RCMPI

Chapter 17

Work beyond the Commission

Introduction

The Commission’s role was to investigate past events, examine current practice, and make recommendations about what steps and actions should be taken to address past failures and ensure they are avoided in future.

Because the conduct of Ms Nicola Gobbo and Victoria Police has had significant consequences, the Commission has had to make wide-ranging recommendations directed to various entities across government, the justice system and the legal profession. Its recommendations fall into three broad categories:

  • referrals for investigation to determine whether further action should be taken, including prosecution of criminal offences or disciplinary action (referral recommendations)
  • processes to ensure all potentially affected persons receive timely disclosure of information relevant to their cases (disclosure recommendations)
  • reforms to laws, policies and procedures governing the use of human sources, disclosure of information in criminal proceedings, and the regulation of the legal profession (policy recommendations).

Now that the Commission has reported, it will fall to others to implement the recommendations according to their full purpose and intent.

This chapter outlines arrangements that the Commission considers are necessary to support the full implementation of its recommendations; namely:

  • appointing a Special Investigator to investigate whether there is sufficient evidence to establish the commission of any criminal and/or disciplinary offences connected with Victoria Police’s use of Ms Gobbo as a human source
  • facilitating access to the Commission’s records for the Special Investigator and other entities responsible for future investigations and disclosures relevant to the events that led to the Commission’s inquiry
  • establishing an Implementation Taskforce and Implementation Monitor to coordinate and report on the implementation of the Commission’s recommendations.

Pleasingly, the Victorian Government and Victoria Police have already indicated their intention to implement any measures recommended by the Commission. In 2018, the Premier of Victoria advised Parliament that the Government intended to implement ‘all the recommendations that are given to us’, and to take any advice or instruction to ensure the culture and practices of Victoria Police do not enable such events to happen again.1 In 2020, the Chief Commissioner of Victoria Police also committed to taking whatever steps are necessary upon delivery of the Commission’s report to reform Victoria Police, stating that Victoria Police is prepared to learn from its mistakes and do what is needed to be a better organisation.2

There have now been four inquiries into Victoria Police’s use of Ms Gobbo as a human source: the Comrie Review, the Kellam Report, the Champion Report and this Commission, as well as protracted court proceedings leading up to the establishment of the Commission.3 All these processes have involved expenditure of valuable public funds, and the diversion of public sector resources away from their core functions. The Victorian public would rightly expect the delivery of this final report to represent a turning point, marking a shift from inquiry and deliberation, to action and swift finalisation.

Consistent with the approach of other recent royal commissions and inquiries, the Commission considers it desirable for there to be ongoing monitoring and reporting arrangements to support the effective and transparent implementation of its recommendations. Recommendations about these monitoring and reporting arrangements are supported by term of reference 6, which enables the Commission to make recommendations necessary to satisfactorily resolve the matters set out in terms of reference 1⁠–⁠5.

Appointment of a Special Investigator

In Chapters 7 and 8, the Commission recommends that there should be a full and independent investigation of the conduct of Ms Gobbo and current and former Victoria Police officers named in this final report or in the complete and unredacted submissions of Counsel Assisting, to determine whether there is sufficient evidence to establish the commission of any criminal offences. In the case of some serving Victoria Police officers, the Commission also recommends investigation to determine whether there is sufficient evidence to establish the commission of any disciplinary offences.

As explained in Chapter 5, it was not the Commission’s role to undertake this task. Ordinarily, investigations are conducted by investigative agencies such as Victoria Police or, in some circumstances, the Independent Broad-based Anti-corruption Commission (IBAC). Decisions about commencing a criminal prosecution are made by the Victorian Director of Public Prosecutions (DPP), and decisions about initiating disciplinary action against police officers by the Chief Commissioner or their authorised delegate.4

The Commission has formed the view that it would be problematic for existing investigative authorities to examine the conduct of Ms Gobbo and current and former Victoria Police officers. Instead, it recommends that the Victorian Government establishes a new statutory office holder: a dedicated Special Investigator with all necessary powers to investigate whether there is sufficient evidence to bring criminal or disciplinary charges arising out of the events leading to this inquiry.

The following sections explain why the Commission has made these recommendations, and the arrangements it proposes to facilitate the work of the Special Investigator.

Investigation of potential criminal conduct

In their complete and unredacted submissions, Counsel Assisting the Commission invited the Commission to find that Ms Gobbo and a number of current and former police officers may have committed criminal offences.

In response to these submissions, the DPP, Ms Kerri Judd, QC, advised the Commission that she would be unable to determine the question of whether criminal charges should be brought against Ms Gobbo or any former or current Victoria Police officers without an investigative agency preparing a brief of evidence for her consideration.5

Usually, Victoria Police has the role of investigating crime and, once a suspect has been charged, preparing a brief of evidence for the DPP.

The Commission, however, considers it would be impossible for Victoria Police to properly perform its traditional investigative role in relation to the conduct of current and former police officers and Ms Gobbo, given:

  • its contentions that this Commission should not make findings to substantiate any allegations against the named former and current officers
  • its admitted institutional failures
  • the fact that Victoria Police’s lawyers before this Commission also represented many of those officers
  • its clear position of conflict with Ms Gobbo.
Need for a special-purpose office holder

The Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, led by the Honourable Gerald Edward (Tony) Fitzgerald, AC, QC (commonly known as the ‘Fitzgerald Inquiry’), resolved a comparable issue in its 1987–89 inquiry into Queensland Police. It recommended the establishment of an anti-corruption body in Queensland, to be independent of the police service and have responsibility for, among other things, investigating official misconduct in public institutions. Given the time it would take to establish such an institution, the Fitzgerald Inquiry also considered that a special prosecutor independent of existing agencies was required to assume the prosecution responsibilities for matters associated with that inquiry’s activities. The staff of the Fitzgerald Inquiry carried out investigations and referred matters suitable for prosecution to the Special Prosecutor, who decided whether to commence action, and if so, conducted the prosecution.6

The Commission received a submission from the Honourable Douglas Drummond, QC, who was the Special Prosecutor appointed in Queensland, urging the Commission to recommend the appointment of a special prosecutor—a body separate from Victoria Police ‘resourced with staff and budget … to complete all investigations necessary to prepare briefs of evidence sufficient both to satisfy … that prosecution of particular police officers is warranted and complete enough for presentation in a criminal court’.7

The Commission is aware that, unlike Queensland in 1989, Victoria has an anti-corruption body, IBAC, with the power to investigate corrupt conduct and police personnel misconduct. IBAC has the power to investigate the alleged corrupt conduct of a public officer (which includes a police officer), and the conduct of anyone that adversely affects the honest (and in some circumstances effective) performance by a public officer or body of their functions.8 It also has the power to refer matters to the DPP.9 It follows that IBAC could investigate any potential criminal conduct of current and former police officers. It could also investigate some of the potential criminal conduct of Ms Gobbo identified by Counsel Assisting in their unredacted submissions—namely conduct that may have ‘adversely affect[ed] the honest performance by a [police] officer or [Victoria Police] of his or her or its functions as a public officer or public body’.10

Under section 44 of the Inquiries Act 2014 (Vic) (Inquiries Act), the Commission forwarded to IBAC the unredacted submissions of Counsel Assisting, including their reply submissions, and the unredacted responsive submissions of relevant current and former police officers and Ms Gobbo. IBAC informed the Commission that, if properly resourced, and subject to resolving some not inconsiderable challenges associated with its capability and capacity to gather admissible evidence, it would be able to investigate those matters within its jurisdiction and, if appropriate, to refer them to the DPP.11

The Commission considered IBAC’s submission that it would need additional resources to conduct investigations into the matters referred by the Commission. It also considered the limitations on IBAC’s ability to investigate all potential criminal conduct committed by Ms Gobbo. Finally, it considered the potential inefficiency and impractical disjuncture of different investigations examining different aspects of the potential criminal conduct. That is, were IBAC to investigate these matters, it could consider the conduct of former and current police officers, and some of Ms Gobbo’s conduct, while another agency would need to investigate the other aspects of Ms Gobbo’s conduct because they may fall outside IBAC’s jurisdiction.

In light of these factors and limitations, the Commission considered what arrangements ought to be established to ensure the timely, efficient and independent investigation of any potential criminal conduct arising from Victoria Police’s use of Ms Gobbo as a human source. It focused on whether a special investigator, as distinct from a special prosecutor, might be required.

The Commission was persuaded to recommend the establishment of a ‘Special Investigator’ for three principal reasons. Like IBAC, the Special Investigator would be separate from and independent of Victoria Police; however, unlike IBAC, the Special Investigator would be able to focus solely on any and all conduct arising from the events that led to the establishment of this Commission, including any conduct of Ms Gobbo that may fall outside IBAC’s jurisdiction. Finally, the Special Investigator would only have investigative functions, and not prosecutorial functions. This would appropriately separate the investigative function from the discrete prosecutorial function, minimising the risk of the DPP being ‘tainted’ by the Special Investigator’s access to evidence gathered by this Commission, much of which may be inadmissible in criminal proceedings.12

In his submission, Mr Drummond suggested, ‘The agency responsible for the investigations of police conduct and preparation of briefs for the prosecutor should, in the interests of public confidence in the process, be at [arm’s] length from IBAC which has already decided that police did not engage in any criminal conduct’.13

The IBAC Commissioner has rejected that assertion and pointed out:

The Kellam Inquiry identified potential cases where the convictions of individuals could have been undermined due to Victoria Police’s use of Ms Gobbo as a human source. However, how the information obtained by Victoria Police was used in particular prosecutions and the understanding and intention of relevant Victoria Police officers on its use were not subjects which were within the scope of the Kellam Inquiry …

The prior findings of the Kellam Inquiry would not impede upon IBAC’s ability to independently conduct an investigation of this nature [that is, into Ms Gobbo and the named former and serving police officers in this report], if it was deemed to be warranted and in the public interest. Ultimately the Royal Commission’s final report and recommendations, and the response by Government, will determine the necessary scope and resourcing of any further criminal investigations, irrespective of who conducts such investigations.14

The Commission accepts the IBAC Commissioner’s submissions and emphasises that its recommendation for the appointment of the Special Investigator is based on the reasons set out above, in particular the desirability of the investigation considering Ms Gobbo’s conduct in its entirety, rather than on Mr Drummond’s submission that IBAC had in effect ‘closed its mind’ to the possibility of potential criminal offences arising from Victoria Police’s use of Ms Gobbo as a human source.

Functions and powers

The functions of the Commission’s recommended Special Investigator would be to:

  • assess the evidence gathered by this Commission to determine:
    • whether there is sufficient evidence to establish the commission of any criminal offences connected with Victoria Police’s use of Ms Gobbo as a human source
    • whether any of that evidence is admissible in a criminal proceeding
    • what other evidence may need to be gathered to establish whether any of the possible offences identified may have been committed
  • gather admissible evidence in relation to any such potential offences
  • compile a brief of evidence and submit it to the DPP (who would then determine whether there is sufficient evidence to warrant, and whether it is in the public interest to institute, a prosecution and, if so, to initiate the prosecution).

The Commission recommends that the scope of the Special Investigator’s jurisdiction extends beyond investigating the current and former police officers named in this final report and the complete and unredacted submissions of Counsel Assisting, and should also include the conduct of any other police officers it identifies through its investigation in respect of whom there is evidence that may establish the commission of a criminal offence. The Commission formed this view because:

  • it cannot be confident it has identified all the potential wrongdoing by current and former police officers, given Victoria Police’s sub-optimal record keeping and production of materials to the Commission
  • not every potential witness made a statement to, or gave evidence before, the Commission
  • additional information emerged, after the Commission’s public hearings had closed and while the Commission was writing its final report, about other conduct by police officers, such as the payment of inducements to a witness in 25 criminal proceedings, which was not disclosed to the defence or court, potentially affecting the safety of the convictions secured in those matters.15

The role of the Special Investigator would need to be established by legislation and given the necessary independence, investigative powers and resources to perform their functions. These powers should be necessary and proportionate to the Special Investigator’s role. They could include many of the powers that can be exercised by a police officer under the Crimes Act 1958 (Vic), as well as access to the use of surveillance devices, telecommunications interception and, potentially, Victoria’s witness protection system and public interest (‘whistleblowers’) protection regime. The Commission acknowledges that the Victorian Government would need to seek the support of the Commonwealth Government under the Telecommunications (Interception and Access) Act 1979 (Cth) to enable the Special Investigator to use telecommunications interception.

As noted above, a key function of the Special Investigator will be to review and assess the admissibility of the evidence given or produced to the Commission in any subsequent legal proceedings. In undertaking this task, it will be important for the Special Investigator to have regard to recent case law relevant to the direct or indirect use of material gathered by investigative bodies in criminal prosecutions.16 It would also be prudent for these matters to be considered during the development of the legislation establishing the office of Special Investigator.

The Commission recommends that the Special Investigator should be an Australian lawyer with at least 10 years’ experience in criminal law or a related field and should be supported in their role by experienced investigators. This will help to ensure the Special Investigator is independent of Victoria Police and has the necessary expertise and ability to undertake this role.

RECOMMENDATION 92

That the Victorian Government, within 12 months, develops legislation to establish a Special Investigator with the necessary powers and resources to investigate whether there is sufficient evidence to establish the commission of a criminal offence or offences (connected with Victoria Police’s use of Ms Nicola Gobbo as a human source) by Ms Gobbo or the current and former police officers named in the Commission’s final report or in the complete and unredacted submissions of Counsel Assisting.

RECOMMENDATION 93

That the Victorian Government, in developing the legislation to establish the Special Investigator, requires that the person appointed as the Special Investigator be an Australian lawyer with at least 10 years’ experience in criminal law or a related field.

Prosecution decisions

As noted above, Mr Drummond submitted that, in addition to an investigative function, the special body proposed should have ‘the authority to decide who will be prosecuted … independent of political direction … reporting to Parliament.’17 His rationale for proposing that the special body should also perform the prosecutorial function was based on his view that the DPP is not independent of the Government. In support of his contention, Mr Drummond cited section 10(1) of the Public Prosecutions Act 1994 (Vic), under which the DPP ‘is responsible to the Attorney-General for the due performance of his or her functions and exercise of his or her powers under this or any other Act’.

While that is true in terms of the DPP’s organisational accountability, the following sub-section of the Act makes it clear that the DPP’s responsibility to the Attorney-General ‘in no way affects or takes away from the authority of the Director in respect of the institution, preparation and conduct of proceedings under this or any other Act’.18 That provision is fundamental to the DPP’s independence in making prosecutorial decisions. In responding to Mr Drummond’s submission, the DPP emphatically rejected the suggestion that prosecutorial decisions in Victoria ‘are in any way influenced by political considerations.’19 That view is entirely consistent with, and supplemented by, the Policy of the Director of Public Prosecutions for Victoria, which deals with the exercise of the prosecutorial discretion and includes in its list of improper considerations:

  • political pressure or interference …
  • personal feelings concerning the offence, the offender or a victim
  • possible political advantage or disadvantage to the Government or any political group or party
  • the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision.20

The Commission has not received any evidence to suggest that any past actions of any former DPP or their officers have compromised the independence of the current DPP. The Commission considers that the DPP will exercise her statutory responsibilities with independence, including the discretion to prosecute any matters arising from the proposed Special Investigator’s investigative work.

RECOMMENDATION 94

That, where the Special Investigator compiles a brief of evidence containing sufficient evidence to establish the commission of a criminal offence or offences by Ms Nicola Gobbo or current or former Victoria Police officers, the Victorian Director of Public Prosecutions should be responsible for determining whether to prosecute and, if so, for the prosecution of the matter under the Public Prosecutions Act 1994 (Vic).

Reporting on operations and outcomes

The Special Investigator should report to the Implementation Monitor (discussed below) on progress to establish their operations, and on the outcomes of their investigations. Given the sensitivity of certain matters to be examined by the Special Investigator, there are likely to be legitimate limitations on the extent to which they can report in detail on the matters under investigation.

RECOMMENDATION 95

That the Victorian Government, in developing the legislation to establish the Special Investigator, requires the Special Investigator to report regularly to the Implementation Monitor proposed in Recommendation 108 on their progress to establish their operations, and on the outcomes of their investigations.

Investigation of police misconduct and breach of discipline

The Commission has found that the conduct of some current and former Victoria Police officers may at the time have amounted to misconduct or a breach of discipline under the applicable legislation.21 A police officer who breaches their professional duties may face, among other things, disciplinary action, which may result in a reprimand; a fine; a reduction in rank, seniority or remuneration; dismissal or a requirement to pay compensation or costs.22

Former police officers are not subject to the police discipline system.23 This, however, does not prevent the Commission from adopting the applicable statutory standard of conduct against which to assess and report on those former officers’ behaviour. This is consistent with term of reference 2 and, even though the former officers who may have engaged in improper conduct cannot face disciplinary action, the Commission’s conclusions about their conduct may assist potentially affected persons in determining whether to exercise their appeal rights.

The Commission has formed the view that the potential breaches of discipline or misconduct by the named serving police officers should be investigated and, if the evidence warrants it, dealt with under the police discipline system. Such disciplinary investigations could conceivably be conducted by the Chief Commissioner, an authorised officer appointed by the Chief Commissioner, IBAC or the Special Investigator recommended by the Commission.

The Commission considers it would be inappropriate for the Chief Commissioner or an authorised officer to conduct those disciplinary investigations for similar reasons to those outlined above in relation to the investigation of potential criminal offences—in short, it would lack the requisite degree of actual or perceived independence. Victoria Police’s decision not to conduct disciplinary investigations into police officers whose conduct was examined by the Kellam Inquiry, despite Mr Kellam finding ‘negligence of a high order’, and his conclusion that Victoria Police had failed to act in accordance with appropriate policies and procedures, underscores why it would be inappropriate for Victoria Police to undertake the disciplinary investigations.24

While acknowledging that IBAC could conduct the investigations, the Commission considers it would be more efficient for the recommended Special Investigator to undertake these disciplinary investigations given they will already have reviewed the Commission’s evidence, thereby avoiding duplication of effort.

Function and powers

The Commission recommends that the legislation establishing the Special Investigator requires that they investigate whether there is sufficient evidence to establish the commission of misconduct or breach of discipline connected with Victoria Police’s use of Ms Gobbo as a human source by current Victoria Police officers named in the Commission’s final report or in Counsel Assisting submissions.

As with the scope of the Special Investigator’s proposed criminal investigation functions, the Commission recommends that the Special Investigator’s disciplinary investigation functions should not be confined to the named serving officers, but also extend to the conduct of any other police officers they identify through their investigation in respect of whom there is evidence that may establish the commission of misconduct or breach of discipline connected with the events that led to this Commission.

If the Special Investigator considers there is sufficient evidence, they should be empowered to lay the appropriate disciplinary charges against the named (or other identified) serving police officers.25 The Commission recognises that such an arrangement is somewhat unusual in that the head of an agency or designated senior officer would ordinarily be responsible for initiating internal disciplinary proceedings. Importantly, though, it will promote public confidence in the process, by avoiding any perceived conflict if the charging decision were left to the Chief Commissioner or an authorised officer. In addition, the Special Investigator should have powers and procedures equivalent to those that apply in usual police disciplinary matters.26

RECOMMENDATION 96

That the Victorian Government, in developing the legislation to establish the Special Investigator, requires the Special Investigator to investigate whether there is sufficient evidence to establish the commission of misconduct or a breach of discipline under the Victoria Police Act 2013 (Vic) (connected with Victoria Police’s use of Ms Nicola Gobbo as a human source) by current Victoria Police officers named in the Commission’s final report or in the complete and unredacted submissions of Counsel Assisting.

RECOMMENDATION 97

That the Victorian Government, in developing the legislation to establish the Special Investigator, empowers the Special Investigator to investigate:

  1. whether there is sufficient evidence to establish the commission of a criminal offence or offences (connected with Victoria Police’s use of Ms Nicola Gobbo as a human source) by any current or former Victoria Police officers other than those named in the Commission’s final report or in the complete and unredacted submissions of Counsel Assisting
  2. whether there is sufficient evidence to establish the commission of misconduct or a breach of discipline under the Victoria Police Act 2013 (Vic) (connected with Victoria Police’s use of Ms Gobbo as a human source) by any current Victoria Police officers other than those named in the Commission’s final report or in the complete and unredacted submissions of Counsel Assisting.

RECOMMENDATION 98

That the Victorian Government, in developing the legislation to establish the Special Investigator, provides the Special Investigator with all necessary and reasonable powers required to fulfil their role in investigating misconduct or breaches of discipline, including but not limited to the power to direct any police officer to give any relevant information, produce any relevant document or answer any relevant question during a disciplinary investigation.

Any information, document or answer given in response to such a direction should not be admissible in evidence before any court or person acting judicially, other than in proceedings for perjury or for a breach of discipline.

To support the Special Investigator’s powers, the failure of an officer to comply with a direction from the Special Investigator should itself constitute a breach of discipline.

RECOMMENDATION 99

That the Victorian Government, in developing the legislation to establish the Special Investigator, empowers the Special Investigator to lay disciplinary charges against relevant police officers if satisfied there is sufficient evidence to do so.

Hearings and determinations

Again, in the interests of fairness and objective decision making, and consistent with the principle that justice must not only be done but be seen to be done, the Commission strongly advocates that any disciplinary charges laid by the Special Investigator should be heard and determined by a suitably qualified and independent authorised officer who is not a police officer.27 The Commission understands that police disciplinary hearings are currently conducted by an experienced, legally qualified public servant who is considered independent notwithstanding their appointment by the Chief Commissioner. The Commission considers that this would be an appropriate arrangement for determining any disciplinary charges arising from the Special Investigator’s disciplinary investigations, as it would mean that these charges would be determined in the same way as all other disciplinary charges brought under the Victoria Police Act 2013 (Vic).

In addition, the Commission considers that the legislation establishing the Special Investigator should explicitly provide that the disciplinary charges could proceed even if criminal charges in relation to the same or related conduct have been laid or may be brought. This would accord with a recommendation of the Parliamentary IBAC Committee in its report on Inquiryintotheexternal oversight of police corruption and misconduct in Victoria in September 2018.28 It would avoid the risk of the hearing officer adjourning the matter until it becomes clear whether any related criminal charges will be brought and, if they are, until they have been dealt with, which could result in a lengthy delay in finalising the disciplinary issue.

RECOMMENDATION 100

That the Chief Commissioner of Victoria Police ensures that a suitably qualified, independent authorised person, who is not a police officer, determines any disciplinary charges laid by the Special Investigator.

Reporting on outcomes

The Commission recommends that the Chief Commissioner should be required to report to the Special Investigator and the proposed Implementation Monitor (discussed below) on the progress or outcome of any disciplinary proceedings arising from the Special Investigator’s work, so that the Implementation Monitor can include the progress or outcomes of these matters in reports to the Attorney-General and Minister for Police and to Parliament.

Such a requirement is somewhat unusual in the context of internal disciplinary regimes;29 however, the Commission considers it is important to inform the community about the outcomes of the events this Commission has examined, given what the High Court described as ‘Victoria Police[’s] … reprehensible conduct in knowingly encouraging [Ms Gobbo] to do as she did and … sanctioning breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will.’30 Informing the public of these outcomes will assist in restoring public confidence in Victoria Police.

RECOMMENDATION 101

That the Chief Commissioner of Victoria Police reports to the Special Investigator and Implementation Monitor proposed in Recommendation 108 on the outcome of any disciplinary proceedings arising from the Special Investigator’s investigation of current Victoria Police officers.

The Commission’s documents and materials

This section focuses on how documents and materials held by the Commission should be dealt with following the conclusion of the Commission. It outlines the process for transferring records held by the Commission at the end of the inquiry and makes recommendations to help facilitate the ongoing work that is required after the Commission concludes.

The Commission assembled extensive documents and materials relating to the matters it investigated. Some of these materials were published on the Commission’s website. These included witness statements, exhibits, hearing transcripts and written submissions. The Commission also gathered documents that were not publicly released. Many of these were produced in response to notices to produce issued by the Commission.

As discussed in Chapters 3 and 16, the majority of the material gathered by the Commission was considered sensitive because it related to past and ongoing law enforcement activities and referred to individuals whose safety might be at risk if their names or other information about them were made public. The Commission was therefore unable to publish this material, or at the very least had to redact sensitive sections of some documents before doing so.

The question of public access to documents, exhibits and evidence produced at public hearings was largely addressed during the course of the inquiry by the Commissioner’s rulings, which have attempted to strike the appropriate balance between the public interest in openness and transparency against the public interest in protecting the safety of human sources and their families.

Transfer to Department of Premier and Cabinet and Public Record Office Victoria

At the conclusion of this Commission, all of the records held by the Commission must be transferred to the Department of Premier and Cabinet (DPC).31 At this point, DPC becomes the responsible agency for the records, and manages their transfer to the Public Record Office Victoria (PROV).32

Under section 124(3) of the Inquiries Act, records transferred by the Commission are to be held and dealt with on the same basis, and in the same manner, as the basis on which they were held and the manner in which they could be dealt with by the Commission. The Commission has advised DPC and PROV that, except for publicly available documents, all Commission records including metadata should continue to be treated as ‘PROTECTED’ in accordance with the requirements of the Australian Government Protective Security Policy Framework.33

DPC is also responsible for responding to requests to access the records, including those made under the Public Records Act 1973 (Vic) (Public Records Act) and Freedom of Information Act 1982 (Vic).

The Public Records Act allows for records held by PROV to be ‘closed’, which restricts who can access them.34 Due to the sensitivity of its records, the Commission recommends they be closed for 75 years. It will still be necessary, however, for the Special Investigator appointed as a result of this Commission to have ongoing access to the Commission’s records so that they can fulfil their functions. IBAC might also require access to the Commission’s records; for example, if it was investigating a complaint or conducting an own motion investigation separate to the Special Investigator’s work. Both the Special Investigator and IBAC should therefore be exempt from the closure of the records and have unrestricted access to them.

The Commission recognises the Special Investigator will require prompt access to the Commission’s materials to perform their functions efficiently and effectively, so that they are not stalled through an unnecessary discovery process. They will also need to have appropriate security arrangements in place for access to, and the management of, such material. The Commission recommends that the proposed Special Investigator and IBAC be given a legislative entitlement to obtain unimpeded access to the Commission’s records.

The closure of the Commission’s records would be subject to any decision of the Minister responsible for PROV made under section 9(2)(b) of the Public Records Act to permit all or any of the records to be open for inspection by any specified person or class of persons. It should also be subject to any order of the Supreme Court of Victoria. Except in relation to requests made by the Special Investigator or IBAC, the Commission recommends that DPC notifies Victoria Police of any court order or request to access the Commission’s records. This notification will enable Victoria Police to assert any claims for public interest immunity (PII) prior to records being made available for inspection.

RECOMMENDATION 102

That the Victorian Government ensures that under the Public Records Act 1973 (Vic), the Commission’s records be unavailable for public inspection for 75 years, subject to: any order of the Supreme Court of Victoria; the legislation providing the Special Investigator and the Independent Broad-based Anti-corruption Commission with access to the records; or any decision of the responsible Minister under section 9(2)(b) of the Act to permit all or any of the records to be open for inspection by any specified person or class of persons.

RECOMMENDATION 103

That the Victorian Government, in developing the legislation to establish the Special Investigator, ensures that the legislation:

  1. gives the Special Investigator full and free access to the Commission’s records
  2. requires the Special Investigator to establish appropriate security arrangements for access to and the management of such records.

The Victorian Government should also ensure that the Independent Broad-based Anti-corruption Commission has a legislative entitlement to obtain full and free access to the Commission’s records.

RECOMMENDATION 104

That the Department of Premier and Cabinet notifies Victoria Police of any court order or request to access the closed records of the Commission, except in relation to requests made by the Special Investigator or Independent Broad-based Anti-corruption Commission.

Ongoing disclosure to potentially affected persons

As discussed in Chapter 9, Victoria Police, along with prosecuting agencies, has ongoing responsibility to disclose information about its use of Ms Gobbo as a human source to people whose cases may have been affected by those events.

Separate from this process, the Commission has also played a role in providing information to people whose cases were potentially affected by the use of Ms Gobbo as a human source. The Commission sought to publish all key materials on its website. Before doing so, it established a process for assessing any claims by Victoria Police that certain information not be made public on the basis of PII.

At the time of drafting this final report, one such process remained incomplete. The Commission formed the view that it was important for 124 potentially affected persons to have access to Counsel Assisting submissions, as the content of those submissions may be relevant to their interests. Victoria Police made extensive PII claims in relation to the submissions. In order to avoid delay, the Commission accepted the claims on an interim basis and, pending their resolution, published redacted versions of the submissions to its website, and provided potentially affected persons with heavily redacted versions of the submissions relevant to them.

The Commissioner later made final determinations in relation to Victoria Police’s PII claims, which were communicated to Victoria Police. It remains for these determinations to be applied to Counsel Assisting submissions, and for revised, more detailed versions to be provided to potentially affected persons.

The Commission recommends the following arrangement to complete this process. Under section 44 of the Inquiries Act, the Commission has already forwarded to the DPP the unredacted submissions of Counsel Assisting, including reply submissions. The Commission has also made available to the DPP the Commissioner’s final determinations in relation to Victoria Police’s PII claims, and the contact details for the 124 potentially affected persons to whom disclosure of the less redacted submissions should now be made.

The Commission recommends that Victoria Police and the DPP should apply the Commissioner’s final determinations in relation to any PII claims over Counsel Assisting submissions, and provide copies of those submissions to potentially affected persons.

RECOMMENDATION 105

That Victoria Police and the Victorian Director of Public Prosecutions, within three months, in accordance with their ongoing disclosure obligations, apply the Commissioner’s determinations in relation to the public interest immunity claims (or as otherwise determined by a court) over the complete and unredacted submissions of Counsel Assisting, and, where relevant, facilitate disclosure of these revised versions of the submissions to potentially affected persons.

Further, as discussed in Chapters 5 and 7, the Commission has found that in addition to the cases that may have been directly affected by Ms Gobbo assisting Victoria Police, there are 887 people whose cases may have been affected solely on the basis that Ms Gobbo failed to disclose to them that she was a human source while also advising or representing them. This category is referred to here as the ‘Szabo category’ of potentially affected persons, as it relies on the principles discussed in R v Szabo.35

The Commission has formed the view that the people in the Szabo category should be alerted that their cases may have been affected by Ms Gobbo’s role as a human source. The Commission was itself unable to undertake this process between the time the Commissioner determined to accept Counsel Assisting submissions on this point and the publication of this final report. Not only did it not have the time or resources to locate and contact all 887 people, but the disclosure process would have prematurely revealed the Commission’s findings before delivery of the final report to the Governor of Victoria. As discussed in Chapter 7, the Commission did, however, place a notification on its website and in prisons, drawing attention to Counsel Assisting submissions about this category of potentially affected cases.

The list of people in the Szabo category has been provided to Victoria Police so that it and the DPP and the Commonwealth Director of Public Prosecutions can facilitate ongoing disclosure of relevant information to them. The Commission has also provided this list to the Department of Justice and Community Safety, which will be responsible for coordinating implementation of the Commission’s recommendations once the inquiry concludes and responding to any public enquiries about post-Commission activities.

RECOMMENDATION 106

That Victoria Police and prosecuting agencies, within six months, make all reasonable attempts to advise the 887 people whose cases may have been affected in the manner identified in R v Szabo that their cases may have been affected by Ms Nicola Gobbo’s conduct as a human source, and facilitate ongoing disclosure of relevant information to those persons.

Monitoring implementation

It is now standard practice for royal commissions and other inquiries to recommend structures or processes to monitor the implementation of their substantive recommendations.36 These mechanisms are designed to guard against reports ‘sitting on the shelf’ and government or agency delay, inaction or obfuscation in undertaking important reform measures.

The Royal Commission into Responses to Institutional Child Sexual Abuse commissioned a report analysing the factors that influence whether recommendations of bodies of inquiry are implemented.37 The report related primarily to past inquiries about child abuse but its findings have some broader application. The report found that the major factors contributing to successful implementation of an inquiry’s recommendations were:

Establishing processes and structures to facilitate implementation. Some of these could be addressed during the drafting of recommendations. These included governance and coordination mechanisms ranging from whole-of-government strategies to project teams. Implementation planning with timeframes and responsibilities was also important.

Strong leadership and stakeholder engagement. These were considered critical to successful implementation. The risk of a loss of momentum due to a change in leadership should be addressed by broadening leadership and championship to more than one individual.

An accountability framework and monitoring process. These should be built in to recommended reforms. Monitoring needs to be transparent, independent and sustainable.38

It also concluded that governments and agencies can support implementation by establishing strategies such as ensuring strong leadership, and centrally coordinating and monitoring implementation.39

The implementation oversight mechanisms that have been recommended by previous royal commissions and inquiries and/or established in their wake have included:

  • dedicated government teams or units to lead and coordinate implementation40
  • collaborative working groups and stakeholder participation41
  • indicative timeframes for implementation42
  • public reporting requirements43
  • independent monitors to assess and report on the status of implementation44
  • evaluation of efficacy of reforms once implemented.45

The Commission recommends the establishment of two principal mechanisms to oversee the implementation of its recommendations: a cross-agency taskforce to coordinate implementation (the Implementation Taskforce), and an independent monitor to assess and report on the status and adequacy of implementation (the Implementation Monitor).

The Commission’s objectives in recommending these arrangements are:

  • Purposeful implementation: to encourage the Victorian Government and agencies to focus on the objectives sought to be achieved through the Commission’s recommendations, rather than adopting a purely compliance-based approach. At the core of the Commission’s recommendations are the objectives of redressing past and potential miscarriages of justice, preventing the recurrence of similar events, and restoring the community’s faith in the criminal justice system and legal profession.
  • Transparency and accountability: to see all those concerned with implementation of the Commission’s recommendations, and with the events giving rise to the Commission’s inquiry, take responsibility for fulfilling the above objectives.
  • Timeliness and finality: to ensure that implementation occurs without delay and that the public can be assured that the events that were the subject of the Commission’s inquiry have been addressed once and for all. The Commission has therefore included indicative implementation timeframes in each of its recommendations.
  • Collaboration and coordination to support the engagement of all agencies with an interest in the implementation of the Commission’s recommendations, and the efficient acquittal of all implementation tasks. Cross-agency collaboration is also important for fostering a shared commitment to the values and principles that underpin the proper administration of the criminal justice system.
  • Flexibility: to minimise the administrative and reporting burden for agencies with responsibility for implementation of the Commission’s recommendations.

Implementation Taskforce

The role of the Implementation Taskforce should be to coordinate all implementation tasks, and to ensure the Commission’s recommendations are implemented swiftly and in accordance with their purpose and intent.

The Implementation Taskforce should be fully established within three months of the delivery of this final report. It should be chaired by a senior executive of the Department of Justice and Community Safety and its membership drawn from all agencies with responsibility for implementing the Commission’s recommendations. The Taskforce should include stakeholders such as IBAC, the Public Interest Monitor (PIM) and legal profession bodies. The Special Investigator should be invited to join the Taskforce, recognising that they will not be able to discuss the detail of any current or anticipated investigations.

The Commission acknowledges that some of its recommendations are directed to independent statutory bodies or office holders, such as the DPP, and non-government legal profession organisations. These entities are therefore not bound by the commitments made by the Victorian Government or Victoria Police to implement the measures recommended by the Commission. The Commission is confident, however, that these organisations are similarly committed to addressing the issues identified by the Commission and are likely to welcome the opportunity to support the recommended reform initiatives. They should therefore be invited to participate in the Implementation Taskforce.

The Implementation Taskforce should report regularly to the Implementation Monitor on progress to implement the Commission’s recommendations. Ideally, agencies should be required to satisfy the Implementation Monitor that implementation is complete before they can themselves report that this is the case.

In Chapter 9, the Commission recommends that Victoria Police provides to the Implementation Taskforce monthly progress reports on the steps it has taken to discharge its ongoing disclosure obligations to potentially affected persons. These reports should also be made available to the Implementation Monitor.

Implementation Monitor

The role of the Implementation Monitor should be to assess and report on the progress and adequacy of implementation of the Commission’s recommendations.

The Implementation Monitor should be a statutory appointee so that they are empowered to access all relevant information, and their reports can be tabled in Parliament, ensuring they are available to the Victorian public. They should be appointed within three months of the delivery of this final report, noting that they could be appointed to the role before the legislation governing their appointment is in force, at which point their role would become a statutory one.

Importantly, the Commission envisages that the Implementation Monitor’s role would be an interactive one over the course of the implementation process, not restricted to after-the-event reporting.

Interaction between the Taskforce and Monitor should be flexible and premised on minimising the administrative and reporting burden on the Taskforce and its members. For example, the Monitor could attend Taskforce meetings and have access to Taskforce records to ensure they are briefed on implementation activities.

The Implementation Monitor should report to the Attorney-General annually on the progress and adequacy of implementation of the Commission’s recommendations. These reports should also be provided to the Minister for Police. The Attorney-General should in turn report to Parliament.

The Implementation Monitor should be supported by a small secretariat located within the Department of Justice and Community Safety; however, as they will report directly to the Attorney-General, they must operate independently of the Taskforce chair and members.

RECOMMENDATION 107

That the Victorian Government, within three months, establishes an Implementation Taskforce, chaired by a senior executive of the Department of Justice and Community Safety, with responsibility for coordinating and completing implementation of the Commission’s recommendations. The Taskforce should:

  1. consist of members from the Department of Justice and Community Safety, Department of Premier and Cabinet, Victoria Police, the Victorian Office of Public Prosecutions, the Special Investigator and other relevant stakeholders
  2. engage regularly with, and report formally and informally to, the Implementation Monitor proposed in Recommendation 108 throughout the implementation process.

RECOMMENDATION 108

That the Victorian Government, within three months, appoints an independent Implementation Monitor to monitor the implementation of the Commission’s recommendations until implementation is completed.

RECOMMENDATION 109

That the Victorian Government, in establishing the role of the Implementation Monitor, provides the Implementation Monitor with the support of a small secretariat located within the Department of Justice and Community Safety, and all necessary and reasonable legislative powers required to fulfil their role, including the power to:

  1. assess the implementation of the Commission’s recommendations throughout the implementation process, not only once responsible agencies have reported on the completion of implementation
  2. access Implementation Taskforce documents and attend meetings of the Implementation Taskforce
  3. indicate to responsible agencies the extent to which their implementation of the Commission’s recommendations is considered adequate
  4. request regular reports from Victoria Police on its progress in fulfilling its ongoing disclosure obligations to potentially affected persons identified by the Commission
  5. request reports from the Special Investigator on progress to establish their operations and the outcomes of their investigations
  6. request reports from the Chief Commissioner of Victoria Police on the progress and outcomes of any disciplinary proceedings arising from the Special Investigator’s disciplinary investigations.

RECOMMENDATION 110

That the Victorian Government, in establishing the role of the Implementation Monitor, requires it to report to the Attorney-General annually, or more frequently as it deems necessary, on the progress of the implementation of the Commission’s recommendations, the adequacy of implementation and what further measures may be required to ensure the Commission’s recommendations are implemented fully within the specified timeframes.

RECOMMENDATION 111

That the Attorney-General reports annually to the Victorian Parliament on the progress of the implementation of the Commission’s recommendations, until implementation is complete.

Endnotes

1 Victoria, Parliamentary Debates, Legislative Assembly, 19 December 2018, 10 (Daniel Andrews, Premier).

2 See John Ferguson, ‘Next Top Cop Vows Return To Basics’, The Australian(Melbourne, 2 June 2020) 4.

3 See Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012); Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015); John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016).

4 Formally referred to as an ‘authorised officer’: Victoria Police Act 2013 (Vic) s 130.

5 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions, 7 August 2020, 29 [83]–[85].

6 Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (Report, 1989) 26.

7 Submission 156 The Honourable Douglas Drummond QC, 2.

8 Independent Broad-based Anti-corruption Commission Act 2011(Vic) ss 4, 60.

9 Independent Broad-based Anti-corruption Commission Act 2011(Vic) ss 74, 75.

10 See definition of ‘corrupt conduct’ in the Independent Broad-based Anti-corruption Act 2011 (Vic) s⁠ 4(1) (a). Section 4(1)(da) may also be relevant; it concerns conduct intended to adversely affect the effective performance or exercise by a public officer or body of their functions or powers.

11 Responsive submission, Independent Broad-based Anti-corruption Commission, 15 September 2020.

12 See, eg, Lee v The Queen [2014] HCA 20. On the general inadmissibility of Royal Commission evidence, see Inquiries Act 2014(Vic) s 40(1).

13 Submission 156 The Honourable Douglas Drummond QC, 2.

14 Submission 157 Independent Broad-based Anti-corruption Commission.

15 See, eg, Cvetanovski v The Queen [2020] VSCA 272, where the Court of Appeal of the Supreme Court of Victoria quashed the conviction and ordered the acquittal of the accused person on the basis of the failure of the Crown (in its broadest sense, which here included Victoria Police) to disclose the police payments to the key Crown witness.

16 See, eg, Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; Lee v The Queen [2014] HCA 20.

17 Submission 156 The Honourable Douglas Drummond QC, 2.

18 Public Prosecutions Act 1994 (Vic) s 10(2).

19 Kerri Judd, ‘Statement of the Director of Public Prosecutions Kerri Judd QC regarding the Submission of Mr Douglas Drummond QC to the Royal Commission into the Management of Police Informants’ (Media Release, 20 October 2020).

20 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020), 4.

21 See Victoria Police Act 2013 (Vic) ss 125, 166; Independent Broad-based Anti-corruption Commission Act 2011 (Vic) s 5.

22 Victoria Police Act 2013 (Vic) s 132.

23 Former Victoria Police officers can only be charged with accessing, using or disclosing police information: Victoria Police Act 2013 (Vic) s 227.

24 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 81-2.

25 Vesting the power to lay disciplinary charges in a person other than the Chief Commissioner is not without precedent. See, eg, Victoria Police Act 2013 (Vic) s 130(1)(a).

26 See Victoria Police Act 2013(Vic) s 171.

27 Under the Victoria Police Act 2013 (Vic) s 130(1)(b), the Chief Commissioner may appoint an authorised officer, who must be a police officer or public servant, to determine disciplinary charges. The Commission has been advised that a former Assistant Victorian Government Solicitor currently performs this role.

28 Parliament of Victoria, Independent Broad-based Anti-corruption Commission Committee, Inquiry into the External Oversight of Police Corruption and Misconduct in Victoria (Report, September 2018) 310 (Recommendation 64).

29 See, eg, Independent Broad-based Anti-corruption Commission Act 2011(Vic) s 161(6)(a), which prohibits IBAC publishing in a special report ‘a finding … that a specified person is guilty of or has committed … any … disciplinary offence.’

30 AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym)(2018) 362 ALR 1 [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

31 Inquiries Act 2014 (Vic) s 124(1).

32 Inquiries Act 2014 (Vic) s 124(2). PROV only receives the Commission’s ‘permanent records’ (as defined by ‘Retention and Disposal Authority for Records of Royal Commissions, Boards of Inquiry and Formal Reviews’ PROS 17/01).

33 Attorney-General’s Department (Australian Government), Protective Security Policy Framework, Policy 8: Sensitive and security classified information.

34 Public Records Act 1973 (Vic) s 9.

35 R v Szabo [2001] 2 Qd R 214.

36 Michael Mintrom, Deirdre O’Neill and Ruby O’Connor ‘Royal commissions and policy influence’ 2020, Australian Journal of Public Administration  1, 14.

37 Parenting Research Centre, Implementation of recommendations arising from previous inquiries of relevance to the Royal Commission into Institutional Responses to Child Sexual Abuse (May 2015).

38 Parenting Research Centre, Implementation of recommendations arising from previous inquiries of relevance to the Royal Commission into Institutional Responses to Child Sexual Abuse (May 2015), xv–xvi.

39 Parenting Research Centre, Implementation of recommendations arising from previous inquiries of relevance to the Royal Commission into Institutional Responses to Child Sexual Abuse (May 2015), xvi.

40 For example, Royal Commission into Family Violence (Report, 2016) Summary and Recommendations (Recommendation 198); Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Final Report, 2017) vol 4 (Recommendations 43.5–43.6); Australian Government, ‘Restoring Trust in Australia’s Financial System: Financial Services Royal Commission Implementation Roadmap’ (August 2019), 5.

41 For example, Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Final Report, 2017) vol 4 (Recommendations 43.3, 43.7); Royal Commission into Family Violence (Report, 2016) Summary and Recommendations (Recommendation 200).

42 For example, Royal Commission into Family Violence (Report, 2016) Summary and Recommendations, 15.

43 For example, Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report: Recommendations, 2017) (Recommendations 17.1–17.2).

44 For example, 2009 Victorian Bushfires Royal Commission (Final Report, 2010) vol II, (Recommendation 66); Family Violence Reform Implementation Monitor Act 2016(Vic); Hazelwood Mine Fire Inquiry (Report, 2014) (Recommendation 1).

45 For example, Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report: Recommendations, 2017) (Recommendation 17.4); Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Final Report, 2017) vol 4, (Recommendation 43.1).

Reviewed 07 December 2020

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