RCMPI

Chapter 12

Victoria Police's processes for the use and management of human sources involving legal obligations of confidentiality and privilege

Introduction

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

In this chapter, the Commission refers to human sources involving legal obligations of confidentiality or privilege, unless specifically talking about people who are themselves in an occupation or profession subject to such an obligation. This is because a human source who is not in an occupation subject to these obligations themselves might still have access to, and share with police, information that is confidential or privileged. As noted in Chapter 4, the Commission is primarily concerned with legal obligations of confidentiality and privilege arising from professional relationships, and by extension, confidential and privileged information derived from those relationships. In this chapter, the Commission uses the term ‘confidential or privileged information’ in this context.1

Victoria Police’s use of Ms Nicola Gobbo as a human source occurred more than a decade ago and its policies have since undergone substantial changes, including changes made during the Commission’s inquiry. Victoria Police told the Commission that the failures relating to its use of Ms Gobbo as a human source could not occur today due to the safeguards in its current policy framework.2

In this chapter, the Commission considers whether Victoria Police’s current human source management framework is adequate and effective—that is, whether it sufficiently mitigates the risks that arise in the use of human sources, particularly the risk of obtaining and disseminating confidential or privileged information. Managing these risks is essential for the safety of human sources, the integrity of Victoria Police and the proper administration of justice. It is also integral to community trust and confidence in police and the criminal justice system, and the willingness of people to share information with Victoria Police that may in turn help to detect and prevent serious crimes.

A broad range of evidence informed this aspect of the Commission’s inquiry, including evidence from witnesses who appeared at the Commission’s hearings, the outcomes of the Commission’s audit of Victoria Police human source files, the views of Victoria Police officers who participated in the Commission’s focus groups, and information provided in response to notices to produce. The Commission also considered the human source management processes of other Australian and international law enforcement agencies, focusing particularly on the United Kingdom framework due to the safeguards it applies to confidential and privileged information, and similarities in the common law and statutory frameworks that operate in Victoria and the United Kingdom.

To conduct a thorough and meaningful inquiry into term of reference 3, the Commission considered the processes that apply to Victoria Police’s use and management of human sources generally, not just those that apply to the narrow class of human sources involving legal obligations of confidentiality or privilege. There are two key reasons for this.

First, while some of Victoria Police’s processes apply specifically to human sources involving legal obligations of confidentiality or privilege, others apply to all human sources. Consequently, it has been necessary to examine the broader framework to understand the full suite of processes that apply to the category of sources specified in term of reference 3.

Second, human sources involving legal obligations of confidentiality or privilege constitute a small proportion of sources used by Victoria Police, yet many risks and issues related to their registration and management also arise in the use of other human sources. The Commission sought to consider Victoria Police’s human source management framework in a holistic way—both to enable the development of meaningful and practical recommendations for reform, and to prevent unnecessarily fragmented or inconsistent approaches to different types of human sources.

Having examined the evidence, the Commission considers that Victoria Police’s current internal policy for the use of human sources is not sufficient to appropriately manage risk or guide officers in their decisions and actions, nor to assure the Victorian community and Government that events like those involving Ms Gobbo will not reoccur. While the Commission acknowledges that the use of human sources is a potent tool in Victoria Police’s investigative arsenal, it considers that continued self-regulation with an opaque set of rules, guidance and internal governance would be unsatisfactory.

With this in mind, the Commission recommends the introduction of legislation to regulate this high-risk area of policing more effectively; provide accountability and transparency to the public; and reinforce Victoria Police’s obligations to use human sources in a way that is necessary, proportionate and compatible with human rights.

The Commission also recommends that Victoria Police adopts a different organisational model, with dedicated handling teams, a more centralised decision-making process with clearer accountability, and a more rigorous registration process for human sources who are reasonably expected to have access to confidential or privileged information.

To support these changes and help officers fulfil their responsibilities under the new framework, the Commission recommends improvements in training and risk assessment processes, and regular auditing and monitoring of officers’ compliance with policy requirements.

The Commission appreciates that human sources provide Victoria Police with information that can be essential to the prevention and detection of crime. It also recognises the efforts Victoria Police has made to strengthen its policy framework, and the efforts its officers make every day to control and mitigate the many risks and challenges that arise in their use of human sources. The Commission’s recommendations aim to build on Victoria Police’s recent reforms and existing strengths, and support its officers to manage sources lawfully, ethically and even more effectively.

Current context and practice

This section summarises Victoria Police’s current framework for the use and management of human sources, including:

  • the policy framework governing its use and management of human sources, including human sources involving legal obligations of confidentiality or privilege
  • the key phases of the human source management framework
  • the training Victoria Police officers receive in human source management
  • the use and management of human sources in other Australian and international jurisdictions.

A summary of common human source management terms and processes, including the roles and responsibilities of officers involved in Victoria Police’s use and management of human sources, can be found in Volume I of this final report.

Policy framework

The Victoria Police Manual—Human Sources (Human Source Policy), issued by the Chief Commissioner of Victoria Police under section 60 of the Victoria Police Act 2013 (Vic), is the primary document governing Victoria Police’s use and management of human sources.

The Human Source Policy is not available publicly, on the basis that it contains material protected by public interest immunity.

BOX 12.1: VICTORIA POLICE'S HUMAN SOURCE POLICY

In May 2020, while the Commission was underway Victoria Police issued a new version of the Human Source Policy. This policy was current at 30 October 2020.3

Unless otherwise stated, the Commission refers to this version of the policy throughout this chapter.

The Human Source Policy defines a human source as a person who:

  • volunteers or provides information on a confidential basis to Victoria Police to assist with criminal investigations; and
  • has an expectation that their identity will remain confidential; and
  • is registered as a human source.4

The objectives of the Human Source Policy are to:

  • protect the integrity and safety of members [of Victoria Police] and human sources
  • ensure the management of human sources is within legal and ethical boundaries
  • protect Victoria Police’s reputation
  • protect covert methodology
  • support the use of human sources in investigations and information gathering
  • assist Victoria Police to support community safety outcomes.5

The Human Source Policy sets out requirements for registering human sources, maintaining and recording contact with human sources, disseminating information, training officers who manage human sources, and internal decision-making, supervision, governance and auditing arrangements. The policy also sets out the roles, duties and responsibilities of the officers involved in human source management.

Victoria Police recognises that:

… well managed human sources can be the most affordable and efficient way to obtain information and subsequently evidence, but a poorly managed human source can be a significant risk for the organisation … For an organisation to reduce the risks presented by human sources, an effective policy and governance process framework is required that protects the organisation. If police do not adhere to policy then risk is amplified.6

Police officers who manage human sources must comply with the Human Source Policy. Non-compliance can lead to the suspension of human source files, management or disciplinary action against an officer, or—where unethical conduct is suspected—a referral to Victoria Police’s Professional Standards Command for investigation.7

In addition to internal policies and procedures, Victoria Police, like all public authorities in Victoria, is bound by the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).8 The purpose of the Charter is to protect and promote 20 essential civil and political human rights.9 It requires public authorities to act compatibly with human rights, and to consider human rights when developing policies, making laws, delivering services and making decisions.10

Under the Charter:

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—

  1. the nature of the right; and
  2. the importance of the purpose of the limitation; and
  3. the nature and extent of the limitation; and
  4. the relationship between the limitation and its purpose; and
  5. any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.11

If a public authority acts ‘in a way that is incompatible with a human right’ without a reasonable basis, this will amount to a breach of the Charter.12

The Human Source Policy provides brief guidance for police officers about considering and applying the Charter. This is discussed further in the ‘Challenges and opportunities’ section of this chapter.

Use and management of human sources involving legal obligations of confidentiality or privilege

The Human Source Policy sets out specific requirements for human sources where legal obligations of confidentiality or privilege might arise, over and above the requirements that apply to other human sources.13 As noted in Chapter 4, this is because the provision of confidential or privileged information by a human source might result in a breach of another person’s right to and expectations of privacy, undermine the public interest in establishing and maintaining professional relationships built on trust, and damage the reputation and integrity of the profession and professionals involved.

Further, if the acquisition and/or use of the information is subsequently found to be illegal or improper, it can compromise criminal investigations, prosecutions and potentially convictions. This in turn can undermine the integrity of the criminal justice system.

The Human Source Policy lists types of human sources that may involve legal obligations of confidentiality or privilege and provides safeguards for their registration, use and management. As noted in Box 12.2, the policy does this by listing several occupations that may be subject to legal obligations of confidentiality or privilege, known as ‘Category 1’ human sources, and defines other classes of human sources who do not hold such obligations, but who may access confidential or privileged information because of their ‘connection to’ a Category 1 occupation.14 The Human Source Policy also prescribes further safeguards for situations where Victoria Police intends to obtain or use confidential or privileged information from a human source, regardless of whether or not that source is a Category 1 human source.

BOX 12.2: CATEGORY 1 HUMAN SOURCES AND OTHER SOURCES INVOLVING LEGAL OBLIGATIONS OF CONFIDENTIALITY OR PRIVLEGE

Category 1 human sources

Category 1 human sources are people in the following occupations (irrespective of whether the information they seek to provide to Victoria Police is connected to their occupation):

  • lawyers
  • doctors
  • parliamentarians
  • court officials
  • journalists
  • priests.15

As discussed in Chapter 11, Victoria Police also refers to these occupations as the ‘Kellam Occupations’.

People with a connection to a Category 1 occupation

People with a connection to a Category 1 occupation are people who may access confidential or privileged information due to:

  • having ‘previously worked in a Category 1 occupation’
  • being ‘likely to receive confidential or privileged information from a person who is in a Category 1 occupation’
  • being ‘in a similar occupation or role where they are likely to receive legally privileged or confidential information’.16

While the Human Source Policy does not strictly define this group as ‘Category 1' human sources, the same additional safeguards and requirements apply. Accordingly, and for ease of reference, the Commission also uses the term ‘Category 1’ to refer to human sources with a connection to a Category 1 occupation.

People registered as a human source with the specific intention of obtaining or using confidential or privileged information 17

People who have access to confidential or privileged information that Victoria Police specifically intends to obtain or use.

As outlined in Box 12.3 below, the number of human sources involving legal obligations of confidentiality or privilege is very small.

BOX 12.3: PROPORTION OF VICTORIA POLICE'S HUMAN SOURCES INVOLVING LEGAL OBLIGATIONS OF CONFIDENTIALITY OR PRIVLEGE

Victoria Police produced data to the Commission outlining the number of human source applications and registrations between 2017 and 2020.

The data indicates that of the approximately 1,200 human source registration applications submitted between July 2017 and June 2020, only about 4.4 per cent were potentially subject to legal obligations of confidentiality or privilege. Of the 1,200 applications, the proportion that were authorised by Victoria Police (resulted in the registration of the person as a human source) and that involved potential legal obligations of confidentiality or privilege was even smaller, approximately 3.5 per cent.18

Use and management of other human sources involving higher risks

In addition to Category 1 human sources, Victoria Police also recognises that there are increased risks associated with the use of human sources:

  • who are under the age of 18 years old (known as ‘Category 2’ human sources)
  • who have a serious mental health condition or other serious medical health condition (known as ‘Category 3’ human sources)
  • where the risks that they pose ‘would not normally permit registration’, but the information they wish to provide is of ‘extraordinarily high value’ (known as ‘Category 4’ human sources).19

Due to the risks of using Category 1–4 human sources, decisions to approach or register them must be made by the Victoria Police Human Source Ethics Committee (Ethics Committee).20

The Ethics Committee is chaired by the Assistant Commissioner, Intelligence and Covert Support Command (ICSC). Its other members are the Assistant Commissioner, Professional Standards, the Executive Director, Legal Services and two other Assistant Commissioners or Commanders.

The key phases of Victoria Police’s human source management framework

The sections below outline the key phases of Victoria Police’s human source management framework, including the specific requirements that apply to human sources involving legal obligations of confidentiality or privilege (Category 1 human sources).

Phase 1: Risk assessment and registration

Before Victoria Police officers can disseminate information from a prospective human source, the person must first be registered as a human source.21 As outlined below, the registration process involves four key steps:

  • submission of a registration application
  • multi-levelled review and referral for registration
  • authorisation of registration
  • delivery of the Acknowledgement of Responsibilities (AOR) and activation of the registration.

Submission of a registration application

The handler initiates the registration process by creating a registration application in Interpose, Victoria Police’s intelligence and case management system.

Since October 2019, Interpose has had input requirements and alerts in place to prevent a person with legal obligations of confidentiality or privilege from being registered as a human source without the necessary stages of review and approval.22 For example, a registration application cannot proceed without the person’s occupation, or previous occupation, being entered into a mandatory field in Interpose.23

Further, when creating a human source registration application in Interpose, a pop-up window appears asking the handler if the prospective source could be subject to a legal obligation of confidentiality or privilege (or whether the registration could breach such an obligation).24 If the handler selects ‘yes’, they are instructed to discuss the proposed registration with the Human Source Management Unit (HSMU).25

Since May 2020, the Human Source Policy has included hypothetical examples of circumstances where legal obligations of confidentiality or privilege could arise.

To support an application to register any human source (not just those involving legal obligations of confidentiality or privilege), the handler must submit the following documentation via Interpose:

  • Initial Source Contact Reporta record of any information provided by the prospective (not yet registered) human source, including their personal information, and details of any contact with them.26
  • Mental Health Functioning Screena tool that identifies any potential indicators of serious mental health conditions, based on a prospective human source’s observable behaviour and self-reporting.27
  • AOR (in draft form)—an agreement setting out the parameters of the prospective human source’s relationship with Victoria Police.28
  • Initial Risk Assessmentan evaluation of the risks of using a prospective human source, which must identify the purpose of using the prospective human source.29

The completion of the Initial Risk Assessment informs the decision about whether to register the person as a human source.30 The assessment determines whether the prospective source is ‘low’, ‘medium’ or ‘high’ risk. It comprises 58 mandatory questions across the following categories:

  • risk of compromising the safety or security of the source
  • risk to the handling team
  • risk to the information or investigation—that is, to the credibility of the information or the integrity of the investigation
  • risk to the public
  • risk to Victoria Police.31

There are no questions across these categories to prompt officers to consider risks to human rights or the administration of justice.

Once the risks are identified and assessed, mitigation strategies are applied to reduce or manage them. These strategies are employed on a case-by-case basis and could include appointing a more experienced handler or providing specific supports to the source. Some human sources may still be rated high-risk even after mitigation strategies are applied.

Only a specialised and dedicated human source team can handle and manage high-risk human sources.32 Under the Human Source Policy, Category 1 sources are always treated as high-risk.33

Multi-levelled review and referral for registration

Five police officers or business units—the controller, Officer in Charge (OIC), Local Source Registrar (LSR), HSMU and Central Source Registrar (CSR), in that order, review the application prepared by the handler and the whole human source file in Interpose to:

  • assess the appropriateness of registering the prospective human source
  • review the Initial Risk Assessment and mitigation strategies
  • review the draft AOR to ensure all responsibilities and accountabilities are outlined
  • review the Mental Health Functioning Screen
  • ensure all required documents are uploaded to Interpose within the stipulated timeframes
  • make recommendations, including whether the registration should proceed.34

Ordinarily, an application for registration is authorised by the HSMU or CSR.35 The CSR authorises the registration of high-risk human sources, while the HSMU authorises the registration of low-risk and medium-risk human sources.36

If the use of a prospective human source involves legal obligations of confidentiality or privilege (Category 1 human sources), the registration must be authorised at a higher level, by the Ethics Committee;37 and, if there is a specific intention to use or obtain confidential or privileged information, by the Deputy Commissioner, Specialist Operations.38 This is displayed in Figure 12.1 below.

Figure 12.1: Multi-levelled review of registration applications and final authorisation for the registration of human sources under the Human Source Policy 39
Figure 12.1- Multi-levelled review of registration applications and final authorisation for the registration of human sources under the Human Source Policy

Authorisation of registration: Ethics Committee decisions

Under the Human Source Policy, the Ethics Committee’s decision to authorise the registration of a Category 1–4 source must be formally documented and must also be informed by the Charter.40

The Ethics Committee must consider the following factors in making its decisions:

  • the seriousness of the offence to which the information relates, including the potential of serious injury or death to a person/s
  • the [imminence] of the threat to which the information relates
  • the likelihood of investigators obtaining the same information through other, less intrusive, investigatory or intelligence methods
  • the potential to obtain the information from another human source who is not a category 1–4 human source
  • the disclosure obligation if the [Ethics Committee] were to approve the use of a human source and information was obtained that was subject to a legal obligation of privilege or confidentiality
  • the impact on the human rights of any individuals or the community if the information is utilised or not utilised
  • legal advice obtained on the use of the potential human source and the use of any information [obtained] from the human source that is subject to a legal obligation of privilege or confidentiality
  • any other legal or ethical considerations the [Ethics Committee] considers relevant

  • how the risk to the safety of the potential human source will be mitigated
  • the potential for reputational damage to Victoria Police by entering [into] a human source relationship with the person
  • any other specific conditions that should apply to the approach or registration.41

In addition, the Human Source Policy states that for Category 1 sources, the Ethics Committee:

… must obtain appropriate legal advice as to the legal implications of registering and using that human source and as to any conditions or safeguards that should be put in place in the event that the [Ethics Committee] provides approval to register the potential human source.42

Before the Ethics Committee can authorise the registration of a human source, it must establish the specific purpose for using the human source and set a time period for their use. It can also set review periods, impose reporting obligations on the handling team, and set any other conditions for the use and management of the source, to be stipulated in the AOR.43

Cases where the proposed registration or use of a human source is specifically intended to obtain or use confidential or privileged information must be authorised by the Deputy Commissioner, Specialist Operations, who is only permitted to do so ‘if there are exceptional and compelling circumstances’, meaning the action is:

  • In the interests of national security; or
  • For the purpose of preventing a serious threat to life or serious injury—and
  • There is no other reasonable means of obtaining the information.44

Figure 12.2 displays this registration process.

Figure 12.2: Current registration process for human sources involving legal obligations of confidentiality or privilege 45
Figure 12.2- Current registration process for human sources involving legal obligations of confidentiality or privilege

Delivery of the Acknowledgement of Responsibilities and activation of the registration

As noted above, the AOR sets the boundaries of the relationship between the human source and Victoria Police. It can include specific conditions to mitigate risks identified in the Initial Risk Assessment. For example, an AOR could include a condition that a human source who does not have a driver’s licence, and has prior convictions for driving unlicensed, does not drive a motor vehicle.46

The AOR is delivered by the handling team to the prospective human source within a timeframe specified in the Human Source Policy.47 The human source can then provide information and be ‘tasked’ by police.48 Tasking is when handlers give an assignment or instructions to the human source to obtain, or provide access to, information for the benefit of Victoria Police.49

One-off registrations

While human sources are typically people with whom police maintain ongoing relationships, in 2020 the Human Source Policy introduced ‘one-off’ registrations, for people who give information to Victoria Police on a single occasion.50 The HSMU determines whether to authorise a one-off registration.

In these situations, a One-off Risk Assessment is completed. This one-page assessment is less extensive than the Initial Risk Assessment mentioned above. It requires the officer to, among other things, mark ‘yes’ or ‘no’ to the question: is ‘there any possibility that this information may be subject to legal professional privilege or confidentiality?’51 If the officer marks ‘yes’, they must contact the HSMU for ‘advice regarding the suitability’ of the one-off registration.52 Completion of an AOR and a Mental Health Functioning Screen is not required, but the prospective human source must be invited to sign a Consent for One-off Registration form.53

Once the information provided by the human source is disseminated to investigators, the person will be deactivated as a human source.54 If the person seeks to provide further information on a confidential basis within 12 months from deactivation, the regular registration process applies.55

The one-off registration process cannot be used for high-risk human sources and those whose registration requires approval by the Ethics Committee (Category 1–4 human sources).56

Phase 2: Use and management of human sources

Victoria Police may engage with the human source once they are registered. Officers must make a record of each contact and may disseminate information from the source to investigators.

Victoria Police operates a ‘hybrid’ human source management model. This means that some human sources are managed by a dedicated source team (DST), which consists of officers whose only duties are to manage human sources, whereas other sources are managed by officers with additional responsibilities, such as investigating and detecting crime.

Victoria Police currently has nine DSTs: four across the Commands and five across the Regional Divisions.57 Victoria Police produced human source registration data to the Commission indicating that the proportion of human sources being managed by DSTs has increased over recent years, from 61 per cent in June 2017 to 79 per cent in June 2020.58

Tenure requirements (or ‘maximum time in position’ rules) apply to certain officers who hold human source management responsibilities, as set out in Box 12.4.

BOX 12.4: TENURE OF HUMAN SOURCE MANAGEMENT ROLES

In 2012, an internal Victoria Police review recommended ‘maximum time in position’ requirements be implemented for officers working in covert services. Noting the high-pressure environment in which handlers operate and their frequent contact with criminals, the review identified that maximum times in position would reduce the risk of corruption and misconduct, as well as support officer health and wellbeing.59

Victoria Police does not have uniform maximum time in position requirements for officers involved in human source management.

Under general Victoria Police policy, officers of the rank of Inspector and above—such as the CSR, LSRs and some OICs—are subject to redeployment after spending between two to five years in any one role.60

Handlers of high-risk sources and officers from the HSMU are restricted to a maximum of three to five years in their positions, while senior handlers and controllers of high-risk sources are restricted to five to seven years.61

The Human Source Policy imposes various requirements intended to mitigate risk and monitor the management of human sources. These are set out below.

Handling human sources within a ‘sterile corridor’

The ‘sterile corridor’ refers to an arrangement whereby a human source’s handlers are different police officers to those responsible for managing any criminal investigations that may rely on information provided by the source.62 According to the Human Source Policy, the central purpose of the sterile corridor is to ensure that the human source’s safety is not compromised through the pursuit of investigative outcomes.63

Acquisition of confidential or privileged information

Where a human source involving legal obligations of confidentiality or privilege provides information to police that appears to be in breach of their legal obligations, the handling team must immediately advise the HSMU and must not disseminate or act on the information.64

At the earliest opportunity, the handling team must record in Interpose that the information appears to breach legal obligations of confidentiality or privilege.65

The Human Source Policy indicates that the HSMU will then advise the CSR of the matter, who will refer it to the Ethics Committee. The Ethics Committee will review the information and determine how it should be treated.66

Supervision and management

The Human Source Policy specifies that ‘supervisors, particularly human source controllers’, are to perform ‘intrusive supervision’ of the handler–source relationship.67 Although the policy does not define the term, it states that intrusive supervision must be practised by:

  • Understanding the expectations of Victoria Police in managing the inherent risks in human source relationships.
  • … situational awareness of tactical deployments of human sources.
  • Knowing how, where and when handlers are meeting with human sources.
  • … [B]riefing … handling teams following face-to-face contacts and other contacts (e.g. phone contact) where significant information is obtained or changes to risk are identified.
  • Ensuring the AOR has been delivered, is appropriate, is being reinforced, remains appropriate and compliance is monitored.68

Reviewing and reassessing the human source

The Human Source Policy sets out requirements for the ongoing review of human source files by the handling team and supervising officers:

  • Handlers are to reassess risk every three months, or when a change in risk occurs, using the Dynamic Risk Assessment.69 This requirement was introduced in May 2020. The controller, OIC and the LSR must all review this assessment.70
  • Handlers are to review the Mental Health Functioning Screen at least every three months. If relevant issues are identified, they must consult the HSMU.71
  • Controllers must conduct a monthly review ‘of the human source relationship, risk assessment and value of the continued relationship’, and record this in Interpose.72 This also includes reviewing the AOR, at least monthly, to ensure its scope and conditions continue to be appropriate and sufficient.73
  • OICs are to conduct a three-monthly review of active human source files, including whether they are compliant with policy requirements, which is then reviewed by the LSR.74
  • LSRs must conduct a monthly review of high-risk human sources, including all human sources involving legal obligations of confidentiality or privilege. This review requires the LSR to confirm that current risk assessments remain ‘fit for the purpose’ and to record in Interpose the checks they undertook to inform that endorsement.75

These requirements intersect and are spread across multiple sections of the Human Source Policy.76

Audits of human source files

The HSMU oversees all human source files, can review any action taken by members of the handling team, and must notify the LSR if it identifies compliance issues; for example, risk assessments or AORs that are not completed or updated within the specified timeframes.77 To inform this process, the HSMU prepares spreadsheets, based on a manual review of Interpose, outlining the compliance status of human source registrations for the LSRs to review.78

Additionally, a unit within the ICSC, the Compliance and Risk Management Unit (CaRMU), conducts rolling six-monthly audits.79 CaRMU audits aspects of Victoria Police’s human source program, predominantly focusing on the management of high-risk sources, and measures compliance with the Human Source Policy.80

Phase 3: Deactivation of a human source

A human source must be deactivated (that is, their registration brought to an end) where:

  • there is no longer any operational need for the human source
  • the risks have become too high to continue using the human source
  • the human source deliberately breaches a condition of the AOR
  • the human source has not provided reliable information for at least three months
  • the human source has deliberately provided false or misleading information
  • the human source is transitioned to the role of a witness in a criminal prosecution (which must be authorised by the Ethics Committee and be subject to a management plan).81

The Human Source Policy states that if a ‘chance meeting’ occurs between a deactivated human source and the handler, the handler must advise the controller as soon as practicable and submit a report of the contact.82

The Human Source Policy does not contain any further guidance relating to contact with or management of a source following deactivation, including the management of any risks to a deactivated source that might arise from the dissemination of information they provided to police while registered.

Policy exemptions

The Ethics Committee can authorise a departure from procedural or technical requirements under the Human Source Policy. This may include, for example, requirements regarding timeframes for the completion of certain documents. While it is generally not possible to depart from policy requirements relating to Category 1–4 human sources, the Human Source Policy states:

Nothing in this policy is intended to limit the capacity of Victoria Police to receive and use confidential information in a situation that is time critical and where there is an imminent threat to the life or safety of a person or the community …83

Where police perceive that it is necessary to disseminate information provided by a prospective (not yet registered) human source, the handling team must commence the registration process ‘at the first available opportunity’ and, if it relates to a Category 1–4 human source, refer the matter to the Ethics Committee for registration and directions.84

Human source management training

The Human Source Policy requires the appointment of ‘appropriately trained’ officers to manage human sources.85

The HSMU coordinates and delivers in-house human source management training.86 As part of the registration process, the HSMU considers the training competencies of the handling team, and the CSR may direct teams to include officers with a higher level of training and/or require officers to undergo additional training.87

General human source management training

Victoria Police delivers the following human source management training courses, listed in order of increasing complexity and specialisation:

  • Basic online training course—a course that provides basic awareness of the management and governance of human sources, including definitions, roles, responsibilities, and requirements set out in the Human Source Policy. All officers in the handling team are required to complete this training.88
  • Intermediate training—a ‘face to face training course that provides handlers and controllers with basic [techniques for] the management of human sources’.89 This is recommended for officers who register human sources more frequently.90 Human sources who will be tasked must be managed by a handler and controller who have completed this training.91
  • Specialised training—an intensive course that provides handlers and controllers with a deeper understanding of human source management techniques.92 Specialised training is designed for officers whose role is primarily management of sources in a DST.93
Training specific to legal obligations of confidentiality or privilege

Victoria Police Deputy Commissioner Wendy Steendam, APM, Specialist Operations, told the Commission that all human source management training mentions the requirement for officers to contact the HSMU to obtain advice about the use of Category 1 human sources.94 She also explained that training on issues relating to confidentiality and privilege may be provided by external experts, such as the Victorian Government Solicitor’s Office (VGSO), or provided outside of the human source management context, including in police prosecutors’ courses.95

Training requirements for senior officers

The Human Source Policy specifies training requirements for senior officers. Generally, the controller, OIC and LSR are only required to undertake the basic online training.96 The controller, however, is required to complete a higher level of training if managing certain types of human sources or involved in tasking them.97

This can mean that the handler has received the most specialised human source management training of all the officers in the handling team.

The Human Source Policy does not specify training requirements for HSMU officers, the CSR, members of the Ethics Committee, the Assistant Commissioner, ICSC, or the Deputy Commissioner, Specialist Operations. Victoria Police advised the Commission that, instead, position descriptions for these roles set out the requisite qualifications, skills and experience.98

Victoria Police told the Commission that, in practice, it is common for officers involved in the management of human sources to undertake a higher level of training than the minimum requirement, with ‘a large proportion’ of those officers having completed ‘advanced training’. Victoria Police also advised that there are requirements (not outlined in the Human Source Policy) for officers in the HSMU to have received the ‘same training undertaken by handlers and controllers, in addition to other courses in risk management’.99

Use and management of human sources in other Australian jurisdictions

Each state and territory in Australia has a dedicated law enforcement agency that operates its own human source program, guided by internal policies and standard operating procedures.100

Australian law enforcement agencies collaborate in working groups to share knowledge about best practice in human source management and training.101 In consultations with the Commission, agencies identified that best practice principles and features of human source management include:

  • review of applications to register human sources by senior officers102
  • supervision and oversight of the handler–source relationship by senior officers103
  • maintenance of a sterile corridor104 (although there was not universal agreement that this constitutes best practice, as discussed below)
  • ‘sanitisation’ of information prior to dissemination (that is, the removal of any details that could lead to the identification of the source)105
  • ongoing and regular risk reviews of the human source106
  • training for officers with human source management responsibilities107
  • in some jurisdictions, DSTs.108

While human source frameworks around Australia are broadly consistent with Victoria Police’s processes, policy differences can arise due to the specific legislative, geographic and operational environment in each state and territory.109

For example, New South Wales Police does not use sterile corridors, as it does not regard them as best practice. It told the Commission that its approach provides a larger pool of human sources from whom to draw information than would be possible if it used sterile corridors (presumably because it also enables a larger pool of officers to handle sources).

While some law enforcement agencies consider that the sterile corridor helps to protect the identity and thus the safety of human sources, New South Wales Police emphasised that it operates according to an overriding principle of maintaining the anonymity and safety of human sources and manages these risks effectively through robust disclosure and other organisational procedures.110 Other challenges associated with using sterile corridors are discussed later in this chapter. Disclosure requirements and obligations that apply in New South Wales are discussed in Chapter 14.

Tasmania Police told the Commission it adopts different approaches to the use and management of human sources due to its smaller population and police service relative to other states and territories.111

The human source policies of most Australian law enforcement agencies do not specifically address the registration and use of human sources involving legal obligations of confidentiality or privilege.112 Most agencies consulted by the Commission indicated that they would determine the appropriateness of using such a source on a case-by-case basis, taking into account the nature and value of the information the source may provide.113 At the time of these consultations, some Australian law enforcement agencies indicated that they were in the process of updating their policies to include specific guidance on the use and management of human sources involving legal obligations of confidentiality or privilege.114

Northern Territory Police told the Commission that its general policy position is not to use human sources who are bound by legal obligations of confidentiality or privilege, such as lawyers or doctors, but that it may permit their use if the information is unconnected to their occupation or satisfies a legal exception,115 such as under the Evidence Act 1939 (NT).116

New South Wales Police’s policy instructs that, if a lawyer or legal representative is to be registered as a human source, caution should be exercised to ensure that any information provided does not impinge upon or breach obligations of legal professional privilege. It also explains to officers what legal professional privilege is, its purpose and that it can only be waived by the client.117 The policy also warns officers that should New South Wales Police use privileged information for investigative or intelligence purposes, it may be in breach of the Evidence Act 1995 (NSW), which could ‘constitute an abuse of the court process, or be contrary to the interests of justice and bring the law and legal system into disrepute’.

The policy requires that where information from a lawyer or legal representative appears to have been obtained directly or indirectly from a client, police should, in the first instance, ask the lawyer or legal representative whether the information could be privileged and whether they have any evidence that privilege has been waived by the client. If they cannot produce such evidence, the policy states that police should not use the information for any purpose. The policy also directs police to seek advice from senior officers or the Human Source Unit in relation to such matters.118

Federal law enforcement and intelligence agencies in Australia also use human sources. While the objectives and approaches of intelligence agencies reflect significant differences to those of police, aspects of their frameworks provide a useful comparison to the management and oversight of human sources by Victoria Police.

For example, under sections 8A(1) and 8A(2) of the Australian Security Intelligence Act 1979 (Cth), the Minister of Home Affairs issues publicly available guidelines and sets principles that the Australian Security Intelligence Organisation (ASIO) must observe when performing its functions, including when obtaining and evaluating intelligence. In this way, the guidelines ‘form a critical component of the accountability framework that provides assurance that ASIO fulfils its functions consistent with the values of the community it serves’.119

The guidelines specify that in collecting information, ASIO must ensure, among other things, that:

… any means used for obtaining and analysing information must be proportionate to the gravity of the threat posed and the likelihood of its occurrence … [T]he intrusiveness of techniques or methods for collecting information are to be considered in determining approval levels for their use. More intrusive techniques should generally require a higher level ASIO employee or ASIO affiliate to approve their use …120

Use and management of human sources in international jurisdictions

Human source practices differ across international jurisdictions and may be governed by legislation, public guidelines and/or internally developed policies.

Victoria Police informed the Commission that, in early 2019, it conducted international research tours in Canada, the United States of America and the United Kingdom to inform its own human source management processes.121 Some Victoria Police practices are also comparable with those of New Zealand Police, as both agencies are members of various Australasian policing committees and adopt consistent standards.122 In examining the adequacy of Victoria Police’s practices, the Commission considered how these jurisdictions approach human source management.

New Zealand

New Zealand Police’s human source management policy does not prohibit the use of human sources involving legal obligations of confidentiality or privilege, but it does state that a source must not be tasked to obtain privileged information.

New Zealand Police advised the Commission that lawyers might approach police on behalf of their clients; for example, to inform them that a client has relevant information about a third party that the client wishes to disclose. It informed the Commission that, in these circumstances, officers would assume that the lawyers are acting lawfully, ethically and in the best interests of their client.123

Registering a human source in New Zealand requires dual approval by the most senior officer within the relevant district and the centralised Human Source Management Unit. If the prospective human source is higher risk, or any significant risks cannot be mitigated, an Officer in Charge of the Human Source Management Unit would be consulted and make a decision.124

Canada

The Royal Canadian Mounted Police (RCMP) is responsible for federal law enforcement in Canada and provincial policing in most of Canada’s provinces and territories. The RCMP has an internal policy that governs its use and management of human sources.

Under the RCMP’s model, authorisation to register a human source is granted by a senior officer within a division of the RCMP (usually an officer known as the Criminal Operations Officer) or alternatively by a Superintendent, Chief Superintendent or Assistant Commissioner. For very high-risk prospective human sources, authorisation must be given by RCMP’s National Headquarters.125

The RCMP may use people involving legal obligations of confidentiality or privilege as human sources. It told the Commission that this would depend on the circumstances and the nature of the information being provided. If such a person were used, the RCMP indicated it would appoint an experienced handler and ensure close monitoring of the file by senior officers and RCMP’s National Headquarters.

United States of America

In the United States, federal law enforcement is carried out by several agencies administered through the Department of Justice. The Attorney-General is the head of the Department of Justice and the chief law enforcement officer who oversees federal prosecutions, advising on relevant legal matters.126

In the early to mid-2000s, the Attorney-General issued guidelines on using human sources (also known as ‘confidential informants’) to ‘set policy regarding the[ir] use … in criminal investigations and prosecutions by all Department of Justice Law Enforcement Agencies’.127 These guidelines are:

  • The Attorney General’s Guidelines Regarding the Use of Confidential Informants (2002)
  • The Attorney General’s Guidelines Regarding the Use of FBI Confidential Human Sources (2006).128

The position of the United States Government and relevant agencies is to neither confirm nor deny whether these guidelines are current or have been superseded.

The 2002 and 2006 guidelines set out required processes for registering, assessing and reviewing the use of human sources, as well as for governance and decision making. The guidelines also establish authorisation processes for the registration and use of human sources who are ‘under the obligation of a legal privilege of confidentiality’. Law enforcement agencies are required to establish a committee that is responsible for authorising the use of, and reviewing certain decisions relating to, human sources under such an obligation.129

The United States Drug Enforcement Administration (DEA) told the Commission that the use of human sources with legal obligations of confidentiality or privilege, such as lawyers, doctors or journalists, is technically permitted but very rare in practice and subject to stringent safeguards.130 It explained that, due to the risks associated with obtaining privileged or confidential information, a United States attorney or federal prosecutor is always involved in the proposal to use such a source from the outset, with the investigation run in conjunction with the prosecution to ensure due process and privacy laws are strictly adhered to.131

Additionally, the DEA indicated that the proposed registration of a human source with legal obligations of confidentiality or privilege requires review by the DEA Sensitive Activities Review Committee and final authorisation by the United States Attorney-General’s Office.132

United Kingdom

The Commission paid particular attention to the United Kingdom’s human source management framework, given the parallels between Victoria’s common law and human rights systems and those of the United Kingdom, as well as the previous examination of this framework by Victoria Police and the 2012 review undertaken by former Chief Commissioner Neil Comrie, AO, APM (the Comrie Review).133

The United Kingdom framework includes:

  • the Regulation of Investigatory Powers Act 2000 (UK) (RIPA), which governs and provides the legal authority for the use of investigatory powers (such as the use of human sources) by public authorities, including police services and other law enforcement agencies134
  • statutory orders issued by the Secretary of State and the Covert Human Intelligence Sources Revised Code of Practice (Code of Practice) issued by the Home Office; these supplement the RIPA’s procedures and requirements and are all publicly available135
  • external oversight mechanisms, such as the Investigatory Powers Commissioner’s Office (IPCO), which oversees the use of investigatory powers (discussed further in Chapter 13).136

Key features of the United Kingdom’s legislative framework as they apply to human sources are outlined below.

Human rights, necessity and proportionality

The RIPA was established in response to the European Court of Human Rights’ scrutiny of police use of surveillance devices in Khan v United Kingdom.137 The Court found that although the conduct of police was consistent with guidelines issued by the Home Office, their use of human sources was inconsistent with the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention), to which the United Kingdom is a signatory, because there was no legislation authorising the use of these powers and because the powers were used in a way that limited human rights.138

The introduction of the RIPA aimed to establish a clear, lawful basis for the employment of investigatory powers, including the use of human sources, and to balance the need for police to combat crime by using certain investigatory powers with the need to protect human rights under the Convention. In doing so, the RIPA specifies that the use of human sources must be necessary and proportionate to what is sought to be achieved.139

For authorisation of a human source to be necessary, certain criteria must be satisfied; for example, it is in the interests of public safety or national security, or for the purpose of preventing or detecting crime.140 The RIPA and Code of Practice use the term ‘authorisation’ when discussing decisions to approve the use of a human source. This chapter generally uses the term ‘registration’ of a source when referring to Victoria Police’s framework, consistent with its Human Source Policy.

The Code of Practice indicates that the consideration of proportionality involves:

  • balancing the size and scope of the proposed activity against the gravity and extent of the perceived crime or harm
  • explaining how and why the methods to be adopted will cause the least possible intrusion on the subject and others
  • [considering] whether the conduct to be authorised will have any implications for the privacy of others, and an explanation of why (if relevant) it is nevertheless proportionate to proceed with the operation
  • evidencing, as far as reasonably practicable, what other methods have been considered and why they were not implemented, or have been implemented unsuccessfully
  • considering whether the activity is an appropriate use of the legislation and a reasonable way, having considered all reasonable alternatives, of obtaining the information sought.141

Authorisation of human sources generally

The use of human sources by public authorities in the United Kingdom may be authorised by a person who holds a prescribed office, rank or position.142 Public authorities are not required to apply for an authorisation just because it is available; however, they are advised to do so when they intend to task a person to act as a human source or where they intend to obtain information from a person acting in such a capacity.143 For standard authorisations in law enforcement agencies, the authorising officer must be of or above the rank of Superintendent.144 These authorisations are ordinarily valid for an initial 12 months and must be in writing, unless the use of a human source is urgent.145

Authorisations of human sources where confidential or privileged information may be acquired

The United Kingdom’s framework provides enhanced authorisation procedures where the use of a human source is intended, or likely, to result in obtaining, accessing or disclosing confidential or privileged information.146 The Police Act 1997 (UK) (Police Act) defines ‘matters subject to legal privilege’ as any communication between a professional legal adviser and their client (or a person representing their client) that is made ‘in connection with the giving of legal advice to the client’.147 Similar to Australia, information exchanged in the course of a client–lawyer relationship is not privileged if it is created or held ‘with the intention of furthering a criminal purpose’.148 The Police Act also provides definitions of ‘confidential personal information’ and ‘confidential journalistic material’.149

Box 12.5 provides an overview of the enhanced authorisation procedures in the United Kingdom.

BOX 12.5: UNITED KINGDOM KEY REQUIREMENSTS FOR AUTHORISATION OF HUMAN SOURCES WHERE CONFIDENTIAL OR PRIVILEGED INFORMATION MAY BE ACQUIRED

Use of sources where it is intended to obtain legally privileged information

  • Authorisation must be granted by a more senior authorising officer (for police services, this is generally the Chief Constable) and approved by a Judicial Commissioner from IPCO.150
  • Authorisations are for a shorter (three-month) duration, rather than the standard 12-month duration.151

Use of sources where it is likely (but not intended) that legally privileged information will be obtained

  • Authorisation must be granted by a more senior authorising officer (generally the Chief Constable).152
  • The application should assess the likelihood of legally privileged information being obtained.153
  • Any inadvertently obtained legally privileged material should be treated in accordance with safeguards set out in the Code of Practice and reasonable steps should be taken to minimise access to it.154

Use of sources where it is intended or likely that other types of confidential information will be obtained

  • Authorisation must be granted by a more senior authorising officer (generally the Chief Constable).155
  • If intended, the application should document the specific necessity and proportionality of registration, and the authorising officer must be satisfied that appropriate safeguards for the management of the material are in place.156
  • If likely, any possible mitigation steps should be considered by the authorising officer, and if none are available, consideration should be given to whether special handling arrangements are required.157

Exceptions to privilege

  • If it is intended to obtain material that would be subject to legal privilege had it not been created or held with the intention of furthering a criminal purpose, applications must include a statement and reasoning to this effect (in these cases, normal registration processes for human sources apply, with final authorisation generally granted by a Superintendent).158
  • Where there is doubt as to whether material is privileged due to this exception, advice should be sought from a legal adviser in the relevant authority.159

Changes in scope of registration

  • If it becomes necessary for a human source authorised under standard procedures to obtain or disclose legally privileged material, the initial authorisation should be cancelled, and a new registration sought.160

Challenges and opportunities

This section sets out the main issues that emerged from the Commission’s assessment of the adequacy and effectiveness of Victoria Police’s processes for the use and management of human sources, including those involving legal obligations of confidentiality or privilege. It draws on a range of evidence from witnesses who appeared at the Commission’s hearings, its focus groups with Victoria Police officers, its audit of Victoria Police human source files, and information provided voluntarily or in response to notices to produce.

Consultations with Australian and international law enforcement, intelligence and justice agencies, and with academics and experts in human source management, also informed the Commission’s understanding of the risks and challenges arising from the use of human sources and helped it identify opportunities for reform. A list of individuals and organisations consulted by the Commission is at Appendix G.

As outlined at the beginning of this chapter, a broad examination of Victoria Police’s human source management framework was necessary to properly assess its practices for identifying and managing the risks of obtaining and using confidential or privileged information from human sources. The need for this broad approach was underscored in the Commission’s engagement with other jurisdictions, where requirements for the use of confidential or privileged information from human sources generally form part of a broader policy and regulatory framework to deal with the varied and intersecting risks associated with the use and management of all human sources.

Overarching framework for the use and management of human sources

As outlined earlier in this chapter, the Human Source Policy sets out requirements for the use and management of human sources. Unlike other covert and intrusive powers and methods used by Victoria Police (for example, telecommunications interception, surveillance devices and controlled operations), there is no legislative framework for, or independent external oversight of, the use and management of human sources in Victoria.

Recognising the significance of these other covert powers and their potential to infringe the rights of individuals, the Victorian and other Australian Parliaments have enacted legislation to establish clear parameters for their use by police and other law enforcement agencies.161 These legislative regimes recognise that the use of such powers involves a balancing of relevant public interests; that is, weighing up the public interest in protecting the rights of individuals against the public interest in detecting and preventing serious crime. In addition to setting out requirements for the use and monitoring of relevant powers and methods, such legislation also specifies who is responsible for approving their use. Typically, this will be either an agency’s most senior officer or a court.

Box 12.6 summarises one such Victorian legislative regime, which sets out requirements for police use of surveillance devices.

BOX 12.6: FRAMEWORK FOR OBTAINING A SURVEILLANCE DEVICE WARRANT

In Victoria, the Surveillance Devices Act 1999 (Vic) provides the legislative framework for Victorian law enforcement agencies, including Victoria Police, to use surveillance devices to investigate, or obtain evidence of, the commission of an alleged or committed offence. Recognising the significant incursions into privacy that the use of surveillance devices can involve, the legislative framework includes various requirements for their authorisation and use.

Surveillance device warrants are issued by the Supreme Court of Victoria and allow law enforcement agencies to use optical, listening and data surveillance devices. Applications for tracking devices can be authorised by the Magistrates’ Court.162 In issuing a warrant, the judge or magistrate must have regard to:

  1. the nature and gravity of the alleged offence in respect of which the warrant is sought; and
  2. the extent to which the privacy of any person is likely to be affected; and
  3. the existence of any alternative means of obtaining the evidence or information and the extent to which those means may assist or prejudice the investigation; and
  4. the evidentiary or intelligence value of any information sought to be obtained; and
  5. any previous warrant sought or issued under this Division or a corresponding law (if known) in connection with the same offence; and
  6. any submissions made by a Public Interest Monitor.163

The Public Interest Monitor (PIM) has a role in testing ‘the content and sufficiency of the information relied on and the circumstances of the application’.164 The applicant ‘must fully disclose to the PIM all matters of which the applicant is aware that are adverse to the application’.165

External oversight of Victoria Police’s use of covert powers and functions, including by the PIM, is discussed in Chapter 13.

Victoria Police’s Human Source Policy aims, among other things, to manage risks arising from the use of human sources, some of which are comparable to the risks that arise in the use of other covert powers and methods used by police and that are generally governed by legislation. Below, the Commission discusses evidence received about the adequacy of this overarching policy framework, including the extent to which it:

  • supports consideration and protection of human rights
  • provides an adequate framework to regulate the risks associated with using human sources
  • is consistent with the practices adopted by other police agencies across Australia.
Human rights within the human source management framework

As noted above, Victoria Police has obligations under the Charter. In line with these obligations, its officers must give proper consideration to the human rights of people affected by its activities.

One of the human rights protected by the Charter is the right to a fair hearing.166 Since May 2020, Victoria Police’s Human Source Policy has listed some human rights that are relevant to human source management, but does not refer to the right to a fair hearing.167 Separate to the Human Source Policy, officers can also consult the Victoria Police Manual Policy Rules—Human rights equity and diversity standards which provides high-level advice on officers’ human rights obligations applicable to all areas of policing.168

The Human Source Policy notes that under the Charter, human rights can be lawfully limited if there is a proportionate justification that ‘properly considers’ and balances the impacts on a person’s human rights. It states that ‘properly considering’ involves identifying ‘the rights relevant to the decision and whether and how those rights will be interfered with by the decision, and [balancing] the competing private and public interests involved in the decision’.169 It does not provide practical examples of how officers can fulfil this obligation.

The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) submitted that the Charter should be an integral aspect of the framework for Victoria Police’s recruitment, handling and management of human sources, particularly those who hold legal obligations of confidentiality or privilege. It emphasised that ‘the Charter’s legal framework brings rigour, accountability and fairness to Victoria Police’s conduct, which ultimately instils greater confidence in the administration of justice’.170

Former police officer Professor Clive Harfield, University of Queensland, noted that intrusion of privacy is inherent in the use of human sources, because a source typically uses deceit to breach an individual’s trust and inform on them to police. He submitted that information obtained from human sources is acquired by infringing upon the ‘fundamental principles of fairness, impartiality and honesty upon which the proper operation of the criminal justice system is founded’, and that this is particularly the case when police have tasked the source. At the same time, Professor Harfield stressed that the use of human sources is ‘justifiable when the harms of not having such information convincingly outweigh the harms inherent in [the criminal justice system] recruiting and exploiting individuals as [human sources]’.171

Under the United Kingdom’s legislative framework, decisions to register a human source must balance the public interest in detecting and preventing crime and the public interest in protecting relevant human rights, such as the right to privacy, the right to life and an accused person’s right to a fair hearing.172

The United Kingdom Home Office told the Commission that the primary benefit of the RIPA is its recognition of human rights and provision of a framework that seeks to ensure the use of investigatory powers is lawful, necessary and proportionate.173 Several stakeholders from the United Kingdom told the Commission that the RIPA also helps to build public understanding of human rights and the circumstances under which they can be lawfully interfered with by public authorities, including police.174

Some stakeholders also pointed to the benefits of this legislative framework for law enforcement agencies.175 For example, the United Kingdom National Crime Agency advised the Commission that, by requiring authorising officers to specifically consider necessity and proportionality, and to document those considerations when determining whether to authorise the use of a human source, the framework helps law enforcement agencies establish the rationale for their decisions, which is particularly important should those decisions ever be challenged.176

Regulating the risks of human source management through legislation

Human source management is a high-risk activity, covert and intrusive in nature, requiring police to build professional relationships with criminals, and potentially limiting human rights in order to achieve investigatory outcomes. Each of these factors can increase the risk of police corruption and misconduct. Indeed, previous inquiries have suggested that human source management is one of the most significant ethical risks faced by Victoria Police.177

The Commission heard that both internal and external mechanisms to support accountability in the use of human sources can assist in the earlier identification of issues, help prevent sources being used improperly, and promote a stronger compliance culture among police.178 Professor Sir Jonathan (Jon) Murphy, QPM, DL, Liverpool John Moores University, told the Commission that the transparency afforded through a legislative regime ultimately strengthens police practices, noting that ‘policing activities that are conducted in secret and without supervision and oversight create corruption and misconduct risks’.179

The Commission heard from some stakeholders that there is a need for a legislative framework to govern Victoria Police’s use and management of human sources.180 The Independent Broad-based Anti-corruption Commission (IBAC) observed that the absence of legislation is at odds with the regulatory and oversight arrangements in place for other covert powers and functions exercised by police. It told the Commission:

There are obvious benefits associated with statutory governance, particularly over powers that are inherently coercive or intrusive in nature. The adoption of a statutory framework to regulate the registration and use of human sources specifically has benefits arising from greater transparency of the management of human sources, and the prospect of incorporating mandated principles in the governance of this complex, sensitive and high-risk area of policing activity.181

The Public Interest Monitor (PIM) told the Commission that a legislative model could establish criteria to guide decisions about registering a human source involving legal obligations of confidentiality or privilege and disseminating any information provided by them. These criteria could cover the nature of a human source’s legal obligations, the value of the information expected to be obtained, and arrangements to ensure no privileged material is released, as well as requirements to consider any risks to the source, and whether their registration is in the broader public interest.182

Ms Steendam explained that, while ‘there are no specific changes to the legislative and regulatory framework that Victoria Police is advancing’, legislative change would likely be necessary to accommodate any new oversight arrangements.183 In the Commission’s focus groups with Victoria Police officers who hold human source management responsibilities, there were mixed views about the need for and value of a legislative framework for the use of human sources, as outlined in Box 12.7.

BOX 12.7: OBSERVATIONS FROM THE COMMISSION'S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: REGULATING THE RISKS OF HUMAN SOURCE MANAGEMENT THROUGH LEGISLATION

Some Victoria Police officers who participated in focus groups suggested that introducing a legislative framework could help police officers understand how they can use human sources involving obligations of confidentiality or privilege, including how any information provided by such human sources must be managed and disseminated.

Others noted that legislative frameworks for similar covert methods and powers result in an extensive internal review process before external authorisation by a court, but that this process also assists police by legitimising their actions.

Greater clarity about the scope of police powers and when they can be used was one of the benefits expected to flow from the introduction of legislation to standardise various covert and intrusive investigative methods across Australian jurisdictions.184 When introducing the Crimes (Controlled Operations) Bill 2004 (Vic), it was noted in the parliamentary debates that the regulatory regime provided by the legislation would make it easier for police to undertake controlled operations, ‘to define and monitor those operations and ultimately to provide some mechanism of accountability’.185

Sir Jon expressed similar views about the introduction of the United Kingdom legislative framework. He suggested that police services welcomed the RIPA, recognising that they had previously been operating without clear rules and a clear basis for decision making. He contended that it empowers officers by providing a framework within which they can articulate and justify their decisions.186

The Commission heard from some United Kingdom stakeholders that the RIPA also enhances public confidence in law enforcement as it means that the use of covert powers is subject to appropriate parameters and oversight, and is therefore less open to speculation.187 IPCO told the Commission that the legislation provides officers seeking to authorise human sources with confidence that they are acting in good faith and according to the law.188

The Commission also heard that the United Kingdom model has presented some challenges. The Home Office observed that the RIPA and Code of Practice brought information about certain covert law enforcement powers and processes into the public domain for the first time—and, while noting the benefits of greater transparency and accountability, also emphasised that it can be challenging to balance these with the need to protect the confidentiality of covert tactics.189

The Home Office told the Commission that one of the challenges of the RIPA, its associated statutory orders and its Code of Practice is the time it takes to develop and pass amendments. The Home Office noted, for example, that it can be difficult to keep up with the pace of technological advancements, which often necessitate the employment of new or enhanced law enforcement powers and techniques.190

IBAC told the Commission that, while adopting a legislative framework to regulate Victoria Police’s registration and use of human sources would increase transparency and provide an opportunity to set principles for human source management, it would need to provide sufficient flexibility and discretion for police in their management of human sources.191

Likewise, several Australian law enforcement and intelligence agencies emphasised that any legislative model would need to consider and support law enforcement agencies’ operational requirements and capabilities. For example, South Australia Police stated that given the dynamic and fluid nature of managing human sources, it is important that any recommended reforms are clear, practical, able to be adhered to by officers, and flexible enough to respond to operational realities.192 Queensland Police cautioned against any reforms that might limit the use of human sources, noting that this would greatly compromise police capability to detect and investigate crime.193

Based on his experience of the United Kingdom framework, Sir Jon said he had not seen evidence to indicate that the RIPA deters the use of human sources. He noted, though, that no legislative framework can fully protect against human error, inexperience or deliberate misconduct, and that any framework must still ‘be supported by strong [police] leadership and culture that encourages adherence to the highest ethical standards’.194

National consistency and interoperability

As outlined earlier in this chapter, Australian law enforcement agencies currently use working groups to share knowledge about best practice, including in relation to the use and management of human sources, which provides a level of consistency in policies and processes across jurisdictions.195 Additionally, these agencies sometimes work together across state and federal legislative and policy frameworks to investigate and prosecute alleged offences—particularly in relation to serious and major crimes. This ability to work across jurisdictional boundaries is sometimes referred to as ‘interoperability’. The Commission considered the extent to which the introduction of new policy or procedural reforms for the use of human sources by Victoria Police might have implications for law enforcement agencies in other Australian states and territories.

Ms Steendam told the Commission that the Australasian Human Source Working Group—which has representatives from each state and territory police service, and from relevant federal agencies—has developed national competencies for human source management training.196 Then Assistant Commissioner, Neil Paterson APM, ICSC, pointed to national consistency in risk assessment processes across Australian and New Zealand agencies.197

While many stakeholders indicated that Australian law enforcement agencies use and manage human sources in similar ways and have broadly consistent processes, some also explained that there are differences in policies, decision-making arrangements and organisational models across jurisdictions.198 As noted earlier, this includes differences related to the registration, authorisation and management of human sources involving legal obligations of confidentiality or privilege.

The Australian Institute of Policing proposed that the use of information from human sources involving these obligations should be standardised across Australian law enforcement jurisdictions. It suggested that this should be undertaken by the affected agencies and/or the Australian and New Zealand Policing Advisory Agency, rather than through legislation.199

The Australian Federal Police (AFP) told the Commission that it supports nationally consistent principles and practices in the management of human sources because it enhances interoperability between agencies. It said that this is particularly important in the case of multi-jurisdictional investigations and prosecutions, which are becoming increasingly prevalent as criminal networks expand their reach. The AFP noted that if a legislative framework, independent authorisation process or independent oversight mechanism were to be introduced in Victoria, consideration should be given to how this could impact joint taskforce investigations and ensuing prosecutions. For instance, it suggested that issues would arise surrounding the lawful authority of any state-based independent oversight mechanism to require the inspection of any relevant documents in the possession of federal agencies.200

Ms Steendam told the Commission that, due to each jurisdiction having its own framework and operational requirements, there is little scope for a national approach to the use of human sources.201 She noted, however, that there is generally no need for human sources to be managed within different jurisdictional frameworks at the same time.202 For example, if Victoria Police made contact with a potential human source who had information pertinent to the investigation of Commonwealth criminal offences, Victoria Police would do one of two things: register the human source, capture the information and disseminate it to the relevant federal body; or introduce the potential human source to the relevant federal body to be managed within Commonwealth frameworks.203

Other Australian law enforcement and intelligence agencies noted there may be challenges for consistency and interoperability should Victoria adopt a legislative model for the use and management of human sources, but also noted that different frameworks and requirements operate across jurisdictions now. For example, unlike Victoria, most other states and territories do not have human rights obligations under a charter.204

Categorisation of human sources

Victoria Police’s policy framework incorporates various safeguards that apply to human sources involving legal obligations of confidentiality or privilege. For this framework to operate as intended—that is, to prevent the improper acquisition and use of confidential or privileged information—police officers must first be able to identify who these human sources are. If officers are unable to do so, they are also unable to adhere to the policy requirements that apply to these types of sources, such as the requirement to consult the HSMU on the source’s registration, or to refer the matter to the Ethics Committee for consideration.

As discussed in Chapter 11, between 2014 and May 2020, Victoria Police’s Human Source Policy adopted a profession- or occupation-based approach to identifying and managing the risks of obtaining confidential or privileged information from human sources. The policy referred specifically to ‘lawyers, doctors, parliamentarians, court officials, journalists or priests etc’, based on examples listed in the Kellam Report.205 Victoria Police now refers to these as the ‘Kellam Occupations’ or ‘Category 1’ human sources.

Chapter 4 of this final report notes that the critical issue is whether the information provided by a human source is confidential or privileged. A person with an occupation subject to legal obligations of confidentiality or privilege, such as a lawyer, doctor or journalist, might provide information to police that is clearly unconnected to their occupation and not confidential or privileged. Conversely, a person who is not themselves subject to such obligations might access and disclose to police information that is confidential or privileged.

Many Australian law enforcement agencies consulted by the Commission agreed that the critical issue is whether the information itself is confidential or privileged, and whether its value to law enforcement and community safety warrants its use and the associated risks.206

Participants in the Commission’s focus groups expressed similar views, as outlined in Box 12.8.

BOX 12.8: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: CATEGORISATION OF HUMAN SOURCES

The Commission’s focus groups with Victoria Police officers examined officers’ awareness of the policy requirements pertaining to human sources with legal obligations of confidentiality or privilege, and their understanding of the issues and risks associated with obtaining and using confidential or privileged information. At the time of the focus groups, the Human Source Policy applied safeguards based on whether human sources were in one of the occupations now termed the ‘Kellam Occupations’, also referred to as ‘Category 1’ sources.207

As noted in Chapter 11, focus group participants expressed confusion about the scope of Victoria Police’s policy requirements relating to human sources in the ‘Kellam Occupations’ category. When asked about human sources subject to obligations of privilege or confidentiality, many gave examples of occupations not mentioned in the Human Source Policy, such as bankers, financial services employees, school employees, security personnel and government employees. While most participants demonstrated a clear understanding of legal privilege, many were unsure about the nature and scope of obligations of confidentiality.

Several participants suggested that the source’s occupation is less relevant to the risks associated with their use as a source than the nature and provenance of the information they are seeking to provide.

These views differed somewhat from those of several legal services and legal profession stakeholders; as noted in Chapter 4, some of these stakeholders suggested that any use of a lawyer as a human source (regardless of whether the information relates to a client) presents significant challenges due to, among other things, the difficulty in identifying whether information is confidential or privileged.

As noted above, in May 2020, the Human Source Policy expanded the range of people who might be at risk of providing confidential or privileged information to those with a ‘connection to Category 1’ occupations; that is, those who: previously worked in a Category 1 occupation; are likely to receive confidential or privileged information from a person in a Category 1 occupation; or are in a similar occupation where they are likely to receive confidential or privileged information.

The Human Source Policy does not provide further guidance on the types of individuals ‘likely to receive privileged or confidential information’ or in ‘similar’ occupations; nor does it articulate why using and obtaining confidential or privileged information from a human source may be problematic.

Ms Steendam indicated that a broad range of people might fall into this category, noting that it might include someone who worked in the office of a person with one of the Category 1 occupations, or someone in a relationship with such a person. Ms Steendam suggested, ‘it can be as broad as someone who might incidentally come across that information, say a cleaner who is at perhaps a legal practice, who might overhear something or find something inadvertently’.208

The human source framework in the United Kingdom focuses on the nature of the information to be obtained from a human source; that is, safeguards apply where it is likely or intended that the information is confidential or privileged. The Code of Practice provides examples of information that warrant greater caution but does not specify the occupations or types of people who might hold such material. In reflecting on the United Kingdom model, Sir Jon told the Commission that it is impossible to prescribe every possible scenario or circumstance in policy, noting that it must be broad and flexible enough to capture the myriad of potential situations that may arise and to enable a case-by-case assessment about the nature of the information and associated risks.209

Likewise, Mr Gary Dobson, Director of Policing Programs at Macquarie University, told the Commission that any framework governing human source management must be understandable, easy for police to use, and flexible enough that processes can be adapted to manage the varied and complex risks that arise in the use of human sources. Where it is not, he noted, the risks include officers improperly circumventing the system, or no longer using human sources at all, which could ultimately result in major crimes not being solved.210

Registration and decision making

As detailed earlier in this chapter, the Human Source Policy requires multi-levelled review and endorsement of a proposed human source registration. Depending on the type of human source, this process involves five to seven review points. The controller, OIC, LSR, HSMU and CSR are required to endorse all registrations and if the prospective human source falls into Categories 1–4, authorisation by the Ethics Committee is also required. Where there is an intention to use or obtain confidential or privileged material, authorisation must be granted by the Deputy Commissioner, Specialist Operations.

In some circumstances, an officer may wish to approach a prospective Category 1–4 human source to assess whether to submit a registration application. The Ethics Committee is required to authorise any request to ‘approach’ such a source. Victoria Police advised that such a request must be reviewed and endorsed by the controller, OIC, LSR, HSMU and CSR before referral to the Ethics Committee. If the handler decides to then seek registration of this source, the registration application must proceed through the same multi-levelled process, creating the possibility that there may be up to 14 review points before authorisation.211

The Commission received evidence pointing to various issues relating to Victoria Police’s decision-making model for the registration of human sources, as discussed below.

Accountability and efficiency of decision making

Australian and New Zealand law enforcement agencies consulted by the Commission described multi-levelled processes for the registration of human sources, noting that review by a range of roles and ranks provides more rigorous oversight and assessment of risk.212 Northern Territory Police explained that this process means conditions for registration can be added at any stage of the process and facilitates a more objective assessment of the application.213

Ms Steendam told the Commission that Victoria Police’s multi-levelled approach to the review and endorsement of human source registrations allows it to manage the ‘natural tension between appropriate governance, controls and making sure that we are careful in the way in which we manage these issues’.214

Most law enforcement agencies consulted by the Commission indicated that their decision-making models involve fewer review points than Victoria Police’s model, with some noting that additional or higher levels of authorisation may apply if warranted by the risk assessment.215 Victoria Police’s use of a committee to determine registration applications for certain categories of human sources also differed to the approaches adopted by most other law enforcement agencies consulted by the Commission. In relation to human sources involving potential legal obligations of confidentiality or privilege, Australian law enforcement agencies generally described other processes and practices to support the decision-making process, including the handling team notifying and seeking the advice of senior and/or executive officers, or obtaining legal advice.216

As outlined earlier in this chapter, the United Kingdom framework requires the use of a human source by police to be approved by an authorising officer, generally at the rank of a Superintendent, with a higher level of approval by the Chief Constable required where it is likely or intended that confidential or privileged information will be obtained.

Sir Jon outlined the benefits of decision making by dedicated authorising officers; that is, officers who are only responsible for decisions about the use of human sources (and in some cases, the use of other covert powers and functions), rather than officers who are balancing many other operational responsibilities. He indicated that this provides a single point of accountability and supports more rigorous scrutiny and oversight of the registration process and the subsequent handler–source relationship.217

While commenting on his own experience in United Kingdom law enforcement rather than specifically on Victoria Police’s decision-making model, Sir Jon expressed the view that the use of committees to make operational decisions can reduce accountability, suggesting that they are better suited to governance and oversight:

I think we train people for roles and we promote them on the basis of their experience, their skills and their judgment and then we hold people accountable for the decisions they make. I am personally not a fan of decisions by committee. I think the role of committees is to hold people accountable for the decisions that they’ve made.218

Former Chief Commissioner Kenneth (Ken) Lay, AO, APM told the Commission that many governance arrangements in place during his time at Victoria Police did not support accountability in decision making, and that decisions were often not documented or appropriately reviewed or challenged by senior leaders, particularly in operational policing areas.219 He also suggested the absence of a risk and audit committee overseeing high-risk decisions in operational policing was in direct contrast to practices adopted by administrative or corporate areas in policing and by other public sector and private sector organisations.220

When asked about the reasons for adopting a committee-based decision-making model rather than assigning responsibility to a senior Victoria Police officer, Ms Steendam stated that any decision by the Ethics Committee is ultimately signed off by the Assistant Commissioner, ICSC. This is not specified in the Human Source Policy. Ms Steendam also noted that matters considered by the Ethics Committee are complex and difficult, and consequently need a variety of perspectives to inform and support decisions about registration.221

Box 12.9 and Box 12.10 outline issues related to the decision-making role of the Ethics Committee, observed through the Commission’s audit of human source files and focus groups with Victoria Police officers.

BOX 12.9: OBSERVATIONS FROM THE COMMISSION’S AUDIT OF HUMAN SOURCE FILES: ETHICS COMMITTEE REFERRAL

The Commission’s audit of Victoria Police human source files related to people with potential legal obligations of confidentiality or privilege found that of the 31 files subject to the audit, none were subject to consideration by the Ethics Committee.

As discussed in Chapter 11, this appears to have been because officers decided that legal obligations of confidentiality or privilege did not apply to the sources in question (for example, because the information was obtained from their personal associations rather than in the course of their employment). Consequently, these matters were not referred to the Ethics Committee or for legal advice; nor were any of the sources managed as high-risk sources.

Victoria Police told the Commission it ‘considers that the results of the audit demonstrate that [officers] have generally been able to identify the existence of potential issues relating to legal obligations of privilege or confidentiality and that, with the possible exception of one source, there was no need for the position of the proposed sources to be considered by the [Ethics Committee]’.222

BOX 12.10: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: ACCOUNTABILITY FOR DECISION MAKING

Participants in the Commission’s focus groups expressed mixed views about the role and operation of the Ethics Committee. Some suggested that it is beneficial to have a committee determine high-risk matters. Some said that the Ethics Committee does not routinely communicate the reasons for its decisions, and expressed concern that handlers are not involved in its discussions and deliberations. Others suggested that the roles of the LSR and OIC in the decision-making structure for registering a human source are unnecessary, since the CSR or the HSMU make the final registration decision.

Some participants said that when a potential issue of confidentiality or privilege is identified in relation to a human source or prospective source, handlers are required to cease contact and take no further action until the Ethics Committee makes a determination. Participants suggested that this limits their ability to seek details from the person about the nature of the information and the relevance of any obligations of confidentiality or privilege, which in turn limits their ability to support the Ethics Committee in making an informed decision.

Participants in most focus groups were critical of what they perceived to be growing risk aversion in the Ethics Committee’s decisions. They suggested that decisions not to register certain prospective sources are driven by concerns about reputational risk to Victoria Police, and expressed the view that this is compromising community safety outcomes. In contrast, senior officers who participated in the focus groups emphasised that decisions not to register certain sources are made following a careful balancing of the potential risks, the value and nature of the information, and the public interest.

In her evidence to the Commission, Ms Steendam explained that the CSR’s primary responsibility is the management of human source capability for Victoria Police; whereas LSRs (typically Divisional Superintendents) and OICs are expected to manage multiple issues on behalf of the organisation, while also applying careful scrutiny during the decision-making process for human source registrations.223

Several participants in the Commission’s focus groups commented on the number of review points in Victoria Police’s current decision-making model, as outlined in Box 12.11.

BOX 12.11: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: INEFFICIENCY OF DECISION MAKING

Numerous focus group participants suggested that the decision-making process is inefficient and duplicative. Several participants expressed frustration about the time it takes for registrations to be authorised. Some suggested that this can take between four and six weeks and that, by this time, often the human source has lost motivation, or the information is no longer relevant or actionable. Many suggested that these delays are partly due to the number of people involved in the decision-making process.

Participants also told the Commission that when decisions are made not to register a prospective source after numerous contacts with that person, it can put handlers in a position where they are expected to ‘unhear’ information that could solve or prevent serious crime.

Some participants asserted that the Ethics Committee meets on an ad hoc basis and suggested it should be required to meet regularly and make registration decisions within specified timeframes. Others said that it meets every six weeks and functions effectively.

In her statement to the Commission, Ms Steendam noted that between 1 January 2016 and 9 April 2020, the Ethics Committee convened on 13 occasions. There is no meeting schedule or requirement to convene a minimum number of meetings; rather, meetings are ‘held as and when required’.224

Ms Steendam explained that Ethics Committee decisions can be made quickly in urgent circumstances, potentially within one day, and that for other, non-urgent matters, it can take up to 14 days or longer for a decision, depending on the issues.225 She also stated that while in some cases it is appropriate to streamline and make processes more efficient, this needs to be balanced against the risks and the need to protect the prospective human source.226

Role of legal and other specialist advice

As noted in Chapter 4, issues associated with confidential and privileged information are inherently complex and difficult to navigate.

Victoria Police told the Commission that decisions about Category 1 human sources are informed by legal advice, and that this is generally facilitated by the Executive Director of Victoria Police’s Legal Services Department (or delegate) being a member of the Ethics Committee. In May 2020, the Executive Director, Legal Services became a voting member of the Ethics Committee.227 Prior to this, a Legal Services Department representative had been a member of the Ethics Committee but they did not have voting rights.228

Ms Steendam noted that Victoria Police might also seek external legal advice to determine more complex matters, such as through the VGSO or other counsel.229 For less complex matters, Ms Steendam considered that internal legal advice is sufficiently independent, as the staff providing the advice are unconnected to the work units that submit applications to register human sources. She noted that any decision to obtain external legal advice must consider the efficient use of public resources and, to protect the safety of human sources, the need to limit the number of people aware of their identity.230

Professor Alexandra Natapoff, University of California, told the Commission that external and independent legal advice can mitigate the risk of internal lawyers being invested in the outcome of a conviction.231 Law enforcement agencies consulted by the Commission generally indicated they would be more likely to seek internal rather than external legal advice.

Mr Paterson identified the increased role of legal advice in the management of human sources overseas, noting that in jurisdictions he had visited, legal advisers are embedded in or operate alongside DSTs. Mr Paterson noted that these agencies consider that this helps to ensure agency compliance with legislative and policy frameworks, and to enable early identification and mitigation of any issues in the use of human sources who may hold legal obligations of confidentiality or privilege.232

Law enforcement agencies in the United Kingdom told the Commission that internal legal advisers play an important role in the human source management process. The Police Service of Northern Ireland told the Commission its internal Human Rights Legal Adviser is involved in every aspect of an application to register a human source where it is intended or likely to result in the acquisition of confidential or privileged information.233 Similarly, the United Kingdom’s National Crime Agency indicated it would seek internal legal advice where confidential or privileged information is likely or intended to be obtained.234

Queensland Police told the Commission that while it is not required, in practice, internal legal services often provide advice to inform registration decisions—particularly for those human sources considered to be ‘extreme’ risk.235 Likewise, Tasmania Police told the Commission that in its human source management framework, officers work closely with the Principal Legal Officer from early on in the decision-making process.236

External authorisation

As mentioned earlier in this chapter, there is currently no external independent oversight of, or involvement in, the registration of, human sources by law enforcement agencies in Australia. This means that decisions to use human sources involving legal obligations of confidentiality or privilege are made internally by officers and/or senior command, and that these decisions are not subject to dedicated and routine external monitoring.

Issues relating to external oversight of Victoria Police’s use and management of human sources are discussed in Chapter 13.

Identification, assessment and review of risk

At 30 October 2020, and as detailed earlier in this chapter, Victoria Police used three risk assessments to consider the suitability of a prospective human source: the Initial Risk Assessment, the Dynamic Risk Assessment and the One-off Risk Assessment.237

In May 2020, Victoria Police advised the Commission that the Initial Risk Assessment was under review, and that it intended to implement a new risk assessment by December 2020.238

The Commission received evidence about the adequacy of Victoria Police’s risk assessment processes relating to issues of confidentiality or privilege and human rights, and about the overall usability of the risk assessment tools. These matters are addressed below.

Risk assessments: Issues of confidentiality and privilege

Similar to Victoria Police’s policy framework for the use of human sources, the Initial Risk Assessment focuses on identifying a prospective human source’s occupation, rather than the nature and origin of the information that may be obtained. It requires officers to consider whether a prospective source is occupationally bound by other duties that may give rise to legal, ethical or medical privilege considerations.239 The identification of these duties determines what safeguards will be applied under the Human Source Policy.

Beyond considering a prospective human source’s occupation, the Initial Risk Assessment does not seek to identify the likelihood of confidential or privileged information being provided; nor how any associated risks will be mitigated.

Victoria Police’s more recently developed Dynamic Risk Assessment and One-off Risk Assessment require consideration of whether the information provided by the source could be confidential or privileged by the officers completing the assessments.240

Several participants in the Commission’s focus groups commented on practices for identifying confidential or privileged information, as outlined in Box 12.12.

BOX 12.12: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: IDENTIFYING RISKS RELATED TO OBLIGATIONS OF CONFIDENTIALITY OR PRIVILEGE

Most focus group participants told the Commission that they find it difficult to determine whether information is confidential or privileged due to the complexity of these concepts, though some noted that they might detect any legal obligations of confidentiality or privilege by answering the questions set out in the Initial Risk Assessment. Some participants also noted that they would use the risk assessment to identify and outline ways to mitigate the risks of using high-risk human sources, including those involving legal obligations of confidentiality or privilege.

Several officers noted that the recent introduction of fields in Interpose to capture the occupation of a human source or prospective source has improved the risk assessment process, but also observed that this could discourage officers from filling it out correctly, as any identification of a source as being subject to obligations of confidentiality or privilege would result in them being rated as high-risk and therefore transferred to a different team (that is, the DST that manages high-risk sources).

Under the Human Source Policy, officers who identify that a prospective human source is likely to receive confidential or privileged information must refer the matter to the CSR via the HSMU, which in turn must refer it to the Ethics Committee for a decision.241

The Commission heard that, in these circumstances, a condition would be included in the AOR stating that the human source is not to provide confidential or privileged information (unless explicitly authorised by the Deputy Commissioner, Specialist Operations). Ms Steendam explained that while the Human Source Policy does not mandate the inclusion of such a clause in the AOR, in practice the Ethics Committee would require its inclusion alongside any other requirements specific to the circumstances.242

Risk assessments: Human rights, necessity and proportionality

Unlike in the United Kingdom, the concepts of necessity and proportionality are not explicitly set out in Victoria’s Charter, but are recognised as key concepts in human rights law.

In its submission to the Commission, VEOHRC explained that the lawful limitation of a human right is justified following an assessment of the nature of the right, the importance, proportionality, nature and extent of the purpose of the limitation, and whether there is ‘any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve’.243 Any limitation of rights must also be necessary and reasonable.244

According to former Chief Commissioner of Victoria Police, Mr Comrie, decisions to use a human source must be underpinned by a robust and effective risk assessment process that includes consideration of whether use of a human source is legitimate, necessary and proportionate.245

In the context of human source management, an assessment of necessity and proportionality would involve considering any limitation of human rights and might also involve considering broader risks to the organisation. For example, the safety and reputational risks associated with registering a human source with a significant criminal history must be balanced against the seriousness of the crime police are seeking to prevent or prosecute.

Victoria Police’s risk assessment tools do not prompt a human rights assessment for prospective or registered human sources. In evidence before the Commission, Ms Steendam indicated that all officers involved in the human source registration process are responsible, when commencing the registration application process, for assessing whether it is necessary and proportionate to register a human source.246 Ms Steendam said that this is a separate process to a risk assessment, and takes into account the findings of that assessment, the details of the registration documentation and any risk mitigations.247 The Human Source Policy does not reflect this separate process.

Sir Jon explained that as part of assessing necessity and proportionality in the United Kingdom, ‘officers responsible for conducting and authorising such activity ought to be thinking through at the outset whether they can reasonably justify the activity in the face of any future scrutiny’.248

Under the United Kingdom’s Code of Practice, assessing proportionality involves officers identifying the ‘least possible intrusion’ on human rights, and turning their minds to ‘what other methods had been considered and why they were not implemented, or have been implemented unsuccessfully’.249 Where there is an intention to obtain legally privileged material, the Code of Practice also sets a higher threshold to satisfy the concepts of necessity and proportionality, requiring authorising officers to set out in the application the ‘exceptional and compelling circumstances’ that necessitate the registration.250

The usability of risk assessment tools

Mr Dobson emphasised the importance of risk assessments being easily used and understood by officers. He noted that overly complex risk assessments can be a disincentive to officers using human sources and may therefore limit the ability of police to solve major crimes. To this end, he noted the reduced number of registered human sources in New South Wales following the introduction of the risk assessment process after the 1997 Royal Commission into the New South Wales Police Service.251

As outlined in the 2010 Victoria Police Audit of Victoria Police Human Source Management Practices, risk assessments should include all relevant information on the prospective human source and their circumstances, along with an honest and accurate assessment of whether the person is suitable for use as a human source. This enables the handling team to develop a comprehensive plan for managing the identified risks and ensures that supervising officers are aware of all the risks.252

The usability of Victoria Police’s human source management risk assessments was raised by officers who participated in the Commission’s focus groups, as outlined in Box 12.13.

BOX 12.13: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: THE USABILITY OF RISK ASSESSMENT TOOLS

Participants in several focus groups suggested that the Initial Risk Assessment, which contains 58 mandatory questions, is onerous and impractical. Some suggested that the tool should be more tailored and tiered, so that the overall number of questions is determined by whether certain threshold questions receive a ‘yes’ or ‘no’ response (meaning there would a more comprehensive assessment for higher risk individuals, and a simpler and shorter assessment for lower risk individuals).

Some participants indicated that the risk assessment is a ‘tick and flick’ exercise, and while the ‘free text’ fields are useful for including information specific to a prospective human source, the ‘check box’ questions are of minimal use or relevance. Several participants indicated that the tool could be streamlined.

Some participants suggested it is possible to complete the Initial Risk Assessment in such a way as to lower the risk level—to, for example, reduce the risk rating category from a high risk to a medium risk. Officers noted this could be done to avoid certain handling requirements for high-risk sources, and/or to increase the likelihood that the application will be authorised.

Victoria Police’s Human Source Strategy 2018–2022, an internal draft document prepared in 2018, indicated that the Initial Risk Assessment was not fit for purpose and was contributing to non-compliance with policy requirements.253

In evidence before the Commission, Ms Steendam indicated that the Initial Risk Assessment is being refined with the assistance of a senior forensic psychologist who has expertise in designing risk assessments.254 When asked whether the risk assessment is potentially being viewed as a ‘tick and flick’ exercise among officers, Ms Steendam explained:

That first risk assessment is quite lengthy … there’s a review process being undertaken … to see if there’s opportunity to refine that process and make it more specific … and make it more streamlined for this very reason, to assist our handlers in the completion of that form.255

Supervision of the human source–handler relationship

Law enforcement agencies consulted by the Commission agreed that close supervision of the human source–handler relationship is a critical aspect of human source management and should form part of a broader risk management and governance structure that supports the ethical and proper handling of human sources.256

In combination with other safeguards and risk mitigation strategies, effective supervision:

  • encourages compliance with human source policies and keeps officers accountable257
  • helps to manage key risks associated with human source management (such as corruption, breaches of confidentiality relating to the source’s identity, and risks to prosecutions and the administration of justice)258
  • assists in identifying administrative errors or discrepancies that could be concealing wrongdoing.259

The Commission consulted with serving Western Australia police officer and Adjunct Associate Professor Dr Charl Crous, APM and Associate Professor Pamela Henry, Edith Cowan University. They advised that in the context of human source management, ‘intrusive supervision is key, including coordinated self-reflection, critical-assurance and appraisal of performance. [It] leads to improved self-practices … which continues after formal training has concluded’.260

Stakeholders consulted by the Commission emphasised that human source policies and systems are not foolproof, and there is always a risk that officers will act outside required approval processes and management controls, either intentionally or through ignorance.261 Western Australia Police and Sir Jon indicated that effective supervision aids in detecting this type of improper conduct.262

The adequacy of supervision

In her evidence to the Commission, Ms Steendam noted that in a practical sense, exercising ‘intrusive supervision’ means that officers with supervisory responsibilities:

… are active, that it’s not just a tick box, that they actually have active conversations, look at the risks that have been identified and make sure that the mitigations are appropriate.

… It’s ensuring that the OIC and the controller are exercising the supervision requirements that they need to across the source and how they’re managing that in a tactical sense. It’s also to make sure that continuation of that relationship is appropriate. So it crosses over multiple and varied parts of their responsibility.263

Ms Steendam told the Commission that all officers in a human source chain of command should be practising effective supervision, including the Assistant Commissioner, ICSC, and noted that the Human Source Policy makes this clear.264

Mr Paterson said that ‘the failures that have occurred in relation to Ms Gobbo could not occur in the context of our current policies, intrusive supervision and governance framework’.265

In its focus groups with Victoria Police officers, the Commission explored how supervision was being exercised across Victoria Police’s human source management functions.266 Key observations from the focus groups are summarised in Box 12.14.

BOX 12.14: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: SUPERVISION PRACTICES

Inconsistent supervision

The consensus among focus group participants was that supervision of handlers is not practised consistently across Victoria Police. Participants reported a lack of supervision by responsible officers in some areas, including controllers, LSRs and OICs.

The Commission’s audit of Victoria Police files similarly noted a lack of critical review by LSRs and OICs in their assessment of documentation to support the registration and ongoing management of human sources.

Expectation that others will acquit responsibility

Participants in several focus groups indicated that they do not have confidence that OICs and LSRs actively review and audit human source files as required under the Human Source Policy. They suggested that LSRs rely on the HSMU for supervision and governance of source files and on the handling team to advise them of any risks or issues that arise.

Some LSR and HSMU participants made similar observations. Several HSMU participants said that because primary responsibility for supervision rests with the controller, OIC and LSR, HSMU officers do not routinely check certain reports generated from handlers’ interactions with human sources.

Resource and structural challenges

Controllers in the Commission’s focus groups indicated that they perform supervision in a range of ways, including by reviewing human source documentation and reports in Interpose. Some, however, said that limited resources impede proper supervision—for example, it is sometimes necessary for an officer to act as both handler and controller, thus eliminating controller oversight of the handler.

Focus group participants suggested that Victoria Police’s current hybrid model of human source management affects the quality of supervision. As noted elsewhere in this chapter, DSTs are focused purely on human source management functions and are not responsible for other duties, such as investigating suspected crime. Participants indicated that DSTs are subject to more effective and consistent supervision by senior officers, in contrast to handling teams with investigative functions, which have fewer resources available to prioritise human source management. For example, participants noted that in certain regional areas without a DST, it is sometimes necessary to nominate a controller located in an entirely separate office over an hour away, making it difficult for the controller to provide consistent and active oversight and supervision.

LSRs said it can be difficult to find time to supervise handlers and controllers, given the breadth of their responsibilities as Divisional Superintendents. One participant indicated that they adopt a ‘minimalist’ approach to supervision, with several others saying that they assess the skill level and experience of handlers when deciding how much supervision and oversight is necessary.

Victoria Police produced other information to the Commission that pointed to challenges in achieving effective supervision of human source management across the organisation. Its draft Human Source Strategy 2018–2022 suggested that:

  • officers involved in supervision and governance were not prioritising compliance with human source policy over other duties
  • there was a lack of consistent supervision and governance, leading to a failure to comply with policy
  • LSRs relied heavily on the OIC and the controller to supervise handlers, but often all three of these roles failed to provide the level of supervision required.267

The document indicated that inadequate supervision could have resulted from managers:

  • having little interest in, or intentionally or recklessly ignoring, compliance obligations due to competing priorities
  • having no background in investigations and/or prosecutions
  • having no training in relation to their specific role and responsibilities
  • demonstrating an absence of ownership over their position due to acting arrangements, as opposed to being appointed for a certain period.268

Sir Jon told the Commission that having an authorising officer with a dedicated focus on human source management facilitates effective supervision, noting that such officers are better positioned to actively challenge controllers and handlers in their use of a source and how they propose to manage identified risks.269 Likewise, former police officer Dr Adrian James, Liverpool John Moores University, explained that effective supervision can prevent administrative errors along with more serious wrongdoing.270

Human source management training

The Commission heard that, generally, training for officers responsible for human source management is delivered consistently across Australian law enforcement agencies in the form of basic online training, intermediate training and specialised training. The Commission heard of similar tiered training frameworks operating in Canada, New Zealand and Scotland.271

In May 2020, Ms Steendam advised the Commission that Victoria Police was reviewing the training requirements for officers involved in human source management.272 To inform this review, the Commission discusses below five key themes relating to Victoria Police’s human source training that emerged during its inquiry:

  • the adequacy of basic training for people who handle and manage human sources
  • the adequacy of training for senior officers with human source management or registration responsibilities
  • the absence of ongoing or ‘refresher’ training
  • the extent to which human source management training supports an understanding of human rights obligations
  • the extent to which human source management training covers obligations of confidentiality or privilege.
Adequacy of basic online training

As noted earlier in this chapter, police officers who directly manage or supervise the use of human sources are required, at a minimum, to complete Victoria Police’s basic online training.273 As the majority of officers complete this training, rather than intermediate or specialised modules, the Commission considered the adequacy of this training and its ability to support officers to manage human sources ethically and in accordance with the Human Source Policy.

A Victoria Police Human Source Management Training Evaluation Report, completed in December 2019, noted that the basic online training is intended ‘to effectively train a large volume of serving [officers]’. It stated that while the basic training was updated in August 2019 to align it with the Human Source Policy, the risk is that an online course may not be sufficient to mitigate the risks associated with human source management to both the individual and the organisation.274

According to the evaluation report, a key barrier to introducing more effective training is Victoria Police’s current hybrid model for human source management; that is, any new or improved basic training would need to be delivered to the large number of officers who are permitted to manage human sources under this model.275 In contrast, under a dedicated model, only officers in dedicated source handling roles would be able to manage human sources, thus reducing the number of officers requiring training.

The Commission discussed the basic online training with focus group participants, as outlined in Box 12.15.

BOX 12.15: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: ADEQUACY OF BASIC ONLINE TRAINING

Participants in the Commission’s focus groups conveyed mixed views about the basic online training provided to officers involved in the management of human sources. Most officers pointed to areas where training could be improved or strengthened.

Some suggested that the basic online training does not adequately support officers to understand and apply Victoria Police’s policy requirements for the management of human sources, and suggested that all officers involved in managing sources should, at a minimum, be required to complete the intermediate training.

The Commission consulted with Dr John Buckley, a former United Kingdom police officer with experience in the delivery of human source management training. Dr Buckley told the Commission that the benefit of online training is its ability to reach a large group of officers and teach them basic rules and principles, and suggested that more in-depth training is necessary to teach an officer how to effectively and safely manage a human source. Dr Buckley noted:

Online training could be used to teach officers the difference between a member of the public providing information and a human source. In particular, online training could outline the process officers should follow where they receive information from a member of the public, and then reiterate that only specialised officers can manage human sources.276

Adequacy of training for senior officers

As noted earlier in this chapter, there are no mandatory human source management training requirements for HSMU officers, the CSR, members of the Ethics Committee, the Assistant Commissioner, ICSC, or the Deputy Commissioner, Specialist Operations. Additionally, the OIC and LSR are not required to complete human source management training beyond the basic online course.277 Controllers are only required to complete a higher level of training when they are supervising the use of certain types of sources, or where a source is being tasked.278

In practice, officers in these senior roles might have completed relevant training despite the lack of a formal policy requirement for them to do so. For example, officers appointed to roles in Executive Command or the Ethics Committee may have received training in relation to risk management, ethical leadership and application of the Charter,as well as other training specific to their roles and responsibilities.279

Ms Steendam told the Commission that, although there are no specific human source qualifications required for the CSR role, the officer currently holding the role of CSR has completed extensive specialist training. She explained that extensive policing and risk management experience are prerequisites for the CSR role.280

Ms Steendam also informed the Commission that, because the responsibilities of supervising officers are focused on governance, risk management and ‘intrusive leadership’, the current human source training offered by Victoria Police is ‘not fit for purpose’ for these types of senior roles.281

In a submission to the Commission, Victoria Police similarly emphasised that the training undertaken by senior officers is necessarily more focused on systemic risks and is therefore different to the training delivered to officers responsible for handling and interacting with human sources.282 Victoria Police also advised that it is reviewing training for LSRs with a view to incorporating a greater focus on human rights, risk and governance as it applies to human source management.283

The Commission discussed the adequacy of training for senior officers with participants at its focus groups, as outlined in Box 12.16.

BOX 12.16: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: ADEQUACY OF TRAINING FOR SENIOR OFFICERS

The Commission asked focus group participants about their views on the need for senior officers to receive human source management training.

Participants indicated that it was common for the handler to have undertaken a higher level of training than their controller, LSR and OIC. Most participants considered there was a need for more advanced training for supervising officers and specialist functions, such as controllers, LSRs, OICs and the HSMU, to equip them with the skills and knowledge to effectively supervise and support the handler.

Some international stakeholders consulted by the Commission referred to training designed specifically for senior human source management roles, such as authorising officers and controllers.284

Sir Jon told the Commission that the lack of formal training in human source management for authorising officers is a key risk for law enforcement agencies, particularly when high-risk human sources are being considered for registration.285 He noted that without such training, there is a danger that authorising officers will not actively challenge handlers and controllers in relation to their use and management of human sources, or be able to identify the accompanying ethical risks.286 In addition, he suggested that when the successes of individual officers go unquestioned by leaders, it can create a ‘breeding ground for conduct that blurs criminal and ethical boundaries’.287 Sir Jon emphasised that:

… officers need to be provided with the requisite training to support them in navigating challenging operational and ethical situations. This is true for all officers involved in human source management, at all levels.288

Absence of ongoing or ‘refresher’ training

The Commission heard that most Australian law enforcement agencies do not have formal ‘refresher’ courses; nor do they require officers to repeat human source management training periodically. Some agencies do, however, encourage officers to re-attend training when course content is updated.289 Consistent with other jurisdictions, Victoria Police does not provide ongoing or ‘refresher’ training, but it advised the Commission that all officers involved in human source management received additional training associated with changes to the Human Source Policy in 2020.290

The Commission discussed ongoing training with focus group participants, as outlined in Box 12.17.

BOX 12.17: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: ABSENCE OF ONGOING OR ‘REFRESHER’ TRAINING

Several focus group participants indicated that ongoing training would be beneficial in keeping their skills and knowledge of policy requirements up to date. Some told the Commission that there is a need for ongoing training for officers from non-dedicated handling teams who do not frequently manage human sources.

Some participants observed that the ‘return on investment’ in human source management training is low, as it is a ‘perishable’ skill—particularly as some officers who undertake the training do not manage sources on a regular basis (that is, those who are not in DSTs). Some participants also raised issues around access to training courses.

During the inquiry, Victoria Police confirmed that its hybrid human source management model is a barrier to the delivery of ongoing human source management training. It also noted that if it were to move to a centralised model—where only one Command or Division is responsible for human source management—it would be in a better position to consider implementing requirements for ongoing training.291

Human rights training

In August 2019, Victoria Police updated the basic online training to expressly refer to human rights obligations. This included listing some Charter rights relevant to human source management: the right to life; the right to privacy and reputation; the right to freedom of thought, conscience, religion and belief; the right to protection of families and children; the right to peaceful assembly and freedom of association; cultural rights; and rights in criminal proceedings.292 While these rights are listed, they are not discussed in detail and there is no accompanying practical guidance.

Victoria Police confirmed that officers undertaking intermediate training and Ethics Committee members (as outlined above) receive training on the Charter and relevant human rights considerations.293

A training evaluation undertaken by Victoria Police in 2019 recommended the roll-out of new competencies to help controllers and handlers understand not only human rights theory, but also how to consider human rights in human source management from a practical perspective.294

In September 2020, Victoria Police acknowledged it could do more to provide guidance to police officers on how to apply human rights in practice, including considerations of necessity and proportionality, noting that this will be a priority in future. It advised that human rights will soon be included in the specialised training and, as noted above, that training for LSRs is being reviewed to embed a greater focus on human rights, among other things.295

The Commission discussed human rights training with focus group participants, as outlined in Box 12.18.

BOX 12.18: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: HUMAN RIGHTS TRAINING

Most participants in the Commission’s focus groups said that they had received general human rights training, but that human rights were not covered in the basic online human source management training they had undertaken—possibly because they completed the training prior to the changes introduced by Victoria Police in 2019.

Other participants who had completed the intermediate training said that it informed officers of the requirement to consider human rights when managing human sources but that the human rights content was general rather than specific to human source management. Participants generally expressed support for human rights and ethics training to be tailored to human source management.

The United Kingdom College of Policing told the Commission that it aims for human rights to be at the forefront of its policing practice training materials.296 Sir Jon indicated that incorporating human rights considerations in human source management training supports officers to properly balance the risks and potential impacts of their decisions and actions in managing human sources.297

Training about legal obligations of confidentiality and privilege

Victoria Police informed the Commission that in November 2019, officers from the HSMU received a training presentation delivered by the VGSO that focused specifically on the laws relating to professional privilege. In March 2020, Victoria Police made this presentation available to officers from DSTs.298

In May 2019, Victoria Police updated the basic online human source management training to include content relating to legal obligations of confidentiality or privilege.299 The training broadly reflects the Human Source Policy, asking officers to consider if the prospective human source is subject to legal obligations of confidentiality or privilege or if they are providing information received from someone who is. It advises that if these circumstances exist, the officer is to contact the HSMU at the earliest opportunity, and prior to receiving information from such a person.300

The Commission discussed training about legal obligations of confidentiality or privilege with focus group participants, as outlined in Box 12.19.

BOX 12.19: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: TRAINING ABOUT LEGAL OBLIGATIONS OF CONFIDENTIALITY OR PRIVILEGE

Most focus group participants told the Commission that they could not recall having undertaken training to assist them in identifying potential legal obligations of confidentiality or privilege, and managing human sources with such obligations.

As noted in Chapter 11 and earlier in this chapter, focus group participants demonstrated varied levels of understanding about legal obligations of confidentiality or privilege, the scope of these obligations, the types of information or occupations to which such obligations might apply, and the requirements set out in the Human Source Policy.

The College of Policing, United Kingdom, told the Commission that most human source training courses in the United Kingdom cover the management of confidential and privileged information.301 Dr Buckley told the Commission that the commencement of the RIPA resulted in changes to human source training to encompass officers’ obligations under the legislation and associated guidelines, including changes to help officers identify privileged material.302

Ms Steendam explained that changes being made to Victoria Police’s human source management training will cover, among other things:

… [the] identification of human sources with a legal obligation of privilege or confidentiality, as well as those with a connection to those persons, and address the procedures in place under the [Human Source Policy] for managing human sources of this type.303

System capability

Victoria Police advised the Commission that Interpose was first developed in 2005 as an intelligence and case management system and ‘has been improved and modified within [the limits of] its functionality’.304 Victoria Police began using a human source management module within Interpose in 2008. Prior to that, it used a paper-based system to manage human source records.305

Victoria Police told the Commission that the human source management module within Interpose was upgraded in October 2019 to ‘increase the capacity of Victoria Police and handling teams to comply with policy’, including the Human Source Policy.306 As discussed earlier and in Chapter 11, the upgrade introduced fields and prompts related to a prospective human source’s occupation. This is the main way that the system supports identification of potential issues related to legal obligations of confidentiality or privilege.307

Interpose does not currently contain a separate field for officers to indicate that, beyond the occupation of the human source, there is a risk that the source may provide, or has provided, confidential or privileged information.308

The Commission discussed Interpose capability with focus group participants, as outlined in Box 12.20.

BOX 12.20: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: SYSTEM CAPABILITY

Some focus group participants remarked that the new fields and prompts in Interpose help them to identify people who may have legal obligations of confidentiality or privilege.

More generally, there were mixed views across the focus groups about the utility of Interpose in supporting the management of human sources. Some participants were positive about the system, whereas others suggested that it would benefit from additional functionality, such as the ability to generate reports and flag compliance issues.

Participants recognised the challenges in developing a new system, observing that any such system would need to interact with existing information and communication technology systems including Victoria Police’s Law Enforcement Assistance Program.309

Victoria Police informed the Commission that it will continue to enhance the functionality of Interpose where possible, but that new systems are likely to be required for any significant improvement.310 It indicated that it is planning for a new case management system to replace Interpose, which will include a human source management module.311 Ms Steendam noted that this new system, which she described as ‘intuitive’, would support the registration, oversight and auditing of human sources and would require additional investment and resourcing.312

Internal monitoring and audit

As noted earlier in this chapter, separate to the review of individual human source files by supervising officers, the primary mechanisms Victoria Police adopts for program-wide audit of human source files are:

  • review of files and preparation of compliance spreadsheets by the HSMU, outlining the status of human source registrations for review by the LSR
  • compliance audits by CaRMU, particularly in respect of high-risk human sources, conducted every six months.313

These audits are not mentioned in the Human Source Policy.

In evidence before the Commission, Ms Steendam said that, due to the requirements under the Human Source Policy for the multi-levelled review of registration applications, regular review of human source files by supervising officers, supervision of the source–handler relationship and the HSMU’s oversight, Victoria Police’s human source files are, in effect, ‘constantly being audited’.314

The evidence provided to the Commission on the adequacy of the HSMU and CaRMU audit mechanisms is set out below, along with Victoria Police’s identification of, and response to, non-compliance in the use and management of human sources.

Adequacy of internal monitoring and audit mechanisms

Two key themes emerged during the Commission’s inquiry regarding audit of human source files and records:

  • that regular and comprehensive audits are critical to the organisation’s ability to assess levels of policy compliance and detect discrepancies or inappropriate practices
  • that they should ideally be undertaken independently; that is, by a unit or officers other than those who are responsible for undertaking the work being audited.

Dr James told the Commission that internal monitoring and audit are essential to managing risks associated with human source management programs and should complement other governance and oversight mechanisms.315 Mr Dobson told the Commission that any audit process should not only be clearly understood by the officers being audited, but also managed in a way that can withstand informal influence.316

Some Australian law enforcement agencies told the Commission that they had strengthened internal monitoring of human source management through regular reviews and/or formal audits of human source files. They indicated that reviews are generally carried out by supervising officers or centralised units, while formal audits are carried out by professional standards commands or central audit teams that are functionally separate to the agency’s human source management program.317 Tasmania Police told the Commission that while its audits are conducted by senior officers involved in decision making associated with human sources, the audit results are sometimes reviewed by a centralised area, such as a professional standards unit.318

Some stakeholders emphasised the importance of an audit program that is flexible and takes into account the dynamic and fluid nature of human source management, such as changes to the nature and level of risk posed by the human source, and the organisation’s relationship with the source.319

CaRMU is structurally separate from Victoria Police’s human source management program, whereas HSMU officers responsible for review and oversight are also involved in the provision of advice to handlers about registering and managing human sources, and decisions about source registration and management.

Ms Steendam informed the Commission that CaRMU’s most recent audits examined compliance with:

  • responsibilities and procedures
  • the registration process
  • risk assessment practices, including whether the controller evaluated the risk assessment and ensured that sufficient mitigation strategies were in place
  • contact with human sources
  • audit and compliance monitoring by supervising officers.320

Victoria Police informed the Commission that CaRMU’s audits focus primarily on high-risk sources because the consequences of non-compliance with the Human Source Policy ‘in the context of high-risk sources are likely to be magnified’. It noted that automated audit processes within Interpose, which are monitored by the HSMU, apply to all human sources, not just high-risk sources.321

Although not required by policy, Ms Steendam informed the Commission that any audits identifying compliance issues would be reported back to supervising officers, and any significant issues would be raised with the Assistant Commissioner, ICSC and the broader leadership team for discussion.322

When asked whether these issues are also reported to Victoria Police’s Audit and Risk Committee, Ms Steendam told the Commission that she did not believe this occurs.323 The Audit and Risk Committee consists of members of Victoria Police’s Executive Command and independent members from outside of Victoria Police. Its purpose is to provide independent assurance and assistance to the Chief Commissioner on ‘governance, risk, control and compliance frameworks and its external accountability responsibilities’, as well as to consider recommendations from internal and external auditors.324

In the Commission’s focus groups with Victoria Police officers, some participants said that the current internal audit mechanisms are overly focused on high-risk sources, as outlined in Box 12.21.

BOX 12.21: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: AUDIT PROGRAM

Participants in the Commission’s focus groups said that the audit program is not appropriately balanced across Commands and Regional Divisions; specifically, that certain central and dedicated teams and those managing high-risk human sources are audited much more frequently than non-dedicated handling teams based in regional Commands. Some participants expressed the view that the level of compliance with policy is generally high among DSTs and that, if undertaken in the regions, audits would find much lower levels of compliance.

Although focus group participants emphasised the critical role of the HSMU in supporting effective human source management practices, many noted that the unit’s capacity to deliver its core functions, including regular review and audit of human source files, has diminished because of an increasing focus on managing disclosure-related issues. Some participants advised that these pressures will likely continue beyond the Commission.

Identifying and responding to non-compliance

In June 2018, CaRMU conducted an audit of all Victoria Police human source files. It found that over 60 per cent of files were not compliant with the Human Source Policy. Victoria Police informed the Commission that most instances of non-compliance related to administrative or technical issues, with one instance involving the dissemination of information before a human source had been registered.

Following the audit, Victoria Police briefed IBAC on the non-compliance issues and Mr Paterson sent an email to all LSRs reminding them of requirements under the Human Source Policy.325 The human source files identified as non-compliant were suspended, preventing the dissemination of information obtained from those human sources.Relevant handling teams were asked to either deactivate the human source or remedy the non-compliance.326

Victoria Police’s draft Human Source Strategy 2018–2022 noted that:

  • continued poor compliance with human source policy, due to a bureaucratic registration process, competing priorities for the handling team and an ineffective governance framework, ‘is likely to seriously damage Victoria Police’s reputation’
  • audit results indicate a system-wide failure of appropriate local governance
  • the introduction of an independent auditing process is critical to ensuring that issues identified by previous inquiries into Victoria Police’s human source management are not repeated.327

The Commission examined Victoria Police’s compliance with the Human Source Policy in its audit of human source files. Its observations are outlined in Box 12.22.

BOX 12.22: OBSERVATIONS FROM THE COMMISSION’S AUDIT OF HUMAN SOURCE FILES: IDENTIFICATION OF AND RESPONSE TO NON-COMPLIANCE WITH HUMAN SOURCE POLICY

As discussed in Chapter 10, separate to CaRMU’s audit, the Commission conducted its own audit of 31 files related to human sources with potential legal obligations of confidentiality or privilege.

The Commission’s audit did identify some issues relating to officers not considering potential legal obligations of confidentiality or privilege and some non-compliance with the Human Source Policy, particularly in relation to timeframes and management oversight.

The audit also identified that, at times, compliance with Human Source Policy could not be confirmed because some records were undated.

Encouragingly, the audit found that where instances of non-compliance with the Human Source Policy had been identified by the HSMU, the files were suspended until remedial action was taken.

Use, handling and dissemination of confidential and privileged information

The Human Source Policy provides safeguards for the handling of information in circumstances where a human source subject to legal obligations of confidentiality or privilege volunteers information to police ‘that is or appears to be in breach of that obligation’.328 In these circumstances, police must not act upon or disseminate the information and the HSMU and Ethics Committee must be advised. Since May 2020, the Human Source Policy has specified that if Victoria Police wishes to disseminate the information to investigators, this must be authorised by the Deputy Commissioner, Specialist Operations.329

It appears that the same or a similar process applies to confidential or privileged information provided by human sources who are not in an occupation bound by legal obligations of confidentiality or privilege,330 though the Human Source Policy lacks clarity on whether this is the case.

The PIM advised the Commission that it believes existing police procedures for other covert methods, such as the use of telecommunications intercepts and surveillance devices, prevent the release of privileged information to investigators, intelligence analysts and other agencies. Those procedures require that the information is quarantined and reviewed by a lawyer who will only release the information if it is determined that no privilege applies.331 There is no such requirement under the Human Source Policy.

The Commission sought information from Victoria Police on its policies and procedures related to the handling, use and dissemination of confidential or privileged information obtained through the use of other police powers. Victoria Police declined to provide the Commission with this information on the basis that it was not relevant to the Commission’s terms of reference, notwithstanding the broad scope of term of reference 6.332

Victoria Police did, however, produce a statement to the Commission outlining that, if it obtains legally privileged information through telephone intercepts, it quarantines this information to prevent it being used as intelligence or disseminated to an investigation team.333 In October 2020, Victoria Police advised the Commission it had recently identified that privileged information obtained from telephone intercepts had not been fully quarantined and it was working with IBAC and the Victorian Director of Public Prosecutions to address this issue.334

The United Kingdom’s Code of Practice contains detailed guidance relating to the use, handling, dissemination, retention and destruction of confidential and privileged information that police may receive, including the requirement to obtain legal advice for the acquisition and use of privileged material.335 The Code of Practice also provides that all human source material must be handled in accordance with the relevant agency’s safeguards and that these safeguards should be made available to IPCO.336

Organisational model

Ms Steendam described Victoria Police’s current hybrid organisational model for the management of human sources, noting that:

… across Victoria Police there is currently a mix of dedicated human source units in some work areas, and in other work areas, investigators will be handling their own human sources.

The current framework is based on each operational superintendent deciding if they will take resources from other units within their division to create a dedicated human sources team rather than an agreed organisational structure and allocation of resources.337

Participants in the Commission’s focus groups explained that, under this model, whether a local division has a DST is determined by the Divisional Superintendent (who typically performs the LSR role), based on the nature of crime in an area, the resources available, and the Superintendent’s attitude to, and experience in, human source management. Several participants suggested that some Superintendents are unwilling to divert resources from other priorities or to take on the risks associated with managing human sources.

In contrast to a hybrid model, a centralised model would likely see all DSTs reporting to one central Command or Division; that is, there would be no regionally managed DSTs or ad hoc local arrangements for the management of human sources by officers undertaking other duties unrelated to human source management.

The Commission discussed Victoria Police’s human source management organisational model with focus group participants, as outlined in Box 12.23.

BOX 12.23: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: HUMAN SOURCE MANAGEMENT ORGANISATIONAL MODEL

As noted earlier in this chapter, several focus group participants pointed to the challenges that Victoria Police’s hybrid model presents for effective supervision and management. Participants also identified that the model presents other challenges; namely:

  • Officers who are not part of DSTs do not always have the requisite knowledge, experience, training or resources to handle human sources effectively.
  • Even if these officers have undertaken training, they tend to use human sources infrequently; consequently, their skills, knowledge and familiarity with policy requirements are often insufficient (in contrast to officers in DSTs, whose skills and knowledge remain current because they handle sources every day).
  • Divisional OICs and LSRs have a broad range of other responsibilities and lack the time and experience to focus on human source management and the associated risks.
  • Local areas without DSTs lack the resources and equipment to manage human sources safely and effectively.
  • Some Superintendents are not prepared to commit the resources to managing sources in their divisions unless there is a clear benefit for their area. This can mean that they will not agree to register a human source offering information that may benefit investigations in another division or benefit Victoria Police more broadly.

As an alternative to the current hybrid model, many focus group participants pointed to the benefits of a centralised, dedicated model of human source management. Participants highlighted the following specific benefits:

  • Handlers and supervisors who are focused only on human source management responsibilities would have the time, and the specialist experience and contemporary knowledge, to manage sources safely, effectively and in accordance with policy requirements.
  • It would foster increased specialisation and career opportunities by providing dedicated resources and roles to develop and enhance specialist skills.
  • It would encourage the use of human sources as organisational resources rather than as the assets of a particular region, providing greater flexibility for police to use sources across divisions or regions in line with the organisation’s strategic priorities.
  • There would be a greater ‘return on investment’ in human source management training, as it would be undertaken only by officers in (or seeking to move into) dedicated human source roles and who would frequently use the resulting skillset.

While there was general support for DSTs and a centralised model across the focus groups, some Superintendents raised concerns that it might disadvantage the regions, which rely on the use of low-risk sources to aid in investigating and solving local crime.

Ms Steendam noted that a key benefit of the hybrid model of human source management is that it allows Victoria Police business areas to determine their own priorities, while retaining dedicated and specialised units to give guidance to, and build the capability of, officers who are not in dedicated human source management roles.338 At the same time, Ms Steendam acknowledged similar limitations of the current model to those identified by the focus group participants.

In December 2019, Victoria Police Executive Command provided in-principle support for a more centralised model, subject to further development of the resourcing allocation, delivery model and investment requirements. Ms Steendam indicated that the inclusion of DSTs, enabling effective supervision and consistent practice in the management of human sources, would be a key principle guiding the future approach to the organisational model.339

Victoria Police did, however, advise the Commission of challenges associated with adopting a centralised model, including the current lack of a centralised information management system, ‘the size and diversity of Victoria Police’s jurisdiction’, and ‘the potential lack of suitable police resources with the required attributes, particularly in regional areas, to effectively implement and use [DSTs]’.340

Western Australia Police is the only Australian law enforcement agency with a fully centralised model, even though it is the largest geographically of all the states. It told the Commission that this model is critical for the effective management and protection of human sources, particularly those who are high-risk, and noted that while maintaining this model comes at a high financial cost, the overall benefits outweigh the costs.341

Human sources are also managed by DSTs in the United Kingdom, with the Code of Practice noting that ‘dedicated and sufficient resources, oversight and management’ are needed to manage the impacts and risks of using human sources.342

The Police Service of Northern Ireland told the Commission that officers in its DSTs have a sophisticated understanding of the risks associated with the use of human sources, including those related to obtaining and using privileged information. It noted that while dedicated units reduce capacity for the use of human sources across the organisation, this needs to be balanced against the need for sources to be properly handled.343 While noting the benefits of DSTs, Sir Jon also acknowledged the geographical challenges of this model in Australia, where policing service areas are much larger than those in the United Kingdom.344 Noting that dedicated models can pose ethical risks, including officers becoming overly familiar with sources, he emphasised that a tenure (or ‘maximum time in position’) policy should be in place to mitigate these risks.345

Police Scotland told the Commission that a dedicated model clarifies who is responsible and when matters should be escalated to management for oversight and direction, while also enabling more effective and targeted pursuit of policing priorities.346

The Metropolitan Police, United Kingdom, told the Commission that the benefits of DSTs include compliance with the management structure as required by the RIPA, separation of intelligence-gathering from the evidentiary chain, and corruption prevention, but also noted that taking officers out of investigative roles can limit their skill sets and isolate them.347

A 2004 Victoria Police review entitled Review and Develop Best Practice Human Source Management suggested that DSTs result in higher standards of professionalism, better source control, and more focused recruitment of sources to support policing objectives. It also acknowledged that the corruption risks need to be mitigated by active management and oversight of the source–handler relationship, tailored selection processes, training and a tenure policy for the handling team.348

In contrast, other reviews of Victoria Police’s human source management framework found that the dedicated model resulted in poor work practices, disregard for management and governance, and a culture of risk taking.It identified that, when not implemented correctly, these models can raise significant health and safety concerns for staff, and increase risks of improper relationships between handlers and sources.349

The sterile corridor

The Commission heard that another key advantage of DSTs is the ability to maintain a ‘sterile corridor’. As outlined earlier in the chapter, this is where the management of a human source is undertaken by different officers to those who are responsible for the management of any investigations that may rely on information provided by the source.

The Human Source Policy specifies that:

  • a full sterile corridor is where investigators are unaware of the existence of a human source
  • a partial sterile corridor is where investigators are aware of either the existence, or the identity, of a human source.350

The policy states that, where possible, ‘human sources should be managed in either a partial or full sterile corridor’, and ‘a partial or full sterile corridor must be employed in the management of all high-risk human sources’.351 There is no information on the circumstances that would warrant dispensing with this requirement.

Most Australian and international law enforcement and intelligence agencies described the use of a sterile corridor as an important feature of their human source programs.352 They noted that it prioritises a law enforcement agency’s duty of care to the human source, and reduces the burden on investigators—allowing them to focus on the evidence and investigation rather than cultivating relationships with human sources.353

A sterile corridor has also been said to reduce the risks of corruption, misconduct and improper relationships between officers and human sources, because when handlers are separated from criminal investigations, they ‘do not have the same personal vested interest in the outcome of an investigation’.354

As discussed above, New South Wales Police does not use sterile corridors as it does not regard them as best practice. It nonetheless adopts an overriding principle of maintaining the anonymity and safety of human sources and seeks to manage these risks effectively through robust disclosure and other organisational procedures.355

Dr James told the Commission that while a sterile corridor is desirable, it is not always practical in smaller police services or where there are significant resourcing constraints.356

The Commission discussed Victoria Police’s use of a sterile corridor with participants at its focus groups, as outlined in Box 12.24.

BOX 12.24: OBSERVATIONS FROM THE COMMISSION’S FOCUS GROUPS WITH VICTORIA POLICE OFFICERS: STERILE CORRIDOR

Focus group participants generally agreed that a full sterile corridor is considered best practice. Many commented on the importance of the sterile corridor in protecting the human source from the accidental or deliberate disclosure of information, which could result in their identity becoming known and risks to their safety.

Some participants said that a sterile corridor is difficult to achieve in all cases under Victoria Police’s current hybrid model, because investigators in areas without DSTs often manage human sources while also conducting investigations. Some were concerned about the risks to human sources arising from sterile corridors not being implemented, or only being partially implemented.

Some participants noted that even under a dedicated model, a full sterile corridor may not be possible in all circumstances. For example, an investigator may arrest a person and refer them to a DST for registration as a source. The investigator will therefore be aware of the identity of the prospective human source, though under the policy, they should not be informed subsequently that any intelligence provided to them originated from the source.

Some participants noted the difficulties that the sterile corridor can present for ensuring compliance with Victoria Police’s disclosure obligations, as discussed further in Chapter 14. Victoria Police informed the Commission that the introduction of ‘dedicated disclosure officers’ will help to address these challenges.357

Conclusions and recommendations

Victoria Police has taken significant steps to strengthen its human source management processes in recent years. While it has made progress, more work is needed to improve the current framework. The Commission considers that some features of Victoria Police’s human source management framework limit its capacity to manage human sources safely, ethically and effectively, including aspects of its policy requirements, decision-making model, organisational model, risk assessment processes, supervision practices and training.

The Commission also considers that Victoria Police does not adequately equip its officers with the knowledge to effectively identify and manage the risks of obtaining and disseminating confidential or privileged information from human sources. Perhaps most significantly, the Commission considers that an internal policy is not sufficient to govern Victoria Police’s use and management of human sources, nor to instil confidence in the Victorian community that it will do so in a way that is necessary, proportionate, ethical and compatible with human rights.

In a submission to the Commission, Victoria Police disagreed with these observations, suggesting that the evidence before the Commission should lead it to the conclusion that Victoria Police’s processes for managing human sources involving legal obligations of confidentiality or privilege ‘are likely to be the most stringent and effective of most (if not all) comparable jurisdictions’.358

The Commission accepts that Victoria Police’s processes for this specific category of human sources are more advanced than those operating in some other jurisdictions. This is in no doubt due to the events that led to the establishment of this Commission. Nonetheless, the Commission maintains that the current human source management framework needs improvement to assure the Victorian Government and the community that similar events will not occur in the future.

Without exception, law enforcement agencies consulted by the Commission emphasised the critical importance of human sources to the detection and prevention of serious crimes. Some noted that the use of human sources is becoming an increasingly valuable method of intelligence-gathering, as technological advancements and the growing sophistication of organised crime groups render other law enforcement techniques less reliable and effective.359

The Commission agrees that the use of human sources benefits policing, and ultimately, community safety. For all those benefits, however, it also carries considerable risks: to the rights of human sources and other people; to the integrity of Victoria Police and its officers; and to the administration of justice. As the events examined by this inquiry demonstrate, the right to a fair trial is particularly at risk when police use human sources involving legal obligations of confidentiality or privilege. But the use of all human sources poses risk, due in part to the covert nature of the activity and the significant discretion afforded to police in managing, tasking and rewarding them.

This Commission is not the first inquiry into Victoria Police’s use of human sources. Over 20 reviews in as many years have identified issues including deficiencies in policy and procedure, failures of supervision and management, non-compliance with policy requirements and improper conduct by some officers in their dealings with human sources. All of these factors point to the need for a clear and comprehensive regulatory framework that supports greater accountability and transparency in Victoria Police’s use of human sources.

The Commission recommends the introduction of legislation to govern the use and management of human sources, with specific safeguards for those who may provide or have access to confidential or privileged information. To support this legislation, it recommends a more effective and accountable internal decision-making model; clear, practical policy guidance; training at all levels of the organisation for officers involved in the management of human sources; regular and robust internal audit and monitoring; and an organisational model that enables Victoria Police to use human sources effectively and flexibly to meet its operational goals.

Design principles

The Commission has identified a set of key principles that it believes should guide the development of the proposed regulatory framework for Victoria Police’s use of human sources and related operational policies, processes and structures. As discussed in Chapter 13, these principles should also underpin the development of the external oversight model recommended by the Commission.

These principles are summarised in Box 12.25.

BOX 12.25: KEY DESIGN PRINCIPLES FOR THE DEVELOPMENT OF THE PROPOSED REGULATORY FRAMEWORK

The recommended regulatory framework for Victoria Police’s use and management of human sources should be designed around several key principles:

Integrity in the criminal justice system

  • The framework supports ethical and lawful practice by police and upholds fundamental principles of the criminal justice system, including the right to a fair hearing and the right to independent legal advice.

Necessity and proportionality

  • Registration and use of a human source occurs only when it is necessary to achieve a legitimate law enforcement objective.
  • The use of a human source is proportionate to the law enforcement objective Victoria Police is seeking to achieve and represents the least restrictive means reasonably available to achieve its objective.
  • Decisions to use a human source balance the potential impact on individuals’ human rights with the public interest in detecting and preventing serious crime.
  • Regulatory requirements are proportionate to the risks presented by different types of human sources. More stringent registration requirements apply to higher-risk human sources.

Accountability

  • Victoria Police is responsible for and able to justify its decisions and actions relating to the use and management of human sources.
  • The regulatory framework clearly establishes Victoria Police’s legal authority to use human sources.
  • There are clear roles and responsibilities for all aspects of human source use and management, and decisions are made by officers with the requisite seniority and capability to effectively assess and manage the risks arising from the use of human sources.
  • Decisions related to the registration, use and management of human sources are clearly documented and subject to regular and independent review.

Effectiveness

  • The regulatory framework facilitates proper identification and management of risks, while also being operationally workable and supporting officers to effectively and efficiently use human sources to detect, disrupt and prevent criminal activity.

Safety and sensitivity

  • The regulatory framework achieves its objectives without compromising the safety of any individual, exposing sensitive police methodology, or compromising investigations, current prosecutions or convictions.

Consistency

  • Where possible, the regulation of human sources is consistent with regulatory regimes for comparable covert investigative powers and methods in Victoria.

The Commission has drawn on the principles outlined in Box 12.25 in recommending a framework for Victoria Police’s future use and management of human sources. An overview of this framework is set out below.

Overview of the recommended framework

The Commission’s recommendations call for a robust, risk-based framework that supports accountability in decision making and supervision; comprehensive guidance for police officers with human source responsibilities; and careful scrutiny where there is a reasonable expectation that the registration and use of a source might result in the acquisition of confidential or privileged information.

Some of the Commission’s recommendations apply broadly to Victoria Police’s framework for all human sources, while others are specific to the use of human sources where confidential or privileged information may be obtained. This is necessary for system coherence and consistency. Limiting the broader recommendations to only those human sources with legal obligations of confidentiality or privilege would, in the Commission’s view, result in a disjointed, unbalanced and unnecessarily complex system in which other types of human sources are not subject to sufficiently robust processes and oversight.

The Commission is mindful of Victoria Police’s concern that ‘overly onerous requirements for registering or managing human sources could result in a reduction in Victoria Police’s capability to effectively gather and utilise criminal intelligence’ and that this, in turn, could have a negative impact on the Victorian community.360 The Commission’s recommendations aim to improve accountability and scrutiny of Victoria Police’s use of human sources, while also being practical and proportionate, and without compromising its ability to detect, disrupt and prevent criminal activity.

The Commission proposes that the human source management framework should be reformed by:

  • developing legislation to regulate and publicly legitimise Victoria Police’s use of human sources and support it to manage them in accordance with the public interest
  • clarifying and streamlining responsibilities for registering a human source, to increase accountability and efficiency in decision making
  • requiring decision makers to consider necessity and proportionality and other key factors when determining whether to register a human source
  • refocusing the issue of confidentiality and privilege on whether a human source is reasonably expected to have access to confidential or privileged information.

Further, the Commission proposes that these reforms should be supported by Victoria Police:

  • aligning its Human Source Policy with the new legislative framework and ensuring that it provides clear, practical guidance and instruction to officers with human source management responsibilities
  • adopting a dedicated and centralised human source management model
  • increasing the delivery of human source management training to help officers identify and acquit their responsibilities under the recommended regulatory framework
  • strengthening compliance, monitoring and governance functions to support robust internal oversight.

Figure 12.3 displays the Commission’s recommendations relevant to each part of the human source management process.

Figure 12.3: Overview of recommendations to strengthen Victoria Police’s human source management framework
Figure 12.3 - Overview of recommendations to strengthen Victoria Police’s human source management framework
The Commission is conscious that the proposed reforms call for significant change and will require stakeholder consultation along with careful transition and implementation planning. Broadly, the Commission proposes a two-phased approach to implementation of its recommendations:
  • Phase 1implementation of policy, training, internal audit and monitoring improvements, along with some limited changes to decision-making arrangements within 12 months
  • Phase 2implementation of the new legislative framework and new organisational model for the management of all human sources within two years.

The Commission considers that this approach will allow for adequate consultation, design and planning for the more significant legislative reforms and changes to organisational structures, while also enabling Victoria Police to introduce a series of policy, procedural and training improvements in the interim, some of which it has already taken steps to develop and implement.

Introducing legislation to govern the use and management of all human sources

There is no legislation governing the use of human sources in Victoria. This is at odds with requirements for the use of other covert powers and methods by police and means that the legal basis for the use of human sources is unclear.

While the Commission acknowledges that the use of Ms Gobbo as a human source was in many ways extraordinary, it was also a systemic failure—it continued for several years, even though a large number of police officers, including several senior officers, were aware of Ms Gobbo’s informing. Victoria Police has made many changes to its policy framework in response to these events, but, in the Commission’s view, the changes have not been enough to adequately manage the significant and enduring risks that arise in the use of human sources.

The very nature of human source management creates risks of improper conduct. This is relevant to all human sources, not just those who might have access to and provide confidential or privileged information. The need for police to form relationships with criminals or their associates can blur ethical and professional boundaries, sometimes to achieve operational goals (or ‘get the job done’). Tasking of human sources and issuing rewards to them can also involve police pushing ethical boundaries—whether by exploiting the source’s relationships with others, encouraging them to engage in deception, or facilitating their engagement in what would otherwise be criminal conduct.

This is not to say that the use of human sources is inherently wrong or unjustified, but rather that it occurs in a covert environment that is susceptible to ethical failure, misconduct and corruption, and requires a clear system of checks and balances to counter these risks. The Commission is not persuaded that the current internal policy adopted by Victoria Police achieves this. Nor is it convinced that a system of self-regulation of this necessary but high-risk area of policing could ever satisfactorily mitigate the risks, particularly the potential to compromise the criminal justice system and undermine the community’s confidence in it. In light of the events that led to the Commission, and what it has uncovered, there is more need than ever before to restore the community’s trust in Victoria Police and its management of human sources.

Except for the media coverage surrounding the use of Ms Gobbo as a human source, the related court decisions and this inquiry, there is very little publicly available information about how Victoria Police uses human sources. There are also no legislated, enforceable rules for when, why or how Victoria Police and its officers can engage in this activity.

In the United Kingdom, the introduction of a legislative framework aimed to establish a clear, lawful basis for the employment of investigatory powers, including the use of human sources, and to achieve an appropriate balance between protecting human rights and protecting community safety. The Commission heard that this framework gave law enforcement agencies more certainty about the use of and constraints on these powers, and helped to promote trust and confidence in the communities they serve.

Similarly, the introduction of legislation to regulate the use of surveillance devices, telecommunications interception, assumed identities, covert search warrants and controlled operations in Victoria and other Australian jurisdictions has increased accountability and transparency in the use and regulation of those powers and methods. The legislation also provides consistent frameworks able to withstand time and changes in senior leadership.

In her statement to the Commission, Ms Steendam indicated that Victoria Police was not advocating any legislative or regulatory reform but recognised that external oversight of its use of human sources would likely require legislative change. When addressing questions regarding external oversight, she expressed concerns about the potential for such a regime to apply to all human sources—rather than just those involving legal obligations of confidentiality or privilege—noting the risks to human sources should their identity become known.361

The Commission did not receive evidence indicating that a legislative framework would inhibit Victoria Police’s ability to use human sources to detect and prevent criminal offences. Law enforcement agencies and other stakeholders from the United Kingdom who have operated under such a model for some time emphasised the positive effects and reassurance that the framework provides to agencies and their officers.

While the AFP expressed some concerns about the potential for Victorian legislation to limit interoperability across jurisdictions in the management of human sources, Ms Steendam, on behalf of Victoria Police, indicated that human sources are generally not managed across jurisdictions simultaneously. The Commission also heard that different frameworks and policy requirements appear to operate successfully across Australian police agencies now. For these reasons, it was not persuaded that a legislative framework would create significant inter-jurisdictional challenges.

The Commission anticipates Victoria Police may have concerns that introducing legislation will result in the use of human sources becoming more widely known in the community. There is an obvious and important need to protect the safety of human sources and the integrity of police investigative methods. The Commission considers, however, that establishing legislative requirements should not in and of itself compromise either the safety of human sources or covert policing methods, provided that the legislation is drafted carefully and in consultation with Victoria Police and other justice and legal profession stakeholders.

Having examined all of the evidence, the Commission considers that a legislative framework would lead to more effective management of the risks associated with Victoria Police’s use of human sources. Specifically, it would:

  • support clear parameters and minimum standards for the use of human sources, consistent with the arrangements in place for other covert powers and methods
  • ensure that any future expansion or amendment of these standards is subject to proper and public consideration by the Parliament
  • improve transparency by building public awareness of the circumstances in which Victoria Police can use human sources and any limitations on such use
  • provide assurance to human sources that Victoria Police will be held accountable for their management
  • provide greater certainty to officers and support them to ensure that their decisions appropriately balance competing public interests.

In examining the United Kingdom legislative framework, the Commission considered the utility of introducing a code of practice in Victoria. A key purpose of the Code of Practice in the United Kingdom is to ensure consistency across hundreds of public authorities. In contrast, only a small number of Victorian agencies use human sources. Victoria also has a significantly smaller population than the United Kingdom. Further, the Commission considers that legislation and any associated regulations in Victoria could set out the types of requirements specified in the Code of Practice. Consequently, the Commission considers that it is unnecessary to introduce a code of practice in Victoria.

In the following sections, the Commission sets out the recommended:

  • objectives and scope of the proposed legislation
  • responsibilities for registration decisions under the legislative framework
  • key considerations to underpin registration decisions.
Objective and scope of proposed human source management legislation

The proposed legislation needs to permit and facilitate the effective use of human sources to gather intelligence, conduct investigations and prevent, disrupt and detect criminal activity, while simultaneously ensuring that their use is ethical, necessary, proportionate and justified. The principal objective of the proposed legislation should be to appropriately balance these competing interests and provide a clear legal framework for police to use and manage human sources and the information they provide.

In the previous section, the Commission explained the need for such legislation to apply to all human sources used by Victoria Police, not just those in the narrow category of people with legal obligations of confidentiality or privilege. The Commission has also considered other aspects of the legislation’s scope; that is, which elements of Victoria Police’s use of human sources should be subject to legislative requirements; whether the requirements should differ depending on the type of source; and the potential implications of legislation for other Victorian agencies that use human sources. These are discussed below.

Registration, use and management of human sources

Typically, the risks associated with the use of a human source are considered and assessed at the point at which an officer seeks to register them as a source. These risks do not disappear, however, once the source is registered. Their ongoing management by police—which may include tasking the source to actively obtain information about criminal activity, requiring the source to put themselves in a precarious situation with criminal associates, or rewarding the source with cash or other benefits—also presents risks that need to be managed.

The importance of police maintaining an appropriate relationship with the human source over time underscores the need for the proposed legislative framework to cover the entirety of the human source’s relationship with police: from registration, through to ongoing use and management, to deactivation or transfer of the source to the role of a witness.

As noted earlier in this chapter, Victoria Police’s Human Source Policy requires officers to obtain authorisation before they can ‘approach’ certain human sources, separate and additional to that required for the (subsequent) registration of those sources. The Commission considers that this should not be within the scope of the proposed legislative framework. This issue is discussed later in this chapter.

The Commission also recognises there are issues associated with potential contact with, or risks to, a human source after they are deactivated. While the Commission did not examine these issues in detail during its inquiry, it notes that the very real risks to a human source’s safety do not cease simply because Victoria Police has ended its relationship with them.

As noted by several officers who participated in the Commission’s focus groups, the risk to a human source’s safety increases considerably if and when any information they provided to police is then relied on to arrest or charge the subject of that information. This may occur after the human source has been deactivated. These issues will be important to consider in developing the proposed regulatory framework, noting that this may be more appropriately dealt with in internal policy and procedures rather than in the proposed legislation.

Further, given the critical need to protect the identities and safety of human sources, the Commission recommends that the proposed legislation makes it an offence to disclose, without authority, information about a human source or information provided by a human source (including, in both cases, people who were formerly human sources). Section 36 of the Crimes (Controlled Operations) Act 2004 (Vic) may provide a suitable model for this offence.

'Reportable' and ‘non-reportable’ human sources

The Commission also considered whether there should be more stringent legislative requirements and safeguards for human sources involving legal obligations of confidentiality or privilege.

The Commission supports Victoria Police’s progress towards a policy framework that focuses on the nature of the information held or provided by a human source, rather than the occupation of the source. It agrees, as envisaged by the Human Source Policy, that more stringent safeguards should apply to the use and management of human sources who may provide confidential or privileged information, recognising the potential to jeopardise criminal prosecutions or convictions, impair a person’s right to a fair trial, compromise the integrity of the justice system and undermine professional relationships built on trust.

The Commission considers that the proposed legislation should create a category of human sources or prospective sources who are reasonably expected to have access to confidential or privileged information—hereafter referred to by the Commission as ‘reportable human sources’. For the avoidance of doubt, this includes prospective or registered human sources who are identified as already possessing confidential or privileged information, as well as those considered likely to access it in future. As discussed below, these reportable sources should be subject to certain requirements over and above those that apply to other human sources (‘non-reportable human sources’). The Commission considers that this approach would simplify the categorisation of human sources and processes for their registration.

Other potential reportable human sources

Victoria Police’s Human Source Policy lists other categories of human sources who may present higher risks or more complex issues, including those under the age of 18 years and those with a serious mental health or serious medical health condition. In the Commission’s view, there are clear ethical, welfare and human rights risks associated with the use of these individuals as human sources.

The Commission’s terms of reference did not extend to these types of human sources. Nor has the Commission had the opportunity to consult with all relevant stakeholders who have expertise and experience relevant to the specific issues and risks associated with the use of these sources.

Subject to consultation with these stakeholders, the Commission urges the Victorian Government to include people under 18 years of age or with serious mental or medical health conditions in the definition of ‘reportable human source’ under the proposed legislative framework. This would ensure that (like human sources who are reasonably expected to have access to confidential or privileged information), these sources are also subject to enhanced protections and safeguards.

One-off registrations

The Commission recognises that some risks that arise in the use of human sources on an ongoing basis do not apply in the case of one-off registrations; that is, prospective human sources who wish to provide information on a single occasion. For example, the risks of improper source–handler relationships could potentially be lower, because police cannot task one-off human sources and must not have an ongoing relationship with them. Some risks, however, apply to the use of all human sources, regardless of whether they provide information on a single occasion or multiple occasions—for example, the risk to a human source’s safety should it become known they have informed on their associates.

The Commission understands that Victoria Police has introduced a process for one-off registrations to provide more operational flexibility and efficiency. After giving careful thought to whether these one-off registrations should be within the scope of the proposed legislative framework, the Commission has concluded that this is necessary. Fundamental principles and requirements, like the need to consider human rights, necessity and proportionality, should apply to the use of all human sources, not just those used on an ongoing basis.

It may, however, be possible to tailor some aspects of the legislative and policy framework to facilitate more streamlined registration and risk assessment processes for one-off registrations, similar to those that currently exist under the Human Source Policy. This should be considered further by the Victorian Government in consultation with Victoria Police and other stakeholders about the proposed legislation.

Other Victorian agencies’ use of human sources

While other Victorian agencies such as IBAC also use human sources, the Commission’s inquiries were limited to Victoria Police because of its terms of reference and the Inquiries Act 2014 (Vic). As such, the Commission has confined its recommendations to Victoria Police’s use of human sources and has not consulted with other relevant agencies about their use of human sources.

Nonetheless, the Commission notes that the use of human sources by other agencies may well pose risks similar to those arising from Victoria Police’s use of sources. Consequently, while not formally recommending it, the Commission considers that there is merit in applying the legislative framework to all Victorian agencies that use human sources, subject to consultation with the affected agencies and an assessment of their current operations, policies and processes.

RECOMMENDATION 8

That the Victorian Government, within two years, implements legislation for Victoria Police’s registration, use and management of human sources, to provide a clear framework for police to obtain and use information from human sources and to ensure they are used in an ethical and justifiable manner.

RECOMMENDATION 9

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, makes it an offence to disclose information relating to a human source without authorisation (including information that a human source provided or was tasked to provide, and information about the identity of a human source and their registration and management).

RECOMMENDATION 10

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, defines ‘reportable human sources’ as a class of people who are prospective or registered human sources and who are reasonably expected to have access to confidential or privileged information.

These recommendations and the other recommendations listed below are not intended to be exhaustive, but rather focus on key features of the proposed legislation—with a particular emphasis on safeguards for the use of human sources who may provide confidential or privileged information, and on other critical issues raised with the Commission during the inquiry.

Responsibility for registration decisions

The Commission considers Victoria Police’s current decision-making model for the registration of human sources is duplicative and inefficient, resulting in both a lack of clarity about roles and responsibilities and inadequate ownership of the decisions made.

Under the Human Source Policy, the Ethics Committee makes decisions about the registration of certain higher-risk human sources, dispersing accountability across a group of people. The CSR makes decisions about the registration of other human sources; though in practice, the registration of low and medium-risk human sources is delegated to a business unit, the HSMU. Under this model, registrations requiring Ethics Committee authorisation must proceed through five to seven review points before being considered. If an officer wishes to approach a person to ascertain whether they have useful information and could be registered as a human source, this request to ‘approach’ must proceed through these review points before Ethics Committee consideration, and the same multi-levelled process must be repeated if the officer wishes to then register the person as a source.

Several focus group participants pointed to delays in the authorisation of registration applications. Some also questioned the utility of LSRs and OICs reviewing applications, suggesting that many of these officers do not have the experience, time or training in human source management to actively interrogate applications. The Commission also considers that having so many officers involved in the review and decision-making process, without a clear articulation of the distinction between their roles and responsibilities, increases the risk that officers will not give applications the thorough and careful attention they deserve, on the assumption that others will take on this responsibility. It also increases the number of officers who are aware of the identity of a human source and therefore increases risks to their safety.

Further, the committee-based decision-making model for certain higher-risk human sources blurs accountability and unnecessarily delegates to a group of people a decision that could and should be made by an officer with appropriate seniority and experience.

Victoria Police disagreed with the Commission’s views on these matters. It explained that the committee-based decision-making model enables consideration of multiple perspectives, which is necessary for complex and difficult human source decisions.It also submitted that the Assistant Commissioner, ICSC is ultimately responsible for decisions made by the Ethics Committee.362 Nothing in the Human Source Policy, however, makes this clear and no other evidence was produced to the Commission to confirm it.

The Commission recognises that, in making particularly complex human source decisions, a senior responsible officer may benefit from the views and experience of other officers and personnel, but considers that this would be better facilitated through an advisory group, rather than a committee making decisions that, according to Victoria Police, are ultimately the responsibility of the Assistant Commissioner, ICSC. Similarly, the Commission considers that, while workload pressures may warrant delegation of the CSR’s decision-making responsibilities, this delegation should be to a specific and sufficiently senior role, rather than to a business unit made up of multiple officers with varied levels of seniority and experience.

Having specific senior officers responsible for decisions, and making this clear in policy and procedures, would facilitate a shared understanding of roles and responsibilities, increase the transparency of decision making and encourage thorough consideration of registration applications. The Commission considers that it may also allow for more efficient and streamlined decision making.

The proposed authority for registration decisions under the Commission’s recommended legislative framework is outlined in Box 12.26.

BOX 12.26: PROPOSED AUTHORITY FOR REGISTRATION DECISIONS UNDER THE LEGISLATIVE FRAMEWORK

Consistent with similar legislation regulating the use of covert police powers and methods, the Commission recommends that the proposed legislation should empower the Chief Commissioner of Victoria Police to authorise the registration of human sources.

Given Victoria Police’s size and the scale of its operations, it would be impractical for the Chief Commissioner to authorise the use of all human sources. Consequently, the Commission recommends that the proposed legislation should empower the Chief Commissioner to delegate this power to certain senior officers; namely:

  • officers of or above the rank of Assistant Commissioner in the case of reportable human sources (likely the Assistant Commissioner, ICSC)
  • officers of or above the rank of Superintendent in the case of non-reportable human sources (likely the CSR).

In Chapter 13, and discussed below, the Commission recommends that, in the case of reportable human sources, the Chief Commissioner’s (or delegate’s) decision would need to take into account:

  • formal legal advice relating to the proposed registration, including the likelihood and possible consequences of obtaining confidential or privileged information
  • the recommendation of the PIM about the registration of the person as a human source.

Figure 12.4 below sets out how the recommended registration process would operate.

Under this process, the handler, controller and the HSMU would be required to critically assess the application and whether the person is a reportable human source, and outline their reasons for submitting, endorsing or not endorsing the application. The CSR would also have to undertake this process when submitting applications for the registration of reportable human sources to the Assistant Commissioner, ICSC.

Once made, the decisions of the CSR and the Assistant Commissioner, ICSC, along with their rationale for those decisions, should be communicated back to the handling team to provide them with a clear understanding about their assessment of the issues and risks involved.

While this process does involve multi-levelled review, the removal of the LSR and OIC roles from the decision-making model would reduce the number of review points. This aspect of the model is discussed further in the section below on ‘Victoria Police’s organisational model’.

Figure 12.4: Recommended registration process for human sources
Figure 12.4 - Recommended registration process for human sources

The Commission acknowledges that the proposed arrangements for reportable human sources would increase the decision-making responsibilities of the Chief Commissioner or delegate (Assistant Commissioner or above), but given the small number of human sources likely to fall into this category, this is unlikely to have significant workload or resourcing implications.

The proposed model would also increase the decision-making responsibilities of the CSR, assuming that this officer is the delegate responsible for decisions about non-reportable human sources. This would likely have resourcing implications, given that the CSR currently delegates decisions about the registration of low-risk and medium-risk human sources to the HSMU.

The Commission considers that the precise resourcing arrangements are operational matters best left for Victoria Police to determine but suggests two potential options to manage the increased workload:

  • the creation of an additional CSR position (or positions)
  • enabling the CSR to sub-delegate their responsibility for certain registration decisions to a senior officer (for example, at the rank of Inspector or potentially Senior Sergeant).

Should Victoria Police consider that the second option is more feasible, the Commission considers that any such sub-delegation should be to a specific position, rather than to the HSMU as a unit—consistent with the objective of providing clear lines of accountability. Further, if this option were pursued, the Commission considers that Victoria Police should implement a functional separation between that position and other HSMU functions, to avoid any conflict of interest that might arise if the officer responsible for making a registration decision was to subsequently review that decision on behalf of the HSMU as part of the unit’s compliance monitoring functions.

RECOMMENDATION 11

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, establishes clear decision-making arrangements that demonstrate alignment between the seniority of the decision maker and the level of risk posed by the registration of human sources. The legislation should:

  1. empower the Chief Commissioner of Victoria Police to register human sources to assist in gathering criminal intelligence and/or investigating criminal activity
  2. permit the Chief Commissioner to delegate the power to register reportable human sources to an officer of or above the rank of Assistant Commissioner and non-reportable human sources to an officer of or above the rank of Superintendent
  3. require that an application for the registration of a prospective human source must be authorised by the Chief Commissioner or their delegate before the person can be used as a human source.
Key considerations for registration decisions about all human sources

Just as there should be clarity about who is responsible for making decisions about the registration of human sources, so too must there be a clear set of criteria to guide those decisions.

Victoria Police’s Ethics Committee terms of reference set out the various factors it considers when making decisions about certain higher-risk human sources, including legal, ethical and human rights implications and the nature and imminence of the criminal conduct to which the human source information relates. The Commission believes that such considerations should extend to decisions about all human sources, not just those in specific categories.

Several stakeholders told the Commission that one of the strengths of the United Kingdom framework is its emphasis on necessity and proportionality in the use of investigatory powers, which provides a clear basis for decision making by public authorities. Similar principles and considerations should underpin the proposed legislative framework for Victoria Police’s use of human sources.

In determining whether to authorise the registration of any human source, the Commission recommends that the Chief Commissioner (or delegate) must be satisfied that the registration and use of a human source is appropriate and justified, including whether:

  • the use of the prospective source is necessary and proportionate
  • the risks associated with the prospective human source’s registration have been identified and can be adequately managed.

The Chief Commissioner (or delegate) should be assisted in making that determination by having regard to the following key considerations:

  • the seriousness of the offence and imminence of the threat to which the information relates
  • the likelihood of investigators being able to obtain the same information through other, less intrusive investigatory or intelligence methods
  • the impact on the human rights of any individuals or the community if the person is used as a source and if information from them is utilised or not utilised
  • legal advice or any other specialist advice obtained about the use of the person as a human source
  • conditions that should apply to the AOR setting out the terms of Victoria Police’s relationship with the human source
  • the specific purpose and length of time for the registration
  • how the risk to the safety of the potential human source will be mitigated
  • the adequacy of the risk assessment and other materials supporting the application.

These factors build on the matters currently considered by the Ethics Committee when making human source management decisions, and also draw on decision-making principles and factors outlined in legislation for other covert police powers and methods.

The Commission considered whether the proposed legislation or supporting regulatory or policy requirements should specify the duration of registration periods for certain categories of human sources, as exists under the United Kingdom’s Code of Practice. The Commission considers that it would be preferable for Victoria Police decision makers to have the flexibility and discretion to determine this on an individual basis, taking into account the purpose of the registration and the specific risks and circumstances involved.

Recognising the importance of ongoing risk management throughout the human source’s involvement with police, the Chief Commissioner (or delegate) should also have the power to impose conditions on registrations and determine how regularly the registration should be reviewed, informed by the specific risks and circumstances.

The requirement to set review periods recognises that the level of risk to or posed by a human source may increase or decrease over the course of their relationship with Victoria Police, requiring officers to adopt new mitigation strategies in response, or to deactivate the source if the registration is no longer appropriate. The subsequent review of a human source’s registration should require the Chief Commissioner (or delegate) to be satisfied the registration remains appropriate, taking into account the key considerations specified above, and that the identified risks are being or can be managed.

RECOMMENDATION 12

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, requires the Chief Commissioner of Victoria Police or their delegate to be satisfied that in registering any human source, the registration is appropriate and justified, including that:

  1. the use of the person as a human source is necessary to achieve a legitimate law enforcement objective and is proportionate to that objective
  2. the risks associated with the person’s registration have been identified and can be adequately managed.

RECOMMENDATION 13

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources:

  1. empowers the Chief Commissioner of Victoria Police or their delegate to impose conditions in respect of the registration of any human source
  2. requires the Chief Commissioner or their delegate to determine the period that a human source may be registered
  3. requires the Chief Commissioner or their delegate to determine the frequency with which the registration of a human source should be reviewed.

Establishing additional requirements for the registration of reportable human sources

The material the Commission examined did not warrant a complete prohibition on Victoria Police’s use of human sources involving legal obligations of confidentiality or privilege. As discussed in Chapter 4, a blanket ban would not eradicate the risk of confidential or privileged information being provided by a human source; nor would it equip officers with the skills to respond appropriately when this occurs. Additionally, the Commission recognises the possibility that, in rare cases, it may be legitimate and necessary to use human sources in occupations subject to legal obligations of confidentiality or privilege.

The Commission does consider, however, that the use of human sources who are reasonably expected to have access to confidential or privileged information should be treated with caution and subject to a clear and comprehensive system of checks and balances.

Victoria Police submitted that the current Human Source Policy casts a broader net over human sources involving legal obligations of confidentiality or privilege than other jurisdictions examined by the Commission, potentially going further than those jurisdictions. It noted that it is possible under the United Kingdom’s framework for a lawyer to be registered as a human source without engaging the enhanced registration process.363 The Commission acknowledges this, but notes that the United Kingdom framework would only permit this in circumstances where it is neither intended, nor likely, that the use of a lawyer as a human source would result in the acquisition of confidential or privileged information (in other words, where the information is clearly and entirely unrelated to the person’s occupation as a lawyer).

The Commission also accepts that Victoria Police has already taken steps to strengthen safeguards related to the use of human sources involving legal obligations of confidentiality or privilege. There is, however, scope to build on these measures by clarifying, formalising and embedding the safeguards within the recommended legislative framework.

In this section, the Commission sets out further requirements that it considers should apply to the registration and management of reportable human sources; specifically, requirements for:

  • identifying and classifying reportable human sources
  • obtaining and considering formal legal advice
  • registering a reportable source, including where the intention is to obtain confidential or privileged information
  • circumstances where there is a change in the scope of the registration
  • emergency authorisations.
Identifying and classifying reportable human sources

As noted above, the Commission recommends that the proposed legislation should define a class of people who are reasonably expected to have access to confidential or privileged information, referred to in this chapter as reportable human sources.

Essentially, this means that the following people would be classified as reportable human sources:

  • People currently or previously in an occupation that typically involves possession of or access to confidential or privileged information (such as lawyers, doctors, court officials, certain government workers and so forth), regardless of whether the information they are providing or offering to police is related to their occupation.
  • People who are not in such an occupation, but appear to have access to information that might be confidential or privileged (for example, because it appears that the information originated from some type of professional relationship or context where a legal obligation to keep information confidential might apply).

The Commission considered the merits of a formulation similar to that adopted in the United Kingdom; that is, where the registration is likely or intended to result in a public authority’s acquisition of confidential or privileged material from a human source.

Ultimately, the Commission considers that it would be preferable to set a lower threshold, by focusing on whether a person is reasonably expected to have access to confidential or privileged information, rather than whether a person is reasonably expected to provide such information to police.

There are two, interrelated reasons for this:

  • First, it can be very difficult to identify whether information is subject to a legal obligation of confidentiality or privilege. As noted in Chapter 4, this involves complex legal issues, and a determination about whether and to what extent an obligation applies typically relies heavily on the specific circumstances in which the information was shared or obtained. In the case of a prospective human source who is a lawyer, it will likely be easier for a police officer to identify that the person has access to confidential and privileged information (that is, because the person is a lawyer), than to determine whether the specific information being offered or provided is, in fact, confidential or privileged.
  • Second, making the possession of or access to confidential or privileged information the determining factor in whether someone is a reportable source reduces the risk of officers, either deliberately or unknowingly, wrongly classifying a person as a non-reportable source.

The use of Ms Gobbo as a human source illustrates this point. In registering and using Ms Gobbo as a human source during her third registration in 2005–09, some Victoria Police officers suggested that the information she provided was not privileged (for example, because it was obtained in a social context, not in the course of providing legal services to her clients) and was therefore justifiable.

The difficulty is that, even where information held by a lawyer (or by another person subject to a legal obligation of confidentiality or privilege) appears to relate to a person’s personal associations, the question of whether the information is confidential or privileged may not be clear cut. Even if some of the information Ms Gobbo provided to police was obtained in a social context, the person disclosing it may have believed they were talking to her in her capacity as a lawyer, and their social discussions may have intermingled with discussions about legal advice.

Under the Commission’s recommended model, a lawyer in similar circumstances would automatically qualify as a reportable human source, because of their access to confidential and privileged information. They would therefore be subject to the more rigorous registration process proposed by the Commission.

While this approach will result in some prospective human sources being subject to a more rigorous registration process even though the information they hold may not ultimately be deemed confidential or privileged, the Commission considers it is justified because:

  • it ensures that the decision about whether certain information is confidential or privileged sits with senior officers, informed by legal advice (discussed further below)
  • even though this approach casts a broader net, the number of individuals expected to fall into the reportable human source category will still be very small
  • it aligns substantially with Victoria Police’s current approach, whereby human sources involving legal obligations of confidentiality or privilege must be authorised by the Ethics Committee, irrespective of whether the information they hold is related to their occupation.

Exceptions to the duty of confidentiality or privilege

As noted in Chapter 4, there are exceptions to legal obligations of confidentiality and privilege. Of the exceptions, the most relevant to the duty of confidentiality are a waiver by the person to whom the obligation is owed and where legislation overrides the duty. The main exceptions to privilege are where it is waived or where the communications are made by the client to their lawyer or a third party in furtherance of the commission of a fraud or offence.

There is a risk that such exceptions could be used within Victoria Police to classify a prospective source as a non-reportable human source (that is, on the basis that the information is not confidential or privileged due to an exception), thereby avoiding the more rigorous registration process the Commission recommends for reportable sources.

Consequently, the Commission considers that the legislation should adopt a rule to the effect that, where there is a possibility that a prospective human source may fall within a recognised exception to a legal obligation of confidentiality or privilege, they should be treated as though they are a reportable source. This approach would ensure that decisions about whether information is subject to an exception are the responsibility of senior officers, informed by legal advice (as discussed below).

RECOMMENDATION 14

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, requires that a prospective human source who is reasonably expected to have access to information that would be confidential or privileged but for an exception to the duty of confidentiality or privilege, should for the purpose of the human source registration process be treated as though they are a reportable human source.

Formal legal advice to inform registration decisions about reportable human sources

As noted above, determining whether information is confidential or privileged is a difficult exercise that raises complex legal issues.

The Commission considers that Victoria Police’s processes for seeking legal advice to inform human source management decisions need to be formalised and strengthened. While there is a requirement for the Ethics Committee to consider legal advice when making its decisions, this is primarily through Victoria Police’s Executive Director of Legal Services, who is a member of the Committee and, since May 2020, has a vote in its decisions. In the Commission’s view, this is not an adequate substitute for formal legal advice.

Victoria Police told the Commission that there are established procedures for officers to obtain legal advice in relation to human sources, explaining that the HSMU often procures advice from Victoria Police’s Legal Services Department and the VGSO.364 There are, however, no explicit requirements or processes set out in the Human Source Policy for obtaining such advice.

The Commission considers that, under its recommended legislative framework, any proposed registration of a reportable human source must be informed by formal legal advice, and that this advice should be sought early in the registration process.

The Commission has considered whether Victoria Police should be required to seek legal advice from external independent lawyers in relation to the registration of reportable human sources, and notes Ms Steendam’s evidence that Victoria Police’s internal legal advisers are capable of giving ‘frank fearless and independent advice and appropriately meet their duty and their requirements as a legal practitioner’ and that Victoria Police engages the VGSO when needed.365 The Commission has also considered the fact that the recommended registration process will necessarily involve scrutiny of the legal advice obtained by senior Victoria Police decision makers and the PIM. Finally, the Commission notes that in Chapter 8, it has recommended that the Chief Commissioner takes steps to ensure that the role of Executive Director, Legal Services, provides independent legal advice.

The Commission considers that formal legal advice provided by Victoria Police’s Legal Services Department or the VGSO early in the registration process would act as an important safeguard, without the additional cost associated with obtaining legal advice from external lawyers, though Victoria Police could still seek external advice if and when it considered it necessary.

Registration of a reportable human source

Earlier in this chapter, the Commission recommended that the decision to register a reportable human source should be the responsibility of the Chief Commissioner or delegate of or above the rank of Assistant Commissioner. The Commission also considers that, for the reasons outlined above and in Chapter 13, the Chief Commissioner, in deciding whether to register a reportable human source, must have regard to formal legal advice and any recommendations made by the PIM before registering the person as a human source. They must also satisfy themselves of the key factors outlined earlier in the section, ‘Key considerations for registration decisions about all human sources’. In Chapter 13, the Commission makes recommendations about Victoria Police’s obligations to support the PIM’s role in these registration decisions and associated external oversight functions.

RECOMMENDATION 15

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, requires that:

  1. the Chief Commissioner of Victoria Police or their delegate must consider formal legal advice before deciding to register a reportable human source
  2. the Chief Commissioner or their delegate must have regard to any recommendations or submissions on the proposed registration that the Public Interest Monitor has made before deciding to register a reportable human source.
Registration of a reportable human source where it is intended to obtain or disseminate confidential or privileged information

In 2020, a new requirement was introduced to the Human Source Policy stating that, where Victoria Police intends to either obtain (that is, actively seek out) or disseminate confidential or privileged information from a human source, additional safeguards should apply; specifically, authorisation of the Deputy Commissioner, Specialist Operations.

The Commission considers that the proposed legislative framework should similarly impose enhanced safeguards in these circumstances, over and above those that apply to reportable human sources. This is because, rather than there being just a risk or a reasonable expectation that the use of a human source might result in obtaining confidential or privileged information, in this scenario there is an explicit intention to obtain or disseminate such information, which poses a greater risk of illegally or improperly obtaining evidence. In turn, this poses a heightened risk to the validity of criminal prosecutions or convictions and to the administration of justice more broadly.

In accordance with the test already envisaged by the Human Source Policy, the Commission considers that, under the proposed legislative framework, where Victoria Police wishes to register a person as a human source with a specific intent to obtain or disseminate confidential or privileged information, the Chief Commissioner or delegate of or above the rank of Assistant Commissioner must be satisfied not only that it is necessary and proportionate to do so, but also that there are exceptional and compelling circumstances to justify this course of action.

As with decisions to register reportable human sources, the decision maker must notify and consider the recommendation of the PIM (discussed further in Chapter 13). The PIM would apply the same test in forming a view about the registration; that is, whether there are exceptional and compelling circumstances to justify it.

The Commission considers that this test would only be met in circumstances where there is a serious threat to national security, the community, or the life and welfare of a person; and further, where the information is not able to be obtained through any other reasonable means.

The decision maker, as well as the PIM, would need to be satisfied that the public interest in averting such a serious threat outweighs the public interest in maintaining the confidentiality or privilege that attaches to the information. As with the decision to register a reportable human source, the Commission considers that this decision must be informed by formal legal advice provided by the Victoria Police Legal Services Department, the VGSO or external lawyers.

It is possible that any situation constituting exceptional and compelling circumstances would fall within an exception to the duty of confidentiality or privilege. The Commission nonetheless considers that the inclusion of an exceptional and compelling circumstances test in the legislative framework would provide clear guidance on the rare occasions where the intentional acquisition or dissemination of confidential or privileged information is permissible.

RECOMMENDATION 16

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources:

  1. requires that the Chief Commissioner of Victoria Police or their delegate must be satisfied that there are exceptional and compelling circumstances to justify the registration of a human source where Victoria Police intends to obtain or disseminate confidential or privileged information from that person
  2. provides that ‘exceptional and compelling circumstances’ be defined as circumstances where there is a serious threat to national security, the community or the life and welfare of a person; and where the information cannot be obtained through any other reasonable means
  3. requires that the Chief Commissioner or their delegate must consider formal legal advice before deciding to register a human source with the intention to obtain or disseminate confidential or privileged information from that person
  4. requires that the Chief Commissioner or their delegate must have regard to any recommendations or submissions on the proposed registration that the Public Interest Monitor has made before deciding to register a human source with the intention to obtain or disseminate confidential or privileged information from that person.

Changes in the scope of the registration

The risks of using a human source, their individual circumstances, and the nature of the information they provide or have access to may all change during their relationship with police.

It is possible that a human source originally assessed and registered as a non-reportable human source may subsequently fall into the category of a reportable human source—for example, after unexpectedly coming into possession of confidential or privileged information. In such cases, the Commission considers that any potentially confidential or privileged information provided should be quarantined so that it cannot be disseminated; the person’s registration should be cancelled (meaning they cannot be used as a human source) and a new application commenced to register the person as a reportable human source (if Victoria Police considers it necessary to continue using them as a source). In line with the registration process for reportable human sources recommended above, the Chief Commissioner (or delegate) would then be required to assess that new application, informed by legal advice and any recommendation of the PIM.

Similarly, there may be circumstances where a reportable human source has been registered with no expectation that they will provide confidential or privileged information but ends up doing so—for example, a lawyer who is registered on the basis that they are providing information about friends or relatives, but subsequently provides information about a client. As above, in these circumstances, the information should be quarantined so that it cannot be disseminated. As outlined in Chapter 13, the Commission also recommends that Victoria Police be required to report such instances to IBAC, which would have a role in monitoring Victoria Police’s compliance with the legislative and policy framework.

If, in either of these scenarios, Victoria Police wished to disseminate the confidential or privileged information, this would trigger the same requirements that apply to circumstances where there is an intention to register a person as a human source to obtain confidential or privileged information. That is, police would need to cancel the registration and commence a new application seeking the Chief Commissioner’s (or their delegate’s) authorisation, informed by legal advice and any recommendation of the PIM, on the basis that there are exceptional and compelling circumstances.

RECOMMENDATION 17

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, requires that where a reportable or non-reportable human source provides confidential or privileged information to police that was not expected or authorised at the time of their registration as a human source:

  1. Victoria Police must quarantine the confidential or privileged information
  2. Victoria Police must cancel the registration and commence a new application (if Victoria Police considers it necessary to continue using the person as a human source), in line with Recommendations 11, 15 and 16.
Emergency authorisations

The Commission recognises that there may be circumstances where there is a genuinely imminent threat to community safety or harm to a person, and Victoria Police must act promptly to counter that threat. Consequently, the Commission considers that the proposed legislation should include provisions enabling the Chief Commissioner to register a reportable human source without the involvement of the PIM in emergency situations.

The Commission considers that this would only be justifiable where there are exceptional and compelling circumstances (where there is a serious threat to national security, the community or the life and welfare of a person, and the information is not able to be obtained through any other reasonable means) and that threat is imminent.

This is broadly consistent with existing emergency authorisation provisions for the use of other covert powers and methods, such as those set out in the Surveillance Devices Act 1999 (Vic).

If Victoria Police were to make such an emergency authorisation, the Chief Commissioner should be required to provide the application materials to the PIM as soon as possible after registration, and the PIM should be able to examine the material and make recommendations as it considers necessary. This is addressed in more detail in Chapter 13.

RECOMMENDATION 18

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, allows the Chief Commissioner of Victoria Police or their delegate to make an emergency authorisation of a reportable human source. This power should only be used in circumstances where: there is a serious threat to national security, the community, or the life and welfare of a person; the threat is imminent; and the information is not able to be obtained through any other reasonable means.

Strengthening the decision-making model in advance of new legislation

As noted above, the Commission recommends a legislative framework under which the Chief Commissioner may register human sources or delegate that power to senior officers—of or above the rank of Assistant Commissioner in the case of reportable sources, and of or above the rank of Superintendent for non-reportable sources. A key benefit of this model is having a clear chain of command of individual officers accountable for the functioning of Victoria Police’s human source program.

The Commission considers that some of these benefits can be realised in advance of the proposed legislation through relatively straightforward interim amendments to the current decision-making model and associated requirements set out in the Human Source Policy.

The Commission recognises that Victoria Police recently adopted a new Human Source Policy that, among other things, reframed and expanded the categories of human sources whose registration requires Ethics Committee approval. The Commission also recognises that the introduction of new policies and processes involves substantial work to implement changes, update relevant guidance material, and communicate changes to officers. Thus, while recommending that certain new decision-making arrangements could be introduced in advance of the proposed legislation, the Commission is not recommending changes to the current categories of human sources set out in the Human Source Policy before the legislation is introduced. In this way, the Commission has sought to strike a balance between, on the one hand, remedying what it considers to be one of the most pressing issues in the current model; and on the other, ensuring that these remedies can be realistically achieved in the short-term, without creating unreasonable complexity and operational disruption for Victoria Police.

The Commission considers that the following changes could be introduced within 12 months, while the proposed new legislative framework is being developed, for the reasons outlined above:

  • The Assistant Commissioner, ICSC (rather than the Ethics Committee) should be responsible for making decisions about the registration of Category 1–3 human sources and the dissemination of confidential or privileged information obtained from any human source, to establish clear accountability for determining these higher-risk matters.
  • The CSR should be responsible for making decisions about the registration of human sources other than Category 1–3 human sources, which may require the appointment of an additional CSR or enabling the existing CSR to delegate certain decisions to an officer with appropriate seniority and experience.
  • In making decisions about the registration of Category 1 human sources and any dissemination of confidential or privileged information, the Assistant Commissioner, ICSC should be required to consider formal legal advice provided by the Victoria Police Legal Services Department, the VGSO or external lawyers, and other specialist advice where required in the case of Category 2 and 3 human sources.
  • Officers should not be required to seek approval through a multi-levelled process to ‘approach’ a prospective Category 1–3 human source and to subsequently follow the same process to register the source; however, the handling team should be required to seek advice from the HSMU before approaching such a person, and any subsequent registration application would require authorisation by the Assistant Commissioner, ICSC, as noted above. The Commission considers that, if there are robust processes in place for the registration of human sources and the dissemination of information they provide, a separate authorisation process for ‘approaching’ a prospective human source should not be necessary, and potentially pre-empts the matters to be considered and determined through the risk assessment and registration process.
  • Category 4 human sources should no longer form a separate and standalone category of human sources. These are people who pose risks that would not normally permit their registration but for the fact that the information they hold is of ‘extraordinarily high value’. The Commission considers that this category is unnecessary and undermines the risk assessment and registration process. While there may be certain people who are not normally suitable for registration as a human source, the very purpose of a risk assessment is to assess the prospective source and their individual circumstances to determine the nature and value of the information they can provide, the risks and issues arising from their use as a human source, whether those issues can be managed, and ultimately, whether their registration and use can be justified. Rather than forming a special category of human sources, the Commission considers that these people should be subject to a risk assessment as with any other source, and registered if the decision maker (Assistant Commissioner, ICSC or CSR) deems their registration necessary and appropriate.

The Commission suggests that if Victoria Police wishes to preserve its Ethics Committee, the policy should remove any ambiguity about its role by making clear that its role is advisory rather than determinative.

Later in this chapter, the Commission recommends that the OIC and LSR should no longer form part of the human source management organisational model, including decision-making and supervision processes. The Commission considers that this change should be implemented as part of broader organisational changes simultaneously with the introduction of the legislative framework, given that this would represent a more substantial change to the existing model.

RECOMMENDATION 19

That Victoria Police, within 12 months, implements changes to its decision-making model and associated requirements in the Human Source Policy, on an interim basis until the legislation proposed in Recommendation 8 comes into force. The Human Source Policy should:

  1. provide that the Assistant Commissioner, Intelligence and Covert Support Command, is responsible for decisions to register Category 1–3 human sources and to disseminate confidential or privileged information obtained from any human source
  2. provide that the Central Source Registrar is responsible for the registration of human sources other than Category 1–3 human sources
  3. require the Assistant Commissioner to consider formal legal advice in deciding whether to authorise the registration of a Category 1 human source or to disseminate confidential or privileged information, and to consider other specialist advice as required in deciding whether to register a Category 2 or 3 human source
  4. replace the requirement for officers to seek approval from the Human Source Ethics Committee to ‘approach’ a prospective Category 1–3 human source with a requirement for the handling team to consult with the Human Source Management Unit before approaching such a prospective source
  5. remove Category 4 human sources as a separate category under the Human Source Policy.

Improving the Human Source Policy

Victoria Police has made substantial efforts to improve and strengthen its Human Source Policy, most notably through amendments introduced in 2014, 2015, 2016 and 2018 in response to the Comrie Review and Kellam Report, and in May 2020, to incorporate additional measures designed to, among other things, manage the risks of obtaining and using confidential or privileged information from human sources.

Despite these efforts, the Commission considers that Victoria Police’s Human Source Policy needs further improvement; in particular, to:

  • set out clear principles and objectives to guide and inform officers about why the lawful and ethical management of human sources is important and necessary
  • support officers’ understanding of the interaction between human rights and human source management, and how to meet their obligations under the Charter
  • provide additional guidance about legal obligations of confidentiality or privilege, the potential consequences of obtaining confidential or privileged information from a human source, and how such information should be used, handled and disseminated
  • clarify and strengthen requirements relating to the AOR and sterile corridor.

These are discussed below.

Principles and objectives for the use and management of human sources

Human sources are individuals—consequently, they present unique motivations, behaviours, benefits and risks. It is not possible to prescribe rules for every potential scenario. Rather, processes must be sufficiently flexible to enable police to exercise appropriate discretion, and underpinned by clear principles and objectives to guide police decisions and actions in various situations and contexts.

The Commission considers that the Human Source Policy currently lacks these principles and objectives. For example, the policy refers briefly to the principles of necessity and proportionality, without articulating the factors to be considered by police officers in assessing whether the use of a human source is necessary and proportionate. It refers to certain types of people whose risks would ‘not normally permit registration’ but for the fact that the information they have is of ‘extraordinarily high value’—without explaining either of these terms or how officers should weigh up the competing risks and benefits. The policy mandates that supervising officers practise ‘intrusive supervision’ of the handler–source relationship but does not explain the purpose of supervision or why it is important.

In focus groups with the Commission, some participants observed that Victoria Police does not have a clear policy or strategic position on the use of human sources, their value to the organisation and whether their use should be increased or discouraged. Many participants demonstrated awareness of recent procedural changes; however, some either could not articulate the purpose of these changes or regarded them as reactive responses to recent reviews or the Commission’s inquiry, rather than thoughtful, evidence-based changes to improve the human source management framework.

The lack of appropriate guidance in the Human Source Policy, combined with a perceived lack of clear communication about why certain decisions are made, has contributed to varied views among officers about when human sources should and should not be used and why. Handlers and controllers in the Commission’s focus groups consistently expressed the view that decisions by senior officers about the registration of certain higher-risk sources are driven purely by the avoidance of reputational risk to Victoria Police, and that this is at the expense of detecting and preventing serious crime. In contrast, senior officers and decision makers repeatedly emphasised that registration decisions always weigh up competing public interests, and that certain higher-risk prospective sources are typically not registered because it is not in the public interest to do so.

Victoria Police needs to address this issue. It must do more than set out technical procedures in its Human Source Policy and expect unquestioning compliance among its officers. An effective policy framework requires coherent principles that encourage a shared understanding of the organisation’s expectations for the proper and ethical use of human sources. If officers do not respect and understand the basis of decisions and are not guided to consider and balance the relevant public interests themselves, there is a significant risk that their use and management of human sources will fall short of the standards now expected by Victoria Police.

The legislation recommended by the Commission would establish a publicly accessible and transparent framework for the regulation of the use and management of human sources, but it would not displace the need for internal policies and procedures. Rather, the Human Source Policy should complement and expand upon legislative requirements and provide officers with practical instruction and guidance about why these requirements exist and how to satisfy them.

The Commission considers that Victoria Police should undertake work to clearly set out the principles and objectives of its human source management program in the Human Source Policy, and that it should do so within 12 months, rather than waiting until the new legislation commences operation. Some of the Commission’s suggestions about the legislation’s objectives could usefully inform the development of this policy guidance.

The Commission also urges Victoria Police to adopt a careful and considered approach to this work, recognising that, as noted in Chapter 11, previous changes to the Human Source Policy have at times contributed to greater complexity and uncertainty for officers.

RECOMMENDATION 20

That Victoria Police, within 12 months:

  1. implements changes to its Human Source Policy to include a statement of the organisation’s objectives and guiding principles for the registration, use and management of human sources, including but not limited to principles of integrity, necessity and proportionality, accountability, effectiveness, consistency, and safety and sensitivity
  2. obtains operational input to inform the development of these objectives, principles and associated guidance.
A human rights-based approach in the use of human sources

The Commission found that Victoria Police’s current policy framework for human source management does not provide officers with adequate guidance to uphold their obligations under the Charter. A focus on human rights should underpin the entire period for which a human source is used and managed.

The strong emphasis on human rights in the United Kingdom’s framework, equally appropriate in Victoria given the Charter, puts necessity and proportionality at the forefront of police considerations of, and decisions about, the use of human sources. Several stakeholders told the Commission this emphasis also helps to engender community support for policing activities. The Commission considers that it is likely to result in more, not fewer, suitable individuals being prepared to become human sources.

The Commission is of the view that the Human Source Policy could be more instructive about how human rights are engaged, and how and whether they can be lawfully limited, through the use of human sources. This includes the right to a fair trial. One way to improve the policy would be to include hypothetical examples or scenarios that are relevant to the human source context. The Human Source Policy should also refer officers to the general guidance already provided within the Victoria Police Manual Policy Rules—Human rights equity and diversity standards.

Victoria Police has acknowledged it could do more to provide guidance to officers about how to apply human rights in practice. It submitted that this is the case across its broader operations, not just human source management, and noted that consistent with its ‘focus on ethical leadership, human rights will be a priority in training and policy development moving forwards’.366 The Commission supports Victoria Police in these endeavours, including through the incorporation of additional human rights guidance in the Human Source Policy.

The Commission also makes recommendations to foster a greater focus on human rights in Victoria Police’s risk assessment process and human source management training later in this section.

RECOMMENDATION 21

That Victoria Police, within 12 months, implements changes to its Human Source Policy to provide practical examples of the ways in which human source management can engage and limit the human rights set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic), and guidance for police officers in considering whether the use of a human source is necessary and proportionate.

Guidance about confidential and privileged information

The Commission’s focus groups with Victoria Police officers suggested that ambiguous policy and insufficient guidance have contributed to a lack of certainty and understanding among many officers about legal obligations of confidentiality and privilege. Without such an understanding, it is difficult for officers to fully appreciate the risks of obtaining and using confidential and privileged information, to identify where these risks might exist and seek appropriate advice, and to manage them carefully and in accordance with the policy requirements.

As outlined in Chapter 4, there can be considerable complexities in identifying what is confidential or privileged information and anticipating circumstances when it may be provided. Given the risks to investigations, prosecutions and possibly convictions that may flow from the disclosure or use of such information, it is critical that the human source management framework provides clear guidance to assist officers with this task. Such guidance should be buttressed by legal advice, discussed above, and comprehensive training, discussed below. The Commission considers that the policy needs to place greater emphasis on whether the information held by a prospective human source originated from a professional relationship and could create a conflict of interest for the source, as well as providing advice on the occupations in which legal obligations of confidentiality or privilege commonly arise. In making these changes, Victoria Police should seek advice from its Legal Services Department or the VGSO.

In addition to providing more guidance about when issues of confidentiality and privilege may arise, the Commission considers that police officers need clearer guidance about how to appropriately use, handle and disseminate confidential and privileged information.

The Commission notes that Victoria Police may also acquire confidential or privileged information through its other covert methods. While the Commission has not examined the processes for handling such information in detail, it may be beneficial for Victoria Police to consider aligning these processes with those recommended by the Commission, to ensure that there is a clear and consistent approach to managing confidential or privileged information across the organisation.

RECOMMENDATION 22

That Victoria Police, within 12 months, implements changes to its Human Source Policy to provide practical guidance to assist police officers to identify potentially confidential or privileged information. This guidance should include advice and examples relating to:

  1. the types of occupations and professional relationships that attract legal obligations of confidentiality or privilege
  2. the exceptions to legal obligations of confidentiality or privilege and when these may apply
  3. the implications of using confidential or privileged information, including the potentially adverse consequences for any resulting investigations, prosecutions or convictions
  4. when and how to seek further advice, including from the Human Source Management Unit.

Victoria Police should seek legal advice from its Legal Services Department or the Victorian Government Solicitor’s Office in developing this guidance.

RECOMMENDATION 23

That Victoria Police, within 12 months, implements changes to its Human Source Policy to provide clear requirements and instructions to police officers on the use and handling of confidential and privileged information, including in relation to the quarantine, retention, dissemination and destruction of such information.

Acknowledgement of Responsibilities

The Commission appreciates most human sources managed by Victoria Police do not have legal obligations of confidentiality or privilege. On the rare occasions that police do register such a source, the Commission considers that the AOR should clearly state that the source is not to provide confidential or privileged information (unless specifically authorised to do so, under the registration process outlined above, where it is intended to obtain and disseminate such information). The Commission heard that, in practice, the Ethics Committee would insist on setting this out in the AOR. Specifying this as a requirement in the Human Source Policy would help to ensure that it occurs in practice and that all officers dealing with human sources understand what must occur.

Further, as outlined in Chapter 11, while the Human Source Policy previously included a requirement that officers must not actively seek information from a human source that would cause the human source to breach a professional obligation—a requirement included in response to the Comrie Review and Kellam Report—this was removed from the most recent version of the policy. The Commission considers that, for the avoidance of doubt, the Human Source Policy should clearly state that officers are not to do this (again, unless specifically authorised under the registration process outlined above).

RECOMMENDATION 24

That Victoria Police, within 12 months, implements changes to its Human Source Policy to require that:

  1. when dealing with human sources involving legal obligations of confidentiality or privilege, the Acknowledgement of Responsibilities must clearly set out any limitations on the information a human source can provide
  2. police officers must not actively, without appropriate authority, seek information from a human source that would cause the human source to breach a legal obligation of confidentiality or privilege.

Handling a human source within a sterile corridor

Victoria Police’s Human Source Policy explains that human sources should be managed in a full or partial sterile corridor, and high-risk sources must be managed in a full or partial sterile corridor ‘to ensure the safety of the human source is not compromised in order to achieve investigative outcomes’. It follows that if a full sterile corridor is not in place, or not feasible, there are obvious risks that need to be managed.

The Commission acknowledges the sterile corridor may be difficult to strictly apply in practice, particularly under Victoria Police’s current model. It also recognises that any policy needs to be flexible enough to accommodate operational requirements; however, the Human Source Policy does not provide clear guidance on when the lack of a sterile corridor is permitted and why. Nor does it provide any guidance on how to manage the risks associated with a partial, or absent, sterile corridor. This creates the potential for inconsistent practice across Victoria Police and may compromise the safety and wellbeing of human sources if not managed appropriately.

Later in this chapter the Commission recommends a dedicated and centralised human source management model, which, if adopted, should go part of the way to addressing this risk. As this model may not be implemented for some time, the Commission considers that Victoria Police should take steps now to include clear guidance in the Human Source Policy on the requirement for a sterile corridor and when it may be appropriate not to adhere to this requirement.

Chapter 14 addresses Victoria Police’s efforts to manage disclosure issues arising from the sterile corridor approach.

RECOMMENDATION 25

That Victoria Police, within 12 months, implements changes to its Human Source Policy to provide clear instructions and practical guidance on the circumstances in which it may be appropriate to dispense with the requirement for a sterile corridor and the measures that officers should adopt to manage the associated risks.

Strengthening Victoria Police’s capability and capacity

In this section, the Commission considers Victoria Police’s capability and capacity to manage human sources, taking into account the Commission’s recommendations to introduce a new legislative framework and to strengthen the Human Source Policy.

Victoria Police’s organisational model

The Commission appreciates that Victoria Police’s current hybrid model for human source management provides flexibility for Regional Divisions to manage and allocate resources in response to operational needs.

Notwithstanding these benefits, there are significant limitations in the model and its ability to ensure the robust and ethical management of all human sources across Victoria. For example, the model increases the risk of poorly managed conflicts of interest, by allowing regional officers to manage sources directly linked to their investigations, contrary to the preference for a sterile corridor outlined in the Human Source Policy. It also creates an environment where some police officers manage human sources infrequently, sometimes years after having completed human source management training, reducing the likelihood of them understanding and adhering to current policy requirements.

In a submission to the Commission, Victoria Police acknowledged the limitations of the hybrid model, noting that the multi-level registration process could be simplified in a more centralised model, but also noted that the current process is necessary so that LSRs are sufficiently appraised of and able to effectively supervise operational activity in their local areas or units.367

Evidence before the Commission indicated not all police officers responsible for human source management are subject to rigorous supervision and management, in part due to supervising officers having no experience or specialised skills in this area. The hybrid human source management model makes it difficult for OICs and LSRs, in particular, to balance their human source management roles with a much broader set of operational and managerial responsibilities.

A centralised and dedicated human source management model means that human sources would only be handled by DSTs that report directly to centralised management. This would increase Victoria Police’s ability to ensure that all officers involved in human source management have the appropriate skills, training and experience to identify and manage the associated risks.

The Commission acknowledges Victoria Police may be concerned that removing OICs and LSRs from the human source management organisational model could diminish oversight of human source management in the regions. Victoria Police may wish to consult with Western Australia Police, noting it has successfully implemented a centralised model even though it is responsible for the largest geographic state in Australia. By contrast, Victoria is the second most populous state, but the second smallest in geographic area, which should be an advantage in implementing a centralised model.

Victoria Police’s Executive Command has given in-principle support to a more centralised and dedicated human source management model and the Commission supports this approach. While this would likely require an increase in resources allocated to human source management—along with work to attract and train police officers with the suitable attributes, particularly those to be based in regional areas—such a model would reflect both the importance of and the high level of risk associated with this function. It would also support the development of a specialised workforce capable of managing the particular challenges that arise in the use of human sources, including issues related to confidentiality and privilege. It is important, however, that any such model delivers services across Victoria and not solely in metropolitan areas, ensuring that the entire state benefits from Victoria Police’s investigative powers and methods.

The decision-making arrangements recommended in the preceding sections would be complemented by a centralised model, with a clear hierarchical management structure and designated responsibility for decision making. It would also provide Victoria Police with the opportunity to select officers with the appropriate skills, attributes and experience for human source management roles.

The Commission acknowledges that DSTs can pose an increased risk of police misconduct and corruption; for example, through handlers developing personal or otherwise inappropriate relationships with human sources over long periods of time. The Commission considers that this risk could be effectively managed through reasonable maximum time in position requirements, regular rotation of handlers and controllers of long-term human sources, and appropriate misconduct prevention strategies.

The Commission recognises Victoria Police already rotates officers through certain dedicated human source management roles and considers that these existing requirements should be applied and extended across all dedicated roles.

RECOMMENDATION 26

That Victoria Police, within two years, establishes an organisational model for the registration, use and management of human sources that provides for:

  1. the management of all human sources by dedicated source teams
  2. centralised internal oversight of the management of human sources by the Human Source Management Unit, the Central Source Registrar and the Assistant Commissioner, Intelligence and Covert Support Command.

RECOMMENDATION 27

That Victoria Police, within two years, removes the roles of Officer in Charge and Local Source Registrar from its decision-making process and organisational model for the registration, use and management of human sources.

RECOMMENDATION 28

That Victoria Police, within two years, introduces requirements limiting the maximum time that police officers can hold positions within dedicated source teams and the Human Source Management Unit to five years.

RECOMMENDATION 29

That Victoria Police, within two years:

  1. develops a prevention and detection strategy to mitigate the risk of misconduct and corruption that may arise from the implementation of a centralised and dedicated human source management model, taking into account the Commission’s findings and those of previous inquiries
  2. ensures that this strategy is regularly reviewed and refined as part of Victoria Police’s strategic management of this high-risk area of policing.
Risk assessment

A robust approach to the identification, assessment and mitigation of risk is essential for Victoria Police to manage human sources ethically and effectively.

Central to the decision to register a human source is the issue of whether the risks of their use can be appropriately and adequately mitigated; that is, reduced to an acceptable level. This assessment needs to be repeated regularly through the period of registration, so that any escalation in risk is identified and additional risk mitigation strategies put in place.

Initial risk assessments must consider all relevant factors for the engagement of a person as a human source, including whether their use as a source engages any human rights and is necessary and proportionate. They must provide decision makers with sufficient information to assess the nature and value of the information against the risks of using the person as a source and whether the decision to register a prospective source is justified and in the public interest. To do this, risk assessments must also include contrary information that could result in the rejection of the application, as is the case with similar covert intelligence and investigative methods.

The Commission has identified, and Victoria Police acknowledged, limitations with its current Initial Risk Assessment. One of these limitations is that it does not specifically prompt officers to consider if information to be provided by a human source is, or may be, confidential or privileged. The Initial Risk Assessment could better highlight the importance of considering the origin and nature of information to accurately assess risk.

Most participants in the Commission’s focus groups expressed the view that the Initial Risk Assessment is unnecessarily cumbersome and not fit for purpose. These shortcomings give rise to some serious risks:

  • creating a perverse incentive for officers to operate outside the process by using unregistered human sources
  • deterring officers from using human sources (and potentially limiting opportunities to detect and prevent serious crime)
  • causing officers to see the risk assessment as a meaningless exercise that is necessary only for compliance with the policy.

The Commission notes Victoria Police is reviewing its Initial Risk Assessment tool, and that the review is likely to streamline the assessment while also taking into account the issues identified as part of this inquiry.

The Commission acknowledges Victoria Police has recently implemented the One-off Risk Assessment for human sources providing information to Victoria Police on a single occasion and the Dynamic Risk Assessment, which is designed to assess changes in risk throughout the period of a source’s registration. Both assessments prompt officers to consider confidential and privileged information.

Victoria Police’s human source management risk assessments would benefit from explicit inclusion of fields that require officers to consider human rights and the necessity and proportionality of using the source. Documenting and providing reasoned analysis of human rights in human source risk assessments would assist officers to fulfil their obligations under the Charter and determine whether registration of a prospective human source is justified.

Additionally, Victoria Police should amend its risk assessments to prompt officers to consider the risks that the use of a human source could pose to the proper administration of justice. The Commission considers this would be best achieved by including additional questions and guidance within the category of ‘risk to the information or investigation’.

The work undertaken by Victoria Police to improve and strengthen its risk assessments is a positive step. To ensure that these changes are effective, the Commission recommends that Victoria Police engages an external expert to undertake a thorough evaluation of the revised tools after implementation.

RECOMMENDATION 30

That Victoria Police, within 12 months and as part of its current work to improve its human source risk assessments, develops guidance on how to assess:

  1. the source and nature of information reasonably expected to be provided by a human source, to identify whether that information could be confidential or privileged
  2. the risks that the use of a human source could pose to the proper administration of justice
  3. the engagement of any human rights set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic), including how any limitation is reasonable, necessary and proportionate in the circumstances.

RECOMMENDATION 31

That Victoria Police, within three years, engages an independent expert to evaluate and report on the effectiveness of its new human source management risk assessment tools, to determine whether they support effective identification and management of risks.

Supervision of the human source–handling team relationship

Active supervision and support of handlers and controllers is critical to the appropriate and ethical management of human sources.

While the Human Source Policy instructs all supervisors to exercise ‘intrusive supervision’, the Commission found the practical application of it is at best variable and often poor among some LSRs and OICs. Consistent and thorough supervision is best achieved when the people responsible have adequate time to do so rather than when they are trying to balance multiple, and often competing, operational priorities.

For these reasons and in line with the Commission’s recommendations for Victoria Police to adopt a dedicated and centralised model without the OIC and LSR roles, the Commission considers the supervision of handlers and controllers is best suited to the dedicated roles of the HSMU and the CSR.

It is not appropriate for senior officers to regard handlers and controllers as ‘experts’ who do not require close scrutiny, as demonstrated in Victoria Police’s management of Ms Gobbo. The Commission observed during its focus groups that this perception still has currency among some officers with supervisory functions. The risks associated with the use of human sources are such that, no matter how experienced a handler or controller may be, there should always be consistent and rigorous monitoring and oversight of the source’s management and the relationship between the source and the handling team.

The Commission considers that the Human Source Policy does not contain sufficient guidance for officers about why supervision is necessary and important, who is responsible for it and how they must acquit those responsibilities. It also conflates the processes of supervision and compliance monitoring (for example, reviewing files to ensure compliance with timeframes and other policy requirements). Supervision should go further than monitoring compliance and include active discussion with the handling team about how to manage the human source, testing and challenging their approach, and assisting them to identify and maintain strategies to manage risks.

RECOMMENDATION 32

That Victoria Police, within 12 months, implements changes to its Human Source Policy to provide clear instructions and practical guidance about who is responsible for supervision of the handling team, why effective supervision is necessary and how it should be applied in practice.

Human source management training

As outlined earlier in this chapter, all police officers involved in human source management are required to complete the basic online training course, and handlers and controllers of certain types of sources must complete a higher level of training.

The Commission found that until recently, Victoria Police’s human source management training courses have not addressed the risks associated with obtaining and using confidential and privileged information, nor the significance of human rights in determining whether the use and management of a human source is justified in all circumstances. This was evident in the confusion among some focus group participants about when these obligations may exist; although officers who had completed intermediate and specialised training generally had a stronger understanding of these concepts. The Commission’s proposed reforms to the Human Source Policy would assist in building officers’ understanding of confidentiality and privilege and human rights. This should be supported by comprehensive training on these issues.

During the Commission’s inquiry, Victoria Police made amendments to training and delivered tailored training courses, including a session on privilege and disclosure for some officers. It also updated the basic online training course to align with the Human Source Policy introduced in 2020 and include content on legal obligations of confidentiality or privilege and human rights.

Notwithstanding these improvements, the Commission has reviewed Victoria Police’s basic online training and considers that it is unsuitable as a minimum requirement for those with direct responsibility for human source management. It heard that the training may not equip officers with adequate practical skills to manage a human source or to fully understand their obligations under the Human Source Policy. The Commission therefore considers that basic online training should only be used to provide officers who are not in human source management roles with an understanding of general requirements for the management of human sources, and to assist them to identify issues for escalation to the HSMU (including issues of confidentiality or privilege).

In a submission, Victoria Police disagreed with the Commission’s views. It cautioned that, while it is receptive to conducting additional face-to-face training, this requires significant resourcing, particularly when officers may not be ‘particularly active in performing human source management activities’.368

While noting Victoria Police’s response, the Commission maintains that face-to-face training is necessary for officers who are responsible for managing human sources, or overseeing the handler–human source relationship. This would provide assurance that these officers have been sufficiently trained in, and understand, their responsibilities and how to identify and manage any risks. The Commission’s recommendation for Victoria Police to adopt a centralised and dedicated organisational model may reduce the number of officers able to manage human sources and therefore the number of officers requiring face-to-face training.

The Commission also considered whether the lack of specific training requirements for HSMU officers, the CSR and Assistant Commissioner, ICSC is appropriate. The Commission accepts Victoria Police’s view that because these officers are responsible for risk mitigation, supervision and governance rather than engaging with and managing human sources, the current training courses may not be necessary requirements for these roles.

They must, however, receive training that assists them to effectively supervise handling teams and to identify and manage the risks that commonly arise in human source management, including risks of non-compliance with policy requirements, risks of unethical or improper conduct and risks related to confidential and privileged information.

The Commission also considered the current lack of ongoing or ‘refresher’ training for officers involved in human source management. Many participants in the Commission’s focus groups suggested that human source management skills are perishable—they need to be reinforced and strengthened over time. The current lack of ongoing training and professional development relating to human source management means that there are Victoria Police officers handling sources who may not have completed any training for many years. The Commission considers that ongoing training is necessary to update officers’ knowledge and understanding of policy requirements and to reinforce and build on their existing skills to effectively manage human sources and the associated risks.

While human source management training is expensive, Victoria Police must ensure its officers are appropriately equipped for their roles.

Should Victoria Police adopt a dedicated and centralised human source management model in line with the Commission’s recommendations, it is likely that fewer officers would be involved in human source management across the organisation. Further, those who are involved in this work would be in dedicated roles; that is, focused only on human source management functions and responsibilities. This would enable training resources to be allocated in a more cost-effective way, with more intensive training, and ongoing training, delivered only to those officers who need it to undertake these roles.

RECOMMENDATION 33

That Victoria Police, within 12 months, develops guidance in its human source management training to assist police officers to identify confidential and privileged information, focusing on the origin of information and circumstances in which such information could be provided to police, including:

  1. how to identify potential legal obligations of confidentiality or privilege through the risk assessment process
  2. how to manage any professional conflicts of interest that may arise for a human source with legal obligations of confidentiality or privilege.

Victoria Police should seek legal advice from its Legal Services Department or the Victorian Government Solicitor’s Office in developing this training material.

RECOMMENDATION 34

That Victoria Police, within 12 months, develops guidance in its human source management training on:

  1. the human rights set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic) that are generally engaged by the management of human sources, including the right to life, the right to privacy and the right to a fair hearing
  2. how to assess whether the use of a human source unreasonably limits the human rights of the source or other people.

Victoria Police should seek input from the Victorian Equal Opportunity and Human Rights Commission in developing and delivering this training.

RECOMMENDATION 35

That Victoria Police, within 12 months, develops and implements training for controllers, the Human Source Management Unit, the Central Source Registrar and the Assistant Commissioner, Intelligence and Covert Support Command, focused on effective risk management, supervision, oversight and decision making in respect of the use of human sources. This training should include guidance on identifying confidential and privileged information, and the circumstances in which such information could be provided to police.

RECOMMENDATION 36

That Victoria Police, within 12 months, requires all handlers and controllers to successfully complete intermediate human source management training at a minimum.

RECOMMENDATION 37

That Victoria Police, within 12 months, introduces requirements for mandatory annual human source management training for all police officers with human source management responsibilities and timely training associated with any significant policy or legislative changes.

Information and communication technology system capability

Victoria Police has improved its information and communication technology systems over recent years, including enhancing Interpose to manage risks associated with human sources and the information they provide.

The Commission accepts that Interpose is limited in its capacity to provide a wholesale remedy to these risks. While a dedicated human source management system could undoubtedly bring benefits, the costs of such a system and the timeframe for its implementation are unknown.

While recent improvements to Interpose have increased the capability of police officers to identify, understand and manage issues relating to legal obligations of confidentiality or privilege, the Interpose system still has limitations. In particular, as discussed in Chapter 10, there is currently no field to capture whether information may be confidential or privileged and no simple automated way to search for human sources or information that may be subject to legal obligations of confidentiality or privilege. It is likely that these limitations impede effective audit and monitoring of the human source management program. The Commission encountered several challenges when undertaking its audit of human source files and seeking to obtain other human source information and data from Victoria Police.

The Commission considers that Interpose would be enhanced by the ability to record the origin of information provided by human sources and identify information that may be confidential or privileged.

While the Commission has not undertaken a detailed review of the functionality of Interpose, it notes that significant policy and operational changes will flow from its recommendations. Therefore, the Commission considers that Victoria Police should ensure Interpose has the necessary functionality to support robust and secure record-keeping for its human source management program and the effective implementation of the Commission’s recommendations. It also suggests that, if Interpose cannot be enhanced to do this, Victoria Police should ensure that the required functionality is built into the new case management system under consideration by Victoria Police.

RECOMMENDATION 38

That Victoria Police, within 12 months, enhances Interpose or develops some other system for recording details of the origin of information provided by human sources and how it was obtained.

RECOMMENDATION 39

That Victoria Police, within 12 months, reviews the broader functionality of Interpose to ensure that it will support the effective implementation of the Commission’s recommendations.

Internal audit and monitoring of compliance

Victoria Police has strengthened mechanisms for internal audit and monitoring of the human source program in recent years. The routine audits undertaken by CaRMU appear to have appropriate scope and frequency, covering a broad range of human source related activities. Further, the functional separation of CaRMU from the human source management program supports a rigorous and objective approach.

As CaRMU’s audits are predominantly focused on high-risk sources, there is a risk that low and medium-risk human sources may not be subject to adequate monitoring. Risk is fluid and subject to change—a low-risk source can quickly become a high-risk source due to a change in life or other circumstances. Further, improper or non-compliant management of a low or medium-risk source could potentially have consequences that are as severe as the consequences of inadequate management of a high-risk source.

There is also a possibility that officers may erroneously categorise a high-risk source as low or medium risk, or fail to identify all relevant risks. The Commission considers that expanding the reach of CaRMU’s audits to low and medium-risk sources is necessary to provide assurance that risks across the entirety of Victoria Police’s human source management program are being managed effectively. This may also address concerns noted by some focus group participants that the current audit program has a disproportionate focus on areas with already high rates of compliance.

In a submission, Victoria Police explained that CaRMU’s audits focus on high-risk human sources because the consequences of non-compliance with the Human Source Policy for these sources are likely to be magnified; however, ‘there are automated audit processes in Interpose, which are monitored by the HSMU, that apply to all human source registrations’.369

The Commission suggests that the Institute of Internal Auditors’ ‘three lines of defence’ model provides a useful way of looking at arrangements for managing the risks that arise from Victoria Police’s human source program. Under that model, ‘management control is the first line of [defence] in risk management, the various risk control and compliance oversight functions established by management are the second line of [defence], and independent assurance is the third.’370 The model provides ‘a simple and effective way to enhance communications on risk management and control by clarifying essential roles and duties’ in an organisation.371 Looking at the current arrangements in Victoria Police, the HSMU’s role is a hybrid of the first and second lines of defence, CaRMU is in the second line of defence and Professional Standards Command and Internal Audit constitute the third line of defence.

While acknowledging the HSMU’s audit activities, for the reasons above, the Commission considers that it would be preferable to extend CaRMU’s audit program to low and medium-risk human source registrations. The Commission also considers that it would be beneficial for Victoria Police to specify an ongoing program of CaRMU audits within its Human Source Policy so that officers involved in human source management have a clear understanding of the organisation’s requirements for internal audit and monitoring of the human source program.

The Human Source Policy outlines the responsibilities of the HSMU for reviews, audits and compliance reporting. The Commission observed that the HSMU performs a critical role in the day-to-day monitoring of compliance with the Human Source Policy by conducting reviews, undertaking quality assurance and providing specialist advice to handling teams.

The importance of the HSMU’s role was consistently recognised by focus group participants, who spoke about the substantial assistance, expert advice and support provided by the unit. The Commission noted, however, that the dual role of the HSMU undertaking compliance reviews and making decisions about registration of certain sources has the potential to create conflicts of interest.

Victoria Police told the Commission that while ‘the HSMU provides advice to members of the handling team, the advice is generally based on ensuring compliance’ with the Human Source Policy, and the CSR has a key role both in overseeing the HSMU and retaining overall authority on all human source governance functions.372

The Commission considers that CaRMU’s auditing role assists in managing these potential conflicts, and that the Commission’s recommendations earlier in this chapter to restrict registration decisions to individual senior officers would also help to address this risk.

In addition to clearly setting out the audit and compliance monitoring functions of the HSMU and CaRMU in the Human Source Policy, the Commission considers that it would also be beneficial to distinguish between the role of senior officers to directly supervise the management of a human source and monitor the handling team’s compliance with policy requirements, and the broader audit and compliance monitoring roles of HSMU and CaRMU in providing assurance across the whole human source management program.

Victoria Police would also benefit from a formalised regime for regular reporting on these audits to the Assistant Commissioner, ICSC to ensure executive oversight of any issues identified. There should also be additional reporting processes for any system-wide risks identified or major failings involving the use of human sources to the Audit and Risk Committee. This would assist with implementing a risk-based approach to human source management and better ensure Victoria Police Executive Command is appropriately informed of relevant issues so that they can be acted upon.

Should the Commission’s recommendations in Chapter 13 be adopted, IBAC would also have a role in monitoring Victoria Police’s compliance with its legislative and policy obligations relevant to human source management. This, together with the recommended measures below, would result in an internal audit and compliance program delivered by HSMU and CaRMU and overseen by the Assistant Commissioner, ICSC forming ‘the first two lines of defence’. The additional safeguards provided by the other aspects of the Commission’s proposed external oversight framework would create what is sometimes referred to as the ‘fourth line of defence’ in risk management.373

RECOMMENDATION 40

That Victoria Police, within 12 months, implements changes to its Human Source Policy and associated processes to:

  1. provide for six-monthly compliance audits of human source files at all risk levels by the Compliance and Risk Management Unit within the Intelligence and Covert Support Command
  2. clearly set out the compliance monitoring functions of both the Compliance and Risk Management Unit and the Human Source Management Unit.

RECOMMENDATION 41

That Victoria Police, within 12 months, implements changes to its Human Source Policy and associated processes to require that:

  1. the results of human source management audits be reported to the Assistant Commissioner, Intelligence and Covert Support Command
  2. any system-wide risks or major failings that are identified through human source management audits be reported to the Victoria Police Audit and Risk Committee.
Strategic oversight of the human source function

Victoria Police has made efforts to strengthen governance of its human source program over recent years, with systems in place for increased internal oversight and reporting on higher-risk matters. The Commission’s recommendation to reallocate the Ethics Committee’s decision-making role to the Assistant Commissioner, ICSC presents an opportunity to reconsider Victoria Police’s governance arrangements for its human source management program.

In Chapter 11, the Commission recommends that alongside Victoria Police’s Capability Plan 2016–2025, Victoria Police should establish clear processes for the review and management of human source management policies and procedures. To complement this work, the Commission considers there would be benefits in Victoria Police establishing an internal governance body to oversee implementation of the significant reforms recommended by the Commission and support effective change management across the organisation.

The Commission also considers that this internal body could perform an ongoing governance and advisory role, focused on identifying and examining emerging strategic risks and issues related to Victoria Police’s human source program, and providing strategic advice to the Assistant Commissioner, ICSC and Deputy Commissioner, Specialist Operations.

RECOMMENDATION 42

That Victoria Police, within three months, establishes a strategic governance committee to:

  1. contribute to the development, and oversee Victoria Police’s implementation of, the human source management reforms recommended by the Commission
  2. identify, address and monitor emerging risks, issues and opportunities in Victoria Police’s human source management program and provide strategic advice to the Assistant Commissioner, Intelligence and Covert Support Command and Deputy Commissioner, Specialist Operations
  3. be responsible for strategic planning for Victoria Police’s human source management program.

Funding and implementation

Victoria Police told the Commission that further changes to Victoria Police’s human source management program, such as a move to a dedicated human source management model, would require additional resourcing. While that may be the case, the Commission also notes human source management already receives ongoing funding and resourcing as it is part of Victoria Police’s current operational framework.

RECOMMENDATION 43

That the Victorian Government ensures Victoria Police is appropriately funded and resourced to implement the Commission’s recommendations.

Endnotes

1 The Commission acknowledges that all human sources, by their very nature, provide information that others expect them to keep secret and not disclose to the police and/or other people. This is different to information that is confidential because of a legal obligation associated with a professional relationship or because of a person’s occupation.

2 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 71 [11.8].

3 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020. This policy is dated 15 April 2020 but came into effect on 4 May 2020.

4 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 2.

5 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 1.

6 Exhibit RC1532b Victoria Police, Covert Services Division, Intelligence & Covert Support Command, Human Source Strategy 2018–2022 (draft v7): A Better Way to Manage Risk, Undated, 5.

7 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 1, 17 [4.5], 43 [21]–[22].

8 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 4.

9 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 1(1), pt 2. The human rights set out in the Charter are drawn primarily from the International Convention of Civil and Political Rights, opened for signature 16 December 1966, ATS 23 (entered into force 23 March 1976).

10 ‘Human Rights’, Victorian Equal Opportunity and Human Rights Commission (Web Page) < www.humanrights.vic.gov.au/for-individuals/human-rights&gt;.

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

12 Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 38(1)–(2); PJB v Melbourne Health (Patrick’s Case) (2011) VSC 327 [306], [309]–[312]; Antunovic v Dawson (2010) VSC 377 [70], [135]; Certain Children v Minister for Families and Children [2016] VSC 796 [206]; Baker v DPP [2017] VSCA 58 [57]–[58].

13 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 29–31 [8.4]–[8.6]. These additional safeguards are discussed in later in this chapter.

14 These occupational groups are based on the recommendations of the Kellam Report: Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015). Victoria Police’s implementation of the Kellam Report is covered in Chapter 11. See also Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 29–30 [8.3]–[8.5].

15 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 29 [8.4]. As discussed in Chapter 11, these are the occupations identified and mentioned in the Kellam Report: Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 86.

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

17 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 31 [8.6].

18 This data is based on people identified as either a lawyer, doctor, parliamentarian, court official, journalist or priest (described by Victoria Police as ‘Category 1’ human sources or the ‘Kellam Occupations’); or belonging to one of the following occupation categories: medical, parliament, government, religious, journalist (based on a manual search of human source files by Victoria Police). The Commission has manually adjusted the data to eliminate double counting of people belonging to both categories (for example, a doctor also identified as belonging to the ‘medical’ category). The data does not include people identified as having a ‘connection to’ a Category 1 human source (for example, the spouse of a lawyer), as introduced under the May 2020 version of the Human Source Policy.

19 The Human Source Policy contains examples of people classified as ‘Category 4’ human sources; however, these examples cannot be included in this final report due to a public interest immunity claim by Victoria Police. Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 29 [8.3], 32 [8.9].

20 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 29 [8.3].

21 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 10 [3.1].

22 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 47 [218]–[219].

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

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

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

26 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 14 [4.1], 26 [7.4].

27 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 13–14 [3.6].

28 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 12 [3.3].

29 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 18 [5.1].

30 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 14–15 [4.1], 18 [5.1].

31 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 18 [5.1].

32 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 18 [5.2].

33 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 29 [8.4].

34 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 10–11 [3.2], 15–16 [4.2].

35 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 8 [2.7].

36 The duty to authorise ‘low risk’ and ‘medium risk’ human sources is delegated by the CSR to the HSMU: Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 8 [2.7].

37 As mentioned earlier, Categories 2–4 are also referred to the Human Source Ethics Committee for authorisation of their recruitment or registration.

38 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 19 [5.3], 30–1 [8.6].

39 Based on Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 8 [2.7], 10–11 [3.2], 31 [8.6].

40 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 34 [8.15].

41 Exhibit RC1534b Victoria Police, Human Source Ethics Committee Terms of Reference, 12 April 2020, 3–4 [12].

42 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 29 [8.4].

43 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 29 [8.4];Exhibit RC1534b Victoria Police, Human Source Ethics Committee Terms of Reference, 12 April 2020, 3–4 [12].

44 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 31 [8.6].

45 Based on Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 10–11 [3.2], 29 [8.4], 31 [8.6].

46 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 12 [3.3].

47 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 12 [3.3].

48 Registration is authorised at two levels: Level 1: ‘Approved—Tasking may be undertaken’ and Level 2: ‘Approved—With Special Conditions’: Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 16 [4.3].

49 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 3.

50 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 39–40 [14].

51 Victoria Police, ‘One-off Human Source Registration—Risk Assessment’, Undated (Version 1.0) 1, produced by Victoria Police in response to a Commission Notice to Produce.

52 Victoria Police, ‘One-off Human Source Registration—Risk Assessment’, Undated (Version 1.0) 1, produced by Victoria Police in response to a Commission Notice to Produce.

53 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 39–40 [14].

54 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 39–40 [14].

55 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 39–40 [14].

56 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 39–40 [14].

57 Victoria Police’s operational policing is divided across four geographical regions and 12 commands, all of which are led by an Assistant Commissioner.

58 Victoria Police, ‘Untitled spreadsheet’, 27 July 2020, produced by Victoria Police in response to a Commission Notice to Produce.

59 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 59, 6, 9.

60 Exhibit RC1949 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 26 June 2020, Annexure A, 10.

61 Handlers of high-risk sources and officers from the HSMU have two opportunities to extend their original three-year tenure for another year, and senior handlers and controllers have one opportunity to extend their original five-year tenure for a further two years. All opportunities for extension are at the discretion of the Assistant Commissioner, Intelligence and Covert Support Command: Exhibit RC1949 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 26 June 2020, Annexure B, 10, 13.

62 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 23 [6.6].

63 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 23 [6.6].

64 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 19 [5.3]; Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14886.

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

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

67 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 22 [6.5].

68 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 22 [6.5].

69 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 17 [5].

70 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 17 [5], 43–4 [22]; Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 35 [159].

71 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 14 [3.6].

72 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 45 [214].

73 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 12 [3.3].

74 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 43–4 [22].

75 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 43 [22].

76 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 12 [3.3], 14 [3.6], 17 [5], 43–4 [22].

77 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 43–4 [22].

78 Exhibit RC1952 Statement of Assistant Commissioner Neil Paterson, 5 March 2020, 12 [89]–[91].

79 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 45 [215].

80 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 45–6 [215]; Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14911–12.

81 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 5 [1.4], 38 [12].

82 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 25 [7.3].

83 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 34 [8.14].

84 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 34 [8.14].

85 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 20 [6.1].

86 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 9 [2.8].

87 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 21 [6.1].

88 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 52 [235]; Victoria Police, ‘Human Source Management Training Evaluation Report (Version 3)’, 18 December 2019, 29 [10.3], produced by Victoria Police in response to a Commission Notice to Produce.

89 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 52 [235].

90 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 55 [250].

91 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 20 [6.1].

92 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 52 [235].

93 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 18 [5.2].

94 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 55 [253], 56 [256]–[257]; Victoria Police, ‘Outline of Changes to Basic Online Course’, Undated, 3, produced by Victoria Police in response to a Commission Notice to Produce.

95 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 55–6 [253]–[254], 58 [265].

96 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 53–4 [244]–[245].

97 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 20 [6.1].

98 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14902.

99 Responsive submission, Victoria Police, 28 September 2020, 3 [2.2]–[2.3].

100 Consultation with South Australia Police, 6 September 2019; Consultation with Tasmania Police, 12 September 2019; Consultation with Western Australia Police, 24 September 2019; Consultation with Queensland Police, 8 October 2019; Consultation with New South Wales Police, 4 March 2020; Consultation with Northern Territory Police, 4 March 2020.

101 Consultation with South Australia Police, 6 September 2019; Consultation with Tasmania Police, 12 September 2019; Consultation with Western Australia Police, 24 September 2019; Consultation with Queensland Police, 8 October 2019; Consultation with New South Wales Police, 4 March 2020; Consultation with Northern Territory Police, 4 March 2020.

102 Consultation with South Australia Police, 6 September 2019; Consultation with Tasmania Police, 12 September 2019; Consultation with Western Australia Police, 24 September 2019; Consultation with Queensland Police, 8 October 2019; Consultation with Northern Territory Police, 4 March 2020.

103 Consultation with South Australia Police, 6 September 2019; Consultation with Western Australia Police, 24 September 2019; Consultation with Queensland Police, 8 October 2019; Consultation with Northern Territory Police, 4 March 2020.

104 Consultation with South Australia Police, 6 September 2019; Consultation with Western Australia Police, 24 September 2019; Consultation with Queensland Police, 8 October 2019; Consultation with Northern Territory Police, 4 March 2020.

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

106 Consultation with South Australia Police, 6 September 2019; Consultation with Tasmania Police, 12 September 2019; Consultation with Western Australia Police, 24 September 2019; Consultation with Queensland Police, 8 October 2019; Consultation with New South Wales Police, 4 March 2020.

107 Consultation with South Australia Police, 6 September 2019; Consultation with Tasmania Police, 12 September 2019; Consultation with Western Australia Police, 24 September 2019; Consultation with Queensland Police, 8 October 2019; Consultation with New South Wales Police, 4 March 2020; Consultation with Northern Territory Police, 4 March 2020.

108 Consultation with South Australia Police, 6 September 2019; Consultation with Western Australia Police, 24 September 2019.

109 Consultation with South Australia Police, 6 September 2019; Consultation with Tasmania Police, 12 September 2019; Consultation with Western Australia Police, 24 September 2019; Consultation with Queensland Police, 8 October 2019; Consultation with New South Wales Police, 4 March 2020; Consultation with Northern Territory Police, 4 March 2020.

110 Consultation with New South Wales Police, 4 March 2020.

111 Consultation with Tasmania Police, 12 September 2019. These are discussed in more detail later in this chapter under ‘Challenges and opportunities’.

112 Consultation with South Australia Police, 6 September 2019; Consultation with Tasmania Police, 12 September 2019; Consultation with Western Australia Police, 24 September 2019; Consultation with Queensland Police, 8 October 2019.

113 Consultation with South Australia Police, 6 September 2019; Consultation with Western Australia Police, 24 September 2019; Consultation with Queensland Police, 8 October 2019; Consultation with Northern Territory Police, 4 March 2020.

114 Consultation with South Australia Police, 6 September 2019; Consultation with Western Australia Police, 24 September 2019; Consultation with Tasmania Police, 12 September 2019.

115 Although lawyers and doctors are generally prohibited from being used as human sources under Northern Territory Police’s human source policy, those who work in legal or medical workplaces (for example, a receptionist at a law firm) are not: Consultation with Northern Territory Police, 4 March 2020.

116 Section 12 of the Evidence Act 1939 (NT) establishes medical privilege. Under section 12, a medical practitioner must not disclose any doctor-patient communication in civil proceedings without the patient’s consent. This privilege, however, does not cover any communication made for a criminal purpose. Additionally, Part 7 of the Evidence Act protects confidential communications between a victim and their counsellor from disclosure in sexual assault proceedings. This protection does not extend to any information that: the victim or their guardian consents to be produced in evidence; is acquired by a doctor or nurse during a physical examination of the victim; or demonstrates a criminal fraud or perjury.

117 New South Wales Police, Human Source Management Policy (June 2019) [3.2.1].

118 New South Wales Police, Human Source Management Policy (June 2019) [3.2.1].

119 Minister for Home Affairs, Minister’s Guidelines in relation to the performance by the Australian Security Intelligence Organisation of its functions and the exercise of its powers (August 2020) 2.

120 Minister for Home Affairs, Minister’s Guidelines in relation to the performance by the Australian Security Intelligence Organisation of its functions and the exercise of its powers (August 2020) 11–12 [3.4].

121 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 49 [5.30]. Victoria Police has also undertaken research tours to these countries. For example, in 2010 then Assistant Commissioner Jeffrey (Jeff) Pope and Acting Inspector Brian Horan visited the United Kingdom, the United States of America and Canada from 31 May to 18 June and met with ‘police and related agencies’. The purpose of their visit ‘was to learn more about their intelligence models and capability, their sex offender and human source management programs and to discover how organised crime and other intelligence related policing issues were being tackled’: Victoria Police, ‘2010 visit to the UK, USA and Canada by Victoria Police’, 2, produced by Victoria Police in response to a Commission Notice to Produce.

122 See, eg, Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 30 [4.33]; Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14853.

123 Consultation with New Zealand Police, 20 September 2019.

124 Consultation with New Zealand Police, 20 September 2019.

125 Consultation with Royal Canadian Mounted Police, 19 September 2019.

126 ‘About the Office’, United States Department of Justice (Web Page, 17 July 2018) < www.justice.gov/ag/about-office&gt;.

127 Office of the Attorney General (US), The Attorney General’s Guidelines regarding the use of confidential informants (2002) 1.

128 In 2006, the United States Department of Justice issued the Federal Bureau of Investigations with its own set of Guidelines. Prior to the issuing of the FBI Guidelines, the FBI was governed by the 2002 Attorney General’s Guidelines regarding the use of confidential informants that apply to all other Department of Justice law enforcement agencies.

129 Office of the Attorney General (US), The Attorney General’s Guidelines regarding the use of confidential informants (2002) 7, 14; Office of the Attorney General (US), The Attorney General’s Guidelines regarding the use of FBI confidential human sources (2006) 17–18.

130 Consultation with United States Drug Enforcement Administration, 27 August 2019.

131 Consultation with United States Drug Enforcement Administration, 27 August 2019.

132 There is also Congressional Oversight of the DEA Sensitive Activities Committee: Consultation with United States Drug Enforcement Administration, 27 August 2019.

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

134 Exhibit RC1541 Regulation of Investigatory Powers Act 2000 (UK) pt 2 ss 26–48. While the Regulation of Investigatory Powers (Scotland) Act 2000 (Scot) applies in Scotland, this largely replicates the RIPA. For ease of reference, the Commission has focused primarily on the statutory framework set by the RIPA.

135 Exhibit RC1543 Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010 (UK) SI 2010/123; Exhibit RC1542 Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 (UK) SI 2010/521; Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) issued pursuant to s 71 of the Regulation of Investigatory Powers Act 2000 (UK).

136 Exhibit RC1541 Regulation of Investigatory Powers Act 2000 (UK) pt IV ss 57–64. The Investigatory Powers Act 2016 (UK) establishes the Investigatory Powers Commissioner and other Judicial Commissioners. In 2017, IPCO assumed responsibility for the oversight of investigatory powers from the Office of Surveillance Commissioners, the Interception of Communications Commissioner’s Office, and the Intelligence Services Commissioner.

137 Khan v United Kingdom (2000) 5 Eur Court HR 279.

138 Contrary to Article 8(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature on 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953). Prior to the Regulation of Investigatory Powers Act 2000 (UK), the Home Office’s Guidelines on the Use of Equipment in Police Surveillance Operations (Home Office, 1984) regulated the use of covert listening devices until Part III of the Police Act 1997 (UK) came into force on 22 February 1999. These guidelines were not reflected in law: Khan v United Kingdom (2000) 5 Eur Court HR 279.

139 See United Kingdom, Parliamentary Debates, House of Commons, 6 March 2000, [767]–[768] (Jack Straw, Secretary of State for the Home Department); Exhibit RC1541 Regulation of Investigatory Powers Act 2000 (UK) s 29(2); Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 15 [3.3]–[3.5].

140 Exhibit RC1541Regulation of Investigatory Powers Act 2000(UK) s 29(3).

141 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 15–16 [3.5].

142 Exhibit RC1541 Regulation of Investigatory Powers Act 2000 (UK) ss 29(4), 30(1). In contrast to Victoria, the Regulation of Investigatory Powers Act 2000 (UK) s 32(6)(a) provides that a Chief Constable of a police service is the ‘senior authorising officer’ who has authority to approve an authorisation for ‘intrusive surveillance’. The position of Chief Constable in the United Kingdom is the equivalent of the Chief Commissioner of Police in Victoria.

143 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 10 [2.12]. See also Exhibit RC1541 Regulation of Investigatory Powers Act 2000 (UK) s 80.

144 In the United Kingdom police services, ranks are as follows: Constable; Sergeant; Inspector; Chief Inspector; Superintendent; Chief Superintendent; Assistant Chief Constable; Deputy Chief Constable; and Chief Constable. See Exhibit RC1542 Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 (UK) SI 2010/521, Part 3 and Schedule Part 1.

145 Exhibit RC1541Regulation of Investigatory Powers Act 2000(UK) ss 43(1)(a)(b), 43(3).

146 Exhibit RC1541 Regulation of Investigatory Powers Act 2000 (UK), Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010 (UK) SI 2010/123; Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 44 [8.27]–[8.28].

147 Police Act 1997 (UK) ss 98(2)–(3).

148 Police Act 1997 (UK) s 98(5)(b).

149 Police Act 1997 (UK) ss 99–100.

150 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) Annex A; Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010 (UK) SI 2010/123, s 4(2).

151 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 49–50 [8.59]; Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010 (UK) SI 2010/123, s 8(1)(b).

152 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 50 [8.60], Annex A.

153 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 50 [8.60].

154 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 50 [8.60].

155 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 44 [8.27], Annex A.

156 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 45 [8.33].

157 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 45 [8.33].

158 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 50 [8.61].

159 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 48 [8.51].

160 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 51 [8.62]–[8.65].

161 Some of these laws were enacted as a result of a 2003 Standing Committee of Attorneys-General and Australasian Police Ministers Council Joint Working Group on National Investigation Powers report proposing that model laws for a national set of powers for cross-border investigations be developed. According to that report, the model laws aimed to enhance arrangements for investigating multi-jurisdictional crime. See, The Standing Committee of Attorneys-General and Australasian Police Ministers Council Joint Working Group on National Investigation Powers, Cross-border Investigative Powers for Law Enforcement (Report, November 2003) [i]–[iii]. In Victoria, examples of the legislation governing these powers include the Crimes (Assumed Identities) Act 2004 (Vic) for undercover investigations; Crimes (Controlled Operations) Act 2004 (Vic) for controlled operations; Surveillance Devices Act 1999 (Vic) for surveillance; and the Telecommunications (Interception and Access) Act 1979 (Cth) and the Telecommunications (Interception) (State Provisions) Act 1988 (Vic) for the interception of telephones or similar devices.

162 Surveillance Devices Act 1999 (Vic) s 14.

163 Surveillance Devices Act 1999 (Vic) s 17(2).

164 Surveillance Devices Act 1999 (Vic) s 12D.

165 Surveillance Devices Act 1999 (Vic) s 12C.

166 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24.

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

168 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 41 [191], 42 [197]–[198].

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

170 Submission 111 Victorian Equal Opportunity and Human Rights Commission, 7.

171 Submission 130 Clive Harfield, 3 [17]–[19], 4 [23], 6 [29].

172 Exhibit RC1541 Regulation of Investigatory Powers Act 2000(UK) ss 29(2), (3); Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 10 [2.12], 15 [3.5], 16 [3.9], 46–7 [8.45].

173 Consultation with United Kingdom Home Office, 13 November 2019.

174 Consultation with Police Service Northern Ireland, 4 September 2019; Consultation with United Kingdom Home Office, 13 November 2019; Consultation with United Kingdom National Crime Agency, 28 April 2020.

175 Consultation with Police Service Northern Ireland, 4 September 2019; Consultation with Police Scotland, 5 September 2019; Consultation with United Kingdom Home Office, 13 November 2019. Police Scotland pointed to the benefits of the Regulation of Investigatory Powers (Scotland) Act 2000 (UK), which is broadly consistent with the RIPA.

176 Consultation with United Kingdom National Crime Agency, 28 April 2020.

177 See, eg, Office of Police Integrity, Past Patterns—Future Directions, Victoria Police and the problem of corruption and serious misconduct (Parliamentary paper 4, February 2007); Office of Police Integrity, Annual Report 2008 (Report, 2008) 16–17; Exhibit RC0108 Review of the Victoria Police Drug Squad, November 2001.

178 Consultation with Professor Alexandra Natapoff, 11 September 2019.

179 Exhibit RC1540 Statement of Sir Jonathan (Jon) Murphy, 28 April 2020, 11 [74].

180 Consultation with Independent Broad-based Anti-corruption Commission, 24 April 2020; Consultation with Dr John Buckley, 12 September 2019; Submission 98 International Commission of Jurists Victoria, 20 [32].

181 Consultation with Independent Broad-based Anti-corruption Commission, 24 April 2020.

182 Consultation with Public Interest Monitor, 11 March 2020.

183 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 81 [345].

184 See, eg, Standing Committee of Attorneys-General and Australasian Police Ministers Council Joint Working Group on National Investigation Powers, Cross-border Investigative Powers for Law Enforcement (Report, November 2003) [ii].

185 Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2004, [852]–[853] (Andrew McIntosh).

186 Exhibit RC1540 Statement of Sir Jonathan (Jon) Murphy, 28 April 2020, 3 [23]–[26].

187 Consultation with United Kingdom National Crime Agency, 28 April 2020; Consultation with Police Service Northern Ireland, 4 September 2019; Consultation with Police Scotland, 5 September 2019.

188 Consultation with United Kingdom Investigatory Powers Commissioner’s Office, 12 September 2019.

189 Consultation with United Kingdom Home Office. 13 November 2019.

190 For example, the Investigatory Powers Act 2016 (UK) updated and consolidated existing rules under the Regulation of Investigatory Powers Act 2000 (UK), to modernise legislation for investigatory powers involving digital tools activities, such as the intercepting of communications via email. The Code of Practice was updated in 2018 to align the use of human sources with covert surveillance powers and associated processes: Consultation with United Kingdom Home Office, 13 November 2019.

191 Consultation with Independent Broad-based Anti-corruption Commission, 24 April 2020.

192 Consultation with South Australia Police, 6 September 2019.

193 Consultation with Queensland Police, 8 October 2019.

194 Exhibit RC1540 Statement of Sir Jonathan (Jon) Murphy, 28 April 2020, 6 [42].

195 Consultation with Tasmania Police, 12 September 2019; Consultation with Western Australia Police, 24 September 2019; Consultation with South Australia Police, 6 September 2019; Consultation with Queensland Police, 8 October 2019; Consultation with Northern Territory Police, 4 March 2020.

196 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 68 [304].

197 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 30 [4.33].

198 Consultation with New South Wales Crime Commission, 18 November 2019; Consultation with Northern Territory Police, 4 March 2020; Consultation with New South Wales Police, 4 March 2020.

199 Submission 101 Australasian Institute of Policing, 15 [44], 17.

200 Consultation with Australian Federal Police, 10 July 2020.

201 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 68 [302].

202 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 69 [306].

203 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 69 [306].

204 Consultation with New South Wales Crime Commission, 18 November 2019; Consultation with New South Wales Police, 4 March 2020; Consultation with South Australia Police, 6 September 2019; Consultation with Tasmania Police, 12 September 2019.

205 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 86–7; Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14864.

206 Consultation with South Australia Police, 6 September 2019; Consultation with Western Australia Police, 24 September 2019; Consultation with Queensland Police, 8 October 2019; Consultation with Northern Territory Police, 4 March 2020.

207 The focus groups were conducted when an earlier version of the Human Source Policy, dated 2018, was in place.

208 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14870–1. See also 14951–2.

209 Consultation with Sir Jonathan (Jon) Murphy, 11 October 2019.

210 Consultation with Mr Gary Dobson, 15 October 2019.

211 Exhibit RC1531b, Victoria Police Manual—Human Sources, 15 April 2020, 28–31 [8.1]–[8.6]; Exhibit RC1949 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 26 June 2020, Annexure B, 12.

212 Consultation with South Australia Police, 6 September 2019; Consultation with Western Australia Police, 24 September 2019; Consultation with Queensland Police, 8 October 2019; Consultation with New Zealand Police, 20 September 2019.

213 Consultation with Northern Territory Police, 4 March 2020.

214 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14888.

215 Consultation with Western Australia Police, 24 September 2019; Consultation with Northern Territory Police, 4 March 2020, Consultation with New Zealand Police, 20 September 2019.

216 Consultation with Tasmania Police, 12 September 2019; Consultation with Queensland Police, 8 October 2019; Consultation with South Australia Police, 6 September 2019.

217 Exhibit RC1540 Statement of Sir Jonathan (Jon) Murphy, 28 April 2020, 7 [51]–[53].

218 Transcript of Sir Jonathan Murphy, 13 May 2020, 14972.

219 Exhibit RC1171b Statement of Mr Kenneth (Ken) Lay, 9 February 2020, 2–3; Transcript of Mr Kenneth (Ken) Lay, 10 February 2020, 13560–1.

220 Transcript of Mr Kenneth (Ken) Lay, 10 February 2020, 13560–1.

221 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14878, 14891.

222 Responsive submission, Victoria Police, 28 September 2020, 7 [5.5].

223 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14890, 14895–7.

224 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 12 [58].

225 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14887–9.

226 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14883, 14888–90.

227 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14891, 14897.

228 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14897.

229 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 27 [131]; Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14876–7.

230 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14876–8.

231 Consultation with Professor Alexandra Natapoff, 11 September 2019.

232 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 55 [5.61].

233 Consultation with Police Service of Northern Ireland, 4 September 2019.

234 Consultation with United Kingdom National Crime Agency, 28 April 2020.

235 Consultation with Queensland Police, 8 October 2019.

236 The engagement with the Principal Legal Officer is currently on an ‘as needs’, case-by-case basis; however, it is intended that this engagement will have a more formalised structure with the implementation of a new Human Source Policy and guidelines, which remained under development at the time of this report: Consultation with Tasmania Police, 12 September 2019.

237 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 34–5 [158]–[159].

238 Exhibit RC1949 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 26 June 2020, Annexure A, 10.

239 Victoria Police, ‘Victoria Police—Human Source Risk Assessment (Version 2)’, May 2015, 6, produced by Victoria Police in response to a Commission Notice to Produce.

240 Victoria Police, ‘One-off Human Source Registration—Risk Assessment (Version 1.0)’, Undated, 1, produced by Victoria Police in response to a Commission Notice to Produce; Victoria Police, ‘Human Source Dynamic Risk Assessment’, 3, produced by Victoria Police in response to a Commission Notice to Produce.

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

242 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14875–6.

243 Submission 111 Victorian Equal Opportunity and Human Rights Commission, 3–4.

244 ‘Human Rights’, Victorian Equal Opportunity and Human Rights Commission (Web Page) < www.humanrights.vic.gov.au/for-individuals/human-rights&gt;.

245 Email from Neil Comrie to the Commission, 13 November 2019; Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 20, 61.

246 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14884–5.

247 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14884–5.

248 Exhibit RC1540, Statement of Sir Jonathan (Jon) Murphy, 28 April 2020, 12 [76].

249 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 15–16 [3.5].

250 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 27 [5.11].

251 Consultation with Mr Gary Dobson, 15 October 2019. The Commission was not able to independently confirm that the number of registered human sources declined in New South Wales following the Royal Commission into the New South Wales Police Service (commonly known as the ‘Wood Royal Commission’).

252 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 57, 22–33.

253 Exhibit RC1532b Victoria Police, Covert Services Division, Intelligence & Covert Support Command, Human Source Strategy 2018–2022 (draft v7): A Better Way to Manage Risk, Undated, 2, 14. This draft document was not progressed nor endorsed by Victoria Police Executive Command; however, Ms Steendam told the Commission it was drafted by relevant members of the Intelligence and Covert Support Command who were subject matter experts: see Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14867.

254 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 35 [159], 37 [171].

255 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14900.

256 See, eg, Confidential consultation, 4 February 2020; Consultation with Queensland Police, 8 October 2019.

257 Consultation with New Zealand Police, 20 September 2019; Consultation with Queensland Police, 8 October 2019.

258 Consultation with Queensland Police, 8 October 2019.

259 Consultation with Dr Adrian James, 6 November 2019.

260 Consultation with Adjunct Associate Professor Charl Crous and Associate Professor Pamela Henry, 10 September 2019.

261 Consultation with New Zealand Police, 20 September 2019; Consultation with Sir Jonathan (Jon) Murphy, 11 October 2019.

262 Consultation with Western Australia Police, 24 September 2019; Exhibit RC1540 Statement of Sir Jonathan (Jon) Murphy, 28 April 2020, 11 [74].

263 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14896.

264 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14896.

265 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 71 [11.8].

266 The focus groups were conducted when an earlier version of the Human Source Policy, dated 2018, was in place. The policy provisions relating to ‘intrusive supervision’ under that policy are the same as those under the current version of Human Source Policy.

267 Exhibit RC1532b Victoria Police, Covert Services Division, Intelligence & Covert Support Command, Human Source Strategy 2018–2022 (draft v7): A Better Way to Manage Risk, Undated, 2, 6–7, 13.

268 Exhibit RC1532b Victoria Police, Covert Services Division, Intelligence & Covert Support Command, Human Source Strategy 2018–2022 (draft v7): A Better Way to Manage Risk, Undated, 13.

269 Exhibit RC1540 Statement of Sir Jonathan Murphy, 28 April 2020, 7 [52].

270 Consultation with Dr Adrian James, 6 November 2019.

271 Consultation with Royal Canadian Mounted Police, 19 September 2019; Consultation with New Zealand Police, 20 September 2019; Consultation with Police Scotland, 5 September 2019.

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

273 Victoria Police, ‘Human Source Management Training Evaluation Report (Version 3)’, 18 December 2019, 29 [10.3], produced by Victoria Police in response to a Commission Notice to Produce.

274 Victoria Police, ‘Human Source Management Training Evaluation Report (Version 3)’, 18 December 2019, 29 [10.3], produced by Victoria Police in response to a Commission Notice to Produce.

275 Victoria Police, ‘Human Source Management Training Evaluation Report (Version 3)’, 18 December 2019, 29 [10.3], produced by Victoria Police in response to a Commission Notice to Produce.

276 Consultation with Dr John Buckley, 12 September 2019.

277 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 53–4 [244]–[245].

278 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 20 [6.1]. The Commission has adopted this somewhat vague terminology due to a claim of public interest immunity by Victoria Police.

279 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 54 [249]; Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14904, 14906–7.

280 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 54 [246]; Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14903.

281 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14906.

282 Responsive submission, Victoria Police, 28 September 2020, 3–4 [2.5].

283 Responsive submission, Victoria Police, 28 September 2020, 3 [2.3], 3–4 [2.5].

284 Consultation with Royal Canadian Mounted Police, 19 September 2019; Consultation with Police Scotland, 5 September 2019; Consultation with Police Service Northern Ireland, 4 September 2019.

285 Consultation with Sir Jonathan (Jon) Murphy, 11 October 2019; Transcript of Sir Jonathan (Jon) Murphy, 13 May 2020, 15004–5.

286 Exhibit RC1540 Statement of Sir Jonathan (Jon) Murphy, 28 April 2020, 9 [61].

287 Exhibit RC1540 Statement of Sir Jonathan (Jon) Murphy, 28 April 2020, 11 [74].

288 Exhibit RC1540 Statement of Sir Jonathan (Jon) Murphy, 28 April 2020, 9 [60].

289 Consultation with Western Australia Police, 24 September 2019; Consultation with Queensland Police, 8 October 2019.

290 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 55 [253]; Exhibit RC1949 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 26 June 2020, Annexure A, 6.

291 Exhibit RC1949 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 26 June 2020, Annexure A, 6.

292 Exhibit RC1949 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 26 June 2020, Annexure B, 12; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 9, 13, 14, 16, 17, 19, 25; Victoria Police, ‘Outline of Changes to Basic Online Training’, Undated, 9, produced by Victoria Police in response to a Commission Notice to Produce.

293 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 54 [249], 57 [259]–[263]; Exhibit RC1949 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 26 June 2020, Annexure B, 12.

294 Victoria Police, ‘Human Source Management Training Evaluation Report’, 18–21 [9]–[10.6], produced by Victoria Police in response to a Commission Notice to Produce.

295 Exhibit RC1949 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 26 June 2020, Annexure B, 12; Responsive submission, Victoria Police, 28 September 2020, 4 [2.5], 5–6 [4.2].

296 Consultation with United Kingdom College of Policing, 4 December 2019.

297 Consultation with Sir Jonathan (Jon) Murphy, 11 October 2019.

298 Exhibit RC1949 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 26 June 2020, Annexure A, 6–7.

299 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 17 August 2020, 3.

300 Victoria Police, ‘Outline of Changes to Basic Online Training’, Undated, 3, produced by Victoria Police in response to a Commission Notice to Produce.

301 Consultation with United Kingdom College of Policing, 4 December 2019.

302 Consultation with Dr John Buckley, 12 September 2019.

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

304 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 65 [288]; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 12 [3.44].

305 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 12 [3.44], 27 [4.18], 70 [11.6], 71 [11.8].

306 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 61 [281].

307 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 62–3 [286].

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

309 Victoria Police’s Law Enforcement Assistance Program (LEAP) is an online database that stores information about all crimes, family incidents and missing persons bought to police attention.

310 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 65 [288].

311 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 66 [293], 67 [301]; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 56 [5.65].

312 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 50 [229], 66 [291].

313 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 44–6 [208]–[216].

314 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 44 [208].

315 Consultation with Dr Adrian James, 6 November 2019.

316 Consultation with Mr Gary Dobson, 15 October 2019.

317 Consultation with Queensland Police, 8 October 2019; Consultation with Tasmania Police, 12 September 2019; Consultation with Northern Territory Police, 4 March 2020; Consultation with Western Australia Police, 24 September 2019.

318 See, eg, Consultation with Tasmania Police, 12 September 2019.

319 See, eg, Consultation with the New South Wales Crime Commission, 18 November 2019; Consultation South Australia Police, 6 September 2019.

320 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 45–46 [215].

321 Responsive submission, Victoria Police, 28 September 2020, 10 [5.21].

322 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14912.

323 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14912–13.

324 Victoria Police, Annual Report 2018–19, (Report, October 2019) Appendix E, 55.

325 This audit was conducted against the provisions of the previous Human Source Policy: Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 48; Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 47–8 [221]–[222]; Exhibit RC1952 Statement of Assistant Commissioner Neil Paterson, 5 March 2020, 13–14 [102]–[107].

326 This audit was conducted against the provisions of the previous Human Source Policy: Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019; Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 47–8 [221]–[223]; Exhibit RC1952 Statement of Assistant Commissioner Neil Paterson, 5 March 2020, 13–14 [102]–[107].

327 Exhibit RC1532b Victoria Police, Covert Services Division, Intelligence & Covert Support Command, Human Source Strategy 2018–2022 (draft v7): A Better Way to Manage Risk, Undated, 2, 5, 6, 15.

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

329 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 31 [8.6].

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

331 Consultation with Public Interest Monitor, 11 March 2020.

332 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 31 March 2020, 2–3.

333 Exhibit RC1538 Statement of Inspector Ilena Pucar, 7 May 2020, 7–8 [6.1]–[6.12].

334 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 30 October 2020.

335 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 45 [8.33]–[8.36], 48 [8.51], 52 [8.70]–[8.71].

336 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 39 [8.3].

337 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 49 [225]–[226].

338 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 49 [227].

339 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 49 [228]–[229]; 53 [243].

340 Responsive submission, Victoria Police, 28 September 2020, 5 [3.4].

341 Consultation with Western Australia Police, 24 September 2019.

342 Home Office (UK), Covert Human Intelligence Sources Revised Code of Practice (August 2018) 10 [2.12].

343 Consultation with Police Service of Northern Ireland, 4 September 2019.

344 Consultation with Sir Jonathan (Jon) Murphy, 11 October 2019; Transcript of Sir Jonathan (Jon) Murphy, 13 May 2020, 14985, 14989–90, 14994–5.

345 Exhibit RC1540 Statement of Sir Jonathan (Jon) Murphy, 28 April 2020, 8 [59].

346 Consultation with Police Scotland, 5 September 2019.

347 Consultation with Metropolitan Police Service, 17 October 2019. The term ‘evidentiary chain’ refers to the demonstrated continuous possession of evidence by police, from its collection through to its use in a prosecution or disposal.

348 Exhibit RC0276 Review and Develop Best Practice Human Source Management Policy, 2004, 2, 17–21, 29–30.

349 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 59, 10–12; Exhibit RC1784 Victoria Police, ‘Corporate Management Review Division—Evaluation of Dedicated Source Unit—Pilot’, April 2005, 11, 15–16; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 56, 30.

350 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 23 [6.6].

351 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 23 [6.6].

352 Consultation with Western Australia Police, 24 September 2019; Consultation with South Australia Police, 6 September 2019; Consultation with New South Wales Crime Commission, 18 November 2019; Consultation with Police Service Northern Ireland, 4 September 2019; Consultation with Police Scotland, 5 September 2019; Consultation with New Zealand Police, 20 September 2019; Consultation with Metropolitan Police Service, 17 October 2019. While Tasmania Police does not currently adopt a sterile corridor in its management of human sources, this approach is being reviewed in its updated policy: Consultation with Tasmania Police, 12 September 2019.

353 See, eg, Consultation with Western Australia Police, 24 September 2019.

354 Clive Harfield, ‘Police Informers and Professional Ethics’ (2012) 31(2) Criminal Justice Ethics, 73, 89.

355 Consultation with New South Wales Police, 4 March 2020.

356 Consultation with Dr Adrian James, 6 November 2019.

357 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 49–50 [229], 87–8 [370]–[374].

358 Responsive submission, Victoria Police, 28 September 2020, 1 [1.1]–[1.2].

359 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 55 [5.58]; Submission 101 Australasian Institute of Policing, 14 [35]–[37]; Consultation with Royal Canadian Mounted Police, 19 September 2019.

360 Responsive submission, Victoria Police, 28 September 2020, 2 [1.4].

361 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 76–7 [326]–[327], 81 [345].

362 Responsive submission, Victoria Police, 28 September 2020, 8–9 [5.13].

363 Responsive submission, Victoria Police, 20 September 2020, 7 [4.11].

364 Responsive submission, Victoria Police, 28 September 2020, 9 [5.14]–[5.15].

365 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14877.

366 Responsive submission, Victoria Police, 28 September 2020, 5–6 [4.2]–[4.4].

367 Responsive submission, Victoria Police, 28 September 2020, 5 [3.3].

368 Responsive submission, Victoria Police, 28 September 2020, 10 [5.18]–[5.19].

369 Responsive submission, Victoria Police, 28 September 2020, 10 [5.21].

370 Institute of Internal Auditors, ‘The Three Lines of defense in Risk Management and Control’ (Position paper, January 2013) 2 <na.theiia.org/standards-guidance/>.

371 Institute of Internal Auditors, ‘The Three Lines of defense in Risk Management and Control’ (Position paper, January 2013) 2 <na.theiia.org/standards-guidance/>.

372 Responsive submission, Victoria Police, 28 September 2020, 10–11 [5.23].

373 See, eg, PwC, “Coordinated control: the ‘four lines of defence’ model”, Disclose (Issue 1, 2015) <disclose.pwc.ch/21/en/articles-focus--02/>.

Reviewed 07 December 2020

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