily high value’.100 The Human Source Policy does not define information that is of ‘extraordinarily high value’.

Assessment of necessity and proportionality and human rights

In his report, Mr Comrie considered that:

  • any positive obligation identified by Victoria Police needed to be considered against whether it was necessary and proportionate to register and use a human source
  • in order to undertake a meaningful assessment of necessity and proportionality, the reasons for registering a source and the purpose of doing so would need to be documented.101

The Comrie Review drew upon the concepts of necessity and proportionality that apply to the United Kingdom’s human source management framework, which operates alongside statutory human rights obligations.102 These concepts are broadly comparable with Victoria Police’s obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) to ensure that a ‘human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’.103

The concepts of necessity and proportionality first appeared in Victoria Police’s Human Source Policy in 2018. As noted above, a provision was introduced into the policy to require Ethics Committee approval in cases involving complex legal, ethical or medical issues, to ensure that registrations of such human sources were necessary and proportionate.104 No further information was included to define these terms or to explain how police officers ought to have considered these concepts in conducting risk assessments of prospective human sources.

In her evidence to the Commission, Ms Steendam stated that officers’ obligations to consider human rights and comply with the Charter are also set out in the Victoria Police Manual Policy Rules—Human Rights Equity and Diversity Standards (Human Rights Standards).105

The Human Rights Standards explain that when making decisions, officers must consider whether:

  • there is a reason for acting and under what law or authorisation the action will occur
  • police action will protect or limit human rights
  • any limit to human rights is reasonable and can be justified in the circumstances, including having regard to whether the limitation is specifically authorised by law and whether it is for a legitimate purpose
  • the limitation is necessary and proportionate to the intended goal
  • there is another reasonable way of achieving the goal that is less restrictive of human rights and whether it can be done better or differently.106

The 2014, 2015, 2016, 2018 and 2020 versions of the Human Source Policylist various policy and procedural documents that are related to and should be read in conjunction with the Human Source Policy. The Human Rights Standards are not listed.

Victoria Police’s human rights obligations in the context of human source management practices are discussed further in Chapter 12.

Review of risk assessments

Recommendation 3(e) and 3(f) of the Kellam Report were specifically targeted at strengthening supervision and internal oversight of risk assessments.

During the Kellam inquiry and in response to the Comrie Review, Victoria Police amended the Human Source Policy in September 2014 to require the Local Source Registrar (LSR) to:

  • assess the suitability of a prospective human source for registration
  • review the risk assessment to make sure it is comprehensive, evaluates potential and identified risks and indicates that appropriate mitigation strategies are in place
  • review the AOR
  • make a recommendation about approval of the registration, taking into consideration all factors identified in the human source registration file
  • document the reasons for their recommendation.107

Additional changes introduced in March 2016 required LSRs to ensure risk assessments were complete within timeframes specified in the Human Source Policy. They also required the LSR to endorse that the risk assessment

remained fit for purpose on a monthly basis and in doing so, record in Interpose the ‘checks and inquiries undertaken in order to make such a determination’.108

Information provided to the Commission during its inquiry indicated that low compliance with policy requirements relating to risk assessments and the ongoing review of assessments was an area of concern to Victoria Police. A draft internal strategy document prepared in 2018 pointed to perceptions within Victoria Police that the risk assessment process was bureaucratic and contributed to police officers running human sources ‘off the books’—that is, deciding not to register people as human sources but nonetheless engaging with them as though they were human sources.109

The Commission considered the practical impact of the changes to Victoria Police’s risk assessment processes through its audit of selected human source files and focus groups with Victoria Police officers.

Observations from the Commission’s audit and focus groups are outlined in Boxes 11.3 and 11.4.

BOX 11.3: OBSERVATIONS FROM THE COMMISSION’S AUDIT OF HUMAN SOURCE FILES: RISK ASSESSMENTS

As discussed in Chapter 10, the Commission conducted an audit of 31 human source files relating to people with occupations potentially subject to legal obligations of confidentiality or privilege, such as nurses and government workers. Lawyers and people associated with the legal profession were excluded from the audit as those files were separately disclosed to the Commission for review.

The Commission observed that the 31 files audited were generally compliant with the policy requirement for the completion of a risk assessment before registering a human source. In some cases, the Commission could not determine compliance with certain risk assessment requirements because documents in the files were undated.

Of the 31 human source files audited by the Commission:

  • 28 files had risk assessments completed and uploaded to Interpose, and for the remaining three files, there were reasonable explanations for the absence of the risk assessment
  • 24 included a risk assessment that appeared to appropriately address all areas of risk
  • 26 had risk assessments endorsed by senior officers, as required under the Human Source Policy.

The level of detail recorded in risk assessments, however, ranged from minimal to comprehensive, as did the comments recorded on file by senior officers, including the LSR.

The Commission’s audit confirmed that, in line with its internal oversight and monitoring role, the HSMU reviewed human source files to determine compliance with policy requirements. The time taken by LSRs to review source files was among the issues identified by the HSMU. This led to remedial action, including the suspension of files until the compliance issues were addressed.

BOX 11.4: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: RISK ASSESSMENTS

Positive obligation

Victoria Police officers involved in the Commission’s focus groups reported varying levels of understanding of the term ‘positive obligation’ and its relevance to decisions about whether to register a human source. Some officers identified that the term relates to circumstances where Victoria Police would be obliged to act on certain information; others considered that it refers to legal obligations of confidentiality or privilege held by a human source; others considered that it refers to an individual’s obligation or ability to report certain matters to Victoria Police (for example, under mandatory reporting obligations that exist in relation to child abuse and neglect, and information-sharing legislation and protocols that enable government agencies to share information with police if there is a law enforcement purpose).

Most focus group participants agreed there was a lack of clarity about the term ‘positive obligation’ and indicated it would be helpful to have the term and associated requirements clarified.

Assessment of necessity and proportionality

Focus group participants informed the Commission that while they had received general training on human rights, the human source training courses did not cover human rights or the principles of necessity and proportionality in detail.

Review of risk assessments

Some focus group participants indicated that while certain LSRs review risk assessments in detail, this is not practised consistently. Many officers said it was common for LSRs to not review risk assessments at all.

Participants in the LSR focus group indicated that when reviewing risk assessments, they consider the handler’s level of knowledge and experience in deciding how much oversight and scrutiny is necessary.

Officers perceived that the LSRs’ ability to undertake a thorough review of risk assessments was diminished by competing operational priorities and responsibilities; a view that was supported by the LSR participants. Some officers considered that LSRs had limited knowledge of human source management and had not received sufficient training, resulting in a deferral to the handling team on compliance with policy requirements, such as the completion of comprehensive risk assessments. Some LSR participants agreed that they would generally defer to the judgement of handlers and controllers on issues that relate to the risk assessment but noted that they would perform a more thorough review in some cases; for example, if the prospective source was a member of the legal profession.

Changes introduced during the Commission’s inquiry

The Human Source Policy issued in May 2020 contains some guidance for police officers about human rights relevant to human source management.110 The Ethics Committee’s current terms of reference also outline the factors taken into account when considering the proposed registration of a human source and Victoria Police’s human rights obligations.111

On 30 October 2019, Mr Paterson approved a pilot program to trial a dynamic risk assessment tool for human sources to assist in identifying and managing changes in a human source’s risk once they have been registered.112

Victoria Police also informed the Commission that it is updating its initial risk assessment template, with the intention to have it fully implemented by December 2020.113 These untested aspects of Victoria Police’s practices are discussed further in Chapter 12.

Changes to Victoria Police policies and processes for the day-to-day management of human sources (Recommendations 4–10)

Recommendations 4–10 of the Kellam Report related to changes to Victoria Police policies and processes for the day-to-day management of human sources; in particular:

  • preparation of an AOR
  • mental health and wellbeing of a human source
  • tasking of a human source
  • dissemination of Information Reports (IRs)
  • independent review of high-risk human source files and records
  • engagement of a human source by other police officers
  • transition of a human source to a witness.

These recommendations are discussed in turn below.

Preparation of an Acknowledgement of Responsibilities

An AOR has been required under Victoria Police policy since 2003. As noted earlier in this chapter, an AOR is issued to human sources and sets the boundaries of the relationship between Victoria Police and the human source.

The Kellam Report noted that the unexplained absence of an AOR to govern the relationship between Ms Gobbo and Victoria Police ‘meant that multiple persons dealing with the source were required to utilise their own, possibly differing, subjective assessments in determining what was ethical and appropriate in any particular circumstance’.114

Recommendation 4 of the Kellam Report required:

That human source policies and instructions reflect that the sufficiency of the AOR must be the subject of constant evaluation, with additional instructions being documented and reinforced with the source as may be necessary.115

The Comrie Review had previously made the same recommendation.116

Victoria Police advised that this recommendation was initially implemented in 2014 by an amendment to its Human Source Policy.117Further clarifying amendments were made in 2015 and 2018.118

The Commission’s review of Victoria Police’s policy framework indicated that this recommendation appears to have been implemented consistently with the intention of the Kellam Report recommendation.

Mental health and wellbeing of a human source

The Kellam Report noted that then Assistant Commissioner Simon Overland, APM and all members of the SDU involved in the management of Ms Gobbo were aware that she had provided Victoria Police information that was confidential or privileged.119 Despite this, the ‘majority of those members considered that the issue was a matter for which [Ms Gobbo] bore ultimate responsibility’, while also recognising that the existence of mental health issues may have impaired Ms Gobbo’s judgement.120

Indeed, at one point, officers had identified that a psychological assessment and review of the viability of using Ms Gobbo as a human source was needed, although this assessment did not eventuate.121

Consequently, Recommendation 5 of the Kellam Report required:

That policies and procedures are developed to guide actions where significant psychological issues are apparent or are perceived to exist with a human source. These policies and procedures must ensure escalation of such issues to source registrar level and also ensure that where appropriate professional psychological advice is obtained and given proper regard.122

Victoria Police advised that this recommendation was implemented in March 2016 through the following amendment to its Human Source Policy:

Where significant psychological or medical issues are apparent or are perceived to exist at any stage of the human source registration or management process HSMU must seek advice from [Victoria Police’s] Psychology Services or a Forensic Medical Officer at [the Victorian Institute of Forensic Medicine] and provide that advice both to the LSR and CSR for consideration and proper regard.123

The above advice was also reflected in the Human Source Policy 2018. Neither policy included further information about the purpose of this advice or how police officers should consider any issues of consent and confidentiality that might emerge.

In May 2020, Victoria Police introduced a ‘Mental Health Functioning Screen’ to assist police officers in identifying potential indicators that may suggest a prospective human source has a serious mental health condition. While this is consistent with the Kellam Report recommendation and appears to provide a more robust framework for considering and responding to potential mental health issues, the Mental Health Functioning Screen is a new and untested aspect of Victoria Police’s policy framework.

Observations drawn from the Commission’s audit of human source files that relate to this Kellam Report recommendation are outlined in Box 11.5.

BOX 11.5: OBSERVATIONS FROM THE COMMISSION’S AUDIT OF HUMAN SOURCE FILES: MENTAL HEALTH AND WELLBEING OF A HUMAN SOURCE

The Commission’s audit of the 31 human source files identified an instance in which a handling team appeared to conduct a medical assessment itself, without having sought advice from Victoria Police’s Psychology Services, contrary to the Human Source Policy in place at the time and Recommendation 5 of the Kellam Report.

The file indicated that the handling team determined that such advice was not necessary because even though the proposed human source was presenting with high levels of stress and anxiety, the team considered the source’s provision of intelligence to Victoria Police would be an ‘outlet’.

Tasking of a human source

At various points after mid-2006 while Ms Gobbo was registered as a human source, Victoria Police management decided that, to manage the associated risks, no ‘tasking’ of Ms Gobbo by police was to occur.124 Despite this, Ms Gobbo continued to be in regular contact with Victoria Police, providing information about her clients and their associates. As the Kellam Report noted, there was an absence of clear operational boundaries as to whether this constituted tasking.125

Recommendation 6 of the Kellam Report required:

That [Victoria Police] settle and publish within [its] human source policy a clear and unambiguous definition of what constitutes ‘tasking’ and ensure that this definition is brought to the attention of all personnel involved in human source operations.126

Victoria Police advised that this recommendation was implemented in March 2016 by an amendment to its Human Source Policy.127 It further clarified the definition of ‘tasking’ in an update to its policy in April 2018.

According to the Human Source Policy 2018, tasking is:

… any assignment or instruction given to the human source by the handlers. This includes asking the human source to obtain information, to provide access to information or to otherwise act, incidentally, for the benefit of [Victoria Police].128

The Commission’s review of Victoria Police’s policy framework indicated that this recommendation appears to have been implemented consistently with the intention of the Kellam Report recommendation.129

Dissemination of Information Reports

The Kellam Report referred to a number of instances where information provided to Victoria Police by Ms Gobbo was verbally disseminated by SDU officers to other police units and was not documented in an IR for some time— on some occasions, months or years after it was initially disseminated.130

Up-to-date IRs, among other things, enable supervising officers to scrutinise the use of a human source by the officers engaging with the source, and delayed finalisation of an IR impedes the capacity of supervising officers to provide this oversight.

Recommendation 7 of the Kellam Report required:

That Human Source Management policies and instructions reflect that in any instance where as a result of information being provided by a human source, oral advice is disseminated to another area of [Victoria Police], such actions are to be fully documented in an expeditiously submitted Information Report.131

Victoria Police indicated that this recommendation was implemented in March 2016, more than a year after it was made in the Kellam Report and over four years after a similar recommendation was made by the Comrie Review.132

The Commission’s review of Victoria Police’s policy framework indicated that this recommendation appears to have been implemented consistently with the intention of the Kellam Report recommendation.

Independent review of high-risk human source files and records

Recommendation 8 of the Kellam Report required:

That a process of independent and appropriately skilled case officer assessments be established to provide for frequent, comprehensive and accountable review of all high-risk human source files and records.133

Victoria Police advised the Commission that this recommendation was implemented in March 2016 by an amendment to its Human Source Policy, with further minor refinements made in April 2018.134

Under the Human Source Policy 2018, the HSMU was required to, ‘in consultation with the CSR, undertake frequent, comprehensive and accountable reviews of all human source files and records’.135

The Commission’s review of Victoria Police’s policy framework indicated that this recommendation appears to have been implemented consistently with the intention of the Kellam Report recommendation.

Engagement of a human source by other police officers

The Kellam Report reflected that many witnesses examined during its inquiry had identified the potential for a ‘loss of control’ as a consistent theme in the relationship between Ms Gobbo and Victoria Police.136 Mr Kellam observed that this theme was evident in the use of Ms Gobbo as a human source by various taskforces.137 Recommendation 9 of the Kellam Report required:

That in any instance where it is contemplated that a human source is to be engaged by other police in order to secure evidence an appropriate management plan must first be compiled. Such a plan should clearly articulate roles, responsibilities and management arrangements and also include a full risk assessment process. The plan should also endeavour to extract the maximum benefits available from all learnings derived to date from source interaction.138

Victoria Police considered this recommendation was introduced in September 2014.139

The Commission’s review of Victoria Police’s policy framework indicated that some aspects of this recommendation were implemented. The Human Source Policy 2014 required a management plan to be created in these circumstances, clearly articulating roles and arrangements, and a new risk assessment to be developed.140

Transition of a human source to a witness

Ms Gobbo was deregistered as a human source in January 2009 in order to act as a witness in a criminal trial.

The Kellam Report noted that ‘the decision to use [Ms Gobbo] as a witness was fraught with danger to both [Ms Gobbo] and to the proposed prosecution and to the good repute of and confidence by the community’ in Victoria Police.141 Mr Kellam indicated that the dangers associated with the use of Ms Gobbo as a witness were not adequately considered and that they ought to have been.142

As a result, Recommendation 10 of the Kellam Report required:

That [Victoria Police] develop a process to be activated when it may be contemplated that a human source may be required to become a witness. This process should include the compilation of a source to witness transition management plan which encompasses:

  1. Comprehensive legal advice and the involvement of the [Victoria Police] Director Legal Services.
  2. Full risk assessments and briefing notes (both from source managers and from the particular investigators).
  3. [Witness Security Unit] program suitability and economic impact assessments (if protected witness issues are perceived to exist or to be likely).

An appropriate high-level committee should be convened to make accountable decisions in regard to proposed transitions. Representation on this committee should include senior management having responsibility for human source operations, the particular investigation and, where appropriate, [the Witness Security Unit].143

Victoria Police advised the Commission that this recommendation was implemented in May 2018 by an amendment to its Human Source Policy, some three years after the recommendation was made.144

The Commission’s review of the Human Source Policy 2018 indicated that most aspects of the recommendation were incorporated in the policy framework in May 2018.145 The Human Source Policy 2018 reflected the role of the Ethics Committee to consider proposals to transition high-risk human sources to witnesses.146 The Kellam Report recommendation, however, was directed at all human sources. It was not confined to high-risk sources such as those with legal obligations of confidentiality or privilege.

The Human Source Policy now applies the same witness transition processes to all human sources, regardless of their risk classification, which appears to fulfil the intention of the recommendation.

Dissemination of the Kellam Report and amended Victoria Police policies to relevant parties (Recommendations 11–16)

Recommendations 11–16 of the Kellam Report required Victoria Police to report back to IBAC on consequential amendments to its Human Source Policy, and to disseminate the Kellam Report and its annexures to third parties.

Adoption and implementation of the recommendations

Recommendation 11 of the Kellam Report required:

That in the event that any part of the aforesaid recommendations has already been implemented that copies of any amended policies, guidelines and amendment to manuals in consequences thereof be provided to IBAC.147

In addition, Recommendation 15 specified:

Recognising that the Chief Commissioner of Police may well have adopted many of the above recommendations subsequent to the provision of the Comrie Review, the Chief Commissioner of Police [should] inform the Commissioner of IBAC whether or not any such recommendations have been adopted and implemented, and otherwise to provide a report to IBAC under section 161 of the IBAC Act.148

In June 2015, Victoria Police wrote to IBAC confirming that it had ‘adopted’ all recommendations of the Kellam Report.149 In doing so, Victoria Police explained the steps it had taken to implement the Kellam Report recommendations and provided IBAC with copies of the Human Source Policy issued in June 2015, the new Human Source Risk Assessment template and the Ethics Committee terms of reference.

In May 2019, Victoria Police wrote to IBAC again after issuing a new Human Source Policy in May 2018, advising that all of the recommendations of the Kellam Report had been ‘acquitted’.150

Despite the advice Victoria Police provided to IBAC, the Commission’s inquiry has indicated that not all of the recommendations were fully implemented by May 2018. This is discussed further below.

Dissemination of the Kellam Report

Recommendations 12, 13 and 14 of the Kellam Report related to the dissemination of the Kellam Report to third parties.

Recommendation 12 required:

That the Chief Commissioner of Police provide a copy of this report, (including its annexures) together with such other material as he may consider appropriate to the Director of Public Prosecutions for consideration at the highest level, as to whether any prosecutions conducted by the [Director of Public Prosecutions] in the past and based upon evidence provided by [Victoria Police], which evidence may have been obtained by reason of breach of legal professional privilege or release by the Source of other confidential material has resulted in a miscarriage of justice.151

In addition, Recommendation 13 required that a copy of the Kellam Report and its annexures be provided to the Minister for Police and Recommendation 14 required that a copy of the report be provided to the then Inspector of the Victorian Inspectorate, Mr Robin Brett, QC.152

Evidence before the Commission indicates that Victoria Police provided the Director of Public Prosecutions a copy of the Kellam Report and most of its annexures on 13 February 2015.153

Victoria Police did not provide a copy of the Kellam Report and annexures to the Minister for Police or the Victorian Inspectorate, on IBAC’s advice that it had already provided the Minister and Inspector with a copy of the report.154 It appears that there was an oversight in that the annexures to the report were not provided to the Minister for Police by either IBAC or Victoria Police.

In addition, Recommendation 16 of the Kellam Report required:

That this report should be accorded the highest level of confidentiality by all persons to whom it is disseminated. Failure to accord such confidentiality would be highly likely to increase the already significant danger to the life of the Source referred to in this report.155

There is no information before the Commission to indicate Victoria Police or any other body did not apply the highest level of confidentiality to the Kellam Report.

The adequacy and timeliness of implementation

Victoria Police considers that substantial and timely changes have been made since the use of Ms Gobbo as a human source and the completion of the Kellam Report.

Ms Steendam explained:

As with all organisations, Victoria Police’s processes, policies and systems have continued to evolve and improve over time. As a result, very many of the issues relevant to the recruitment and use of Nicola Gobbo are of their time and have already been dealt with through organisational changes and developments. Equally, Victoria Police has made substantial changes to its management of human sources in response to the Comrie Review and the Kellam Report.

Changes in order to prevent these issues occurring again have already been implemented through changes in regulation, governance, policy and oversight of human source management within Victoria Police.156

In a submission to the Commission in August 2020, Victoria Police stated that all Kellam Report recommendations were implemented within six months of receipt and that these amendments reflected best practice at the time.157

Victoria Police suggested that the additional policy changes introduced since 2015 reflect the evolving nature of its risk management framework for the use of human sources and further, that they are ‘evidence of Victoria’s commitment to best practice’ and ‘policy of continuous improvement’, rather than emblematic of any deficiency in its response to the Kellam Report recommendations.158

Policy development and change management

As part of its examination of Victoria Police’s implementation of the Kellam Report recommendations, the Commission considered the manner in which Victoria Police developed and managed the changes to its policies and practices.

Change management can be described as:

… the application of processes and tools to manage the people side of change from a current state to a new future state so that the desired results of the change (and expected return on investment) are achieved.159

The Victorian Public Sector Commission is a statutory authority established to improve the performance of the Victorian public sector and assist it to provide services effectively and efficiently. It has indicated that communication with employees impacted by or expected to apply a change to policy is important to maintain clarity, consistency and accuracy of information.160 Where appropriate and possible, management should consult with staff and relevant stakeholders to identify options to achieve the outcomes intended through policy change.161 In order for change to be effective, the Victorian Public Sector Commission recommends ongoing monitoring and review following implementation.162

Victoria Police’s Capability Plan 2016–2025 sets out its goal to be an effective, agile, responsive, people-focused and connected organisation.163 The plan highlights the need for Victoria Police to become more proficient in change management.164

The sections below discuss the governance and review structures Victoria Police put in place to address the findings and recommendations of the Comrie Review and Kellam Report and test the effectiveness of change, and how it engaged with and trained officers responsible for human source management to support policy development and implementation.

Governance and review structures

Following the completion of the Comrie Review, Victoria Police established two taskforces to manage issues arising from its use of Ms Gobbo as a human source; however, neither focused on overseeing all changes arising from the Comrie Review and Kellam Report.165

As noted earlier in this report, during the Kellam inquiry and in response to the Comrie Review recommendations, Victoria Police implemented various changes to its Human Source Policy in September 2014. In January 2015, Victoria Police tasked its Internal Audit Unit to review the implementation of the recommendations arising from the audit conducted by Victoria Police’s CMRD in 2010, many of which were repeated in the Comrie Review.

After completion of the Kellam Report in 2015, the scope of the Internal Audit Unit review was expanded to consider the effectiveness of new controls embedded in the Human Source Policy.166 The outcomes of this review are outlined below.

Findings of the Internal Audit Unit review

The Internal Audit Unit was provided access to the Comrie Review to identify findings that underpinned the recommendations and a list of the recommendations from the Kellam Report.167

The Internal Audit Unit review found that:

  • despite having implemented recommendations from the 2010 CMRD audit, Comrie Review and Kellam Report, compliance with the Human Source Policy across the organisation was ‘unsatisfactory’
  • the absence of an organisational human source strategy within Victoria Police to support specific objectives and to consider system as well as policy implications was leading to inconsistent practices
  • a series of changes to the Human Source Policy arising from these reviews had led to the policy becoming ‘too prescriptive’ and had led to increased non-compliance.168
Advice on policy changes

Alongside the Internal Audit Unit’s review, on 22 April 2015, Victoria Police obtained legal advice about proposed changes to the Human Source Policy. This advice indicated that the policy should highlight the need for police officers to consider issues of confidentiality or privilege that might arise outside of dealing with a human source subject to occupational obligations of confidentiality or privilege. The advice noted the potential for confidential or privileged information to be obtained by police from a person not themselves in an occupation subject to these obligations (for example, a partner or close family member of a lawyer).

The advice stated that:

While a duty of confidentiality arises as a professional obligation between a professional person and their client, the information does not lose its confidential status if disclosed to another. Even the recipient of wrongly disclosed confidential information can be compelled by law to keep that information confidential.169

This advice also noted that the group of occupations with obligations of confidentiality or privilege is broader than what the Human Source Policy reflected, pointing to confidentiality obligations that can attach to trade or business.170 While Victoria Police incorporated changes to reflect some issues raised in the advice, neither of the matters relating to confidential or privileged information were addressed in the Human Source Policy until May 2020.

Consultation, communication and training

Between 2014 and 2018, Victoria Police officers responsible for applying the Human Source Policy were informed of policy changes arising from the Kellam Report via the internal Victoria Police ‘Gazette’, emails to handlers and the provision of a version of the new Human Source Policy with sections highlighted to illustrate what had been added or removed.171

It appears that Victoria Police did not consult more broadly with officers involved in human source management as part of its development of changes to the Human Source Policy in 2014, 2015, 2016 and 2018.

Ms Steendam, on behalf of Victoria Police, explained that for more specialist functions such as human source management, Victoria Police consults officers who practise and work in that specific field.172 She also indicated that Victoria Police has a ‘structured approach for policy development’,173noting that:

[p]olicy is developed as part of a process of continuous improvement and to adapt to new and emerging issues within [Victoria Police’s] operating environment.174

According to Ms Steendam, this approach means that where there is ‘legislative change, issues identified, rifts identified or gaps in the policy,’ Victoria Police takes steps to ‘continuously improve’ those policies.175

Mr Paterson also described Victoria Police’s approach to policy development as ‘a continual process where current policies are frequently reviewed and updated as necessary’. He explained that this is particularly the case with the development of human source management policies.176

General review processes within Victoria Police are in place for annual or biannual reviews of most policies, though this does not apply to human source management policies.177 Ms Steendam told the Commission that Victoria Police would be open to incorporating a formal review schedule.178

Victoria Police advised the Commission that the May 2020 changes to the Human Source Policy were informed by:

  • information obtained from an international study tour undertaken by Mr Paterson and Superintendent Scott Mahony in February 2019 after the commencement of the Commission’s inquiry
  • information and consultation with the Australasian Human Source Working Group
  • feedback provided by the Victorian Government Solicitor’s Office
  • court matters where human source issues have been raised
  • learnings from issues explored in the Commission’s hearings
  • feedback from human source handlers, controllers, Officers in Charge, LSRs, HSMU officers, officers from the dedicated unit that manages high-risk human sources, and internal subject matter experts
  • advice provided by counsel appearing for Victoria Police.179

In 2015, Victoria Police amended its human source management training to refer to the Human Source Policy provisions that relate to legal obligations of confidentiality and professional privilege.180 The following content was included in the training module:

Professional privilege: Are they a doctor, parliamentarian, court official, journalist, priest or someone else who may have professional obligations regarding confidentiality? (Refer [to the Human Source Policy])

Where any of these circumstances exist, contact HSMU at the earliest opportunity (preferably before meeting the Source) to discuss the associated risks.181

From the information available to the Commission, this training did not cover what confidentiality and privilege mean, or why obtaining confidential and privileged information from a human source is a risk.

During the course of this inquiry, in November 2019 and March 2020, Victoria Police arranged for the Victorian Government Solicitor’s Office to provide training on privilege and Victoria Police’s disclosure obligations to officers from the HSMU, officers from dedicated source units and other officers ‘actively involved in human source management’.182

Ms Steendam informed the Commission that all officers involved in human source management ‘at the ground level’ will have access to training about the changes incorporated in the Human Source Policy and will be expected to understand the revised policy requirements.183 Handlers who have not undertaken updated training will not be able to register a human source.184

In addition, the Human Source Policy now includes examples of hypothetical scenarios to assist officers in understanding their responsibilities under the new framework.

Observations drawn from the Commission’s focus groups with Victoria Police officers relating to the organisation’s policy development and change management processes are outlined in Box 11.6.

BOX 11.6: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: POLICY DEVELOPMENT AND CHANGE MANAGEMENT

Most participants involved in the Commission’s focus groups indicated that amendments to human source management policies are communicated well by the HSMU through emails, bulletin boards and Victoria Police’s intranet.

There were mixed views about the utility and clarity of the Human Source Policy 2018. Some focus group participants reported that the policy was clear, easy to find and ‘black and white’, while others felt that it did not adopt a clear position on specific issues. Some participants indicated they were unaware of the existence of certain policy requirements.

Some participants suggested that Victoria Police makes reactive policy changes ‘on the run’, without sufficient operational input from officers involved in handling human sources. Others indicated they had provided some input in the development of the new Human Source Policy that came into effect in May 2020.

HSMU officers indicated that they had undertaken training relating to issues of confidentiality and privilege in the context of human source management. Most other participants could not recall having undertaken training to assist them to understand, identify and manage potential obligations of confidentiality or privilege in their registration and use of human sources.

Conclusions and recommendations

Including the Commission’s inquiry, Victoria Police’s human source management practices have been subject to over 20 reviews in as many years. The recurrence of similar findings and recommendations points to the persistence of common risks and issues in these practices.

The Commission acknowledges that during the Kellam inquiry and up until the introduction of the most recent version of the Human Source Policy in May 2020, Victoria Police made a number of significant changes to its human source management policies and processes to address identified risks and issues. A summary of the key changes is provided in Figure 11.3.

Figure 11.3: Key changes to the Human Source Policy arising from the Kellam Report 185
Figure 11.3 - Key changes to the Human Source Policy arising from the Kellam Report

Overall, the Commission is satisfied that Victoria Police has now implemented most of the Kellam Report recommendations. It took early action to amend its Human Source Policy in September 2014 in response to the Comrie Review, while the Kellam investigation was underway. It also made further changes once the Kellam Report was finalised, revising the policy framework in 2015, 2016, 2018, and most recently in 2020, informed by the advice of its counsel appearing at the Commission’s hearings.186 The Commission considers, however, that these amendments have had different levels of success in achieving the intent of the Kellam Report recommendations and addressing all aspects of those recommendations.

Some recommendations were implemented consistently with the apparent intention of the Comrie Review and Kellam Report, while others were not implemented in full until recently. In some cases, Victoria Police directly transposed text from recommendations into the Human Source Policy and did not include contextual information or guidance to achieve effective implementation of the new requirements.

In some cases, it took Victoria Police several years to introduce policy changes to address the Kellam Report recommendations. Some of these recommendations were first made in other reviews completed years before the completion of the Kellam Report.

In the following sections, the Commission addresses these issues in more detail.

Adequacy of policy and system reforms

Evidence before the Commission indicated that Victoria Police implemented a number of the Kellam Report recommendations in a way that adequately addressed their scope and intent and contributed to a more robust human source management framework.

These include the recommendations related to the day-to-day management of human sources (Recommendations 4–10), and the dissemination of the Kellam Report and amended Victoria Police policies to relevant parties (Recommendations 11–16).

In contrast, recommendations to incorporate safeguards relating to confidential and privileged information (Recommendation 1) and risk assessment practices (Recommendations 2 and 3) appear to have been implemented less effectively.

Importantly, it was the absence of safeguards related to the use of confidential and privileged information and inadequate risk assessment processes that gave rise to the inappropriate use of Ms Gobbo as a human source and the establishment of the Commission. It is therefore a concern that Victoria Police’s Human Source Policy did not, until very recently, fully address these issues identified by the Comrie Review and the Kellam Report.

Supporting an understanding of confidentiality and privilege

Between 2014 and 2020, Victoria Police made a number of policy and system changes in response to the Comrie Review and Kellam Report recommendations that called for special consideration to be applied to obtaining, using and managing information that may be subject to confidentiality or privilege.187 As outlined earlier in this chapter, these changes included:

  • requiring officers to be mindful that some human sources might be bound by professional obligations and to obtain advice from the HSMU about how to handle confidential or privileged information188
  • establishing an Ethics Committee to consider the registration of human sources in ‘Kellam Occupations’ and involving complex ethical or legal issues, which appeared to be consistent with Recommendation 1(b) of the Kellam Report189
  • strengthening its system capability to identify sources with legal obligations of confidentiality or privilege.

While these steps improved Victoria Police’s capacity to identify issues relating to legal obligations of confidentiality or privilege, Victoria Police did not introduce changes that fully addressed Recommendation 1(a) of the Kellam Report until May 2020. That aspect of the recommendation was intended to create safeguards for the use of potentially confidential and privileged information obtained from all human sources, not only those in one of the Kellam Occupations.

Victoria Police acknowledged to the Commission that the initial amendments to the Human Source Policy in response to the Kellam Report did not effectively capture the full set of circumstances in which officers might receive confidential or privileged information, as Recommendation 1(a) intended. It explained that these policy amendments targeted what Victoria Police considered to be the occupations ‘most likely to potentially provide

information that may be subject to legal obligations of confidentiality and privilege’ and suggested that the current Human Source Policy contains more stringent requirements than those that exist in other jurisdictions.190

The Commission also considers that the policy changes introduced in response to the Comrie Review and the Kellam Report were not accompanied by sufficient supporting guidance and training about the nature of confidential and privileged information, the difference between the two, how to identify such information, and the risks associated with obtaining and using such information from human sources. This appears to have contributed to uncertainty among officers responsible for implementing the Human Source Policy and handling human sources, which was evident in the responses of some officers who participated in the Commission’s focus groups. Victoria Police advised the Commission that training related to confidential and privileged information was provided to officers involved in human source management in November 2019 and March 2020.191

Additionally, the Commission considers that Victoria Police’s removal of a clear instruction from the Human Source Policy for officers not to actively seek information from human sources involving legal obligations of confidentiality or privilege—in line with Recommendation 1(d) of the Kellam Report—creates a gap in the current policy. This is discussed further in Chapter 12.

Finally, while the Ethics Committee was established in 2014 to make decisions about human sources involving complex ethical and legal issues, until 20 August 2019, it had not considered any human source matters involving issues of confidentiality or privilege. Based on the evidence available to the Commission through its audit of selected human source files, it appears that in practice, officers in the handling team or the CSR made the decision about whether an issue of confidentiality or privilege existed. Consequently, there was no referral to the Ethics Committee, no legal advice was sought to inform the decisions, and there were inconsistencies in decision making about the registration and use of these human sources.

The Commission notes that the current Human Source Policy aims to address the Kellam Report recommendations more fully and better protect against the inappropriate use of confidential or privileged information from human sources. Nonetheless, the Commission considers that further policy, procedural, system and structural reforms are necessary to manage this risk. Chapter 12 examines these issues in more detail.

Further strengthening risk assessments

Following the Kellam Report, Victoria Police took prompt action to revise its risk assessment processes. It introduced a new Human Source Risk Assessment template and amended its Human Source Policy to require risk assessments to state the purpose of engagement with a human source and for this to be regularly reviewed. Yet operational demands, conflicting priorities and overly cumbersome risk assessment processes appear to have contributed to inconsistent practices and areas of non-compliance. The Commission recognises, however, that its audit of human source files indicated that routine monitoring by the HSMU sometimes enabled instances of non-compliance to be remedied.

The Commission’s conclusions associated with aspects of the Kellam Report recommendations relating to risk assessments discussed below, informed its recommendations about Victoria Police’s current risk assessment practices, contained in Chapter 12.

Positive obligation: a duty to protect the community

The concept of ‘positive obligation’, as envisaged by the Comrie Review and Kellam Report, was not confined to human sources subject to legal obligations of confidentiality or privilege. The recommendation related to circumstances in which Victoria Police considers it has a duty to use information from any human source to protect the broader community.192 This recommendation is important, because it sought to guard against situations where officers disregard or understate the ethical and legal risks of using a human source due to the perceived value of the source’s information. It emphasised the need to reflect carefully on necessity and proportionality in the use of all human sources where Victoria Police considers it has a positive obligation to use the information.

Prior to May 2018, there was no definition or explanation of positive obligation within the Human Source Policy. This was despite the inclusion of the term in the Ethics Committee terms of reference in 2015. When this was introduced into policy, it was conflated with legal obligations of confidentiality or privilege and defined by reference to circumstances ‘where information is provided by a source who is bound by legislation or rules of their profession (that is, legal/professional privilege, medical Hippocratic oath)’.193

These policy provisions created confusion among police officers responsible for engaging with human sources and did not appropriately contextualise the circumstances in which Victoria Police is under a duty to act on information to protect the community. Although Victoria Police has now removed reference to the term, greater support should be provided to officers to assist them in navigating the complex balancing exercise of assessing necessity and proportionality in the use of human sources.

Improved human rights guidance

Aspects of the Kellam Report recommendations dealing with necessity and proportionality were based on the Comrie Review. The Comrie Review highlighted the importance of reflecting upon these concepts, which exist within the United Kingdom’s rights-based approach to human source management. Victoria Police’s existing obligations under the Charter similarly require that a human right may only be subject to reasonable limits.194

Victoria Police’s Human Source Policy did not set out the requirement for officers to consider human rights or to assess necessity and proportionality in the use of human sources until May 2020, about 18 months into the Commission’s inquiry and 14 years after the introduction of the Charter. Although Victoria Police’s Human Rights Standards were in place, these were not referenced in any versions of the Human Source Policy.

Victoria Police explained to the Commission that the Human Source Policy is to be read within the broader context of its Victoria Police Manual and that while past versions of the Human Source Policy did not expressly refer to human rights requirements, officers ‘were still aware of and required to act in accordance with’ the Human Rights Standards.195

Victoria Police also suggested that, because each part of the Victoria Police Manual, including the Human Source Policy, ‘is developed in consideration of human rights implications, it was not necessary for each iteration of the [Human Source Policy] to have referred to human rights’.196 Victoria Police also noted that ‘while all members involved in human source management make decisions in fulfilling their duties that may affect human rights, the most impactful decisions are reserved to senior experienced members and are subject to review by the [Ethics Committee] and Deputy Commissioner, Specialist Operations’.197

The Commission disagrees with Victoria Police on these matters. The fact that human rights are considered as part of Victoria Police’s development of a policy does not negate the need to inform and guide officers about their obligations to consider and act compatibly with the Charter in their management of human sources. Further, while more senior officers may well make the most ‘impactful decisions’, handlers and other officers involved in the day-to-day management of a human source also make decisions that potentially affect and limit human rights, and require guidance to do so in a lawful and considered way. An awareness of and respect for human rights should be embedded at every level throughout the organisation.

The Commission notes that the Human Source Policy introduced in May 2020 now contains a section that deals with human rights obligations. While this is a positive development, the policy and associated training could be more instructive about what necessity and proportionality mean in practice and in the context of the Charter. This is discussed further in Chapter 12.

Reviewing risk assessments

The recommendations that required LSRs to review, endorse and amend risk assessments as appropriate were adequately reflected in amendments to the Human Source Policy in 2014.

Despite these early policy amendments, evidence before the Commission indicates that LSRs have not practised supervision and review of risk assessments consistently. The Commission’s audit and focus groups with Victoria Police officers suggested that although LSRs review risk assessments thoroughly on occasion, this is not a common practice. It appears that operational demands, competing priorities and limited training have each contributed to the lack of consistent and robust oversight and scrutiny of risk assessments. The adequacy of supervision and management more broadly is discussed in Chapter 12.

Timeliness of implementation

This chapter has focused on Victoria Police’s implementation of the Kellam Report recommendations. Yet many of these recommendations were originally raised in reviews conducted many years prior. The Kellam Report, completed in February 2015, repeated recommendations made by the Comrie Review in 2012,198 which had endorsed the findings of a Victoria Police Corporate Management Review Division Audit finalised in 2010.199

The Commission is satisfied that most of the Kellam Report recommendations were implemented within a reasonable timeframe; that is, within one year following the completion of the report. There were, however, significant delays in the implementation of some recommendations.

Contrary to Victoria Police’s advice to IBAC in 2018, the Commission considers that Recommendations 1 and 3 of the Kellam Report were not implemented at this time. As outlined above, these recommendations related to safeguards regarding the use of confidential or privileged information from human sources and risk assessment practices, and were, arguably, the most important of the Kellam Report recommendations. The recommendations were also made in the Comrie Review.

The Commission considers that Victoria Police did not fully address these recommendations until it issued the most recent version of the Human Source Policy in May 2020—eight years after the Comrie Review was completed; and 18 months after the Commission’s inquiry commenced. In addition, some aspects of these recommendations are not yet adequately embedded in officers’ operational practice.

In the Commission’s view, this delay is unacceptable. Addressing these recommendations in a timely way was critical, given the significance of the issues and risks identified by those reviews relating to the use of Ms Gobbo as a human source, and the need to prevent similar events from occurring in future.

Victoria Police acknowledged that it could have implemented some of the Kellam Report recommendations faster but noted that it had implemented ‘the vast majority of recommendations’ within a year and that all recommendations have since been incorporated into its human source management framework.200 Victoria Police also emphasised that there was no intention to provide inaccurate information to IBAC in 2015 and 2018 when it reported on the measures adopted to address the Kellam Report.201

While there is no evidence before the Commission to suggest that Victoria Police deliberately misled IBAC, the fact remains that some important Kellam Report recommendations were not fully implemented at this time.

It will be important for Victoria Police to implement the Commission’s recommended changes to Human Source Policy in a timely way to mitigate the risks that remain in its current human source management framework.

Recommendations must also be implemented thoughtfully and with due consideration to the organisational and system supports needed to effect meaningful change. This is discussed further below.

Improving policy development and change management processes

Throughout the Commission’s inquiry, Victoria Police continued to make changes to the Human Source Policy. In a submission in response to Counsel Assisting submissions, Victoria Police indicated these policy changes reflected the evolution of human source management over time and its commitment to best practice, rather than a deficient response to the Kellam Report recommendations.202

Several changes incorporated in the Human Source Policy in May 2020 better reflected the intent of the Kellam Report recommendations and usefully clarified aspects of the policy. As noted in Chapter 12, many of these changes also appeared to align the Human Source Policy more closely to principles underpinning the United Kingdom’s human source management framework. These principles have been in place in the United Kingdom since 2001, some 14 years before the completion of the Kellam Report, and were considered by the Comrie Review, completed in 2012.

As noted above, the changes were not introduced until almost 18 months into the Commission’s inquiry, after Victoria Police received advice from its counsel. The changes also addressed several risks and issues identified by the Commission during the inquiry. As such, the Commission does not agree with Victoria Police’s view that its continual changes to the Human Source Policy demonstrate only its commitment to best practice, and not any deficiency in its earlier response to the Kellam Report recommendations. The changes seemed reactive rather than proactive.

An agency taking steps to improve its policies during an inquiry is not in and of itself worthy of criticism. Indeed, an agency that did not take some steps to promptly remedy identified deficiencies and strengthen its framework might be subject to criticism. Nonetheless, Victoria Police’s most recent updates to the Human Source Policy during the Commission’s inquiry related principally to changes that should have been implemented earlier and more comprehensively, in response to the Comrie Review and Kellam Report.

The Commission’s inquiry indicated that Victoria Police sought legal advice in 2015 associated with changes to its Human Source Policy. It appears that aspects of this advice were not incorporated into the policy, predominantly in relation to safeguards associated with identifying issues relating to confidentiality or privilege, consistent with Recommendation 1 of the Kellam Report and Recommendation 3 of the Comrie Review.

The Commission’s focus groups indicated that officers responsible for human source management were often not consulted to provide operational input into proposed policy changes. Consultation with stakeholders and staff, including those expected to apply and adhere to new requirements, is an important way that agencies can clarify intended impacts, obtain helpful operational feedback and guard against unintended consequences.

In addition, as outlined above, the policy changes implemented between 2014 and 2018 were not accompanied by adequate communication, guidance and training to officers responsible for human source management. This likely contributed to the uncertainty that exists among some officers about critical policy requirements and safeguards relating to the use of confidential or privileged information from human sources.

In a submission to the Commission, Victoria Police agreed that, as a general rule, broader input from and communication with officers can lead to policy improvements, but noted that, due to the specialised nature of human source management and the highly confidential nature of the Kellam Report, its consultation with officers on changes to the Human Source Policy was appropriately limited.203

The Commission considers that, notwithstanding the confidentiality of the Kellam Report, there would have been no impediment to Victoria Police consulting with and seeking input from relevant operational officers on proposed changes to the Human Source Policy before finalising and issuing that policy. Victoria Police’s implementation of the Kellam Report recommendations could have been accompanied by a more effective consultation and change management process aimed at ensuring that the policy changes were operationally feasible and that officers understood the nature, scope and intent of those changes. The Commission notes that Victoria Police undertook a process of consultation with officers when developing the Human Source Policy in 2020 and has indicated that all officers who manage human sources will receive training related to the new policy. This is a positive, if overdue step.

The Commission also considers that Victoria Police could have taken more effective action to monitor and evaluate the effectiveness of policy changes, including by engaging with officers responsible for human source management regarding their understanding of revised expectations and changes to policy. Ongoing monitoring and review of policy changes is necessary to ensure that policy requirements are clear, understood by officers, and applied effectively and consistently across the organisation. This is also important to enable continuous improvement and ensure that policies respond to emerging issues and risks.

RECOMMENDATION 7

That Victoria Police, within three months and consistent with its Capability Plan 2016–2025, establishes clear processes for the review and amendment of human source management policies and procedures, including processes for:

  1. seeking and incorporating operational input from police officers involved in human source management
  2. disseminating and communicating policy and procedural changes so that all relevant officers receive timely and accurate advice about impending change
  3. reviewing and evaluating policies and procedures on an annual basis to ensure its human source management practices are responsive to emerging risks, changes to the operating environment and changes to any relevant legislation; and are consistent with Victoria Police’s human rights obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic).

The Commission considers that this recommendation should be implemented within three months, so that the new processes can support and guide Victoria Police’s development and implementation of the human source management reforms the Commission recommends in Chapter 12. This also aligns with the timeframe the Commission has recommended in that chapter for Victoria Police to establish a strategic governance committee to oversee this reform program.

Endnotes

1 Mr Kellam led the inquiry on behalf of IBAC after the then Commissioner of IBAC, Mr Stephen O’Bryan, QC, declared himself unable to act due to a perceived conflict of interest: Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 1 [1].

2 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 4 [9].

3 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14897–8; Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 17–18 [5.1], 19–20 [5.3].

4 The current Human Source Policy was finalised in April 2020 but came into effect in May 2020: Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020.

5 Exhibit RC0275b Statement of Officer ‘Sandy White’, undated, 14 [52]–[54]; Consultation with South Australia Police, 6 September 2019; Consultation with Sir Jonathan (Jon) Murphy, 11 October 2019.

6 Consultation with South Australia Police, 6 September 2019; Consultation with Queensland Police, 8 October 2019.

7 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 27 [4.14]–[4.17].

8 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 34, 1 [3]–[4]; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 36, 1 [4].

9 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 45 [5.9], 46 [5.10].

10 Exhibit RC0276 Review & Develop Best Practice Human Source Management Policy 2004, 16 April 2004, 20.

11 Exhibit RC0276 Review & Develop Best Practice Human Source Management Policy 2004, 16 April 2004, 20–1.

12 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 28 [4.22].

13 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 46 [5.10].

14 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 12 [3.44].

15 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 37, 5 [7.1]; Exhibit RC0276 Review & Develop Best Practice Human Source Management Policy 2004, 16 April 2004, 20.

16 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 37, 5 [7.2].

17 See, eg, Exhibit RC0108 Victoria Police, Review of the Victoria Police Drug Squad (Report, November 2001), 176–8.

18 Exhibit RC0108 Victoria Police, Review of the Victoria Police Drug Squad (Report, November 2001) 22 [3.5]; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 51, 16 [10]; Office of Police Integrity, Past Patterns—Future Directions: Victoria Police and the Problem of Corruption and Serious Misconduct (Report, October 2007); Office of Police Integrity, Annual Report—Financial Year Ending 30 June 2008 (Report, 2008).

19 Office of Police Integrity, Leak of a Sensitive Victoria Police Information Report (Report, February 2005); Office of Police Integrity, Investigation into the Publication of One Down, One Missing (Report, September 2005).

20 See, eg, Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 50, 114 [13.12]; Office of Police Integrity, Investigation into the Publication of One Down, One Missing (Report, September 2005); Office of Police Integrity, Annual Report—Financial Year Ending 30 June 2006 (Report, 2006) 52; Office of Police Integrity, Report on Investigation into Operation Clarendon (Report, 2008), 17.

21 See, eg, Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 51, 16–17; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 57, 6–11.

22 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 57, 9–10.

23 AB & EF v CD [2017] VSC 350 (Ginnane J).

24 Based on Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 50; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 51, 16; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 53, ii; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 56, 2; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 60; Exhibit RC0276 Review & Develop Best Practice Human Source Management Policy, April 2004, 13–15; Exhibit RC0359 Victoria Police, Covert Services Review (Intelligence & Covert Support Command) (Report, December 2012) 10–11; Office of Police Integrity, Leak of a Sensitive Victoria Police Information Report (Report, February 2005) 8 [26]; Office of Police Integrity, Investigation into the Publication of One Down, One Missing (Report, September 2005) 15; Ombudsman Victoria, Ceja Task Force Drug Related Corruption: Second Interim Report of Ombudsman Victoria (Report, June 2004); Office of Police Integrity, Annual Report—Financial Year Ending 30 June 2008 (Report, 2008) 18; Office of Police Integrity, Report on Investigation into Operation Clarendon (Report, 2008) 23; Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012).

25 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012).

26 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 47 [5.17].

27 Exhibit RC1407b Statement of Superintendent Stephen Gleeson, 6 November 2019, 2 [9].

28 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 26, 28, 42, 45, 47.

29 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 43.

30 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 57.

31 The notification was made pursuant to section 57(2) of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic). The Act requires the Chief Commissioner of Victoria Police to notify IBAC of any complaint received by the Chief Commissioner about corrupt conduct or police personnel misconduct by a Victoria Police employee: Exhibit RC1711 Letter from Kenneth (Ken) Lay to the Independent Broad-based Anti-corruption Commission, 10 April 2014.

32 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 1 [1]; Anthony Dowsley, ‘Underworld Lawyer a Secret Police Informer’, Herald Sun (Melbourne, 31 March 2014).

33 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 1 [4].

34 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 82 [5(i)].

35 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 83 [5(vi)].

36 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 13 [9].

37 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 13 [9].

38 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 61 [11].

39 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 57 [2].

40 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 58 [2].

41 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 80 [1].

42 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 80–1 [1].

43 Based on Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 49 [5.28]; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 44, 10 [1.19]; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 82; Exhibit RC1950 Victoria Police Manual—Human Sources, 9 June 2015; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 47, 5 [1.19]; Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018; Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020; Exhibit RC1953 Letter from Timothy Cartwright to the Independent Broad-based Anti-corruption Commission, 26 June 2015; Exhibit RC1949 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 26 June 2020 (Annexure B), 3; Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015); Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14897–8; Victoria Police, ‘Victoria Police Manual—Human Sources (Draft)’, 28 February 2020, produced by Victoria Police in response to a Commission Notice to Produce; Victoria Police, ‘Deliberations of Victoria Police’s Human Source Ethics Committee as at 15 June 2020’, produced by Victoria Police in response to a Commission Notice to Produce.

44 The Human Source Policy 2018: Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018.

45 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020.

46 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 86–7 (Recommendation 1).

47 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 87–8 (Recommendations 2–3).

48 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 88–90 (Recommendations 4–10).

49 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 90–1 (Recommendations 11–16).

50 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 86–7 (Recommendation 1).

51 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 20 (Recommendation 3).

52 Email from Neil Comrie to the Commission, 13 November 2019.

53 Email from Neil Comrie to the Commission, 13 November 2019.

54 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 44, 12 [2.2], 15–16 [4.6]; Exhibit RC1953 Letter from Timothy Cartwright to the Independent Broad-based Anti-corruption Commission, 26 June 2015. The amendments to the Human Source Policy 2014 referred interchangeably to ‘occupational’ and ‘professional’ obligations of confidentiality or privilege.

55 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 16 [4.6].

56 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 17 [4.6].

57 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 9 [1.20]. The Ethics Committee was then referred to as the ‘Human Source Management Ethics Committee’ and was later renamed to the ‘Human Source Ethics Committee’. This Committee is referred to as the ‘Ethics Committee’ throughout this chapter.

58 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 11–12 [2.3].

59 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 9 [1.2].

60 Exhibit RC1952 Statement of Assistant Commissioner Neil Paterson, 5 March 2020, 3 [17].

61 Exhibit RC1952 Statement of Assistant Commissioner Neil Paterson, 5 March 2020, 13 [98].

62 Exhibit RC1952 Statement of Assistant Commissioner Neil Paterson, 5 March 2020, 13 [96].

63 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 62 [286].

64 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 62 [286].

65 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 62 [286].

66 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 62 [286]; Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 17 August 2020, 4–5.

67 Exhibit RC1952 Statement of Assistant Commissioner Neil Paterson, 5 March 2020, 13 [98].

68 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 17 August 2020, 2, 4.

69 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 19 [5.3], 20 [8.5].

70 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 19 [5.3], 8.5 [30].

71 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 55 [253].

72 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 73 [317].

73 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 48, 4 [1.7], 5 [1.9].

74 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 9 [3].

75 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 13 [10].

76 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 13 [10].

77 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 29; Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 13–14, 48.

78 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 33 (Recommendation 4).

79 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 87 (Recommendation 2).

80 Recommendation 3(a) refers to changes in the scope or purpose of engaging a human source: Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 87–8 (Recommendation 3); Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 34 (Recommendation 5).

81 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 1, 3–5; Victoria Police, ‘Human Source Risk Assessment’, 1 May 2015, produced by Victoria Police in response to a Commission Notice to Produce.

82 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 44, 15–16 [4.6]; Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 17 [4.6].

83 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018,15 [4.3].

84 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 9 [1.20].

85 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 16 [4.5].

86 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 16–17 [4.5]–[4.6].

87 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 34 (Recommendation 5(d)); Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 88 (Recommendation 3(d)).

88 See, eg, Exhibit RC1952 Statement of Assistant Commissioner Neil Paterson, 5 March 2020, 2 [14]–[15], 5–6 [31], 6 [45].

89 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 23.

90 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 26.

91 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 23.

92 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 23.

93 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 34 (Recommendation 5(d)); Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 88 (Recommendation 3(d)).

94 Exhibit RC1953 Letter from Timothy Cartwright to Independent Broad-based Anti-corruption Commission, 26 June 2015, 5.

95 Exhibit RC1953 Letter from Timothy Cartwright to Independent Broad-based Anti-corruption Commission, 26 June 2015, 5; Victoria Police, ‘Human Source Management Ethics Committee Terms of Reference’, undated, 1, produced by Victoria Police in response to a Commission Notice to Produce.

96 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 9 [1.20].

97 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 9 [1.20].

98 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 9 [1.20].

99 Exhibit RC1952 Statement of Assistant Commissioner Neil Paterson, 5 March 2020, 2 [11].

100 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 32 [8.9].

101 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 23.

102 As provided for in Exhibit RC1541 Regulation of Investigatory Powers Act 2000 (UK) and the Home Office (UK), Covert Human Intelligence Sources—Code of Practice (2010); Email from Neil Comrie to the Commission, 13 November 2019.

103 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7(2).

104 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 9 [1.20].

105 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 41 [191].

106 Victoria Police, ‘Victoria Police Manual—Policy Rules—Human rights equity and diversity standards’, 31 August 2015, 3, produced by Victoria Police in response to a Commission Notice to Produce.

107 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 44, 13 [3.2], 16 [5.3], 29 [16].

108 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 47, 5 [1.19], 13 [4.4].

109 Exhibit RC1532b Victoria Police, Human Source Strategy 2018–2022 (v 7 draft): A better way to manage risk, undated, 2–3, 6.

110 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 5 [1.3].

111 Victoria Police, ‘Human Source Ethics Committee Terms of Reference’, 12 April 2020, 6, produced by Victoria Police in response to a Commission Notice to Produce.

112 Email from Neil Paterson to Wendy Steendam, 30 October 2019, 1, produced by Victoria Police in response to a Commission Notice to Produce.

113 Exhibit RC1949 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission (Annexure A), 26 June 2020, 10 [32].

114 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 13 [9].

115 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 88 (Recommendation 4).

116 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 39 (Recommendation 9).

117 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 1, 7.

118 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 4 [1.7], 7 [1.14], 8 [1.17]; Exhibit RC1950 Victoria Police, ‘Victoria Police Manual—Human Sources’, 9 June 2015, [1.7].

119 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 11 [1].

120 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 53 [2].

121 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 11 [2].

122 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 88 (Recommendation 5).

123 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 47, 14 [4.5]; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 1, 8.

124 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 37 [5].

125 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 15 [11], 29 [3].

126 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 89 (Recommendation 6).

127 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 1, 10; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 39 [4.77].

128 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 1, 10; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 39 [4.77].

129 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015), 28 [2].

130 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 89 (Recommendation 7).

131 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 1, 12; Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 50 (Recommendation 21).

132 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 89 (Recommendation 8).

133 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 1, 13.

134 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 6 [1.11].

135 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 33.

136 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 33.

137 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 89 (Recommendation 9).

138 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 1, 13.

139 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 12 [2.5].

140 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 59 [2].

141 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 59 [2].

142 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 89–90 (Recommendation 10). A similar recommendation was made by the Comrie Review: Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 61 (Recommendation 27).

143 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 1, 14.

144 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 10–12 [2.2]–[2.5].

145 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 11 [2.2].

146 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 5–6 [1.4].

147 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 90 (Recommendation 11).

148 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 91 (Recommendation 15).

149 Exhibit RC1953 Letter from Timothy Cartwright to Independent Broad-based Anti-corruption Commission, 26 June 2015, 1.

150 Exhibit RC0010 Letter from Shane Patton to Independent Broad-based Anti-corruption Commission, 9 May 2018.

151 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 90 (Recommendation 12).

152 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 91 (Recommendations 13 and 14).

153 Letter from Timothy Cartwright to John Champion, 13 February 2015, produced by Victoria Police in response to a Commission Notice to Produce.

154 Email from Counsel Assisting Victoria Police to the Commission, 11 August 2020; Letter from Stephen O’Bryan to Timothy Cartwright, 6 February 2015, produced by Victoria Police in response to a Commission Notice to Produce.

155 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 91.

156 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 94 [403], 95 [409].

157 Responsive submission, Victoria Police, 24 August 2020, 312, 325 [144.3].

158 Responsive submission, Victoria Police, 24 August 2020, 325 [144.2]–[144.3].

159 Jeffrey Hiatt and Timothy Creasy, Change Management: The People Side of Change (Prosci Learning Center Publications, 2015) 11.

160 The Victorian Public Sector Commission was established in April 2014, replacing the State Services Authority: State Services Authority, Great Manager, Great Results: Development Framework for Victorian Public Sector Managers (Report, 2009) 23.

161 State Services Authority, Organisational Change (Report, 2013) 62.

162 State Services Authority, Great Manager, Great Results: Development Framework for Victorian Public Sector Managers (Report, 2009) 23.

163 Victoria Police, Capability Plan 2016–2025: Capability Framework (Report, 8 August 2019) 4 [1.1].

164 Victoria Police, Capability Plan 2016–2025: Capability Framework (Report, 9 August 2019) 38.

165 These taskforces conducted Operation Loricated and Operation Bendigo.

166 Victoria Police, ‘Human Source Management Ongoing Risk Management and Post Implementation Review Phase 1’ 2015, produced by Victoria Police in response to a Commission Notice to Produce.

167 Victoria Police, ‘Human Source Management Ongoing Risk Management and Post Implementation Review, Phase 1’, 2015, 7, produced by Victoria Police in response to a Commission Notice to Produce.

168 Victoria Police, ‘Human Source Management Ongoing Risk Management and Post Implementation Review, Phase 2’, 2015, 3–5, produced by Victoria Police in response to a Commission Notice to Produce.

169 Victorian Government Solicitors Office, ‘Review of draft Victoria Police policy in response to IBAC report’, 22 April 2015, 2 [10], produced by Victoria Police in response to Commission Notice to Produce.

170 Victorian Government Solicitors Office, ‘Review of draft Victoria Police policy in response to IBAC report’, 22 April 2015, 2 [9], produced by Victoria Police in response to a Commission Notice to Produce.

171 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 38 [4.71]; Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 17 August 2020, 3.

172 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14863.

173 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 2 [9].

174 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 2 [9].

175 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14861.

176 Exhibit RC1952 Statement of Assistant Commissioner Neil Paterson, 5 March 2020, 1 [6].

177 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14861.

178 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14861.

179 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 3 [13]; Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14862, 14897–8.

180 Victoria Police, ‘Presentation—Source Management (Module 2)’, 19 November 2015, produced by Victoria Police in response to a Commission Notice to Produce.

181 Victoria Police, ‘Presentation—Source Management (Module 2)’, 19 November 2015, 6, produced by Victoria Police in response to a Commission Notice to Produce.

182 Exhibit RC1949 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission (Annexure A), 26 June 2020, 7 [21].

183 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14859.

184 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14859.

185 Based on Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 44, Annexure 47, Annexure 48; Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020.

186 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14897–8.

187 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 86 (Recommendation 1(a)).

188 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 36 [4.65], 38 [4.71], 41 [4.83]; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 44, 15–16 [4.6].

189 Victoria Police, ‘Human Source Management Ethics Committee—Terms of Reference, Version 2’ 23 July 2015 produced by IBAC to the Commission.

190 Responsive submission, Victoria Police, 20 September 2020, 8 [4.12].

191 Exhibit RC1949 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission (Annexure A), 26 June 2020, 7 [21].

192 Neil Comrie,Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 23.

193 Exhibit RC1530b Victoria Police Manual—Human Sources, 8 May 2018, 9 [1.20].

194 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7(2).

195 Responsive submission, Victoria Police, 20 September 2020, 9 [4.19].

196 Responsive submission, Victoria Police, 20 September 2020, 9 [4.19], [4.21].

197 Responsive submission, Victoria Police, 20 September 2020, 10 [4.22].

198 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 90 (Recommendation 15).

199 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 7.

200 Responsive submission, Victoria Police, 20 September 2020, 3 [1.2].

201 Responsive submission, Victoria Police, 20 September 2020, 3–4 [2.2].

202 Responsive submission, Victoria Police, 24 August 2020, 325 [144.2], [144.3].

203 Responsive submission, Victoria Police, 20 September 2020, 4–5 [3.4]–[3.5].

Reviewed 07 December 2020

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