RCMPI

Volume IV

Volume IV of the Final Report of the Commission into the Management of Police Informants

To view the full report click here.


Date:
November 2020

Chapter 14

Use and disclosure of information from human sources in criminal prosecutions

Introduction

Term of reference 4 required the Royal Commission to inquire into and report on the current use of information in the criminal justice system from human sources who are subject to legal obligations of confidentiality or privilege. Term of reference 4 also directed the Commission to examine a very specific aspect of disclosure in criminal cases; namely, the appropriateness of Victoria Police’s practices for the disclosure or non-disclosure of the use of such human sources to prosecuting authorities.

Term of reference 5b required the Commission to consider measures that may be necessary to address any systemic or other failures arising from the use of information obtained from human sources subject to legal obligations of confidentiality or privilege in the criminal justice system, and how such failures may be avoided in the future.

It is important to acknowledge that the disclosure practices that existed throughout the period that Ms Nicola Gobbo was providing information to Victoria Police differ in many respects to current practices. Some of those historical practices and their application to the events relevant to terms of reference 1 and 2 are discussed in Chapter 9.

This chapter does not address these historical practices but instead sets out how the current law and policy operate and the Commission’s conclusions about the adequacy and appropriateness of current practices. As required by term of reference 4, this chapter also considers whether there are adequate safeguards for how:

  • Victoria Police prosecutes summary proceedings
  • the Victorian Office of Public Prosecutions (OPP) prosecutes indictable proceedings on behalf of the Victorian Director of Public Prosecutions (DPP).

Prosecutors play a vital role in ensuring that criminal proceedings are conducted fairly. They have several well-defined duties, including the duty of disclosure. For a prosecutor to fulfil their role effectively, it is critical that they have knowledge of material that is relevant to an accused person’s case. This includes any information that could undermine that person’s right to a fair trial. The prosecution needs all relevant information to assess whether a fair trial can occur. Without this information, the prosecution is unable to safeguard against the risk of an unfair trial.

The importance of the prosecution being aware of all matters relevant to an accused person’s case is starkly illustrated in the events that led to this inquiry. The Court of Appeal of the Supreme Court of Victoria observed that because the matters relating to Ms Gobbo’s role as a human source were subject to a public interest immunity (PII) claim and Victoria Police did not disclose this information to the DPP or the court before the relevant convictions, there was no possibility of a prosecution being withdrawn or trial being stayed (stopped either temporarily or indefinitely). As the Court of Appeal stated, the failure of the Chief Commissioner to disclose the relevant matters to the DPP resulted in a ‘very difficult and unfortunate situation’.1

In Victoria, the law of PII typically operates to prevent the police and the prosecution from disclosing to an accused person that a human source has provided information relevant to their case. This is based on the need to protect the safety of the human source as well as the community benefits to be gained from the continued use of human sources, who may only provide information to police if confident that their identities will be protected. In most criminal proceedings in Victoria, police do not generally disclose to the prosecution the existence of a human source.2

Victoria Police’s practices for disclosing information from human sources who have legal obligations of confidentiality or privilege are essentially covered by the same laws and policies that regulate the use of human source information more generally in the criminal justice system. To address this term of reference, the Commission has therefore had to examine:

  • how disclosure operates in the criminal justice system more broadly
  • general principles that apply to the disclosure of human source information.

It is important to note the limits of term of reference 4 and therefore the discussion in this chapter. Human sources can be used in the criminal justice system as either sources of information only or sources of information who are also witnesses. Term of reference 4 related to the use of human sources with legal obligations of confidentiality or privilege as sources of information only. Situations when a human source is involved as a co-accused in the criminal acts of the accused person, or when a human source becomes a witness, are outside the scope of term of reference 4.

Having reviewed the current law and practice in this area and considered stakeholders’ views and experience, as well as the approach taken in other jurisdictions, the Commission considers that there is scope for reform in the conduct of criminal proceedings when an investigation has involved information from a human source. In particular, the Commission considers that Victoria Police’s processes for disclosing relevant material to prosecuting authorities should be strengthened. It recommends that disclosure certificates be introduced to remind Victoria Police officers of their disclosure obligations and encourage them to provide information to prosecuting authorities clearly and transparently.

The Commission also considers that there is scope to improve disclosure practices more broadly; in particular, positive cultural change, effective leadership and improved training of Victoria Police officers are crucial to achieving sustained and long-term improvements in disclosure practices.

Current context and law

This section sets out current law and practice in Victoria regarding the use and disclosure of information from human sources who are subject to legal obligations of confidentiality or privilege.

It outlines:

  • the prosecution’s duty of disclosure in Victoria, including how disclosure operates more broadly in the criminal justice system and the key principles that govern the disclosure of human source information
  • the current processes and procedures for the disclosure of information subject to a PII claim
  • how police disclose information to prosecuting authorities in other Australian jurisdictions.

The prosecution’s duty of disclosure

In Victoria, as in other Australian jurisdictions, the prosecution’s duty of disclosure comes from a combination of legislation, common law and professional guidelines.3 Further, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) recognises that a person charged with a criminal offence in Victoria is entitled to be ‘informed promptly and in detail of the nature and reason for the charge’.4

Prosecutors have a significant role in the proper administration of justice. They represent and exercise the powers of the state; therefore, they have a duty to ensure that the prosecution’s case is presented fairly and impartially.5 The High Court of Australia recently described this duty as involving the prosecutor presenting to the court all ‘available, cogent and admissible evidence’.6 In criminal proceedings, the prosecutor’s role is not to obtain a conviction by any means necessary. Instead, it is to give the court all relevant and reliable evidence surrounding a case and to address the jury about how to use that evidence according to the law.7

The duty of disclosure is a key part of the prosecution’s duty to conduct cases fairly and to make an accused person aware of the case against them. Accordingly, the prosecution has a duty to disclose all evidence that is relevant to the case against the accused person, even if that evidence might undermine the prosecution’s case or help the accused person.8

For example, in a case where an accused person is charged with an armed robbery at a convenience store and their defence is that they were not present at the time of the robbery, evidence from a witness that identifies the accused person as the person who committed the robbery is relevant and supports the prosecution case. If another witness asserts that a different person committed the robbery, the prosecution should also disclose this information to the accused person, even if it undermines the prosecution case by showing that someone else may have committed the robbery.

The duty of disclosure applies to ‘the prosecution’ in a broad sense. This includes police prosecutors, the DPP and other lawyers who act on behalf of the DPP to prosecute a criminal offence. This also means that for the purposes of the prosecution’s duty of disclosure, police are part of the prosecution.9 The reason for this is that the prosecutor can only fulfil their duty of disclosure to the extent that they know about the information that must be disclosed to the accused person, because they have been given the information.10 The prosecution therefore has a duty to disclose all relevant material that the police possess, regardless of whether the individual prosecutor is also aware of that information.

Disclosure helps to make the legal system more equitable. Police and the prosecution have the resources of the state behind them, so requiring the prosecution to disclose all relevant material to an accused person helps achieve ‘equality of arms’ between the prosecution and the defence, and therefore a fair trial for the accused person.11

The prosecution must disclose to an accused person any material that is known to them that, on their assessment:

  • is relevant or possibly relevant to an issue in the case
  • raises or possibly raises a new issue that is not apparent from the evidence the prosecution proposes to use
  • holds out a ‘real as opposed to fanciful prospect’ of providing a line of inquiry that may lead to material that is relevant to an issue in the case or raise a new issue.12

There are exceptions to this duty to disclose all relevant known material. These are:

  • claims of PII
  • claims of legal professional privilege
  • laws that restrict providing certain information (also known as statutory prohibitions).13

This chapter is primarily concerned with exceptions to disclosure based on PII claims. The significance of PII to the disclosure of human source information is discussed further below.

The consequences of the prosecution failing to disclose relevant material to an accused person can be serious. It can result in a conviction being successfully appealed with a resulting retrial, an acquittal or an order for a ‘permanent stay’, which means the proceedings are stopped by the court. This may occur even when there is an ‘innocent failure to disclose relevant material’; that is, when the failure to disclose was not intentional.14

The police and prosecutor’s roles in fulfilling disclosure requirements

The prosecution does not play an investigative role in the criminal justice system. Prosecutors must act based on the evidence that police supply: that is, they rely on police investigators providing all relevant information to enable them to comply with their duties of disclosure to an accused person and the courts.15 This is why the duty of disclosure extends to police.16

The relationship between the police and the prosecution is one of interdependence and cooperation and it starts early in the prosecution process. There are some differences between the process for indictable offences, which must be prosecuted by the OPP and the process for summary offences, which can be prosecuted by police.

Some of the key differences between summary and indictable proceedings are outlined in Box 14.1.

BOX 14.1: SUMMARY AND INDICTABLE PROCEEDINGS

A summary proceeding is one that is conducted in the Magistrates’ Court of Victoria. Summary proceedings deal with criminal charges for less serious offences, such as motor vehicle offences and minor assaults. If a case before the Magistrates’ Court raises complex issues, the Court may decide that it would be more appropriately dealt with in the County Court of Victoria (if that Court has the authority to hear cases of that kind) and order the case to be heard there.

In Victoria, most summary prosecutions are conducted by Victoria Police prosecutors. The Victoria Police prosecutions service is called the Prosecutions Unit. The DPP also has the power to take over and conduct a summary prosecution.17 In doing so, the DPP must consider several matters including the seriousness of the offence and the complexity of the prosecution.18

Most criminal offences in Victoria are prosecuted as summary prosecutions in the Magistrates’ Court. In the year 2018-19, there were 150,282 criminal cases commenced in the Magistrates’ Court. In comparison, over that same period, there were 2,467 criminal cases lodged in the County Court and 100 criminal cases lodged in the Supreme Court of Victoria.19

An indictable proceeding is one that is conducted in the County Court or the Supreme Court. Indictable proceedings involve criminal charges for more serious offences, such as murder, rape and armed robbery. Indictable proceedings are prosecuted by the DPP, and the OPP and Crown Prosecutors, on behalf of the DPP. Crown Prosecutors are experienced criminal barristers who work exclusively for the DPP.

Regardless of the type of proceeding, summary or indictable, the law specifies the disclosure obligations of police. In Victoria, these are primarily set out in the Criminal Procedure Act 2009 (Vic) (Criminal Procedure Act) and help ensure that disclosure occurs in an efficient and timely way.20

A police officer who is responsible for fulfilling the disclosure obligations in the Criminal Procedure Act is referred to as an ‘informant’.21

The informant is responsible for starting criminal proceedings and has a range of responsibilities. The scope of an informant’s disclosure responsibilities varies depending on the nature of the criminal proceedings (that is, whether it is an indictable or a summary proceeding). There are slightly less onerous disclosure obligations in summary proceedings than in indictable proceedings.22 The next section explains the disclosure obligations for both types of proceedings.

Disclosure requirements in summary proceedings

In summary proceedings, police can disclose material to an accused person through a preliminary brief and, if the accused person requests it, through a full brief.

A preliminary brief must include materials such as a copy of the charge-sheet, which outlines the alleged offence; a notice about legal representation; the informant’s statement of the evidence that supports the charge; and a copy of the accused person’s criminal record, if they have one.23 Even at this early stage, a police officer should disclose an outline of any material helpful to the accused person.

The informant must check boxes on a form indicating that the brief contains all required information available at the time the brief is prepared.24 This form is prescribed by the Magistrates’ Court Criminal Procedure Rules 2019 (Vic).

An accused person can also request a full brief. A full brief is a more comprehensive form of disclosure. It must include basic material that has to be given in all cases (for example, the charge-sheet and a notice about legal representation), all material that the prosecution intends to rely on, and—crucially—material relevant to the charge that the prosecution possesses but does not intend to rely on at court.25

Disclosure requirements in indictable proceedings

Generally, in indictable proceedings, after police have concluded their investigation, they will provide a brief to the OPP containing the material the police consider relevant to the charges. The brief will not include any material that the police consider is subject to a PII claim. The ordinary process of dealing with material that police identify as subject to a PII claim is described later in this chapter.

After charges are laid, the police and the prosecution continue to work together to ensure that all the relevant material that must be disclosed to the accused person is identified and then disclosed in accordance with the applicable legislation. For example, the Commission was advised that after the first hearing of an indictable matter, the OPP sends an information sheet to the police officer with responsibility for the case to help them fulfil their disclosure obligations. The information sheet also invites the officer to contact OPP solicitors about any questions or concerns they have about disclosure.26 The pre-trial consultation process is outlined in Figure 14.1.

Figure 14.1: Pre-trial consultation between police and the prosecution 27
Figure 14.1 - Pre-trial consultation between police and the prosecution

In indictable proceedings, police disclose relevant material to an accused person through a hand-up brief. The hand-up brief must include material such as a copy of the charge-sheet, a summary of the key facts, any information or document that the prosecution intends to rely on (including diaries and notes kept by police investigating the offence, photos, statements from witnesses and transcripts of interviews) and any other relevant material that the prosecution possesses but does not intend to rely on.28 The hand-up brief process is outlined in Figure 14.2.

Figure 14.2: Hand-up brief process 29

Figure 14.2- Hand-up brief process

If the accused person consents, the informant may also serve—that is, formally deliver—a plea brief to the accused person. The informant can do this at any time before a hand-up brief is served. The plea brief can be used instead of the full hand-up brief in cases when the prosecution and the accused person have had early discussions and the accused person has agreed that they will plead guilty to a charge or charges. The content of a plea brief will usually be much less extensive than a hand-up brief.

A plea brief must also include a copy of any statement from an alleged victim about the circumstances of the offence and any other statement relevant to the charge.30

Continuing obligation of disclosure

Police have a continuing obligation of disclosure regardless of the nature of the proceedings.31 That obligation requires an informant to serve on the accused person and provide to the court any information that must be disclosed when it comes into the informant’s possession or notice. This needs to be done as soon as practically possible. The duty continues after the prosecution has completed the disclosure requirements under the Criminal Procedure Act outlined above.32

The duty of disclosure starts when police first lay a criminal charge against an accused person. During the court proceedings, the duty requires police to provide to the accused person (or to the prosecution to provide to the accused person) any information that is relevant or possibly relevant to the case. This means that if the case against an accused person changes in the course of the proceedings, sometimes the information that must be disclosed to the accused person will likewise change as new issues arise.

The duty of disclosure continues even after the proceeding has been finalised.33 For example, if an accused person has been convicted and police later become aware that a pivotal prosecution witness lied, police must provide this information to the DPP so that it can be disclosed to the accused person. Information that should have been, but was not, disclosed prior to conviction can lead to that conviction being set aside by a court.34

Public interest immunity and the prosecution’s duty of disclosure

As noted earlier, both the common law and legislation outline exceptions to disclosure obligations. For the Commission, the most significant exception to disclosure obligations and the one that has featured in this inquiry concerns material that is subject to a PII claim.

PII is a principle recognised by the common law and is also a rule of evidence that allows relevant material not to be disclosed when:

  • disclosing it would damage the public interest; and
  • the need to avoid this damage outweighs the accused person’s right to have all relevant material made available to them.35

The court is responsible for determining whether material should be withheld. In doing so, it must engage in a balancing exercise, considering whether the public interest in withholding disclosure outweighs the public interest in the proper administration of justice. If the court determines that the PII claim is made out, the material is not disclosed to the accused person and cannot become evidence in the case.

If the court finds the material is covered by PII, but it would assist an accused person to defend themselves in criminal proceedings, the proper course may be for the prosecution to abandon the prosecution or for the court to stay proceedings rather than to risk an unfair trial.36

Process for claiming public interest immunity

As part of their disclosure obligations, police are required to inform the prosecutor and the accused person of the existence of material that is subject to a PII claim. As noted above, that material is ordinarily not provided to prosecutors in the brief prepared by police, unless it is requested by the prosecutors at the conclusion of the investigation stage. Rather, any PII claims made over that material are managed separately by Victoria Police, which may seek advice from the Victorian Government Solicitor’s Office (VGSO).

Often a court will hold a hearing about that material, in which it will decide whether to uphold the PII claims police have made. If a PII claim is litigated, the police are typically assisted by the VGSO in that proceeding. In some cases, Victoria Police invites the prosecutors to review the material, either before or after a PII claim has been determined by a court, in order to determine what, if any, significance it may have to a criminal proceeding. When police do this before a court has determined the PII claim, the material will generally be provided on the basis that it be treated confidentially until the claim is determined.37 The prosecutors may decline to accept this invitation, consistent with their discretion to decide when it is appropriate to review PII material (explained below). Key steps in the ordinary process for the treatment of PII material in indictable proceedings are depicted in Figure 14.3.

Figure 14.3: Treatment of public interest immunity material in indictable proceedings 38
Figure 14.3 - Treatment of public interest immunity material in indictable proceedings.jpg
The Policy of the Director of Public Prosecutions for Victoria (DPP Policy) provides that if police have not disclosed to the accused person relevant material because it is subject to a PII claim, police should inform the prosecutor:
  • about the nature of the material and the basis of the claim
  • whether a court has ruled on the claim—if so, police should give the prosecutor a copy of the ruling and the court’s reasons39
  • whether, in the opinion of police, the material, on a sensible appraisal, substantially weakens the prosecution’s case or substantially strengthens the accused person’s case.40

In addition to the common law doctrine of PII outlined above, the Criminal Procedure Act sets out a number of public interest grounds on which the police officer who commences the criminal proceeding may refuse to disclose information to an accused person that they would otherwise need to disclose.41 This includes if the police officer considers that the disclosure would, or would be reasonably likely to:

  • reveal the identity of a confidential source of information in relation to the enforcement or administration of the law or enable a person to find out that identity42
  • reveal policing methods in a way likely to compromise their effectiveness43
  • endanger the lives or physical safety of persons engaged in law enforcement or persons who have provided confidential information.44

If police have material that is relevant to an accused person’s case but consider that the material should be withheld pursuant to a claim for PII, they can describe on a document the grounds for refusing disclosure. They do not have to specify the nature of the material. For instance, if police take a statement from a witness that refers to a meeting with a human source, this information could alert the accused person that there is a human source, and place the human source in danger. In these circumstances, police can describe the document—in this case, a witness statement—more generally, without specifying its nature. For example, the police could simply note that ‘other material relating to the proceeding has been withheld because of claims of PII’.

Police then provide this document to the accused person with the brief of evidence. The requirements for summary and indictable proceedings differ:

  • In summary proceedings, the informant must provide the accused person with:
    • a document known as the ‘Form 10’ when the informant is required to serve a preliminary brief
    • a document known as the ‘Form 11’ when the informant is required to serve a full brief.45
  • In indictable proceedings, this document is known as the ‘Form 30’ and the informant must provide it to the accused person with the hand-up brief.46

In all cases, the form should indicate that the brief accompanying it contains a written notice of ‘any information, document or thing’ that is relevant to the alleged offence but that the prosecution does not intend to use at the hearing.47

In both summary and indictable proceedings, the form must be completed and signed by the informant. In indictable proceedings, in addition to providing the accused person with a hand-up brief and a Form 30, the police officer must also provide copies of both documents to the DPP.48

If the accused person wishes to obtain further information about certain materials that police hold, including materials identified on the form, they can issue a subpoena seeking more information or request further disclosure. The Criminal Procedure Act sets out processes for an accused person to request further disclosure in both summary and indictable proceedings.

In summary proceedings, an accused person may apply to the Magistrates’ Court for an order requiring disclosure if the informant:

  • has served on the accused person a statement of grounds for refusing disclosure; or
  • has failed to disclose in accordance with the relevant provisions in the Criminal Procedure Act.49

In indictable proceedings, further disclosure of the prosecution case may take place through the case direction notice process. A case direction notice, known as a ‘Form 32’, must be jointly completed by the accused person and the prosecution.50 It outlines whether the accused person seeks any item listed in the hand-up brief that the informant has refused to produce. The Magistrates’ Court usually resolves these matters at a committal mention hearing.51 The County Court or the Supreme Court may exercise similar powers at a directions hearing as well as prior to and during trial.52

Confidentiality of human source information

PII generally applies to prevent the disclosure of information identifying a human source, except when the identity of the human source needs to be disclosed because it is relevant to an accused person’s defence.53 As noted earlier, this principle is based on the need to protect the human source’s identity and safety as well as the community benefits to be gained from the continued use of human sources, who require confidence that their identities will be protected.

The DPP Policy explains that a prosecutor’s disclosure obligations to an accused person are subject to any PII claim.54 The prosecution may refuse to disclose material on the basis of PII, when, for example, disclosure of the material may place a person in danger or reveal the identity of a human source. The exception is where, as in Ms Gobbo’s case, the public interest in disclosing the human source’s identity and conduct is greater than the public interest in the human source’s anonymity.55

In most Victorian criminal proceedings, police do not tell prosecutors whether human sources are being used, unless the source is involved in the accused person’s criminal acts (that is, they are a co-accused person or a witness).56 In many cases, the informant who brings the charges against the accused person will also be unaware that a human source is involved. This may occur because the information has been deliberately quarantined within a separate area of Victoria Police of which the informant is not a part. As discussed further below, this occurred in relation to some cases affected by Ms Gobbo’s conduct, as the police officers who obtained information from Ms Gobbo about certain individuals’ criminal offending were often not the police informants or officers preparing the brief to the DPP.

This practice of police protecting the identity of a human source is consistent with the public interest position outlined above. Ms Gobbo’s role as a human source plainly demonstrates the tension between two key principles. On the one hand, the prosecution must disclose material of assistance to the defence, but on the other, they must ensure the human source is protected.57

Resolving public interest immunity claims

PII claims can be brought before a court for determination in several ways. One way in Victoria, as in other Australian jurisdictions, is when an accused person challenges a PII claim where police have refused to disclose material that is relevant to the accused person’s case. Another way is when police apply to a court to seek a PII ruling.

Current practice is that, when a PII claim is argued in court, Victoria Police is typically represented by the VGSO. Within the VGSO, there is a police advisory branch (PAB) that focuses exclusively on matters related to Victoria Police. The PAB in most cases advises police on matters involving PII claims, as well as assisting police to litigate PII claims.

The DPP does not advise Victoria Police on PII issues; nor is it involved in resolving these claims in court. The DPP Policy specifically provides that when material is withheld from an accused person on the basis of a PII claim or other statutory prohibition, the person or agency that holds the material—not the prosecutor— must make any application or submission to a court to support that claim.58

If the DPP knows what type of material police have withheld and believes that the material should be disclosed to the accused person as a matter of fairness, police can apply to the court to prevent the DPP from making such a disclosure.59

In certain circumstances, the court can hear PII claims in an ex parte application (when an accused person is not notified and does not participate in the court proceedings). This approach is used rarely by courts, because it is effectively a hearing that the accused person has no knowledge or notice of, with a resulting risk of denying them a fair hearing.60 When a PII application is heard ex parte, a court may appoint a special counsel or amicus curiae (friend of the court) to assist the court, making submissions conscious of the interests of the accused person.

If a PII claim is successful, the prosecution will not be required to disclose otherwise relevant material to the accused person. If the claim is rejected, as noted earlier, the prosecution may need to withdraw the case, or the court may need to stay proceedings, rather than risk an unfair trial with the information undisclosed.61

This is because the law recognises that there is a public interest in certain information remaining secret, but that there is also a public interest in the proper administration of justice. As outlined earlier in this chapter, the proper administration of justice involves ensuring that an accused person is aware of the case against them and that criminal proceedings are conducted fairly. The High Court has stated that the processes of criminal justice should not be distorted to prevent an accused person from defending themselves properly.62

The prosecution’s duty of disclosure in other jurisdictions

Requirements for police disclosure of information to prosecuting authorities are broadly similar across all Australian jurisdictions. There are, however, some variations and each jurisdiction has its own statutory framework, practices and procedures.

The following section provides an overview of how police disclose information to prosecuting authorities across Australia.

Commonwealth

The Commonwealth Director of Public Prosecutions (CDPP) requires the informant to provide a list or copy of all materials that are disclosable. The informant is also required to notify the prosecutor if there is any material that is subject to a PII claim or other statutory prohibition.63 In addition, the informant needs to complete a disclosure certificate, certifying their compliance with their disclosure obligations, and provide this to the prosecution.64

The CDPP has its own procedures for disclosing to the defence that relevant material has been withheld from the accused person.65 Often, the prosecution will disclose to the accused person the existence of the material and the nature of the claim through a letter.66 How much information they can provide depends on the nature of the material.67

Australian Capital Territory

In all matters where an accused person enters a plea of not guilty, the Australian Capital Territory Office of the DPP requires the informant to complete a certificate that is prepared with and attached to the full brief of evidence.68 The certificate must provide information about any evidence not contained in the brief that may be relevant to the accused person, as well as any information about relevant witnesses who have not provided a statement.69

The accused person is provided with a copy of the certificate. If the prosecution is aware of the existence of disclosable material that has been withheld and not referred to in the certificate, the prosecution must write to the accused person to notify them of this material.70

New South Wales

The Director of Public Prosecutions Act 1986 (NSW) (New South Wales DPP Act) requires police to notify the New South Wales DPP of the existence of all relevant ‘information, documents or other things’ that might reasonably be expected to assist the case for the prosecution or the case for the accused person.71 If requested, police must disclose material to the prosecution, including material subject to a PII claim.72

Police must also sign a disclosure certificate certifying that they have notified the prosecution of all such material and other information. This rule applies whenever a brief of evidence is provided to the DPP for advice, regardless of whether the matter is summary or indictable.73

The disclosure certificate is not provided to the accused person. Instead, the accused person is notified by a letter of disclosure drafted by the prosecution. The letter of disclosure informs the accused person about the existence of material relevant to their case, including material that may be subject to a PII claim.74

Northern Territory

The Northern Territory Office of the DPP requires police to provide a schedule—a list of extra information— itemising any potentially disclosable material that they consider is immune from disclosure to the defence. It must outline why it believes the particular material is immune from disclosure on public interest grounds, together with why it believes that the material is subject to PII.75 Police also need to complete a disclosure certificate certifying that they have notified the prosecution of the existence of all relevant material.76

If the prosecutor decides not to disclose material on the basis of a PII claim, the prosecutor should notify the accused person that material has been withheld and claim an immunity against disclosure in respect of that material.77

Queensland

The Director of Public Prosecutions Act 1984 (Qld) requires a police officer investigating an alleged offence to disclose to the DPP all relevant ‘information, document or other things’ that might tend to help the case for the prosecution or the case for the accused person.78 The Queensland Office of the DPP requires police to disclose to the prosecution material that is part of the brief of evidence and is relevant to the accused person’s case.79 When police alert the prosecution to material that is subject to a PII claim, the prosecution decides whether to disclose that material to the accused person.

If the prosecution decides to withhold the material, it must inform the accused person in writing that this has occurred.80

South Australia

The South Australian Office of the DPP requires the police officer in charge of an investigation in indictable matters to provide a list of ‘all documentary material collected or created’ during an investigation that may reasonably be expected to assist the case for the prosecution or the accused person.81 Police also need to complete a disclosure certificate that certifies they have complied with their disclosure obligations and provide it to the prosecution.82

The prosecution does not provide the accused person with the disclosure certificate. When there is material relevant to the accused person’s case that is subject to a PII claim, the prosecution advises the defence of this in a letter.83

Tasmania

The Tasmanian Office of the DPP requires police to disclose to the prosecution all material that is relevant to the case of the accused person, even if the material is subject to a PII claim.84

Prosecutors must disclose to the accused person all material they believe to be relevant to the person’s case.85 If a PII claim is made over the material, though, the prosecution will not disclose the material without first consulting the investigating officer in charge of the case.86

Western Australia

The Western Australia Office of the DPP requires police to disclose to the prosecution all material that is relevant to the accused person’s case and to certify that they have done so.87

The prosecution gives the accused person a list of all relevant material. If material is subject to a PII claim, the prosecution must provide to the accused person a short description of the material, the nature of the claim and the reason for the claim.88

There is a detailed statutory regime for disclosure in Western Australia, and an application can be made to the court for a non-disclosure order under section 138 of the Criminal Procedure Act 2004 (WA) (Western Australia Criminal Procedure Act).89

Challenges and opportunities

This section sets out the main issues that were raised with the Commission about the appropriateness of Victoria Police practices in relation to disclosure of human source information to prosecuting authorities. The section also highlights relevant aspects of the disclosure regimes in New South Wales, the United Kingdom and Western Australia. The Commission examined the models in these jurisdictions because stakeholders suggested that aspects of them could be applicable in Victoria. The United Kingdom has also introduced significant reforms to improve disclosure practices in recent years.

Before outlining these issues, challenges and opportunities, it is important to address two other Victorian reviews in 2020 that explored issues relevant to disclosure obligations and processes:

  • Committals Review—a review by the Victorian Law Reform Commission (VLRC) of the committals process.90 Under its terms of reference, the VLRC was asked to consider several matters, including ways of improving early disclosure processes in indictable criminal proceedings. Some matters considered by the VLRC overlapped with aspects of the Commission’s inquiry. Unlike the VLRC, however, this Commission is concerned with disclosure specifically as it relates to the use of human source information in criminal proceedings.
  • Operation Gloucester—a review by the Independent Broad-based Anti-corruption Commission (IBAC) into police conduct in the Victoria Police Lorimer investigation, which concerned the murders of Sergeant Gary Silk and Senior Constable Rodney Miller in 1998.91 IBAC’s public hearings, held from 4 February to 1 March 2019, focused on Victoria Police’s witness statement-taking practices and compliance with the obligation to disclose evidence during the Lorimer investigation. The review also examined police statement-taking and disclosure practices in other Victoria Police investigations.

The conclusions and recommendations of the Committals Review and Operation Gloucester are outlined below where relevant.

Police disclosure obligations to prosecuting authorities

As noted earlier in this chapter, police have a general duty to provide the prosecution with all relevant material and information required for the prosecution case.92 This duty extends to advising the prosecution of the existence of any other material not relied upon that might be relevant to the accused person’s case.

Some stakeholders drew the Commission’s attention to perceived deficiencies in how police fulfil their disclosure obligations to prosecuting authorities.93 For example, in a submission to the Commission, the Criminal Bar Association stated:

The Commission’s inquiry illuminates the deficiencies in proper and ongoing disclosure by police, particularly in the area of public interest immunity (PII), under which police fail to disclose to prosecutors relevant aspects of the investigation. The consequence is that prosecutors are ill-equipped to comply with their duty of disclosure.94

As well as identifying perceived deficiencies, stakeholders also suggested reforms to improve police disclosure obligations. Several submissions supported the approach to police disclosure that operates in New South Wales.95

A statutory duty to disclose relevant material to prosecuting authorities

In a submission to the Commission, the DPP stated that:

For the purpose of conducting proceedings on indictment and the performance by the DPP of its other functions, it is essential that investigators disclose to the prosecution the existence of all information that is relevant to an alleged offence, so that the prosecutor can then make the requisite disclosure to the defence (if it has not already been made).96

The DPP emphasised that investigators should not decide to conceal the existence of relevant information on their own. Instead, they should inform the DPP when relevant information exists, even if investigators believe that this information cannot be disclosed (whether because of PII, a statutory prohibition or for some other reason).97 The DPP submitted that the DPP Policy reflects this position.98

To avoid potential disclosure failings arising from information not being provided to prosecutors, the DPP submitted that a provision should be introduced in Victoria similar to section 15A of the New South Wales DPP Act but adapted so that it is consistent with the disclosure requirements in the Criminal Procedure Act.99

The requirements of section 15A are outlined in Box 14.2.

BOX 14.2: NEW SOUTH WALES POLICE STATUTORY DUTY TO DISCLOSE ALL RELEVANT MATERIAL TO THE DIRECTOR OF PUBLIC PROSECUTIONS

Similar to Victoria, the prosecution’s disclosure obligations in New South Wales are regulated by several different laws and policies, including the Criminal Procedure Act 1986 (NSW), the Director of Public Prosecutions Act 1986 (NSW), the prosecution policies of the New South Wales DPP and the rules of the law society and bar association.100

As in Victoria, in New South Wales the prosecution must disclose all relevant material to the accused person, subject to any exceptions.101 Unlike in Victoria, however, the police also have a specific statutory duty to disclose all relevant material obtained during an investigation to the New South Wales DPP. A statutory duty is a duty imposed by legislation. It imposes a stronger obligation than a requirement imposed by a guideline or policy only.

The statutory duty is specifically provided for in section 15A of the New South Wales DPP Act.

In New South Wales, in all matters prosecuted by the DPP, police must provide the brief of evidence and:

  • notify the DPP of the existence of, and when requested, disclose all other material and other information that might be relevant to either the prosecution or the defence
  • certify that they have notified the DPP of all such material and other information.102

This statutory obligation applies whenever police provide a brief of evidence to the DPP for advice, whether the matter is summary or indictable.103 There is no equivalent to section 15A in Victorian legislation, though the DPP Policy does include a similar requirement.104 This is discussed further below.

Section 15A does not require police to provide the New South Wales DPP any material or information that is subject to a PII claim.105 In such a case, police must inform the DPP of the existence of any material or other information, the nature of that material or information, and the claim they are making or the ‘statutory publication restriction’ (a prohibition or restriction on publication that is imposed by or under legislation) they are relying upon. It is only if the DPP requests the material or other information that the police must provide it to the DPP to assess.106

The DPP then decides case by case whether to request additional information or, when police have identified sensitive material and claimed PII over it, to seek access to that material.

When deciding whether to request access to material, the prosecution considers whether they need the material to meet their disclosure obligations to the accused person. They are also guided by the facts, circumstances and issues in the case that the defence is disputing.107

According to the Victorian DPP, introducing a provision similar to section 15A of the New South Wales DPP Act in Victoria would encourage better decision making about relevant material that is subject to a claim of privilege or immunity or a statutory publication restriction. The DPP further stated that the need to identify such material, and the basis of the claim, would remind investigators of the relevant legal principles—in particular, that they have no right to make unilateral decisions to conceal the existence of relevant material, and that even material that a court finds to be privileged or immune from disclosure may affect prosecution decisions.108

In an initial submission to the Commission, Victoria Police submitted that there is no need to introduce a provision such as section 15A, on the basis that the existing statutory framework adequately provides for appropriate disclosure from Victoria Police to the DPP.109 In a later submission, Victoria Police supported the adoption of a provision similar to section 15A, but considered that the accompanying legislation would need to impose relevant obligations on both police and the prosecution to maintain confidentiality of the material (for example, to only disclose that material if the court determines that PII does not apply and police believe that the matters should continue to trial). Victoria Police considered that these safeguards would ensure that a charge could be withdrawn in circumstances when PII is not granted, without jeopardising the safety of a human source.110

Other stakeholders, including the Criminal Bar Association, said that police alone and unassisted should not decide whether relevant information should be disclosed to an accused person.111 The Criminal Bar Association stated that police should be required to disclose all potentially disclosable material to the DPP so that there is some oversight of police views about what is relevant or irrelevant to an accused person and what material should be disclosed, and whether police are making a valid PII claim.112

In its Committals Review, the VLRC recommended that the Criminal Procedure Act be amended to provide that the informant’s disclosure obligations to the DPP apply regardless of claims of privilege, PII or statutory immunity, but where such claims are made, the material that is subject to these claims need not be produced to the DPP. The VLRC recommended that the informant must also indicate to the DPP the grounds on which they are refusing to produce the material.113

In its report on Operation Gloucester, IBAC recommended that the Victorian Government introduces a statutory obligation of disclosure in similar terms to section 15A, to reinforce the common law duty of disclosure.114 The report noted that section 15A specifically clarifies that New South Wales law enforcement officers investigating alleged offences have an ongoing duty to disclose to the New South Wales DPP all relevant information that might reasonably assist the case for the prosecution or the accused person.115 The report concluded that while the introduction of such a provision would not materially change the current common law duty of disclosure, recognising it in legislation would be a further means to ensure compliance with that duty.116

Disclosure certificates and disclosure documentation

A number of stakeholders also submitted that police should be required to certify that they have disclosed all relevant material to the prosecution.117

There was substantial support among stakeholders for the introduction of a disclosure certificate similar to that used in New South Wales,118 although some stakeholders said that the introduction of a disclosure certificate regime would not by itself resolve all of the issues relating to disclosure.119

The New South Wales disclosure certificate regime is outlined in Box 14.3 below, and a similar system used in Western Australia and a separate New South Wales Supreme Court procedure are outlined in Box 14.4.

BOX 14.3: DISCLOSURE CERTIFICATES IN NEW SOUTH WALES

Police in New South Wales are required to certify that they have notified the DPP of all relevant material and other information. This is provided in the form of a disclosure certificate, as prescribed in Schedule 1 of the Director of Prosecutions Regulation 2015 (NSW).

There are two parts to the disclosure certificate. The first part requires the investigating police officer to acknowledge their duty of disclosure, certify the accuracy of what they are disclosing, and undertake to disclose any additional relevant material they become aware of.

The second part contains three separate schedules that require the investigating officer to list any relevant material not included in the brief of evidence and to describe that material.120 The material must be listed as follows:

Schedule 1: relevant protected material that is subject to a claim of privilege or immunitythis schedule describes material that:

  • the investigating officer has identified as relevant
  • is not contained in the brief of evidence because it is subject to a claim of privilege, PII or statutory immunity.

Schedule 2: relevant material that is subject to a statutory publication restrictionthis schedule describes material that:

  • the investigating officer has identified as relevant
  • is not contained in the brief of evidence because it is subject to a statutory publication restriction.

The material would only be described as far as the statutory publication restriction allows.

Schedule 3: relevant unprotected material that is not subject to a claim of privilege or immunity or statutory publication restriction—this schedule describes material that:

  • the investigating officer has identified as relevant
  • is not contained in the brief of evidence
  • is unprotected material; that is, it is not subject to a claim of privilege, immunity or a statutory publication restriction.

The police officer who is responsible for the investigation completes, signs and dates the disclosure certificate.121 It must also be signed and dated by the police officer’s relevant superior officer.122

The disclosure certificate also requires the police officer responsible for the investigation to acknowledge that any claim of privilege, public interest or statutory immunity is directed through the police officer’s Commander to the Manager, Information Access and Subpoena Unit of the New South Wales Police.123

The NSW Police Force Handbook states that material that may be subject to a PII claim includes material that reveals, or might reveal, the identity of an undercover police officer, the existence or identity of a human source, or police methodology. The material could reveal this information either directly or indirectly.124

In these circumstances, police must include a description of the material and the nature of the immunity or privilege claimed in the relevant schedule. If a human source was involved in an investigation and was relevant to the accused person’s case, police would be expected to reveal the human source’s existence to the New South Wales DPP without revealing the source’s identity.

BOX 14.4: OTHER DISCLOSURE DOCUMENTATION USED IN WESTERN AUSTRALIA AND NEW SOUTH WALES

Like the approach in New South Wales, section 45 of the Western Australian Criminal Procedure Act 2004 (WA) provides that after an accused person is committed for trial on a charge, the prosecutor (typically the informant) must give the relevant authorised officer (typically the Western Australian DPP):

  • copies of disclosure material already provided to the accused person
  • a signed certificate stating that the prosecutor has complied with their disclosure obligations to date.

It is an offence to sign a certificate that is false in a ‘material particular’, regardless of whether this is done deliberately or without reasonable care. The penalty for this offence is $5,000.125 The section 45 certificate must be provided to the accused person.126

Another type of disclosure documentation is used in the New South Wales Supreme Court. In Supreme Court matters, the officer in charge of an investigation must swear an affidavit regarding their disclosure obligations. This is Supreme Court practice rather than a requirement of legislation.127

Both the DPP and Victoria Police suggested to the Commission that they consider the use of disclosure certificates in Victoria, as in New South Wales, as a way to facilitate the disclosure process in indictable matters.128 The DPP also pointed to the disclosure certificate requirements in Western Australia as a model for Victoria.129

In a submission to the Commission, the DPP noted that adding a requirement for informants to certify to a court that there has been full disclosure would focus their minds on the need for full compliance with their disclosure obligations.130 The DPP also considered that it may be desirable to include an obligation to provide the accused person with an updated list of material withheld on grounds of privilege or immunity or statutory prohibition grounds if that list has changed since the hand-up brief was served.131

Deputy Commissioner Wendy Steendam, APM, Specialist Operations, in her evidence to the Commission on behalf of Victoria Police, said that having different schedules in a disclosure certificate would help informants work through the complexities of what is relevant and what is not, as well as making sure that they have properly considered the issues that need to be disclosed.132

The DPP also submitted that any legislative requirement to provide these schedules of withheld material should be accompanied by appropriate Victoria Police internal policies or procedures that provide guidance to police investigators on how to describe withheld material and on the corresponding claims of privilege, immunity or statutory prohibition.133

Other stakeholders, including Victoria Legal Aid, the Law Institute of Victoria and the Criminal Bar Association, also supported introducing a requirement for police to complete disclosure certificates.134 Some, however, cautioned that the success of any certification process would depend on police making complete disclosure in a timely manner.135

In a submission to the Commission, Victoria Police identified that the introduction of a disclosure certificate would not by itself resolve all issues relating to disclosure. Like the DPP, it submitted that the introduction of a disclosure certificate must be accompanied by other measures. These measures include dedicated disclosure officers and improvements in information technology systems.136

While Victoria Police indicated support for using disclosure certificates in indictable matters, it did not consider them necessary for summary matters. It noted that this requirement would place considerable strain on the resources of Victoria Police and the criminal justice system, especially given the huge volume of summary matters.

Recommendation of the Victorian Law Reform Commission

In its Committals Review, the VLRC considered whether a disclosure certificate based on the New South Wales disclosure certificate should be introduced in Victoria. The report noted that some stakeholders (including the Law Institute of Victoria, the County Court and Victoria Legal Aid) supported the introduction of a disclosure certificate.137

The VLRC indicated that a benefit of introducing such a certificate in Victoria would be to reiterate police disclosure obligations and routinely remind police of those obligations.138 On the other hand, the VLRC noted that inadequate disclosure by police remains a problem in New South Wales, despite the use of disclosure certificates.139 The VLRC further stated that disclosure certificates are frequently signed by police despite disclosure not being complete.140

Accordingly, the VLRC considered that introducing a disclosure certificate requirement in Victoria may be a costly reform that is also hard to administer, with little real benefit.141

Instead, the VLRC recommended that the Criminal Procedure Act be amended to require informants to provide evidence at an ‘issues hearing’ (a proposed replacement for a committal mention hearing).142 This would require informants to give sworn evidence that they have met their disclosure obligations and provide an opportunity for the accused person to cross-examine them regarding disclosure.143

Disclosure to accused persons

As set out earlier in this chapter, for both summary and indictable matters in Victoria, currently police must complete a form to accompany either the full brief in the case of a summary hearing (Form 11) or the hand-up brief in the case of an indictable proceeding (Form 30). In either case, the form should list anything relevant to the alleged offence that the prosecution does not intend to use. As with a disclosure certificate, police can use the Form 11 and the Form 30 to indicate that they are withholding relevant information from the accused person, and their reasons.

The Commission heard from some stakeholders that there is scope to improve how accused persons are informed that relevant material has been withheld.

According to Victoria Legal Aid, the existing mechanisms (Forms 11 and 30) are inadequate, as police rarely provide reasons to justify PII claims.144 In a submission to the Commission, Victoria Legal Aid submitted that Forms 11 and 30 are rarely used to their full extent and do not adequately draw informants’ attention to their disclosure obligations. It considered that this may be linked to the weight police give to their disclosure obligations. In particular, Victoria Legal Aid noted that:

  • often, police believe disclosure only extends to witness statements that lead to establishing the criminal charges and not to other material
  • police give limited weight to the need to disclose all evidence in their possession and even less weight to evidence that may mitigate the accused person’s involvement in the offending or assist them to defend charges.145

In a submission to the Commission, the Criminal Bar Association stated that Forms 11 and 30 are appropriate if police complete them properly and consider carefully all the material they have that is, or may be, relevant.146 The Association also noted, however, that investigating police often appear to fill in these forms as an afterthought, once they have compiled the brief. It submitted that ideally, police should prepare these forms progressively while compiling a brief, so that all relevant materials that do not end up in the brief are properly listed in the forms.147

In New South Wales, although police do not serve a copy of a disclosure certificate on the accused person, the NSW Police Force Handbook states that the DPP may show the disclosure certificate to the accused person.148 In practice, after receiving the disclosure certificate and associated schedules of materials from police, the New South Wales DPP assesses the material identified and works with police to ensure that all relevant material and other information is accurately documented and disclosed. The DPP then drafts a letter of disclosure to the defence that includes information about all relevant materials included in the schedules of materials and disclosure certificate that the police have provided.

In contrast to the position in New South Wales, in Western Australia, the section 45 certificate of disclosure must be provided to the accused person.149

In its Operation Gloucester report, IBAC noted that despite existing disclosure obligations in Victoria, there is a significant risk that some police officers do not understand their disclosure obligations, especially that they must disclose all relevant material regardless of whether it helps or hinders the prosecution’s case.150

Court processes for determining public interest immunity claims

As discussed above, if police make a PII claim, it is for the court to determine whether that claim should be upheld. The DPP usually plays no part in determining the claim, although it might be involved to the extent that it is necessary for the court to understand how the prosecution is putting its case.151

The Commission heard from some stakeholders that the existing process for resolving PII claims is unclear and should be clarified in legislation. Stakeholder views about the potential for reform in this area are discussed below, along with the relevant case law.

Adequacy of current processes for determining public interest immunity claims

The present practice in Victoria is to disclose to an accused person the existence of relevant material that is privileged or subject to a PII claim, if this can be done without revealing its confidential contents, usually through the Form 11 in summary proceedings or the Form 30 in indictable proceedings.152 If relevant material is withheld and is not disclosed, an accused person can issue a subpoena and seek to have the court determine the issue. This means that ordinarily a court does not test or determine a PII claim unless an accused person is aware that material is being withheld and initiates a court challenge.

In a submission to the Commission, the DPP submitted that the procedure in Victoria for resolving disclosure issues is unsatisfactory for a number of reasons.153

The DPP submitted that there should be a clear process for investigating agencies or the prosecution to initiate a court determination of PII, privilege and disclosure issues.154 The current statutory and subpoena processes under the Criminal Procedure Act are initiated as defence challenges to a PII claim. The DPP considered that the prosecution or an investigating agency should be able to initiate determinations of such claims. It referred to human source-related material as a prime example of material about which it is important for an investigating agency to be able to actively obtain early guidance from the courts.155

The DPP further noted that in some circumstances, revealing the material may risk disclosing its contents. To deal with this, the DPP proposed that there could be legislation enabling the claim of privilege or immunity to be determined in court ex parte; that is, without the defence present or knowing about the application.156

In Australia, there is common law suggesting that ex parte applications can be used to determine PII.157 This draws on the approach that courts in the United Kingdom have taken. This approach is outlined in Box 14.5.

BOX 14.5: DETERMINING PUBLIC INTEREST IMMUNITY CLAIMS EX PARTE— UNITED KINGDOM AND AUSTRALIAN AUTHORITIES

In R v Davis, the English Court of Appeal held that the Crown may make an ex parte application to a court to determine a claim of privilege or PII, if disclosing to the accused person the existence and the general nature of the material would reveal its contents.158 The Court, however, stressed that ex parte applications are contrary to the general principle of open justice. It allowed the application solely to enable the court to test a claim that PII justifies non­-disclosure of material in the possession of the Crown.159

In H; C, the House of Lords noted it is only ‘in truly borderline cases’ that the prosecution should seek a court ruling on disclosure to be heard exparte.160 The House of Lords modified the procedure set down in Davis.161 It also considered that in such exparte applications, ‘special counsel’ might be briefed to ensure that the defence case for disclosure is properly aired. The House of Lords did not, however, rule out the possibility of an exceptional case where an ex parte application could be made without notifying the defence.162

These authorities have been given some consideration in Australia.163 For example, in R v Andrews, the Full Court of the Supreme Court of South Australia dismissed an appeal from a decision in which the trial judge followed R v Davis and heard an ex parte application for non-disclosure on the basis of PII.164 One part of the appeal argued ‘the defendant was inappropriately excluded from that part of the trial and his exclusion was compounded by a want of procedural fairness by a lack of disclosure to his counsel’.165 The appeal was not successful. In its decision, the Court applied R v Davis, arguing that:

An ex parte application for public interest immunity may be made, where advising the defence of the existence of the material, its general nature and of the asserted right to withhold the material, would reveal that which the prosecution contends should not in the public interest be revealed. In other words, where advising the defence as above would fundamentally undermine the purpose for which the claim was made, an ex parte application may be appropriate.166

Australian courts have also applied the case of R v H; R v C and held that the court has power to appoint special counsel on a PII claim being heard ex parte.167

Several aspects of the law of disclosure in the United Kingdom are similar to the law in Australia. For example, the legislation in the United Kingdom imposes a duty on the prosecution in equivalent terms to those imposed under the relevant Australian legislation, like the Criminal Procedure Act discussed above.168

When engaging in a comparison between the jurisdictions it is important to note, however, that there are some key differences between Australian and United Kingdom disclosure practices. One is that in the United Kingdom the prosecutors, not the police, are responsible for making PII applications. This makes it even more important that prosecutors are made aware of all the material that is relevant to an investigation, including all material that may be subject to PII. Guidelines assist in ensuring this occurs, even in relation to particularly sensitive information derived from human sources.169

In Scotland, for example, where a police investigation resulting in prosecution has been informed by intelligence from a human source, the police must reveal that intelligence to the prosecution if it is relevant to the investigation.170 The prosecutor does not need to be advised of the true identity of a human source as a matter of routine, though they might request this information in certain circumstances.171

A statutory scheme for determining public interest immunity claims

In a submission to the Commission, the Supreme Court suggested that, if the Commission were to consider a statutory scheme that provides for court rulings on PII issues, it should be mindful of the need to preserve a court’s ability to:

  • regulate its own procedures to ensure fairness and ensure that proceedings are compatible with an accused person’s applicable Charter rights
  • make orders that meet the needs of different cases and to address changing circumstances.172

Options that are presently available to the courts in hearing and determining PII claims include:

  • requiring that the accused person be joined in the proceedings (and if appropriate, placing restrictions on an accused person’s access to material that is the subject of the PII claim)
  • requiring that a special advocate or special counsel be appointed to represent the accused person in the PII application proceedings only (and requiring that appointed person to give non-disclosure undertakings)
  • allowing the proceedings to be determined ex parte, but appointing a contradictor or amicus curiae to assist the court to make submissions in the interests of the accused person
  • making suppression orders or closed court orders for part of the proceedings.173

In its submission, the Supreme Court stressed the need to ensure that any new statutory scheme introduced to deal with PII issues is compatible with the existing provisions in the Criminal Procedure Act. It also emphasised the need to consider whether the scheme is in all cases optional for the prosecutor or law enforcement agency, or if it becomes mandatory when another avenue of dealing with PII is not used.174

The DPP submitted that there should be a clear statutory power for the prosecution to make an ex parte application to resolve disclosure issues in circumstances where giving the accused person notice would risk disclosing the material in question. The DPP noted that sometimes revealing the mere fact that information is held would allow an accused person to work out what the information is or where it came from.175 For example, the DPP noted that even an apparently bland reference to a diary entry made by a particular police officer on a particular day could, together with other knowledge that the accused person has, confirm their suspicion that an associate has provided information to police.176

The DPP considered that:

The existence of a flexible and effective procedure by which disclosure issues can be resolved, ex parte if necessary, would provide a valuable safeguard in relation to the disclosure of sensitive material generally, and of human source material in particular.177

According to the DPP, a statutory procedure in Victoria should allow police to apply to the court to determine legal professional privilege or PII claims. If police could make the application ex parte, the DPP submitted that they should be provided with a copy of any order made so that they can independently assess its impact on the prosecution.178 The DPP also argued that the court should be able to make an order subject to any conditions it considers necessary.179 For example, the court may wish to order that material be made available for inspection only by the accused person’s lawyers.180

The DPP further submitted that the Public Interest Monitor could be authorised to act as contradictor in ex parte applications made by police. Such a role would be similar to the Public Interest Monitor’s functions in relation to warrants under the Major Crimes (Investigative Powers) Act 2004 (Vic) and the Surveillance Devices Act 1999 (Vic).181

Victoria Police similarly indicated that courts should have a clear way to identify complex and controversial PII issues at an early stage.182 It suggested that, in appropriate cases, it should be possible to make applications in the absence of the accused person and defence lawyers and with an affected person (such as a human source) being able to appear. Victoria Police submitted that having a procedure to allow early judicial oversight of particularly complex PII issues would help build confidence in the administration of criminal justice.183

The DPP and Victoria Police referred to section 138 of the Western Australia Criminal Procedure Act as a possible model from which to develop a statutory procedure for Victoria.184 Section 138 is described in Box 14.6.

BOX 14.6: SECTION 138 OF THE CRIMINAL PROCEDURE ACT 2004 (WA)

In Western Australia, section 138 of the Criminal Procedure Act 2004 (WA) permits a court, either on its own initiative or on the application of a party, to dispense with all or part of a disclosure requirement under the Act, if it is satisfied that there is good reason to do so and no miscarriage of justice will result.185

Section 138 also empowers a court to shorten or extend the time to amend or cancel a previous order made under this section, or to make an order about any other matter that the court considers just.186

In a submission to the Commission, the DPP submitted that, similar to the Western Australian example, any new statutory provision in Victoria should give the court power to make a wide range of orders in relation to disclosure requirements, including powers to dispense with disclosure requirements and shorten or extend the time allowed for obeying requirements. It proposed that such a power should provide that a court could dispense with disclosure requirements on specific recognised grounds, such as PII, privilege, a statutory provision or a court order.187

The CDPP also referred to section 138 of the Western Australia Criminal Procedure Act, suggesting that it provides a fast and effective procedure for disclosure rulings. It noted that this procedure has been used effectively in federal criminal cases and that a similar procedure in Victoria may be useful.188

Other stakeholders, such as Victoria Legal Aid, endorsed the approach taken in the United Kingdom to determining PII claims. It submitted that prosecutors are well placed to recognise whether sensitive evidence should be protected or disclosed, to have responsibility for establishing the charges, and to ensure the procedures are fair.189 This approach is outlined in Box 14.7.

BOX 14.7: THE UNITED KINGDOM APPROACH TO DETERMINING PUBLIC INTEREST IMMUNITY CLAIMS

As previously discussed, in the United Kingdom, the prosecution, not the police, asks the court to determine whether material is subject to a PII claim.

When the prosecutor identifies sensitive material that requires disclosure, and is sure that disclosure would create a real risk of serious prejudice to an important public interest, they can:

  • disclose the material in a way that does not compromise public interest or safety
  • obtain a court order to withhold the material
  • discontinue the case
  • disclose the material because the overall public interest in pursuing the prosecution is greater than abandoning it.190

Before the prosecutor makes any application to the court to withhold material on the basis of PII, they must consult the police. When the prosecutor considers that sensitive material should be disclosed to the defence because it satisfies the disclosure test, they should consult the police before final conclusions are reached.191

The prosecution can only apply for PII when:

  • they have identified material that fulfils the disclosure test (that is, it requires disclosure), but disclosing it would create a real risk of serious prejudice to an important public interest, and the prosecutor believes that the public interest in withholding the material outweighs the public interest in disclosing it to the defence; or
  • the above conditions are not fulfilled, but the police, other agencies or investigators, after consulting at a senior level, do not accept the prosecutor’s assessment; or
  • in exceptional circumstances, the prosecutor has made all relevant enquiries of the police and the accused person and yet is still unable to determine whether sensitive material satisfies the disclosure test, and seeks the court’s guidance.192

The Criminal Procedure Rules 2015 (UK), Part 15, distinguish between three ‘categories’ of PII application:

Type one: The prosecutor must notify the accused person that they have applied for PII and indicate at least the category of the material held. The accused person must have the opportunity to make representations, and a hearing is conducted in open court with all parties present.

Type two: The prosecutor must notify the accused person that they have applied for PII, but they do not reveal the nature of the material held, because doing so would disclose information that the prosecutor argues should not in the public interest be disclosed. The accused person has the opportunity to address the court on the procedure to be adopted, but the application is made without the accused person or their legal representative present.

Type three: This is a ‘highly exceptional’ category of PII application. The prosecutor makes an application to the court without notifying the accused person, because to do so would disclose information that the prosecutor argues should not in the public interest be disclosed.193

Early involvement of the prosecution in resolving public interest immunity claims

As explained above, consistent with the DPP Policy, Victoria Police and the OPP consult on issues relating to disclosure and PII from early in the prosecution process. Some stakeholders suggested that Victoria Police and the prosecution should engage with each other even earlier and to a greater extent in relation to PII claims made by Victoria Police.

Victoria Police told the Commission that the system of disclosure in Victoria could be improved by enhancing the degree of consultation between investigators and prosecutors.194

In a submission to the Commission, Victoria Police submitted that early engagement between its officers and the DPP in relation to complex legal issues concerning disclosure, relevance and PII, would strengthen the overall approach to disclosure in the system. Victoria Police also noted that the early involvement of prosecutors would provide the opportunity for Victoria Police officers to consult with and seek advice from prosecutors in relation to these matters.195 Victoria Police further observed that one benefit of the approach in the United Kingdom, outlined in Box 14.7, is that it makes clear that the Crown Prosecution Service may be consulted on questions of disclosure.196

In Victoria, the DPP Policy does not provide any specific guidance about police consultation with the OPP in relation to PII claims or questions of disclosure more broadly. In a submission to the Commission, Victoria Police indicated it would not be necessary to consult with the prosecution in relation to all disclosure or all PII issues and did not propose that the Chief Commissioner of Victoria Police should stop independently making PII claims. Rather, Victoria Police suggested that when it identifies especially complex disclosure issues that might impact on the fairness of the prosecution, there should be a clear and consistent process enabling Victoria Police to engage with the DPP at the earliest possible time.197

Victoria Police submitted that it does not routinely discuss assessments relating to disclosure with DPP prosecutors. It told the Commission that, unlike in New South Wales, the policy of the DPP does not provide for conferences to take place between prosecutors and police officers to consider PII claims, and that it would welcome the DPP’s early involvement.198

New South Wales model

In New South Wales, the initial decision about whether material should be subject to a PII claim is made by police. That decision will only be reviewed if the DPP asks to review the material itself. As in Victoria, where the VGSO argues PII claims on Victoria Police’s behalf, in New South Wales, the Crown Solicitor’s Office, not the DPP, asserts and argues PII on behalf of the police.

Under the New South Wales model, if a prosecutor receives information or material that may be subject to a PII claim, the prosecutor should not disclose that information or material to an accused person without first consulting with the officer in charge of the case. The purpose of the consultation is to give that officer the opportunity to raise any concerns about such disclosure. The officer should be allowed a reasonable opportunity to seek advice if there is any concern or dispute.199

If, in a case being prosecuted by counsel, a prosecutor and the police disagree about what, if any, of the sensitive information or material should be disclosed and there is no PII claim, the matter must be referred to the New South Wales DPP or a Deputy DPP. In cases being prosecuted by lawyers, the matter is referred to the New South Wales Solicitor for Public Prosecutions or Deputy Solicitor.200 In cases where police pursue a PII claim, the question of disclosure will depend on the outcome of that claim.201

While the process in Victoria also provides for some consultation between police and prosecutors, there is no formal equivalent to the process in New South Wales.

The Prosecution Guidelines of the Office of the Director of Public Prosecutions for NSW state that rare occasions may arise when the overriding interests of justice—for example, a need to protect the integrity of the administration of justice or the identity of a human source (covered by PII) or a need to prevent danger to life or personal safety—require disclosable information to be withheld. Such a course would only be taken with the approval of the New South Wales DPP or a Deputy Director.202

In a submission to the Commission, Victoria Police noted that the New South Wales disclosure certificate provides that police officers may request a conference with the responsible prosecuting solicitor to discuss the reasons why the police officer objects to disclosure.203 In completing the disclosure certificate, officers must tick ‘yes’ or ‘no’ to the question of whether they have requested a meeting with the prosecuting solicitor.204

Commonwealth model

Victoria Police observed that there is inconsistency between approaches taken by the Victorian OPP and the CDPP on early engagement with investigators on questions of disclosure.205 Victoria Police argued that it is important for any proposed reforms to set out clearly the respective roles of police and prosecutors in the disclosure regime, making the division between these roles clear. It also argued that such reforms should facilitate a greater degree of consultation between the agencies.206

The Australian Federal Police (AFP) told the Commission that it communicates the existence of all potentially disclosable material to the CDPP in accordance with the CDPP’s disclosure guidelines.207 The AFP case officer and the prosecutor will regularly communicate in relation to all matters concerning the case.208 The AFP, in partnership with the CDPP, has developed a ‘Model Brief’ that contains templates that conform with the CDPP’s guidelines for preparing briefs of evidence in each state and territory.209

The CDPP informed the Commission of its approach to early engagement with law enforcement agencies on PII issues. An investigative agency advises the CDPP, usually at an early stage, if relevant material is subject to a PII claim.210 When necessary and appropriate, the CDPP may consider the material in question and discuss PII and disclosure issues with the investigative agency. Those discussions may include matters such as:

  • the basis for the PII claim
  • the significance of the material for the case
  • appropriate procedures for resolving the claim.

Consideration is also given to whether and when the existence of the material can be disclosed to the accused person and how much information can be provided about it and the basis for the claim.211

The CDPP, however, is not itself involved in pursuing claims for PII.212 As in Victoria, the practice in Commonwealth prosecutions is for police to make and argue their own PII claims.

The CDPP stated that there are very good reasons for this practice; namely:

  • it is doubtful that the CDPP has power to appear on behalf of another agency to make a PII claim213
  • a conflict may arise between the interests of the CDPP as prosecutor and those of the relevant agency214
  • there may be circumstances in which the CDPP cannot have access to the material in question without compromising its position as prosecutor215
  • PII claims being pursued by the relevant agency with its own legal representation tends to better maintain the prosecution authority’s independence and the appearance of that independence. It is therefore more likely to promote public confidence in the administration of justice.216
Commentary on the Victorian model

In a submission to the Commission, the Criminal Bar Association supported the DPP being involved at an early stage in assessing material over which police may wish to make a PII claim, stating that this would assist Victoria Police to grapple with the often difficult issues surrounding PII.217

Victoria Legal Aid similarly expressed support for the early involvement of the DPP in assessing and advising police about making a PII claim.218 Victoria Legal Aid indicated that, presently, when police seek to claim PII over evidence, they enlist the VGSO. Victoria Legal Aid has observed that the VGSO is often engaged at a late stage, just prior to significant hearings. It further noted that, frequently, once the VGSO is engaged to consider evidence, the information is disclosed because PII does not apply, or the information is released in a way that mitigates any PII risks.219 Victoria Legal Aid argued that the VGSO should be engaged at an early stage, prior to the initial directions hearing, to enable discussion of the matter at a special pre-trial hearing.220

The DPP and OPP submitted that in cases potentially affected by Ms Gobbo’s use as a human source, there were numerous failures to make proper disclosure to the accused persons at the initial stage of the proceedings due to police not alerting prosecutors to the existence of material that may have been subject to a PII claim.221 The DPP noted that these failures did not result from the OPP solicitors not taking a greater role in assessing the actual content of the material subject to the PII claims, but because the police did not bring the existence of information potentially covered by PII to the prosecutors’ attention. The DPP and OPP submitted that it is therefore crucial that police understand the kinds of material that need to be subject to a PII claim so that the existence of that material is brought to prosecutors’ attention.222

The DPP submitted that many of the problems that emerged from the recruitment and use of Ms Gobbo as a human source, and from the failure to disclose her conduct, could have been avoided had the police obtained timely legal advice from the VGSO or other experienced counsel.223

The DPP further stated that in more routine investigations, officers may benefit from obtaining early independent legal advice about their disclosure obligations during the investigation.224 It suggested that an advantage of doing this is that police would be better prepared to promptly take any necessary steps to protect information subject to PII.225 It argued that Victoria Police should encourage officers to obtain independent advice and increase their opportunities to do so.226

The DPP submitted that OPP solicitors and police informants already work together closely on indictable matters. Current practice involves informants being expressly invited by email, after the first hearing of an indictable matter, to contact OPP solicitors in relation to any doubts or concerns about disclosure.227 The DPP also emphasised that OPP solicitors can and do respond to certain police queries about prosecutions, including those where PII is in issue; about the way in which the Crown case is to be put; and about issues raised by the accused person.228 In providing that assistance to police, prosecutors are not usually required to review the PII material itself.229 The DPP submitted that legal advice about complex disclosure issues, including PII, should be sought from Victoria Police’s own independent legal advisers, such as the VGSO, and not from the DPP.230

The DPP also submitted that there should be no general rule that all material that is not disclosed due to a PII claim must be assessed by the DPP.231 It stated that this would be inconsistent with the DPP Policy, unnecessary and a potential source of unfairness, because:

  • it would not be consistent with an efficient use of the DPP’s resources
  • it risks undermining the DPP’s independence
  • in some circumstances, providing this information to the DPP may lead to the DPP deriving an unfair advantage over the accused person.232

In relation to the last point, the DPP submitted that material should be withheld by police from the prosecution if the material derives from human sources with obligations of confidentiality. The DPP suggested that is because it may be difficult to assess the potential impact of any unfair advantage on the trial if the prosecutor has knowledge of that material.233

Police ability to fulfil disclosure obligations

The Commission heard from some stakeholders that the ability of police to fulfil their disclosure obligations is constrained by factors including:

  • their understanding of their disclosure obligations, including their understanding and assessment of relevant material and PII
  • the informant’s awareness of all relevant material that investigators hold
  • the volume and complexity of material that must be reviewed and disclosed.

These issues are discussed in turn below.

Police understanding of their disclosure obligations

Understanding and assessing relevance

The DPP told the Commission that police investigators sometimes struggle to determine whether material satisfies the broad test of whether it is relevant to the accused person’s case. The DPP noted that it is inherently challenging for investigators to look critically at information obtained during an investigation and identify material that may undermine the prosecution case or strengthen the accused person’s case.234

In a submission to the Commission, Victoria Police informed the Commission that assessing whether material is ‘relevant to the case of the accused’ often involves a complex and time-consuming analysis of the factual and legal elements of a criminal prosecution.235 Victoria Police noted that these complexities are typically compounded in the case of human source information.236

Victoria Police suggested that, in such circumstances, the OPP may be able to assist Victoria Police officers to make appropriate assessments about the relevance of material for disclosure.237 It also noted that, in certain circumstances, given the importance of ensuring the safety of human sources, it may be appropriate for Victoria Police to provide prosecutors with only relevant extracts of human source files.238

Victoria Police also indicated in a submission to the VLRC’s Committals Review that the OPP’s assistance in assessing material for relevance and advising police is crucial in the disclosure process. This is particularly the case given that police officers may not be legally trained and consequently rely on the OPP’s guidance and advice in determining relevance.239

Understanding public interest immunity

In a submission to the Commission, the DPP commented that investigators sometimes inappropriately withhold otherwise relevant material on the basis of PII. The DPP explained that this is particularly problematic when the existence of such material is not disclosed to the prosecutor or the accused person, as it means that the asserted claim of PII cannot be tested by the accused person.240 The DPP further stated that underlying this problem is a common misconception that an investigative agency may determine for itself whether relevant material is subject to PII.241

In a submission to the VLRC’s Committals Review, Victoria Police stated:

The increased involvement of the OPP in assessing public interest immunity (PII) material at an early stage and assisting with appropriate court applications would also improve efficiencies in the disclosure process. The common law requires police to provide prosecutors with material subject to a claim of PII so that the prosecutor is aware of any exculpatory material in the possession of investigating agencies and can consider the effect of a successful claim of PII on the overall fairness of a trial. For example, considerations of fairness may require the prosecutor to charge a lesser or different offence if the accused would not receive a fair trial without the material subject to PII.242

The Victorian Aboriginal Legal Service, in a submission to the VLRC, noted that problems with disclosure practices may be accentuated in regional and rural areas, where police may have less experience in disclosure.243

Informant’s awareness of all relevant material

An informant may not be aware of all relevant material the police hold.

The DPP told the Commission that its public hearings have shown that those Victoria Police officers who had information or material relating to certain prosecutions of people connected to Ms Gobbo were not the same as the informants or those helping to put together the brief to the OPP.244

These issues arise as a result of information being quarantined between different areas within a policing agency. This situation, called the ‘sterile corridor’, can occur when one section of the police service obtains information in an intelligence operation and the investigating officer works in a different section of the police service. The sterile corridor is often considered a necessary safeguard in police work involving human sources. A consequence of this, however, is that the police officer responsible for preparing the brief of evidence may only hold fragments of information relevant to an investigation.

The need for, and issues surrounding the maintenance of a sterile corridor in using and managing human sources, are discussed in Chapter 12.

Volume and complexity of material

Some stakeholders told the Commission that the volume of material that may be obtained during an investigation can make it more difficult for police to comply with their disclosure obligations.

The Criminal Bar Association observed that there is little doubt that due to the complexity and size of modern criminal investigations, along with advancements in technology, police and prosecutors find it more challenging to meet their obligations when PII issues arise.245 In a submission to the Commission, the Association further stated that generally, briefs of evidence have greatly increased in size over the last 20 years. In addition, the volume of material that is disclosable but that the prosecution does not rely on has grown exponentially. By way of example, the Criminal Bar Association pointed to cases involving drug importations, drug trafficking, white collar fraud, foreign bribery and terrorism.246

The DPP also stated that police may be overwhelmed by the volume of material obtained during an investigation (for example, data downloaded by mobile phones, or recordings of telephone conversations). Because of the volume of material, police may not adequately assess all of it for relevance. This can mean that police do not provide relevant material with a hand-up brief, or subsequently, as required by the Criminal Procedure Act. The DPP indicated that this is an increasing problem, particularly because the volume of electronic data obtained during an investigation, even in relatively simple cases, is growing rapidly.247

Police training and guidance on disclosure obligations

Training on disclosure obligations for Victoria Police officers is embedded within certain training modules provided to new recruits at the Police Academy.248 Additional training on disclosure is also delivered to newly appointed detectives and Sergeants and Senior Sergeants.249 Police prosecutors also receive additional, and more specific, training on disclosure as part of attaining the Graduate Certificate in Police Prosecutions.250

The VGSO provides ongoing training on disclosure and PII issues to officers in the Victoria Police Detective Training School several times a year. The VGSO has also delivered presentations on these topics to other relevant work units within Victoria Police. With these and some other limited exceptions, it appears that most of the current training on disclosure within Victoria Police is provided by police officers, rather than external providers with legal training and experience with disclosure and PII issues.251

Victoria Police told the Commission that a dedicated project team is examining its existing disclosure training to identify and analyse training needs and gaps. Following this analysis, the existing training will be strengthened.252

Some guidance for police on disclosure obligations has also been set out in the Victoria Police Manual—Human Sources (Human Source Policy) since May 2020.253 The scope of this guidance is relatively limited. It addresses, at a high level, the circumstances in which information from a human source can be disseminated, including for the purpose of a legal process. It also deals with the procedural steps that Victoria Police officers must take when they are asked to confirm or deny the existence of a human source in a court or tribunal.254

A number of stakeholders informed the Commission that the training and guidance police officers receive in relation to their disclosure obligations could be improved.

The DPP submitted that substantial improvements could be made to the training and guidance available for Victoria Police officers in relation to their disclosure obligations, and that senior officers’ efforts to introduce improvements in these areas should be supported.255

The Law Institute of Victoria, in a submission to the VLRC’s Committal Review, suggested that poor disclosure practices may be addressed with targeted education and training for police officers and more rigorous oversight by the DPP.256

The Criminal Bar Association suggested that improving the current system relies on properly training all police who investigate and compile briefs in relation to:

  • relevance (to the prosecution case and for an accused person’s defence to that case)
  • when it is proper and appropriate to make a claim of PII or legal professional privilege
  • the duty of disclosure
  • ethical approaches to investigating criminal conduct—in other words, the end result does not always justify the means used to get there.257

These stakeholder comments echo some of the conclusions reached by IBAC in its Operation Gloucester report regarding Victoria Police’s inadequate policies and training about disclosure practices and the use of evidence. IBAC found that this had reinforced improper practices, which had been at least tacitly supported by the culture of Victoria Police over a long period of time.258 While IBAC’s investigation spanned police practices over three decades, it found that ‘significant gaps’ in policy and guidance remained at the time of Operation Gloucester.259

IBAC made two recommendations for Victoria Police to review and improve its policies and training to ensure that police officers understand and comply with their disclosure obligations under the laws of evidence.260

Victoria Police officers who participated in focus groups conducted by the Commission also highlighted the challenges involved in managing disclosure when using a human source. They suggested that officers should be provided with more training on the interaction between disclosure and human source management. The outcomes of the focus groups held by the Commission are discussed further in Chapter 12.

Victoria Police informed the Commission that it is introducing a number of measures to enhance its disclosure practices and has developed an Action Plan that outlines steps that have been completed or are underway.261 Measures taken by Victoria Police include:

  • development of an instructional model and video presentation that highlight the importance of disclosure
  • revising human source management training to specifically cover issues related to:
    • the use of human source information in prosecutions
    • human sources becoming witnesses.262

In addition, Victoria Police is currently rolling out an organisation-wide disclosure handbook. This handbook is intended to provide general guidance on disclosure obligations to police officers acting as informants in criminal proceedings. It highlights the importance of disclosure in the criminal justice system. It also provides guidance in assessing and identifying relevant material, emphasising that:

  • the duty of disclosure extends not only to material that helps the prosecution but also to material that could help the accused person
  • material can be relevant even if it was obtained solely for investigative (rather than evidentiary) purposes
  • both police and prosecution carry the obligation of disclosure
  • if an informant is unsure about what to disclose, they should seek further legal advice.263
Improvement to disclosure practices in the United Kingdom

Efforts to improve disclosure practices in the United Kingdom have also focused on the importance of guidance and training. A 2020 report by Her Majesty’s Crown Prosecution Service Inspectorate observed that, however good police training on disclosure is, unless those tasked with putting together the files are regularly and frequently exposed to disclosure issues, the benefits of training will not become embedded and improvements may not happen.264

The Commission has also heard that using dedicated disclosure officers, as is done in the United Kingdom, may improve disclosure practices. This model is outlined in Box 14.8.

BOX 14.8: DISCLOSURE OFFICERS IN THE UNITED KINGDOM

In the United Kingdom, a dedicated disclosure officer must be appointed in all investigations. In larger cases, one or more deputies can also be appointed.265 A disclosure officer performs different functions to an investigator, but the roles of disclosure officer and investigator can be undertaken by one person.266

The Chief Officer of each police service is responsible for ensuring that disclosure officers have sufficient skills and authority, appropriate to the complexity of the investigation, to discharge their functions effectively.267 They are not required to have any additional training or accreditation.

The dedicated disclosure officer’s role is to ensure that disclosure principles are embedded in the investigation process, including ensuring that the investigating officer complies with their disclosure obligations. They have a range of duties including:

  • examining material retained during the investigation
  • ‘revealing’ material to the prosecutor and certifying that this has been done (the disclosure officer ‘reveals’ material to the prosecutor by drawing their attention to material that is potentially disclosable and providing copies of certain categories of material—this does not mean that the material will necessarily be disclosed to the accused person)
  • disclosing unused material to the accused person, at the request of the prosecutor.

Disclosure officers produce a number of schedules and provide these to the prosecution, including a schedule for all non-sensitive unused material (known as the MG6C Schedule) and a schedule for all sensitive unused material (known as the MG6D Schedule).

According to the Code of Practice that supplements the Criminal Procedure and Investigations Act 1996 (UK), sensitive material covered by PII (that is, material that would be included in the MG6D Schedule) includes material that relates to the identity or activities of those supplying information to the police who may be in danger if their identities are revealed, including human sources, undercover police officers, witnesses or others.268

The disclosure officer is also responsible for drawing the prosecutor’s attention to any material that they consider might undermine the prosecution case or assist the defence. This notification is included in a separate schedule, the MG6E Schedule. The prosecution is then in an informed position to consider their duty of disclosure.

To determine what material should be disclosed to the accused person, the prosecutor must review the MG6C Schedule of all non-sensitive unused material and the MG6D Schedule of all sensitive unused material and either confirm or alter the disclosure officer’s recommendations on which items are disclosable and sensitive.

A different procedure applies in exceptional circumstances, when an investigator considers that material is so sensitive that revealing it to the prosecutor on a schedule is inappropriate. In this case, the investigator— not the disclosure officer—must reveal the existence of that material to the prosecutor separately. This will only apply in circumstances when revealing the material would likely lead directly to the loss of life, or directly threaten national security.269

In such cases, the investigator must act as soon as reasonably practicable after sending the file containing the prosecution case to the prosecutor. The investigator must also ensure that the prosecution is able to inspect the material so that they can access information that is disclosable and, if it is, decide whether it needs to be brought before the court for a ruling on disclosure.270

The disclosure officer’s duties do not cease once they have submitted the schedules, but rather continue throughout the investigation and prosecution. The disclosure officer must conduct an ongoing review of the material during the prosecution and provide the prosecutor with updated disclosure schedules when appropriate.

In a submission to the Commission, the CDPP suggested that dedicated disclosure officers may be beneficial when used appropriately, and noted that some federal investigative agencies already use these officers. As part of its recent updating of disclosure practices, the CDPP specifically noted that prosecutors should encourage the appointment of dedicated disclosure officers in large and complex matters.271

Victoria Police submitted to the Commission that in cases involving human sources, it is important to have disclosure officers embedded in investigations teams, the Human Source Management Unit (HSMU) (the unit responsible for overseeing human source registrations and management) and dedicated source teams (units specifically responsible for managing and interacting with human sources). Victoria Police suggested that disclosure officers may overcome the challenge to effective disclosure that can result from the implementation of a sterile corridor, when police investigators are not aware of the source of information, let alone whether the source has legal obligations of confidentiality or privilege and the circumstances in which those obligations may be engaged.272

Victoria Police informed the Commission that it is piloting the use of disclosure officers, who will be embedded on both sides of the sterile corridor and be responsible for compiling documents and conducting assessments of relevance, including seeking legal advice and liaising with the informant and/or the OPP when appropriate.273 Victoria Police advised the Commission that two dedicated disclosure officers have been appointed for a 12-month period to test the value of the model. These officers are legally qualified sworn members and report to the Superintendent, Legal Prosecutions Specialist Branch.274

Monitoring police compliance with disclosure obligations

The DPP noted that at present, Victoria Police’s compliance with its disclosure obligations is not subject to any system of auditing or monitoring.275 According to the DPP, the lack of independent monitoring of the disclosure process has contributed to the compliance failures that this Commission has highlighted.276

The DPP stated that an effective system for independent auditing and review of Victoria Police compliance with disclosure obligations is essential to any system-wide response to the failures the Commission has identified. The DPP believes that without such auditing and review, it will never be known whether other measures to change police culture and to improve compliance with disclosure obligations are working.277

In a submission to the Commission, the DPP proposed that the Commission should recommend an independent body responsible for monitoring and reporting on Victoria Police disclosure of (a) disclosable material to accused persons; and (b) the existence of potentially disclosable unused material to the OPP.278 The main aims of the proposed independent body, described as the ‘Disclosure Monitor’ in the DPP’s submission, should be to improve overall compliance by Victoria Police with its disclosure obligations, identify general shortcomings in disclosure practices and improve guidance to police for future cases.279

Among other things, the DPP suggested that the Disclosure Monitor could be tasked with reviewing cases in which evidence came from a human source with an obligation of confidentiality.280

The DPP further submitted that the Disclosure Monitor should be a body created by legislation with the powers it needs to conduct its own affairs. To ensure its independence it should not be part of, or report to, the DPP or Victoria Police. In addition, neither the Disclosure Monitor nor its staff should hold positions with the OPP or Victoria Police.281

Under the model proposed by the DPP, the Disclosure Monitor’s reports would be expected to address overall police compliance with disclosure requirements, identify specific areas for improvement and suggest changes to police practices, procedures and guidelines as appropriate.282 In addition to its auditing role, the Disclosure Monitor would be involved in training Victoria Police to properly identify PII claims and to comply with the certification process proposed.283

Leadership and cultural change to improve disclosure practices

During the Commission’s consultations, some stakeholders emphasised the need for leadership and cultural change within Victoria Policeto improve disclosure practices.

Victoria Legal Aid indicated that the present culture of Victoria Police gives limited weight to the need for police to disclose all of the evidence in their possession and even less weight to evidence that may mitigate the accused person’s involvement in the offending.284 The DPP also stated that the most important goal of any measures to improve police compliance with disclosure is to improve the culture of compliance with disclosure obligations within Victoria Police.285

In its Committals Review, the VLRC stressed that cultural change is needed within Victoria Police so that the importance of early disclosure of all relevant materials, and the obligation to inquire about the existence of relevant material, is recognised and becomes entrenched in its operating procedures.286

In her evidence to the Commission on behalf of Victoria Police, Ms Steendam said that Victoria Police is focused on creating a ‘culture of confident humility’, which she submitted comprises an ‘ethical culture and a culture that’s committed to good service delivery’.287 She noted that the disclosure reforms being undertaken by Victoria Police are informed by these cultural values.288

Additionally, Victoria Police emphasised that it is ‘absolutely committed’ to ensuring that it meets its disclosure obligations, and to enhancing its own processes to improve disclosure in the Victorian criminal justice system.289

Victoria Police is currently considering the establishment of a disclosure governance committee.290 The role of this proposed committee is ‘to achieve a consistent and transparent approach to disclosure … by promoting the effective management of disclosure’.291 Victoria Police indicated that this committee would consist of relevant internal stakeholders, such as the HSMU and Crime Command, and that ‘extending to external stakeholders such as the Office of Public Prosecutions will be considered’.292

Various reviews conducted in the United Kingdom have also recognised the importance of cultural change. The United Kingdom House of Commons Justice Select Committee report, Disclosure of Evidence in Criminal Cases, and evidence gathered in the Attorney-General’s Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System, assert that to resolve problems with disclosure there needs to be a shift in culture, driven by clear leadership.293

The House of Commons Justice Committee report did not propose any fundamental changes to the legislation or the principles of disclosure. Instead, the report recommended a shift in culture towards viewing disclosure as a core justice duty, and not as an administrative add-on.294 This echoes a growing concern in the United Kingdom that police tend to see their core function as investigating criminal offences and that they regard disclosure as a less important, administrative task to be completed at the end of the investigation, rather than as a duty that is central to ensuring fairness to an accused person. The report also reflects the findings of the Mouncher Investigation Report, which concluded:

… disclosure errors were not designed to pervert the course of justice; they were the consequence of inexperience, poor decision making and inadequate training, leadership and governance.295

As a result of these reviews, reforms to disclosure practices in the United Kingdom have focused on the importance of leadership and cultural change.

A key United Kingdom initiative, the National Disclosure Improvement Plan (NDIP) was introduced in January 2018 by the Crown Prosecution Service, the National Police Chiefs’ Council and the College of Policing.296 The NDIP represents a commitment between police and the Crown Prosecution Service to work together in governing disclosure in the United Kingdom. The stated purpose of the NDIP is to bring together the shared commitment of police and the Crown Prosecution Service to make sustainable changes to the way they meet their disclosure duties.297

A key action the NDIP facilitated was the creation of the National Disclosure Standards, a statement of national standards for completing disclosure schedules and certificates. The standards state that:

We must foster a culture in which disclosure is not a separate exercise, discrete from the criminal investigation. Investigators must apply their minds to disclosure from the very outset of the case and not view disclosure as an adjunct to be undertaken only once they have formed the view that a suspect should be charged with an offence. Proper disclosure of unused material is vital if there is to be a fair trial, which is in the interests of the complainant, the accused and the whole community.298

The NDIP has provided an unprecedented level of senior leadership and oversight to disclosure improvements in the United Kingdom. Collectively, police and the Crown Prosecution Service acknowledged that an investigation culture had developed in which disclosure was devalued. Likewise, the NDIP suggested that a mindset had developed in which disclosure had been viewed as an administrative add-on to investigations. It also noted that confidence in the disclosure process had been further undermined by a series of high-profile cases in which disclosure had not been done as it should, and that these brought into sharp focus the very serious consequences of not getting disclosure right.299

The Attorney-General’s Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System stated that:

Police and [Crown Prosecution Service] leadership must ensure that the practical steps taken to deliver culture change that have started to be driven through the NDIP are sustained and permanently embedded in both services.300

One of the main benefits of the NDIP program is said to be its joint ownership by police and prosecution senior leaders.301 The success of the NDIP reflects the need for consistent leadership in the area of disclosure.302

Disclosure in summary proceedings

Most of the submissions that the Commission received related to potential reform in relation to indictable proceedings. The Commission’s terms of reference also required consideration of current practices and the adequacy of safeguards in relation to summary proceedings—that is, the cases Victoria Police typically prosecutes in the Magistrates’ Court.

Although summary prosecutions make up the majority of Victorian prosecutions, Victoria Police has indicated that use of human sources in summary prosecutions is rare.303 Victoria Police also informed the Commission that, although not impossible, the use of information from a human source with legal obligations of confidentiality or privilege in a summary proceeding is extremely unlikely.304

Victoria Legal Aid indicated that it supports procedures that would assist in ensuring the timely disclosure of all evidence in summary prosecutions.305 It also noted that as the vast majority of criminal matters are heard summarily, it is essential that any oversight and monitoring systems developed for indictable proceedings are also effective for summary investigations and prosecutions.306

As noted above, Victoria Police submitted that while disclosure certificates might be used in Victoria to facilitate disclosure for indictable proceedings, it does not consider these certificates to be necessary for summary proceedings.307

Victoria Police informed the Commission that a major challenge officers face is the sheer volume of summary matters. It noted that without a document management system capable of linking all relevant investigation material to a brief, effective disclosure will remain an inefficient and time-consuming process.308 Victoria Police noted that without appropriate systemic support, any introduction of heavier disclosure obligations may make managing large volumes of material even more challenging—and that this is particularly so in relation to summary matters. It noted that this could result in significant delays in finalising summary matters, especially in uncontested cases.309

The Criminal Bar Association stated that introducing a disclosure certificate along the lines of the New South Wales model and requiring its completion in both indictable and summary prosecutions would mean police have to deal with these issues consistently.310

Other disclosure issues raised with the Commission

While the Commission has not been asked to review disclosure more generally, during the Commission’s consultations, some stakeholders raised broader issues regarding disclosure. These issues are outlined below.

Legislative clarity in relation to disclosable material

The DPP informed the Commission that the subjective perception of experienced prosecutors in Victoria is that failures to disclose the existence of relevant unused witness statements, unused telephone or listening device material or unused forensic tests have become less common over time. This, they believe, is due to developments in criminal procedure and investigators’ increasing awareness of their obligations. The DPP contended that such problems may still arise, but do not appear to be widespread or systemic issues in Victoria.311

According to the DPP, the harder to solve problems tend to concern material that may be relevant to a prosecution witness’ credibility, such as relevant criminal history (including outstanding charges), or the provision of letters of assistance, charge reductions or other favourable treatment in criminal proceedings as a result of cooperation with investigators.312

The DPP recommended that this material should be specifically listed in section 110(e) of the Criminal Procedure Act as disclosable with a hand-up-brief, to make it clear that this type of material should be disclosed.

As outlined earlier in this chapter, section 110 applies in indictable proceedings (see especially Figure 14.2). Section 41 is a similar provision that applies in summary proceedings and lists the material that the prosecution must include in a full brief to an accused person. Like section 110(e), section 41(e) requires that any information, document or thing in the possession of the prosecution that is relevant to the alleged offence must be in the full brief, and specifies the kinds of material subject to the requirement.

Early and appropriate disclosure to the accused person

In a submission to the Commission, Victoria Legal Aid drew the Commission’s attention to its submission to the VLRC Committals Review, in which it recommended introducing several mechanisms to improve early and appropriate disclosure.313

Victoria Legal Aid emphasised that delays resulting from late disclosure of evidence in summary proceedings have a more profound impact on accused persons who are in custody. When an accused person is unlikely to apply successfully for bail and chooses to challenge the prosecution case, the delays associated with disclosure could result in the accused person’s time on remand exceeding the period they are ultimately sentenced to serve, if they are convicted.314

Upgrade of information systems

A major theme arising from reviews of disclosure issues in the United Kingdom is that better use of technology is critical in improving disclosure.315

Victoria Police does not have a single repository for all information that forms part of a criminal investigation. Victoria Police submitted that in part this is because its existing ICT systems are not able to support an organisation-wide document management system. As a result, information and documents created during an investigation may be spread over different locations, making it difficult for an informant or other Victoria Police officers to identify all relevant information.316

Increasingly, as noted earlier, the use of modern reporting and data recording means that investigations tend to produce large volumes of material. New forms of data and documentation, such as mobile phone applications and body-worn camera footage, are now created in investigations. As recently as a decade ago, these were uncommon.317

Noting that this large volume of material forms part of the challenge officers face in complying with disclosure obligations, Victoria Police submitted that technology should be a major part of any reform to strengthen the Victorian disclosure regime.318

The DPP submitted that more efficient, effective, stable and secure information management systems should be developed across Victoria Police.

Victoria Police submitted that it currently has over 30 information capture technology initiatives in progress that are aimed at reducing waste, improving efficiency and modernising its operations, including a business case for a new case management system that would ultimately integrate with an electronic document and record management system.319

Some of the information and document management issues are being addressed to a degree by the implementation of an intelligence management system that connects some data sources across the organisation. This assists in managing disclosure obligations by enabling broader searches to identify disclosable information.320

Victoria Police acknowledged, however, that this new system is not a substitute for a fit for purpose electronic information and document management system that would best help it meet its disclosure obligations.321

As a well-designed system of this kind would enable Victoria Police to better capture, use, manage and share information right through the investigation and prosecution processes, Victoria Police submitted that a system of this kind is critical to achieving its broader objectives (including meeting demands associated with inquiries and royal commissions) but the costs of implementing it are likely to be significant.322 It emphasised that any significant reform to the disclosure framework should take into account the current limitations of Victoria Police’s information systems, and the investment required to address these limitations.323 Victoria Police did not tell the Commission what level of investment would be required to address these limitations.

Conclusions and recommendations

If everything else is done properly in recruiting, handling and managing a human source, risks relating to the use of human source information in the criminal justice system should be significantly reduced. For example, if police had obtained legal advice about whether it was appropriate to register Ms Gobbo as a human source, it is conceivable that she would never have been registered, or if registered, so carefully monitored that her misuse as a human source would have been avoided.324

In Chapters 12 and 13, the Commission makes several recommendations aimed at strengthening safeguards relating to Victoria Police’s use and management of human sources. If these changes are introduced, the Commission considers that the risks of improperly using a human source to obtain confidential or privileged information would be substantially reduced.

Even with these changes, however, it is important to consider whether there are adequate safeguards in place for the prosecution of cases in Victoria when the investigation has involved information from a human source, including those where legal obligations of confidentiality or privilege may arise.

In effect, current policy and practice allow Victoria Police to determine whether PII should apply to the disclosure of human source information. A court may well uphold a PII claim made by Victoria Police, because—as observed earlier—PII generally prevents the existence of human sources being disclosed. But the issue should not be determined by police. Victoria Police should notify prosecuting authorities of the existence of PII material and, if necessary, the question of whether PII applies should be determined by the court. If the DPP has no knowledge that Victoria Police is withholding information on the basis of a PII claim, it is not in a position to understand the grounds for that claim or to prevent any arising unfairness to the accused person.

If Victoria Police had made timely and frank disclosure to the DPP of Ms Gobbo’s role as a human source, it is far less likely that the Victorian criminal justice system would have been corrupted in the way identified by the High Court. Defence lawyers also play a vital role in safeguarding against the improper use of human source information in the criminal justice system. An accused person’s lawyer can challenge a PII claim, provided they know that information is being withheld on PII grounds. This important safeguard of independent legal representation was often absent in the cases in which Ms Gobbo acted as a human source.

The circumstances that have given rise to this Commission are unprecedented. The Commission is reluctant to recommend safeguards that apply only to the narrow category of human sources with legal obligations of confidentiality or privilege. To do so may create anomalies, ineffective policy outcomes or unintended consequences: applying different protocols and requirements to this narrow category of information may lead to a distortion in how existing legal principles and administrative practices concerning the law of disclosure are applied.

The Commission heard that there are several areas where improvements can be made. It makes a number of recommendations aimed at:

  • strengthening police disclosure obligations to prosecuting authorities
  • improving training and support for Victoria Police in meeting its disclosure obligations
  • ensuring effective leadership and cultural change within Victoria Police.

These recommendations are interconnected and interdependent. Measures to strengthen police disclosure obligations to prosecuting authorities, such as the introduction of a disclosure certificate, are unlikely to improve disclosure practices unless police officers are provided with appropriate training, guidance and support, including from senior leadership across the justice system.

The Commission has set timeframes for each recommendation, having regard to several factors, including the urgency and complexity of the reforms, whether they involve legislative change and the extent of stakeholder consultation required.

The recommendations to amend aspects of the current legislative regime governing disclosure in Victoria are relatively straightforward. As such, the Commission considers they can be implemented within 12 months, alongside complementary changes to Victoria Police and DPP policies.

While the recommendation regarding the adequacy of court powers to make non-disclosure orders raises complex issues, the Commission considers that six months provides sufficient time to review these issues and consult with relevant stakeholders about the need for legislative reform. It also considers this an appropriate timeframe for Victoria Police to implement training and various other measures and supports aimed at improving disclosure practices, noting that some of these measures are already underway.

This section sets out the Commission’s conclusions and recommendations.

Strengthening and clarifying Victoria Police’s disclosure obligations

As a matter of principle, Victoria Police should inform prosecuting authorities of the existence of all material that is relevant to the case of an accused person, including material that is subject to a PII claim. The prosecution has a duty to disclose relevant material to an accused person and a duty to conduct proceedings fairly. If the prosecution does not know about all relevant material, its ability to fulfil these duties is constrained. The Commission is aware that this involves several practical challenges, including:

  • the complexity and volume of material police obtain in many investigations and their ability to review this material
  • the difficulties associated with determining whether material is relevant and needs to be disclosed.

Disclosure of human sources involves the additional complexity of the need to protect the source’s identity.

The Commission considers that there is scope to strengthen and clarify Victoria Police’s disclosure obligations to prosecuting authorities. One way to achieve this is to introduce a statutory requirement for police to:

  • provide the DPP with all material obtained during an investigation that may be relevant to either the prosecution or the accused person’s case, except any material that is subject to a claim of PII, privilege or a legislative immunity or publication restriction;
  • notify the DPP of the existence and nature of any material subject to a claim of PII, privilege or a legislative immunity or publication restriction, and provide the DPP with that material if requested.

This follows the New South Wales approach outlined above. The Commission notes that the VLRC made a similar recommendation, namely that the Criminal Procedure Act be amended to provide that:

  • the informant’s disclosure obligations to the DPP apply regardless of privilege, public immunity or statutory immunity claims
  • when immunity claims are made, the informant does not have to provide to the DPP the material that is subject to these claims
  • the informant must tell the DPP why they object to providing the material.325

The Commission further recommends that police should be required to disclose the withheld material to the DPP (or if necessary, in highly sensitive matters, a court) if the DPP requests that material. This requirement is important to ensure that the DPP or a court can assess whether that material should be disclosed to the accused person or whether a failure to disclose the material affects the DPP’s ability to conduct a fair trial.

The Commission also recommends that police disclosure obligations to prosecuting authorities be supported through the use of a disclosure certificate, as in New South Wales (see Box 14.3 above). Currently, the existence of material relevant to an accused person’s case but subject to a PII claim can be disclosed to an accused person and the DPP through the Form 30 (for indictable proceedings) or the Form 11 (for summary matters). The Commission agrees with some stakeholders’ submissions that these forms do not adequately draw informants’ attention to their disclosure obligations, and considers that they should be accompanied by a separate disclosure certificate.

The disclosure certificate would require the police officer completing the form to indicate the existence of the material that is being withheld and to describe that material. The Commission is aware that when a PII claim is made, care needs to be taken to ensure that the description of the item withheld does not reveal to the accused person the information over which the claim is made. This is particularly relevant when police are seeking to protect the identity of a human source.

A copy of the disclosure certificate should be provided to the accused person and the DPP in indictable proceedings.

The Commission agrees with the DPP’s submission that the legislative requirement to provide these schedules of withheld material in a disclosure certificate should be accompanied by complementary Victoria Police internal policies or procedures. These would guide police investigators on how to describe withheld material and on the corresponding claims of PII, privilege or a legislative immunity or publication restriction.

The Commission believes that providing such guidance will be integral to the effective operation of the proposed new disclosure certificate regime.

The Commission is mindful that the VLRC’s Committals Review did not recommend introducing a disclosure certificate regime for Victoria, noting that inadequate disclosure remains a problem in New South Wales despite the use of disclosure certificates. Instead, the VLRC recommended other measures that are similarly aimed at strengthening police disclosure practices. These included requiring informants to give sworn evidence in court that they have met their disclosure obligations and allowing the accused person to cross-examine. While understanding the reasons for the VLRC’s views, the Commission is concerned that the implementation of the recommendations may present practical issues, unnecessarily prolong the court process and require significant resources. It may also disadvantage some self-represented accused persons.

The Commission accepts that introducing a disclosure certificate regime alone is not enough to adequately strengthen disclosure practices, but considers that it is a simple and clear mechanism for police to provide effective disclosure of relevant withheld material to the DPP and the accused person if it is accompanied by rigorous training, guidance and support on how to comply with disclosure obligations. It would enable those relatively rare cases requiring the court’s determination to be identified. The need for effective training of police officers in disclosure obligations is discussed in more detail below.

The VLRC recommended other measures aimed at strengthening police disclosure to the DPP and the accused person in cases where police withhold relevant material on the basis of claims of PII, legal professional privilege or a statutory prohibition.326 The Commission notes that, in this regard, the goals and principles underlying the VLRC’s recommendations and this Commission’s recommendations are broadly aligned.

Application to summary proceedings

Victoria Police has informed the Commission that the use of human source information in summary proceedings is rare. It has also advised that the use of information from a source with legal obligations of confidentiality or privilege, while not impossible, is extremely unlikely.

Even so, the same principles apply to police disclosure in both summary and indictable matters. In summary proceedings, police should inform police prosecutors of the existence of all material relevant to the accused person’s case, including the existence of material subject to a PII claim.

Victoria Police submitted that the volume of summary matters presents a major challenge in relation to disclosure and that more onerous disclosure obligations may make managing this workload even more challenging without appropriate system supports.

The Commission appreciates that disclosure obligations must be practical and workable. The proposed disclosure certificate broadly reflects existing police obligations under the Criminal Procedure Act regarding the provision of relevant information. It would not alter the obligation to disclose material but rather clarify how police inform prosecuting authorities and the accused person of: (a) the existence of relevant withheld material; and (b) the reasons why they are withholding that material. Properly trained police officers should find the concept of full disclosure so embedded in the investigative process that it will not be an arduous additional task, even in summary proceedings.

The Commission is mindful that the whole notion of summary proceedings is that they be dealt with quickly. It therefore considers that in summary proceedings, police should only use the proposed new disclosure certificate when required to provide the accused person with a full brief. That is not to undermine, however, the importance of police officers’ disclosure obligations in all summary cases, even where an accused person pleads guilty.

It is important that police take their disclosure obligations seriously in all summary matters, including properly completing the forms and statements they are required to provide to an accused person as part of the preliminary brief procedure.

Any proposed legislative changes should be preceded by meaningful consultation with legal stakeholders and Victoria Police.

RECOMMENDATION 62

That the Victorian Government, within 12 months, introduces a legislative requirement for the responsible Victoria Police officer to:

  1. provide the Victorian Director of Public Prosecutions with all material obtained during an investigation that may be relevant to either the prosecution or the accused person’s case, except for material that is subject to a claim of privilege, public interest immunity, a legislative immunity or publication restriction
  2. notify the Director of the existence and nature of any material subject to a claim of privilege, public interest immunity, a legislative immunity or publication restriction
  3. where requested, provide the Director with any material subject to a claim of privilege, public interest immunity, legislative immunity or publication restriction.

The provision proposed in Recommendation 62 is based on section 15A of the Director of Public Prosecutions Act 1986 (NSW).

RECOMMENDATION 63

That the Victorian Government, within 12 months, introduces a legislative requirement for Victoria Police to complete a disclosure certificate in summary proceedings when a full brief is served and in indictable proceedings when a hand-up brief is served, which describes:

  1. relevant material not contained in the brief of evidence that is subject to a claim of privilege, public interest immunity, a legislative immunity or publication restriction
  2. the nature of the privilege or immunity claim or publication restriction in relation to each item.

A copy of the disclosure certificate should be provided to the Victorian Director of Public Prosecutions and served on accused persons.

The provision proposed in Recommendation 63 is based on the New South Wales disclosure certificate in Schedule 1 of the Director of Public Prosecutions Regulation 2015 (NSW).

RECOMMENDATION 64

That Victoria Police, within 12 months, amends its internal policies and procedures to align with the legislative changes proposed in Recommendations 62 and 63. These amendments should include guidance for the responsible Victoria Police officer on disclosure obligations and how to describe withheld materials in the proposed disclosure certificate.

Victoria Police should consult with the Victorian Director of Public Prosecutions in developing these amendments.

RECOMMENDATION 65

That the Victorian Director of Public Prosecutions, within 12 months, amends the Policy of the Director of Public Prosecutions for Victoria to align it with the legislative changes proposed in Recommendations 62 and 63.

Greater legislative clarity about certain kinds of disclosable information

The Commission agrees with the DPP that there appear to be ongoing issues in the identification of relevant disclosable material relating to the credibility of a prosecution witness (such as relevant criminal history, or the provisions of letters of assistance, charge reductions or other favourable treatment in criminal prosecutions as a result of the witness’ cooperation with police). The Commission considers it critically important for police to understand that this category of information is disclosable. To that end, the Commission recommends that the Criminal Procedure Act be amended to provide greater clarity on this issue.

RECOMMENDATION 66

That the Victorian Government, within 12 months, amends sections 41(e) and 110(e) of the Criminal Procedure Act 2009 (Vic) to clarify that any information, document or thing that is relevant to an alleged offence includes any material relevant to the credibility of a prosecution witness.

A statutory procedure for courts to determine public interest immunity claims in relation to disclosure

The Commission heard from the DPP that:

  • a statutory procedure for a court to determine disclosure issues should be introduced in the Criminal Procedure Act
  • this power should provide that a court can dispense with disclosure requirements on specific grounds, including PII.

Victoria Police also submitted that there should be a clearer mechanism to have complex PII claims determined by a court at an early stage. Both the DPP and Victoria Police proposed that there should be a statutory procedure to enable the prosecution or police to apply to a court to determine a PII claim.

Currently, courts most commonly determine police PII claims when the accused person issues a subpoena for the production of material, or challenges a decision not to disclose, rather than in response to an application from the party claiming PII.

Some stakeholders suggested models for Victorian courts to determine a PII claim on an application by the prosecution or police. For example, the DPP and Victoria Police referred to section 138 of the Western Australia Criminal Procedure Act a possible model—see Box 14.6 above.

The Commission has examined the Western Australian provision and considers that it provides only limited guidance for Victoria. First, the test courts apply when determining whether to dispense with a disclosure requirement differs from that used to determine PII claims in Victoria, and second, it would limit the power of police to apply for non-disclosure orders in summary proceedings.

To elaborate, in the Western Australian provision, the test for deciding whether to dispense with a disclosure requirement is whether:

  • there is a good reason to dispense with it; and
  • no miscarriage of justice will result.

On its face, this broad and simple test is not the more nuanced test Victorian courts use to determine whether material is covered by PII (and, as outlined earlier in this chapter, therefore does not have to be disclosed).

In addition, the Western Australian provision allows a party to a proceeding to apply for a non-disclosure order. Police are not a party to indictable proceedings; therefore, the provision does not easily allow police to apply for a non-disclosure order in indictable proceedings. In Victoria, as the police not the prosecutor litigate PII claims, the Western Australian procedure is not a useful analogy.

The approach taken in the United Kingdom to the prosecutor making a PII application to a court (outlined in Box 14.7 above) also provides only limited guidance for Victoria, for a similar reason. This is because, unlike in the United Kingdom, Victorian PII claims are brought by lawyers representing the police, not the DPP.

The Commission suggests caution before introducing a statutory procedure for a court to determine disclosure issues when the law operating in Victoria appears adequate. It was not an inadequacy in Victorian law but Victoria Police’s failure to adhere to that law that led to this inquiry. Further, given the VLRC’s recommendations relating to the determination of pre-trial issues as part of its Committals Review, the Commission considers that any changes to court powers relating to disclosure should be reviewed in the context of any broader reforms to the committals system in Victoria.

The Commission is also reluctant to recommend a statutory provision that would empower Victoria Police to routinely apply to dispense with disclosure requirements without giving notice to the accused person. Such applications in criminal proceedings without notifying the accused person are apt to present very real risks to the proper administration of justice. In the Commission’s view, these applications should be made only in exceptional cases, and the court should have flexibility to control those proceedings to take steps to minimise unfairness to the accused person. The common law in Victoria already allows for this.

When applying the law to determine PII claims, courts perform a balancing exercise. This is an evaluative process. As outlined earlier in this chapter, in deciding whether relevant material should be withheld, the court must consider whether the public interest in withholding disclosure is in the interests of the administration of justice. A court’s ability to engage in this evaluative exercise is likely to be more difficult if it only hears submissions from Victoria Police. While a court may appoint a special counsel or amicus curiae (friend of the court) and provide some protection to the interests of the accused person, these roles do not directly represent the interests of an accused person.

Moreover, the Commission considers that if laws were enacted to specifically allow Victoria Police to apply to a court to determine a PII claim in the absence of the accused person, it should consult with the DPP before making any such application. The desirability of early consultation with the DPP is discussed further below.

RECOMMENDATION 67

That the Victorian Government, within six months, in consultation with the Victorian Director of Public Prosecutions, Victoria Police, the Victorian courts, Victoria Legal Aid and other relevant stakeholders:

  1. reviews the adequacy of existing court powers to make non-disclosure orders
  2. considers whether a legislative power should be introduced to empower Victoria Police and/or the Director to initiate applications for a court to determine public interest immunity claims without giving notice to an accused person.

Encouraging involvement of the prosecution in assisting police with public interest immunity claims

Victoria Police indicated that an effective way to improve the system of disclosure in Victoria would be to enhance the degree of consultation between police investigators and prosecutors. In particular, Victoria Police submitted that early engagement between its officers and the OPP in relation to complex legal issues concerning questions of disclosure, relevance and PII would strengthen disclosure practices. For Victoria Police, the early involvement of prosecutors would include the opportunity for officers to consult and seek advice from prosecutors about these matters.

The DPP emphasised that prosecutors and police already consult early in the prosecution process regarding PII issues, in accordance with the DPP Policy.327 The DPP also submitted that current practice involves the OPP and Victoria Police working together in indictable matters and considered that these practices are sufficient.328 That view of the current practice was not universally held among key stakeholders. The Commission considers that, for this reason alone, there is scope to reflect on the current practices and consider opportunities for improvement.

Victoria Police, as well as other stakeholders, identified a number of matters, including the nature of disclosure obligations, PII and assessing relevance of disclosable material, that police officers routinely find complex to assess and resolve.329 These elements overlap and are crucial to the proper functioning of the criminal justice system.

It is critical that key stakeholders work together and develop disclosure processes and procedures that support Victoria Police to navigate and make decisions about these complex issues, including through the provision of legal advice. That support may be provided by the VGSO (for example, in relation to Victoria Police’s PII claims) and/or the OPP (for example, in relation to disclosure issues and obligations more generally). Most importantly, there must be a clear understanding by Victoria Police officers that these are not matters that they should, or are expected to, navigate alone. The Commission is not satisfied that the existing processes and policies provide that clarity.

Because of their interdependent roles, a cooperative, respectful and functional working relationship between the DPP and Victoria Police is essential to the operation of an effective and fair criminal justice system. The Commission considers that the DPP and Victoria Police must jointly establish clearer and more transparent protocols and procedures to facilitate early and effective discussion of issues relating to PII claims.

The Commission considers that these protocols and procedures should:

  • ensure Victoria Police has adequate and early support, including legal advice, when making complex decisions about relevant and disclosable information that may be subject to PII
  • tailor the level of support provided to Victoria Police so that greater support is provided in respect of complex PII and disclosure issues, recognising the potential resourcing implications
  • ensure the DPP’s independence is maintained (for example, by specifying that Victoria Police will continue to be responsible for litigating PII claims assisted by separate legal representation such as the VGSO).

The VLRC Committals Review also considered that the DPP should provide greater assistance to informants in relation to their disclosure obligations, noting, as the Commission does, that OPP practitioners are legally trained and have the relevant expertise.

The Commission appreciates that there are important reasons why prosecutors may not consider it necessary or appropriate to review the actual material that is the subject of a PII claim. Chief among those reasons is the need to protect the independence of the DPP’s role in fulfilling its prosecutorial functions.

Generally, it will be sufficient for the DPP to be aware of the existence of PII material and the nature of the claim. Although, as the events the subject of this inquiry demonstrate, there will be cases where police are required to deal with complex and atypical PII issues. The Commission encourages police to promptly obtain independent legal advice on issues relating to PII, for example from the VGSO, including to assist it in understanding whether, and how, material should be brought to the attention of prosecutors. In such circumstances, it may be appropriate for the DPP to consider relevant material that is subject to a PII claim and to discuss PII issues and disclosure issues with police.

The Commission notes that at the Commonwealth level, consultation between police and prosecutors commences soon after a charge is laid and involves early engagement and discussion of disclosure and PII issues. Those discussions may cover:

  • the basis for the PII claim
  • the significance of the material to the case
  • appropriate procedures for resolving the PII claim.

The Commission notes that the DPP Policy is regularly reviewed and updated to reflect relevant changes to the law. It is a valuable public document that helps to promote an open and accountable prosecution service and supports members of the public to understand how important aspects of the criminal justice system operate. To help the DPP and police work together, the Commission considers that the DPP should amend the DPP Policy to provide clearer guidance on what is expected of police and the DPP in relation to consultation about claims of PII, with a particular focus on PII matters that potentially raise complex issues—for example, matters involving information from a human source where legal obligations of confidentiality or privilege may arise.

The policy could also set out processes and procedures to better guide and facilitate discussion of relevant issues between police and the OPP. This would complement the recommendations made above to strengthen police disclosure obligations to prosecuting authorities and supplement the proposed new legislative requirements. It would also provide clarity and transparency about when and how police should engage with the OPP.

The Commission notes the DPP’s concerns about the resourcing implications if its prosecutors were to have greater and earlier engagement with police in relation to PII and disclosure issues. The Commission acknowledges that substantially increased engagement and any structural changes to facilitate this would likely require additional resources. As noted above, however, this more in-depth engagement need only occur in limited cases involving complex PII and disclosure issues, not in all cases. Consequently, the Commission is of the view that it should not pose significant resourcing issues.

RECOMMENDATION 68

That the Victorian Director of Public Prosecutions, Victoria Police, the Victorian Government Solicitor’s Office and any other relevant stakeholders work together to establish clear protocols and procedures, within 12 months, to facilitate effective engagement with, and resolution of, complex issues arising from disclosure obligations and public interest immunity claims.

These protocols and procedures should:

  1. ensure Victoria Police has adequate and early support, including legal advice, when making complex decisions about relevant and disclosable information that may be subject to public interest immunity
  2. tailor the level of support provided to Victoria Police, to enable greater support in cases involving complex public interest immunity and disclosure issues
  3. ensure the Director’s independence is maintained and potential conflicts of interest are avoided.

RECOMMENDATION 69

That the Victorian Director of Public Prosecutions, within 12 months, amends the Policy of the Director of Public Prosecutions for Victoria to provide appropriate guidance on when and how the Director can be consulted by Victoria Police in relation to complex issues arising from disclosure obligations and public interest immunity claims. These amendments should reflect the protocols and procedures proposed in Recommendation 68.

RECOMMENDATION 70

That Victoria Police, within 12 months, amends its internal policies and procedures to provide appropriate guidance on when and how Victoria Police can consult the Victorian Director of Public Prosecutions in relation to complex issues arising from disclosure obligations and public interest immunity claims. These amendments should reflect the protocols and procedures proposed in Recommendation 68 and the need for police officers to obtain early legal advice when potentially complex disclosure and public interest immunity issues arise; and provide a clear framework for seeking that advice.

Improving training and support

Ensuring that police have a proper understanding of their disclosure obligations as well as the capacity to fulfil these obligations is an essential safeguard against unfairness to an accused person.

The Commission accepts that disclosure can be a complex and time-consuming task. To assess whether material is relevant to the case of the prosecution or the case of the accused person, police officers need to have a good understanding of issues related to relevance, legal professional privilege and PII, all of which can be legally complex and technical.

The Commission considers that ongoing training and support should be provided to enable Victoria Police officers to properly understand and meet their disclosure obligations to prosecuting authorities and to accused persons. Stakeholders suggested a number of possible initiatives to improve the training and support provided to Victoria Police, including:

  • improved training resources
  • piloting the use of dedicated disclosure officers
  • strengthening Victoria Police’s information management systems.

Each of these initiatives is discussed further below.

Improving training for Victoria Police

Disclosure is not necessarily straightforward. On the contrary, it can be very complex and difficult. To ensure that police have the capability and capacity to meet their disclosure obligations properly, it is imperative that Victoria Police provides its recruits and officers with initial and ongoing training and support. Victoria Police recognises that its current disclosure training needs improvement. The Commission acknowledges, and is encouraged by, Victoria Police’s plans to achieve this, including:

  • the development and implementation of an appropriate training video on the Victoria Police internal video portal
  • finalisation and roll-out of a comprehensive organisation-wide disclosure handbook
  • plans for human source management training to be changed so that it specifically and effectively covers issues related to using human source information in prosecutions, and human sources becoming witnesses.

It is also critical that Victoria Police provides comprehensive and ongoing disclosure training and support not only to police investigators but also to officers who work in human source management. A lack of understanding of disclosure obligations on the part of officers who work in human source management may result in unfairness to the accused person, an unsuccessful prosecution or a miscarriage of justice.

Those who work in human source management need to approach their work with a thorough understanding of the importance of disclosure to the integrity of the criminal justice system. Training should be delivered by external providers with legal expertise who have an understanding of both the law relating to disclosure and PII and its practical application to modern policing; for example, the VGSO, the OPP and criminal law defence practitioners.

While Victoria Police’s new proposed training initiatives look promising, given that they are either in the planning stage or in the very early stages of implementation, it is too soon to determine whether they will be effective in improving police understanding and delivery of their disclosure obligations. The value of these initiatives can only be properly assessed when they have been trialled over a period of time. For this reason, the Commission recommends that these initiatives be independently reviewed two years after their implementation to ensure they are effective in improving police understanding and delivery of their disclosure obligations. It also considers that an additional external review should be conducted five years after the initial review to ensure that the effectiveness of the measures can be properly assessed over a longer period.

RECOMMENDATION 71

That Victoria Police, within six months, implements the measures it has proposed to improve training and support for police officers regarding their disclosure obligations, across all levels of the organisation.

RECOMMENDATION 72

That Victoria Police commissions two independent reviews of the measures implemented in Recommendation 71, to ensure that they adequately reflect any applicable changes to law and policy and are effective in improving police officers’ understanding of their disclosure obligations. The reviews should be undertaken as follows:

  1. an initial independent external review within two years of implementation
  2. an additional independent external review within five years of the initial review.
Piloting the use of disclosure officers

The Commission heard that, during Victoria Police investigations, information is collected from human sources by officers in a separate area of the organisation to officers who investigate offences and prepare briefs of evidence, and the information provided is ‘sanitised’ (deidentified) before it is disseminated to investigating officers (as mentioned earlier, this process is called the sterile corridor). As a result, the police officer who is responsible for disclosing relevant material to an accused person may not have all the information relevant to the investigation. This lack of awareness can fundamentally impede police ability to disclose to the defence, the DPP and the courts the existence of all relevant material.

The existence of the sterile corridor and the associated need to protect the identity of human sources presents one of the most significant challenges to ensuring that police disclose all relevant human source information to prosecuting authorities.

Victoria Police’s proposal to have dedicated disclosure officers working across the HSMU and the investigation team has merit. It could help facilitate continuity throughout an investigation and during any criminal proceeding that results from that investigation. The Commission therefore supports Victoria Police’s piloted use of dedicated disclosure officers but notes that exactly how the model will operate is yet to be determined. The Commission also notes that the pilot is currently limited to two disclosure officers and investigations involving human sources (as opposed to, for example, the United Kingdom model, which uses dedicated disclosure officers across a much broader range of investigations).

Given that this initiative is in its very early stages, the Commission considers that it will be important for it to be independently reviewed after it has been in operation for 12 months. If it proves to be successful in the view of both the police and other stakeholders in the criminal justice system, it should be expanded. The Commission believes it is important for the initiative to be reviewed again after an additional five years, to ensure it adequately achieves its objectives. Given that, to the best of the Commission’s knowledge, this proposed approach of having dedicated disclosure officers working across the HSMU and the investigation team is not replicated in other similar jurisdictions, these independent reviews will be particularly important.

RECOMMENDATION 73

That Victoria Police commissions two independent reviews of the implementation of its dedicated disclosure officer initiative, to ensure that it is effective in improving disclosure processes and practices. The reviews should be undertaken as follows:

  1. an initial independent external review within two years of implementation
  2. an additional independent external review within five years of the initial review.
Strengthening Victoria Police’s information management systems

The success of any measures to strengthen police disclosure practices depends largely on the extent to which Victoria Police prioritises and emphasises the importance of disclosure across the organisation. This includes having the necessary information and document management systems in place.

Victoria Police told the Commission that a key factor affecting its disclosure practices is the lack of a comprehensive electronic information and document management system; however, it did not specify with precision the limitations in the existing systems, nor the functionality any new system would need to address the current problems. As a result, the Commission is not in a position to make specific recommendations for reform in this area.

The Commission acknowledges that Victoria Police’s ability to improve its disclosure practices may rely on enhancements to its information management capability. It therefore considers that Victoria Police should undertake further work, to assess with specificity:

  • the extent to which the implementation of recent systems reforms will adequately enable it to fulfil its disclosure obligations (for example, the introduction of an intelligence management system that connects some data sources across the organisation)
  • remaining gaps and issues in the current systems
  • the necessary functionality to address any identified gaps and issues
  • the investment required to develop and implement any additional required functionality.

This will enable Victoria Police to advise the Victorian Government clearly on the reforms needed in this area and the resourcing required.

RECOMMENDATION 74

That Victoria Police, within six months, reviews the information management systems it relies on to fulfill its disclosure obligations, to assess with specificity:

  1. the extent to which the implementation of recent system reforms will enable Victoria Police to fulfil its disclosure obligations adequately
  2. remaining system gaps and issues
  3. system functionality needed to address any identified gaps and issues
  4. investment requirements to develop and implement any additional system functionality needed.

Enhancing oversight, leadership and cultural change

Embedding within Victoria Police a strong awareness and understanding of how disclosure is essential to a functional and fair criminal justice system is one of many important safeguards that would help to prevent the misuse of human source information.

Victoria Police has emphasised its commitment to working cooperatively with other stakeholders to improve disclosure practices. During this inquiry, Victoria Police introduced some measures to strengthen these practices. It has also outlined a number of training measures that it proposes to implement. The Commission is encouraged by these proposals, but emphasises the importance of continuous review and improvement beyond the conclusion of this inquiry.

As discussed earlier in this chapter, the Commission considers that current police disclosure practices could be strengthened through increased cooperation and communication between the DPP and Victoria Police. These agencies are best placed to lead and facilitate this cooperation.

The Commission is fortified in this view by the United Kingdom’s efforts to improve disclosure practices, which highlight the importance of change being led by the agencies who are responsible for implementation.

The Commission hopes that the conduct of this inquiry has contributed to a stronger awareness of the importance of police disclosing the existence of relevant human source information to prosecuting authorities. This did not occur in the cases that gave rise to this inquiry.

Overall, the Commission believes that its recommendations—including the introduction of disclosure certificates, improving police training and support and encouraging the earlier involvement of the prosecution in resolving complex PII claims—should contribute to a culture within Victoria Police where disclosure obligations are an integral part of officers’ duties and the organisation’s commitment to upholding a functional and fair criminal justice system.

Long-lasting cultural change regarding the importance of disclosure will take time to permeate across the organisation, as better training practices and systemic changes take root. Chapter 17 makes recommendations aimed at establishing effective governance, monitoring and reporting mechanisms to drive and oversee implementation of the Commission’s recommendations. These mechanisms will be important in facilitating effective implementation and regular review of the recommendations made in this chapter, and in so doing, will help to bring about the necessary cultural shift.

The Commission has carefully considered the DPP’s proposal for the establishment of an independent Disclosure Monitor to conduct ongoing system-wide audits and reviews of Victoria Police’s compliance with its disclosure obligations. The DPP submitted that the proposed Disclosure Monitor would not have the power to review the merits of individual police disclosure decisions, but rather would focus on systemic reviews in order to improve guidance to police for future cases. The DPP also submitted that the proposed Disclosure Monitor would have a role in training police officers about disclosure.

The Commission was not asked to review Victoria Police’s disclosure practices more broadly but has heard during its inquiry that there is scope to improve present police disclosure practices in Victoria. Given the Commission’s limited terms of reference it has not heard evidence of systemic failures in current disclosure practices.

Accordingly, based both on the terms of the Commission’s inquiry and the information received, the Commission does not consider it is in a position to recommend establishing an independent Disclosure Monitor.

The Commission notes Victoria Police has recently implemented, or is in the process of implementing, some systemic changes to its disclosure practices. These include the potential establishment of a disclosure governance committee to monitor disclosure issues and failures and to implement systemic improvements across the organisation. The Commission notes that at the time of finalising this report, Victoria Police has not confirmed the committee’s terms of reference or its membership.

The Commission considers that this committee would greatly benefit from the membership of external stakeholders such as the OPP, the VGSO, the Department of Justice and Community Safety and Victoria Legal Aid, all of which have expertise in the complex legal issues around disclosure and PII in the context of modern policing and prosecutions.

While the governance and other disclosure reforms proposed by Victoria Police appear promising, they are all in very early stages. The Commission considers it important that Victoria Police commits to establishing a governance mechanism so that the committee can inform and monitor the implementation of Victoria Police’s proposed reforms, along with the reforms recommended by the Commission. The Commission considers that this will help to promote lasting cultural change and an effective and cooperative inter-agency approach to improving disclosure processes and practices.

RECOMMENDATION 75

That Victoria Police, within three months, establishes a disclosure governance committee that has responsibility for identifying and monitoring systemic disclosure issues and overseeing the development and implementation of reforms to improve disclosure processes and practices.

The committee’s membership should consist of stakeholders with expertise in policing, disclosure, public interest immunity and the conduct of criminal prosecutions, including the Victorian Office of Public Prosecutions, the Victorian Government Solicitor’s Office, the Department of Justice and Community Safety, Victoria Legal Aid and any other relevant legal profession representatives.

Endnotes

1 AB v CD & EF [2017] VSCA 338, [66] (Ferguson CJ, Osborn and McLeish JJA).

2 See John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016) 21 [124].

3 See Criminal Procedure Act 2009 (Vic) ss 42, 111, 185; Roberts v The Queen (2020) 60 VR 431, [57]. See also Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 87–8.

4 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(a).

5 See Nguyen v The Queen (2020) 94 ALJR 686; R v Puddick (1865) 176 ER 662; R v Apostilides (1984) 154 CLR 563. See also Christopher Corns and Steven Tudor, Criminal Investigation and Procedure: The Law in Victoria (Thomson Reuters, 2009) 322 [10.210].

6 Nguyen v The Queen (2020) 94 ALJR 686, [36].

7 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020) 7 [21].

8 Cannon v Tahche (2002)5 VR 317; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300; R v Garofalo [1999] 2 VR 625; Clarkson v DPP [1990] VR 745; Mallard v The Queen (2005) 224 CLR 125; Grey v The Queen (2001) 75 ALJR 1708.

9 See Cannon v Tahche (2002) 5 VR 317, 339–41 [56]–[60]; R v Mallard (2005) 224 CLR 125, 132–3. See also David Plater and Lucy De Vreeze, ‘Is the “Golden Rule” of Full Prosecution Disclosure a Modern “Mission Impossible”?’ (2012) 14 Flinders Law Journal 133, 141.

10 R v Ernst [2020] QCA 150, [34].

11 Ragg v Magistrates’ Court of Victoria [2008] VSC 1, [45]-[62].

12 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (27 March 2019) 7 [15]. ‘A real as opposed to fanciful prospect’ is one that is realistic and is not hopeless or bound to fail: Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, [29] (Warren CJ and Nettle JA) (Neave JA agreeing).This includes material that if investigated further, may realistically lead to new material relevant to the case or raise new issues that are not apparent from the evidence that the prosecution proposes to use.

13 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (27 March 2019) 7 [15]. An example of a statutory prohibition on disclosure is a restriction on disclosing to the accused person the address and telephone numbers of any person: Criminal Procedure Act 2009 (Vic) ss 48, 114.

14 Clarkson v Director of Public Prosecutions [1990] VR 745, 755 (Murphy J). See also R v Farquharson [2009] VSCA 307.

15 Christopher Corns, Public Prosecutions in Australia: Law Policy and Practice (Thomas Reuters, 2009) 225.

16 Grey v The Queen (2001) 184 ALR 593.

17 Public Prosecutions Act 1994 (Vic) s 22(1)(b)(ii).

18 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020), 19 [56].

19 Australian Government Productivity Commission, Report on Government Services 2020 (Report, 29 January 2020), 7 Courts data tables, 7A.1 < www.pc.gov.au/research/ongoing/report-on-government-services/2020/justi…;. Figures for 2019–20 were not available at time of finalising this report.

20 Section 27 of the Public Prosecutions Act 1994 (Vic) also specifies that police must provide the DPP with all relevant documents and certain other material in limited circumstances. This includes where a person has been charged with an offence or class of offence that the DPP or Director’s Committee has directed should be referred to them for starting and conducting proceedings: see Explanatory Memorandum, Public Prosecutions Bill 1994 (Vic).

21 An informant is responsible for starting criminal proceedings and has a range of responsibilities, including signing the charge-sheet.

22 Criminal Procedure Act 2009 (Vic) ss 36, 40, 106. See also R v Garofalo [1999] 2 VR 625, [63], [67] (Ormiston JA).

23 Criminal Procedure Act 2009 (Vic) s 37.

24 Magistrates’ Court Criminal Procedure Rules 2019 (Vic), r 19: This document is known as ‘Form 10’.

25 Criminal Procedure Act 2009 (Vic) s 41.

26 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 11 September 2020, 14 [45]; Exhibit RC1938 Statement of Ms Abbey Hogan, 11 September 2020, [3]–[4], Annexure B.

27 Based on ‘The prosecution process’, Office of Public Prosecutions Victoria (Web Page) < www.opp.vic.gov.au/getattachment/4201036f-eadf-4b1f-bf12-23e8c777e530/T…;. >.

28 Criminal Procedure Act 2009 (Vic) s 110. If the charges are for a sexual offence and the complainant is a child or cognitively impaired, additional ‘Standard Disclosure items’ must also be served together with the brief.

29 Based on ‘Criminal Procedure Act 2009—Legislative Guide by chapter’, Department of Justice and Community Safety, (Web Page) < www.justice.vic.gov.au/criminal-procedure-act-2009-legislative-guide-by…;.

30 Criminal Procedure Act 2009 (Vic) s 117.

31 Criminal Procedure Act 2009 (Vic) s 111.

32 Criminal Procedure Act 2009 (Vic) ss 42, 111; R v Farquharson (2009) 26 VR 410.

33 Roberts v The Queen (2020) 60 VR 431,[56]; R v Ward [1993] 1 WLR 619.

34 Grey v The Queen (2001) 75 ALJR 1708; Mallard v The Queen (2005) 224 CLR 134.

35 Evidence Act 2008 (Vic) ss 130, 131A; Sankey v Whitlam (1978) 142 CLR 1, 38 (Gibbs ACJ).

36 Alister v The Queen (1984) 154 CLR 404, 431 (Murphy J), 457 (Brennan J).

37 Email from Victorian Government Solicitor’s Office to the Commission, 21 October 2020.

38 Based on information provided to the Commission by the Victorian Government Solicitor’s Office; Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020) 7 [17]–[19].

39 Unless the prosecutor was present in court for the PII proceedings or a non-publication order prevents the information being provided.

40 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020) 7 [18]. The DPP Policy and whether it complies with the prosecutor’s obligations under the common law was recently discussed in Director of Public Prosecutions v Kent Westbrook (A Pseudonym) [2020] VSC 290, 6 [14]–[21].

41 The common law doctrine of PII as it applies in court proceedings is largely replicated in section 130 of theEvidence Act 2008 (Vic).

42 Criminal Procedure Act 2009 (Vic) s 45(1)(c).

43 Criminal Procedure Act 2009 (Vic) ss 45(1)(c), 122(2).

44 Criminal Procedure Act 2009 (Vic) ss 45(1)(e), 122(2).

45 Rule 19 of the Magistrates’ Court Criminal Procedure Rules 2019 (Vic) provides that for the purpose of section 37(1)(b) of the Criminal Procedure Act 2009 (Vic), the prescribed form of notice to be included in the preliminary brief is notice in Form 10. Rule 20 of the Magistrates’ Court Criminal Procedure Rules provides that for the purposes of section 41(1)(a) of the Criminal Procedure Act the prescribed form of notice to be included in the full brief is notice in Form 11.

46 Rule 57(2) of the Magistrates’ Court Criminal Procedure Rules 2019 (Vic) provides that a list of information or other documents contained in a hand-up brief under section 110 of the Criminal Procedure Act 2009 (Vic) must be in Form 30.

47 Criminal Procedure Act 2009 (Vic) ss 37(1)(f), 41(1)(f).

48 Criminal Procedure Act 2009 (Vic) s 109.

49 Criminal Procedure Act 2009 (Vic) s 46(1).

50 The ‘Form 32’ is prescribed for the purposes of section 119(a) of the Criminal Procedure Act 2009 (Vic).

51 Criminal Procedure Act 2009 (Vic) s 125(1)(e).

52 Criminal Procedure Act 2009 (Vic) s 181(1).

53 See, eg, Marks v Beyfus (1890) 25 QBD 494; Jarvie v Magistrates’ Court of Victoria at Brunswick [1995] 1 VR 84; Signorotto v Nicholson [1982] VR 413, 419; R v XZ (2000) 116 A Crim R; Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22, 34[50] (Maxwell P), 46 [102]–[103] (Charles JA); D v National Society for the Prevention of Cruelty to Children [1978] AC 171,218(Diplock LJ), cited by Meagher JA in Derbas v The Queen [2012] NSWCCA 14, [22].

54 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020) 6 [15].

55 AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1, 5 [12] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

56 See John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016) 21–2 [124].

57 John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016) 21–2 [124].

58 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020) 7 [17]. The exception is when the DPP holds the privilege (for example, if the material is protected by legal professional privilege and the DPP is the client that received the legal advice).

59 See, eg, AB v CD & EF [2017] VSCA 338.

60 See, eg, R v Mokbel (Ruling No 1) (2005) VSC 410, 7 [24].

61 Alister v The Queen (1984) 154 CLR 404, 431 (Murphy J), 457 (Brennan J).

62 Jago v District Court (NSW) (1989)168 CLR 23, 29 (Mason CJ) citing Bunning v Cross (1978) 141 CLR 54 and R v Sang [1980] AC 402; Dietrich v The Queen (1992) 177 CLR 292, 299–300 (Mason CJ and McHugh J).

63 Submission 143 Commonwealth Director of Public Prosecutions, 4 [24].

64 Submission 143 Commonwealth Director of Public Prosecutions, 4 [24].

65 Submission 143 Commonwealth Director of Public Prosecutions, 8 [44].

66 Submission 143 Commonwealth Director of Public Prosecutions, 8 [44].

67 Submission 143 Commonwealth Director of Public Prosecutions, 8 [44].

68 Office of the Director of Public Prosecutions, The Prosecution Policy of the Australian Capital Territory (13 April 2015) 13 [4.9].

69 Office of the Director of Public Prosecutions, The Prosecution Policy of the Australian Capital Territory (13 April 2015) 13 [4.9].

70 Office of the Director of Public Prosecutions, The Prosecution Policy of the Australian Capital Territory (13 April 2015) 13 [4.9].

71 Director of Public Prosecutions Act 1986 (NSW) s 15A(1).

72 Director of Public Prosecutions Act 1986 (NSW) s 15A(7).

73 New South Wales Police Force Handbook (2 October 2019) 61.

74 Consultation with New South Wales Office of Director of Public Prosecutions, 16 September 2019.

75 Northern Territory Office of the Director of Public Prosecutions, Guidelines of the Director of Public Prosecutions (2016) 12 [8.12].

76 Northern Territory Office of the Director of Public Prosecutions, Guidelines of the Director of Public Prosecutions (2016) 13 [8.19].

77 Northern Territory Office of the Director of Public Prosecutions, Guidelines of the Director of Public Prosecutions (2016) 11 [8.6].

78 Director of Public Prosecutions Act 1984 (Qld) s 24C(2).

79 Queensland Office of the Director of Public Prosecutions, Director’s Guidelines (30 June 2016) 41 [29(viii)].

80 Queensland Office of the Director of Public Prosecutions, Director’s Guidelines (30 June 2016) 41 [29(viii)].

81 Director of Public Prosecutions Act 1991 (SA) s 10A(1).

82 Director of Public Prosecutions Act 1991 (SA) s 10A(2)(a).

83 Director of Public Prosecutions South Australia, Statement of Prosecution Policy and Guidelines (October 2014) 21.

84 Tasmania Director of Public Prosecutions, Prosecution Policy and Guidelines (23 October 2019) 120.

85 Tasmania Director of Public Prosecutions, Prosecution Policy and Guidelines (23 October 2019) 120.

86 Tasmania Director of Public Prosecutions, Prosecution Policy and Guidelines (23 October 2019) 121.

87 Western Australia Office of the Director of Public Prosecutions, Statement of Prosecution Policy and Guidelines (1 September 2018) 15 [97].

88 Western Australia Office of the Director of Public Prosecutions, Statement of Prosecution Policy and Guidelines (1 September 2018) 15 [97].

89 Criminal Procedure Act 2004 (WA) s 138.

90 Victorian Law Reform Commission, Committals (Report, March 2020).

91 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020).

92 Mallard v The Queen (2005) 224 CLR 125.

93 Submission 097 Criminal Bar Association, [10]; Submission 145 Victorian Legal Aid, 7–8; Submission 146 Law Institute of Victoria, 5.

94 Submission 097 Criminal Bar Association, [10].

95 Submission 142 Director of Public Prosecutions (Victoria), 44–6; Submission 146 Law Institute of Victoria, 5; Submission 147 Criminal Bar Association, 3–4.

96 Submission 142 Director of Public Prosecutions (Victoria), 44 [168].

97 Submission 142 Director of Public Prosecutions (Victoria), 44 [169].

98 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020) 7 [18].

99 Submission 142 Director of Public Prosecutions (Victoria), 48 [184].

100 See, eg, Director of Public Prosecutions, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (1 June 2007) 30–2.

101 See, eg, Criminal Procedure Act 1986 (NSW) ss 141, 147; Director of Public Prosecutions Act 1986 (NSW) s 15A; Director of Public Prosecutions, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (1 June 2007) (Guideline 18); Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 29.5; Legal Profession Uniform Conduct (Barristers) Rules 2015, r 87.

102 Director of Public Prosecutions Act 1986 (NSW) s 15A(1); Director of Public Prosecutions Regulation 2015 (NSW), sch 1.

103 New South Wales Police Force Handbook (2 October 2019) 61.

104 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020) 7 [18].

105 Director of Public Prosecutions Act 1986 (NSW) s 15A(6).

106 Director of Public Prosecutions Act 1986 (NSW) s 15A(7).

107 Consultation with New South Wales Office of Public Prosecutions, 16 September 2019.

108 Submission 142 Director of Public Prosecutions (Victoria), 49 [188].

109 Submission 144a Victoria Police, [41].

110 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 90–1 [385]–[387].

111 Submission 147 Criminal Bar Association, 1.

112 Submission 147 Criminal Bar Association, 2.

113 Victorian Law Reform Commission, Committals (Report, March 2020) 106 (Recommendation 33).

114 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020) 19 (Recommendation 3).

115 The Operation Gloucester Report also drew attention to section 10A of the Director of Public Prosecutions Act 1991 (SA), which imposes a very similar statutory duty: Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020) 61.

116 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020), 61.

117 Submission 144a Victoria Police, [58]; Submission 145 Victoria Legal Aid, 6; Submission 147 Criminal Bar Association, 3.

118 Submission 142 Director of Public Prosecutions (Victoria), 52 [205]; Submission 144a Victoria Police, [60].

119 Submission 144a Victoria Police, [58].

120 New South Wales Police Force Handbook (2 October 2019) 61.

121 Director of Public Prosecutions Regulation 2015 (NSW) cl 5(b).

122 Director of Public Prosecutions Regulation 2015 (NSW) cl 5(c).

123 Director of Public Prosecutions Regulation 2015 (NSW) sch 1.

124 New South Wales Police Force Handbook (2 October 2019) 61.

125 Criminal Procedure Act 2004 (WA) s 45(6).

126 Criminal Procedure Act 2004 (WA) s 95(6).

127 Supreme Court of New South Wales, Practice Note SC CL 2: Criminal Proceedings, 15 December 2016, [9].

128 Submission 142 Director of Public Prosecutions (Victoria), 52 [198]; Submission 144a Victoria Police, [58].

129 Submission 142 Director of Public Prosecutions (Victoria), 52 [196].

130 Submission 142 Director of Public Prosecutions (Victoria), 50 [192].

131 Submission 142 Director of Public Prosecutions (Victoria), 52 [205].

132 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14933.

133 Submission 142 Director of Public Prosecutions (Victoria), 40 [149].

134 Submission 145 Victoria Legal Aid, 6; Law Institute of Victoria, Submission to the Victorian Law Reform Commission, Committals (2 October 2019) [4.12]; Submission 147 Criminal Bar Association, 3.

135 See, eg, Submission 145 Victoria Legal Aid, 5.

136 Submission 144a Victoria Police, [63].

137 Victorian Law Reform Commission, Committals (Report, March 2020) 108 [9.73].

138 Victorian Law Reform Commission, Committals (Report, March 2020) 108 [9.76].

139 Victorian Law Reform Commission, Committals (Report, March 2020) 108 [9.77].

140 Victorian Law Reform Commission, Committals (Report, March 2020) 108 [9.77].

141 Victorian Law Reform Commission, Committals (Report, March 2020) 108 [9.77].

142 Victorian Law Reform Commission, Committals (Report, March 2020) 105 (Recommendation 32).

143 Victorian Law Reform Commission, Committals (Report, March 2020) 108 [9.78].

144 Submission 145 Victoria Legal Aid, 4.

145 Submission 145 Victoria Legal Aid, 4–5.

146 Submission 147 Criminal Bar Association, 2.

147 Submission 147 Criminal Bar Association, 2.

148 New South Wales Police Force Handbook (2 October 2019) 62–3.

149 Criminal Procedure Act 2004 (WA) s 95(6).

150 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020) 61.

151 Policy of the Director of Public Prosecutions for Victoria (17 September 2020) [17]-[18].

152 Submission 142 Director of Public Prosecutions (Victoria), 62 [251].

153 Submission 142 Director of Public Prosecutions (Victoria), 63 [255].

154 Submission 142 Director of Public Prosecutions (Victoria), 63 [256].

155 Submission 142 Director of Public Prosecutions (Victoria), 63 [256].

156 Submission 142 Director of Public Prosecutions (Victoria), 63 [257].

157 R v Andrews (2010) SASCFC 3, [25] (Gray J); R v Reardon (No 2) (2004) 60 NSWLR 454, 468 [47] (Hodgson JA); R v Lipton (2011) 82 NSWLR 123, 149 [89]–[91] (McColl JA); AB v CD & EF [2017] VSCA 338, [65]. While technically the PII claims in AB v CD & EF [2017] VSC 350 were inter-party proceedings (that is, there was an active respondent to those proceedings), the proceedings and the appeal proceedings were all determined without the persons affected being notified of the applications and/or having the opportunity to be heard by the Court. The Court appointed amici curiae to make submissions in the interests of the individuals not given notice of the proceedings.

158 R v Davis [1993] 2 All ER 643, 647 (Lord Taylor CJ).

159 R v Davis [1993] 2 All ER 643, 647–8; R v Keane [1994] 2 All ER 478, 483 (Lord Taylor CJ).

160 R v H; R v C [2004] 1 All ER 1269, 1284 [35].

161 R v H; R v C [2004] 1 All ER 1269, 1283 [35]–[36]. This view was influenced by the conclusion of the European Court of Human Rights that an ex parte application by the prosecution may contravene the right to a fair and public hearing in article 6 of the European Convention on Human Rights. The Charter of Human Rights and Responsibilities Act 2006 (Vic) provides that a person charged with a criminal offence has the right to a fair and public hearing. Section 25 of the Charter elaborates on the minimum requirements for a fair hearing in criminal proceedings.

162 R v H; R v C [2004] 1 All ER 1269, 1280 [22], 1285 [37].

163 See, eg, R v Reardon (No 2) (2004) 60 NSWLR 454, 468-9 [46]–[54] (Hodgson JA); R v Lipton (2011) 82 NSWLR 123, especially at 149 [89]–[91] (McColl JA). In both cases, as McColl JA noted, it was said that ‘the few Australian cases that have commented on the English cases have not suggested they are not applicable in Australia’.

164 R v Andrews [2010] SASCFC 5.

165 R v Andrews [2010] SASCFC 5 [29] (Gray J).

166 R v Andrews [2010] SASCFC 5 [25] (Gray J).

167 See R v Lodhi (2006) 163 A Crim R 475 [12]–[13]; Sands v State of South Australia [2015] SASR 195, 238–9 [169]–[172]; State of New South Wales v Public Transport Ticketing Corporation (No 3) [2011] 81 NSWLR 394.

168 For example, Criminal Procedure and Investigations Act 1996 (UK) ss 3(1)(a), 7A; Criminal Justice and Licensing (Scotland) Act 2010 (UK) s 121.

169 See generally Ministry of Justice (UK), Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice (March 2015); Crown Office and Procurator Fiscal Service (Scot), Disclosure Manual (December 2014) ch 25.

170 Letter from the Lord Advocate, Crown Office and Procurator Fiscal Service (Scotland) to the Commission, 30 October 2019, 4.

171 Letter from the Lord Advocate, Crown Office and Procurator Fiscal Service (Scotland) to the Commission, 30 October 2019, 4.

172 Submission 154 Supreme Court of Victoria, 9.

173 Submission 154 Supreme Court of Victoria, 8–9.

174 Submission 154 Supreme Court of Victoria, 9–10.

175 Submission 142 Director of Public Prosecutions (Victoria), 63 [257].

176 Submission 142 Director of Public Prosecutions (Victoria), 63-4 [257].

177 Submission 142 Director of Public Prosecutions (Victoria), 64 [258].

178 Submission 142 Director of Public Prosecutions (Victoria), 68 [274].

179 Submission 142 Director of Public Prosecutions (Victoria), 70 [281].

180 Submission 142 Director of Public Prosecutions (Victoria), 70 [8.4.6].

181 The DPP suggests that the Public Interest Monitor’s powers and functions could reflect those set out in section 3D of the Major Crimes (Investigative Powers) Act 2004. See Submission 142 Director of Public Prosecutions (Victoria), 70 [282].

182 Submission 144a Victoria Police, [35].

183 Submission 144a Victoria Police, [35].

184 Submission 142 Director of Public Prosecutions, 64 [259]; Submission 144a Victoria Police, [81].

185 Criminal Procedure Act 2004 (WA) s 138(3)(a).

186 Criminal Procedure Act 2004 (WA) s 138(3)(b)-(d).

187 Submission 142 Director of Public Prosecutions (Victoria), 96–7 [371].

188 Submission 143 Commonwealth Director of Public Prosecutions, 10 [52].

189 Submission 145 Victoria Legal Aid, 3–4.

190 Crown Prosecution Service, Disclosure Manual (2018) 41.

191 Crown Prosecution Service, Disclosure Manual (2018) 35.

192 Crown Prosecution Service, Disclosure Manual (2018) 41.

193 Crown Prosecution Service, Disclosure Manual (2018) 41-2.

194 Submission 144a Victoria Police, [26].

195 Submission 144a Victoria Police, [26].

196 Submission 144a Victoria Police, [34].

197 Submission 144a Victoria Police, [27].

198 Submission 144a Victoria Police, [62]–[63].

199 Director of Public Prosecutions, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (1 June 2007) 30.

200 Director of Public Prosecutions, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (1 June 2007) 30–1.

201 Director of Public Prosecutions, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (1 June 2007) 31.

202 Director of Public Prosecutions, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (1 June 2007) 31.

203 Submission 144a Victoria Police, [60].

204 Submission 144a Victoria Police, [61].

205 Submission 144a Victoria Police, [28].

206 Submission 144a Victoria Police, [28].

207 Consultation with Australian Federal Police, 10 July 2020, [50].

208 Consultation with Australian Federal Police, 10 July 2020, [60].

209 Consultation with Australian Federal Police, 10 July 2020, [51].

210 Submission 143 Commonwealth Director of Public Prosecutions, 11 [54].

211 Submission 143 Commonwealth Director of Public Prosecutions, 11 [55].

212 Submission 143 Commonwealth Director of Public Prosecutions, 11 [56].

213 Submission 143 Commonwealth Director of Public Prosecutions, 11 [58].

214 Submission 143 Commonwealth Director of Public Prosecutions, 12 [59].

215 Submission 143 Commonwealth Director of Public Prosecutions, 12 [60].

216 Submission 143 Commonwealth Director of Public Prosecutions, 12 [61].

217 Submission 147 Criminal Bar Association, 5.

218 Submission 145 Victoria Legal Aid, 1.

219 Submission 145 Victoria Legal Aid, 7.

220 Submission 145 Victoria Legal Aid, 7.

221 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 11 September 2020, 13–14 [44].

222 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 11 September 2020, 13–14 [44].

223 Submission 142 Director of Public Prosecutions (Victoria), 36 [133].

224 Submission 142 Director of Public Prosecutions (Victoria), 36 [134].

225 Submission 142 Director of Public Prosecutions (Victoria), 36 [134].

226 Submission 142 Director of Public Prosecutions (Victoria), 36 [135].

227 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 11 September 2020, 14 [45].

228 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 11 September 2020, 14 [45]; Exhibit RC1938 Statement of Ms Abbey Hogan, 11 September 2020, [3]–[4], Annexure B.

229 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 11 September 2020, 14 [45].

230 Submission 142 Director of Public Prosecutions, 36 [136]. See also Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 7 August 2020, 23 [62].

231 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 7 August 2020, 13 [34].

232 Responsive submission Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 7 August 2020, 13 [34], 21–3 [58]–[61].

233 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 7 August 2020, 22 [60]. The responsive submission noted that the rationales behind this policy were accepted in the recent decision of R v Westbrook [2020] VSC 290: Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 7 August 2020, 22–3 [61].

234 Submission 142 Director of Public Prosecutions (Victoria), 17 [65].

235 Submission 144a Victoria Police, [44].

236 Submission 144a Victoria Police, [44].

237 Submission 144a Victoria Police, [45].

238 Submission 144a Victoria Police, [46].

239 Victoria Police, Submission to the Victorian Law Reform Commission, Committals (4 October 2019) 6.

240 Submission 142 Director of Public Prosecutions (Victoria), 18 [65].

241 Submission 142 Director of Public Prosecutions (Victoria), 18 [65].

242 Victoria Police, Submission to the Victorian Law Reform Commission, Committals (4 October 2019) 6.

243 Victorian Aboriginal Legal Service, Submission to the Victorian Law Reform Commission, Committals (9 September 2019) 7.

244 Submission 142 Director of Public Prosecutions (Victoria), 17–18 [65].

245 Submission 147 Criminal Bar Association, 5.

246 Submission 147 Criminal Bar Association, 5–6.

247 Submission 142 Director of Public Prosecutions (Victoria), 18 [65].

248 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 58 [267].

249 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 58 [268], 59 [271], 60 [276]–[277].

250 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 59–60 [267]–[275].

251 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 58–60 [267]–[278]. Some ad hoc training days and sessions were run by the VGSO.

252 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 58 [278].

253 Victoria Police’s changes to Human Source Policy dated 15 April 2020 came into effect on 4 May 2020.

254 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 27–8 [7.6].

255 Submission 142 Director of Public Prosecutions (Victoria), 36 [132].

256 Law Institute of Victoria, Submission to the Victorian Law Reform Commission, Committals (2 October 2019) 13 [4.3].

257 Submission 147 Criminal Bar Association, 5.

258 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020), 63.

259 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020), 63.

260 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020), 80 (Recommendations 1 and 2).

261 Exhibit RC1536a Victoria Police and Prosecution Specialist Branch Disclosure Action Plan, 19 March 2020.

262 Submission 144a Victoria Police, [13].

263 Victorian Government Solicitor’s Office, Victoria Police Disclosure Handbook (undated).

264 Her Majesty’s Crown Prosecution Service Inspectorate (UK), Disclosure of Unused Material in the Crown Court (Report, January 2020) 7 [1.10].

265 Ministry of Justice (UK), Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice (March 2015) [3.1].

266 Crown Prosecution Service (UK), Disclosure Manual (2018) 11.

267 Crown Prosecution Service (UK), Disclosure Manual (2018) 11.

268 Ministry of Justice (UK), Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice (March 2015) [6.15].

269 Ministry of Justice (UK), Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice (March 2015) [6.16].

270 Ministry of Justice (UK), Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice (March 2015) [6.17].

271 Submission 143 Commonwealth Director of Public Prosecutions, 11 [53].

272 Submission 144a Victoria Police, [36].

273 Submission 144a Victoria Police, [37].

274 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 87 [372].

275 Submission 142 Director of Public Prosecutions (Victoria), 54 [209].

276 Submission 142 Director of Public Prosecutions (Victoria), 54 [209].

277 Submission 142 Director of Public Prosecutions (Victoria), 54 [210].

278 Submission 142 Director of Public Prosecutions (Victoria), 54 [213].

279 Submission 142 Director of Public Prosecutions (Victoria), 55 [215].

280 Submission 142 Director of Public Prosecutions (Victoria), 55 [217].

281 Submission 142 Director of Public Prosecutions (Victoria), 59 [235].

282 Submission 142 Director of Public Prosecutions (Victoria), 60 [246].

283 Submission 142 Director of Public Prosecutions (Victoria), 61 [248].

284 Submission 145 Victoria Legal Aid, [5].

285 Submission 142 Director of Public Prosecutions (Victoria), 20 [72].

286 Victorian Law Reform Commission, Committals (Report, March 2020) [9.58].

287 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14924.

288 Responsive submission, Victoria Police, 20 September 2020, 19 [1.4(a)].

289 Responsive submission, Victoria Police, 20 September 2020, 20 [1.5]–[1.6].

290 Exhibit RC1536a Victoria Police and Prosecution Specialist Branch Disclosure Action Plan, 19 March 2020, 14.

291 Exhibit RC1536a Victoria Police and Prosecution Specialist Branch Disclosure Action Plan, 19 March 2020, 14.

292 Exhibit RC1536a Victoria Police and Prosecution Specialist Branch Disclosure Action Plan, 19 March 2020, 14.

293 House of Commons Justice Committee, Disclosure of Evidence in Criminal Cases (Report, 20 July 2018) 23 [71]; Attorney-General’s Office (UK), Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System (Report, November 2018), 22.

294 House of Commons Justice Committee, Disclosure of Evidence in Criminal Cases (Report, 20 July 2018) 49 [18].

295 Richard Horwell, Mouncher Investigation Report (Report, July 2017) 81–2 [14.6].

296 National Police Chiefs’ Council, College of Policing and Crown Prosecution Service, National Disclosure Improvement Plan (January 2018).

297 National Police Chiefs’ Council, College of Policing and Crown Prosecution Service, National Disclosure Improvement Plan, Progress Update (October 2018) 1.

298 National Police Chiefs’ Council and Crown Prosecution Service (UK), National Disclosure Standards (May 2018) 3[2.1.3].

299 National Police Chiefs’ Council, College of Policing and Crown Prosecution Service, National Disclosure Improvement Plan, Progress Update (October 2018) 1.

300 Attorney-General’s Office (UK), Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System (Report, November 2018) 46.

301 Attorney-General’s Office (UK), Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System (Report, November 2018) 45.

302 Attorney-General’s Office (UK), Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System (Report, November 2018) 3.

303 Submission 144a Victoria Police, [66].

304 Submission 144a Victoria Police, [66].

305 Submission 145 Victoria Legal Aid, 6.

306 Submission 145 Victoria Legal Aid, 6.

307 Submission 144a Victoria Police, [58].

308 Submission 144a Victoria Police, [72].

309 Submission 144a Victoria Police, [73].

310 Submission 147 Criminal Bar Association, 3.

311 Submission 142 Director of Public Prosecutions (Victoria), 19 [68].

312 Submission 142 Director of Public Prosecutions (Victoria), 19 [69].

313 Submission 145 Victoria Legal Aid, 4.

314 Submission 145 Victoria Legal Aid, 5.

315 See, eg, Attorney-General’s Office (UK), Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System (Report, November 2018) ch 6.

316 Submission 144a Victoria Police, [47].

317 Submission 144a Victoria Police, [48].

318 Submission 144a Victoria Police, [31].

319 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 66 [293].

320 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 66 [294]–[296].

321 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 67 [297]–[298].

322 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 67 [301].

323 Responsive submission, Victoria Police, 20 September 2020, 20 [1.4(b)].

324 The Comrie Review recommended that Victoria Police human source policy, associated instructions and practice guidelines be revised to clearly reflect that before registering any human source who may have a professional duty, appropriate legal advice must be obtained: Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 20 (Recommendation 3(c)). The Comrie Review also recommended that when there are complex legal and ethical considerations, such as a human source having professional duties, then consultation must occur with the Victoria Police Director Legal Services before completing the risk assessment process: (Recommendation 5(b)). The same recommendations were made in the Kellam Report: Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) (Recommendations 1(c) and 3(b)).

325 Victorian Law Reform Commission, Committals (Report, March 2020) 106 (Recommendation 33).

326 See Victorian Law Reform Commission, Committals (Report, March 2020) 68–8 (Recommendations 11 and 12).

327 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 11 September 2020, 14 [45]; Responsive submission, Director of Public Prosecutions (Victoria), 15 September 2020, 6 [19].

328 Responsive submission, Director of Public Prosecutions (Victoria), 15 September 2020, 3–6 [9]–[14].

329 See Submission 144a Victoria Police, [44]–[46]; Submission 147 Criminal Bar Association, 5; Submission 142 Director of Public Prosecutions (Victoria), 17–18 [65].


Chapter 15

Legal profession regulation

Introduction

Lawyers have considerable authority and power when representing a client. They have expert knowledge of the law and legal system, and access to their client’s confidential information. A lawyer’s advice and actions can have a direct and significant influence on a client’s future, their wellbeing and the outcomes they are able to achieve. When lawyers knowingly and deliberately betray their client’s trust or act in ways contrary to their interests, it can have a negative impact on the client. It can also, as the Commission’s inquiry has shown, have a negative impact on the integrity of the criminal justice system and community confidence in the administration of justice and the legal profession.

Term of reference 6 required the Commission to inquire into any matters necessary to satisfactorily resolve the matters set out in its other terms of reference. As part of its inquiry into term of reference 6, the Commission examined aspects of legal profession regulation and the way that it supports, promotes and monitors lawyers’ ethical conduct.

In Chapter 7, the Commission outlines the number of cases that may have been affected by the use of former criminal defence barrister Ms Nicola Gobbo as a human source. In Chapters 12 and 13, the Commission makes recommendations to strengthen Victoria Police’s use of human sources involving legal obligations of confidentiality or privilege, including recommending a new legislative and oversight regime. While Victoria Police must do better to strengthen its human source management framework, members and regulators of the legal profession also have a role to play in preventing and deterring the kind of conduct that led to this Commission.

The purpose of legal profession regulation is twofold: to protect the integrity of the administration of justice and to protect consumers and the public.

Victoria’s legal profession regulatory framework consists of legislation, the common law, professional rules, ongoing education and support services. These elements work together, requiring lawyers to understand and adhere to high standards of ethical and legal practice. When lawyers fail to uphold these standards, a framework of complaints procedures, investigations and disciplinary mechanisms act to correct and deter the behaviour.

Given the scope of its terms of reference, the Commission has not conducted an extensive review of legal profession regulation in Victoria. Rather, it has focused on the specific aspects of legal profession regulation that support the ethical conduct of lawyers, and related issues raised by stakeholders the Commission consulted.

Since Ms Gobbo was admitted to the legal profession in 1997, Victoria’s legal profession regulatory framework has changed significantly. The Commission considers, however, that there is scope to further strengthen and improve aspects of this framework.

It identified that there are opportunities to provide more comprehensive guidance to lawyers about their ethical duties and obligations, particularly relating to the duty of confidentiality, exceptions to this duty, and maintaining appropriate professional boundaries. Regulators and professional associations could also do more to make lawyers aware of the supports available to them in upholding their ethical obligations.

The Commission also recommends the introduction of a mandatory reporting requirement for lawyers to report suspected misconduct of other lawyers, and in doing so, support high ethical standards in the legal profession, better protect consumers of legal services and enhance public confidence in the Victorian profession.

The public can be assured that Ms Gobbo’s improper conduct is the exception rather than the norm. Undoubtedly, the majority of Victorian lawyers are competent, diligent, ethical professionals who take their duties to the court and to their clients very seriously. Unfortunately, it is likely that Ms Gobbo’s conduct has caused at least some community members to wonder whether they are able to trust a lawyer, or whether confidential information they supply to a lawyer might be disclosed to others in breach of their trust.

As such, the Commission considers that legal profession regulators and professional associations must work together to communicate effectively with the public about lawyers’ professional and ethical obligations, with the aim of restoring and maintaining public confidence in the legal profession and the broader criminal justice system.

Current context and practice

This section summarises aspects of legal profession regulation in Victoria. It focuses on the ethical duties and obligations imposed on lawyers, along with:

  • the legal profession regulatory framework
  • admission to the legal profession
  • the requirements to practise as a lawyer, including continuing professional development (CPD)
  • ethical and practice support available for lawyers.

These topics are discussed in turn below.

The legal profession regulatory framework

Legal profession regulation serves a range of purposes. It seeks to promote the administration of justice by ensuring that, among other things, lawyers act competently and maintain high ethical standards so that members of the public are protected.1

The legal profession plays a central role in the administration of justice. Lawyers owe a range of ethical duties and obligations—to the court, their clients and other lawyers—all of which help promote the integrity of the justice system, and trust between lawyers and their clients. When standards are not upheld, they can be enforced by a regulator or the justice system, which may impose sanctions in response to unsatisfactory, improper or criminal behaviour.

As the relationship between lawyers and their clients is based on trust, regulation also supports members of the public to confidently engage the services of a lawyer without needing to independently verify their credibility and qualifications.2

The two branches of the legal profession in Victoria—solicitors and barristers—are often collectively referred to as ‘lawyers’. Solicitors provide legal advice to individuals and organisations and will sometimes refer matters to barristers, while barristers tend to specialise in representing people in court and may give specialist advice on complex legal matters. Barristers generally receive their instructions through solicitors. In 2018–19, there were 23,477 registered lawyers in Victoria, comprising 21,348 solicitors and 2,129 barristers.3

Overview of the regulatory framework

The legal profession regulatory framework encompasses all aspects of being admitted to legal practice and practising as a lawyer. It also establishes bodies responsible for overseeing the framework itself, and for managing complaints and disciplinary outcomes in cases of misconduct.

The legal profession regulatory framework draws on legislation, rules and the common law. In Victoria, the Legal Profession Uniform Law Application Act 2014 (Vic) (Uniform Law) governs the practice of law and regulation of the legal profession. The Uniform Law was introduced with the aim of promoting greater consistency in how the legal profession is regulated across jurisdictions.4 It also operates in New South Wales, and will potentially apply in Western Australia if enabling legislation currently under consideration by the Western Australian Parliament is passed.5 Local professional conduct rules apply in those jurisdictions that have not signed up to the Uniform Law.

A framework of rules sets out how the Uniform Law operates in Victoria, including:

  • Legal Profession Uniform Admission Rules 2015 (Admission Rules)—outline the requirements for admission to the legal profession
  • Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Solicitors’ Conduct Rules) and the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Barristers’ Conduct Rules)—outline professional obligations and ethical principles for lawyers. This chapter sometimes refers to these rules collectively as the ‘professional conduct rules’.

The professional conduct rules are an important source of lawyers’ ethical and professional responsibilities, but they are not exhaustive. Lawyers also owe ethical duties and obligations that flow from the operation of other legislation; for example, in relation to civil procedure.6 Further, the professional conduct rules reflect ethical principles that have developed over time and that are drawn from a range of sources, including the common law. Courts and tribunals play an important role in interpreting and enforcing lawyers’ ethical duties and obligations when handing down decisions in disciplinary matters.

Key regulatory and other bodies

Several bodies work together to regulate the legal profession and oversee the operation of the Uniform Law, as set out in Figure 15.1.7

Figure 15.1: Roles of regulators and professional associations under the Uniform Law 8

Figure 15.1- Roles of regulators and professional associations under the Uniform Law

As Figure 15.1 shows, the Legal Services Council and the Commissioner for Uniform Legal Services Regulation oversee the Uniform Law in Victoria. These bodies are in turn overseen by the Council of Attorneys-General, which is made up of the Attorneys-General of the states that participate in the Uniform Law.9

The Law Council of Australia, which represents the legal profession at a national level, issues the Solicitors’ Conduct Rules and, in conjunction with the Australian Bar Association (which represents barristers nationally), the Barristers’ Conduct Rules. The rules were adopted under the Uniform Law in Victoria and New South Wales and have also been adopted in some jurisdictions that do not yet participate in the Uniform Law scheme: South Australia, Queensland and the Australian Capital Territory. The Law Council of Australia has issued commentary to accompany the Solicitors’ Conduct Rules, which assists solicitors by providing ‘additional information and guidance in understanding how particular rules might apply in some situations’.10

The Law Council of Australia also issues rules relating to CPD for solicitors and barristers, and supports the Uniform Law and the legal profession generally.11

At the state level, the Good Conduct Guide: Professional Standards for Australian Barristers (Good Conduct Guide) provides additional information about the professional conduct rules in relation to barristers.12 The Law Institute of Victoria also publishes ethics guidelines to support solicitors with guidance on particular ethical or conduct situations.13

Regulation of Victoria’s legal profession has changed significantly over time, having moved from self-regulation14 to co-regulation,15 with the introduction of independent regulators.16 The aim of these changes has been to improve both transparency in the legal profession, and accountability of the legal profession to the public.17

As Figure 15.1 shows, in Victoria, the Victorian Legal Admissions Board (VLAB) and the Victorian Legal Services Board and Commissioner (VLSB+C) are the two designated local regulatory authorities:18

  • The VLAB oversees the admission of lawyers in Victoria, including assessing the suitability of applicants (which is formally undertaken by the Victorian Legal Admissions Committee (VLAC) under a delegation).19
  • The VLSB+C is comprised of two separate bodies that effectively operate as one:20
    • The Victorian Legal Services Board grants and renews lawyers’ practising certificates, and can vary, suspend or cancel practising certificates.21
    • The Victorian Legal Services Commissioner is responsible for the receipt, management and resolution of complaints about the professional conduct of lawyers. The investigation of a complaint may result in a variety of disciplinary actions, including imposing fines, issuing reprimands and requiring further education or counselling.22

The VLSB+C also plays an important role in educating lawyers and the community about regulatory and other issues relevant to the legal profession, and the delivery of legal services to the community.23

The Victorian Bar and the Law Institute of Victoria are the professional associations for Victorian barristers and solicitors respectively. The VLSB+C works closely with these bodies, and delegates some regulatory functions to them. For example, the Victorian Bar has a delegation from the Victorian Legal Services Commissioner that allows it to handle complaints concerning barristers, in recognition that barristers are a discrete, specialised cohort of the legal profession.24 The Victorian Legal Services Commissioner determines which complaints to refer to the Victorian Bar; oversees the conduct of all investigations; and is ultimately responsible for making the final decisions on their outcome.25

The Supreme Court of Victoria plays an important overarching role in the admission of lawyers to the legal profession. It is the only body that may admit and remove a lawyer from the Roll of Legal Practitioners.26 Removal from the Roll of Legal Practitioners means that a lawyer is no longer able to practise.

Admission to the legal profession

To become a lawyer, a person must meet the requirements outlined in the Admission Rules. The broad steps involved in the admission process are displayed in Figure 15.2.

Figure 15.2: Requirements to practise as a lawyer 26
Figure 15.2- Requirements to practise as a lawyer

In summary, to become a lawyer, it is necessary to:

  • hold an approved degree, which requires completing compulsory ‘academic areas of knowledge’ or subjects, including legal ethics27
  • undertake practical legal training, which is designed to give legal practitioners the necessary day-to-day skills to practise, including understanding and applying legal ethics requirements28
  • formally join the legal profession, known as ‘admission to practice’, being admitted to the legal profession essentially means that a person has completed the required education and training, is considered a ‘fit and proper person’ by the VLAB and the Supreme Court, and has signed the Roll of Legal Practitioners.
‘Fit and proper person’ for admission to the legal profession

While satisfying the education and practical legal training requirements to become a lawyer is reasonably straightforward, the question of what makes a fit and proper person is more complicated.29 When joining the legal profession, an applicant must be able to show that they can uphold the integrity of the profession and maintain the confidence of the public. Many factors are considered when determining whether a person is fit and proper.

The term ‘fit and proper person’ means that the applicant:

… must have the personal qualities of character which are necessary to discharge the important and grave responsibilities of being a barrister and solicitor.30

The test for whether someone is considered a fit and proper person for admission to the legal profession is broad. The Admission Rules require the applicant to provide a range of documents to support their application, including a police report and two statutory declarations confirming the applicant’s character.31

Based on the evidence provided, the VLAB takes into account whether the applicant is of ‘good fame and character’, whether they have been found guilty of an offence, and other factors.32 Further information may be requested to support an application and the VLAB may also require that the applicant attends a meeting with the Chair and Chief Executive Officer of the VLAB, who may ask questions about the matters that have been disclosed and examine the applicant’s insight into why the VLAB may have concerns about anything disclosed. The discussion is intended to be frank and honest, though informal.33

If satisfied that the applicant meets the admission requirements, the VLAB may recommend to the Supreme Court that they be admitted to the legal profession, and issue the applicant with a ‘compliance certificate’.34 The applicant then attends a ceremony at the Supreme Court, where they are officially admitted to legal practice and where they sign the Roll of Legal Practitioners.

If a person wishes to practise as a barrister, they must meet additional requirements. To become a barrister, an applicant must:

  • be admitted to the legal profession35
  • achieve a minimum passing grade of 75 per cent in the Victorian Bar Entrance Exam to demonstrate legal knowledge in civil and criminal procedure, evidence and ethics36
  • complete a 9–10-week Bar Readers’ Course, which is focused on skills specific to the practice of a barrister, such as advocacy in court, the rules of ethics and principles of good conduct37
  • work under the guidance of a mentor at the Victorian Bar for nine months (in addition to this initial mentor, by the end of the Readers’ Course, all Readers must have a senior mentor who is either a Queen’s or Senior Counsel).38

Practising as a lawyer

Once a person has been admitted to the legal profession, they are not immediately eligible to provide legal advice or legal representation.39 They must first apply for a practising certificate, which must be renewed each year.40 A practising certificate essentially operates as a lawyer’s ‘licence’ to provide legal advice and represent clients.

In order to renew their practising certificate each year, a lawyer must still be considered a ‘fit and proper person’ by the VLSB+C (for solicitors) or the Victorian Bar (for barristers),41 and must also maintain their knowledge of the law through 10 hours of CPD per year.42

Lawyers have ongoing obligations to disclose certain events that may affect whether they are a fit and proper person after they have been admitted. The Uniform Law describes these as ‘automatic show cause’ events; and, if they arise, lawyers are required to provide relevant information to the VLSB+C or the Victorian Bar. Examples of ‘show cause’ events are when a lawyer becomes bankrupt; is charged with or found guilty of certain criminal offences; or fails to hold appropriate insurance.43

If the VLSB+C or the Victorian Bar is not satisfied that a lawyer is a fit and proper person, it can suspend, cancel or impose conditions on the lawyer’s practising certificate. Conditions can include requiring the lawyer to undergo counselling or complete specific legal education or training.44

Duties owed to clients and the court

Lawyers owe a fundamental duty to their client to act in the client’s best interests,45 including:

  • a broad duty of confidentiality
  • a duty to uphold legal professional privilege, which protects confidential communications between a lawyer and a client that are made for the purpose of the lawyer providing legal advice or for use in existing or anticipated legal proceedings.46

Lawyers’ duties to their clients promote trust and remedy the imbalance of power between lawyers and their clients. These obligations protect clients from conduct by their lawyer that might adversely affect their interests.

In addition to their duties to clients, lawyers have other, paramount, obligations as ‘officers’ of the court. Lawyers must not only obey the law; they must also act ethically, to support the efficient and proper administration of justice.47 As the third arm of government in a democratic society, the court has a role to protect the independence of legal practitioners to support the justice system to operate fairly and effectively.

Lawyers’ duties to the court, based in common law and now specified in professional conduct rules, include:

  • not misleading the court
  • acting with competence, honesty and courtesy towards other solicitors, parties and witnesses
  • being independent and free from bias
  • being frank in their responses and disclosures to the court.48
Continuing professional development

Lawyers’ education requirements do not stop once they are admitted to the legal profession. The law is a complex area that is constantly developing through changes to legislation and new decisions of courts and tribunals.

Ethics education throughout a lawyer’s career is particularly important because, as seen in other types of professional settings, lawyers can become desensitised or unquestioning of accepted ways of doing things, and stop thinking through the ethical implications of a given scenario or new issue that they have not faced before. Lawyers therefore need to maintain and update their skills and knowledge of the law, including its ethical dimensions, throughout their career.

The Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 (Solicitors’ Continuing Professional Development Rules) and the Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 set out the minimum requirements for CPD for lawyers.

As noted above, to renew their practising certificate, a lawyer must complete 10 units (or hours) of CPD each year, including at least one unit in each of the four compulsory fields:

  • ethics and professional responsibility
  • practice management and business skills
  • professional skills
  • substantive law.49

A CPD unit can be completed in various ways, including by attending seminars, preparing an article for a legal publication or conducting relevant postgraduate studies.50

Lawyers are required to self-assess whether the activities they undertake for the purposes of CPD comply with the relevant rules. The Victorian Bar and the Law Institute of Victoria do not assess CPD course content, but they may require a barrister or solicitor (respectively) to provide evidence that they have met the CPD requirements.51

Compliance and follow-up action relating to continuing professional development

Each year, lawyers may voluntarily disclose that they have not met their CPD obligations, by the required annual assessment date of 31 March. The Victorian Bar and the Law Institute of Victoria work with these lawyers to establish rectification plans, or to assist them to complete their CPD obligations in an allowed timeframe. A rectification plan sets out the steps that a lawyer intends to take so that they will comply with their CPD requirements.

In addition, each year the Victorian Bar and the Law Institute of Victoria randomly audit a number of lawyers’ compliance with their CPD obligations.

In its 2019 Annual Report, the VLSB+C reported that the Victorian Bar worked with 34 barristers who had disclosed they had not met their CPD obligations during 2018–19. All but one completed the requirements subsequently and one barrister was exempted on medical grounds. The Victorian Bar also conducted random audits of 105 barristers and found that two members had not met their CPD requirements: one member had retired and another was exempt due to medical reasons.52

Across the same reporting period, 265 solicitors disclosed to the Law Institute of Victoria that they had not met their CPD obligations. These solicitors were required to complete rectification plans, with 13 failing to complete these successfully. The 2019 Annual Report does not detail the outcome for these 13 solicitors, aside from noting that appropriate action was taken in line with the CPD policy.53 In addition, the Law Institute of Victoria conducted a random audit of 550 solicitors. Nineteen solicitors had not met their CPD requirements and the Law Institute of Victoria ‘commenced follow-up action’.54

In 2018–19, these non-compliant solicitors represented 1.4 per cent of all solicitors in Victoria. The number of solicitors who failed to complete a rectification plan leading to further enforcement action was only 0.16  per cent of all solicitors. Corresponding analysis was not provided for barristers; however, given that just over 2,000 lawyers were reported as practising as barristers for 2018–19, non-compliant barristers over this period represent approximately 1.5 per cent of all practising barristers.55

Both the VLSB+C and the Victorian Bar are currently reviewing or have recently reviewed the educational services offered as part of CPD. This is discussed further below.

Complaints about lawyers

Lawyers are held to account for their professional conduct in several ways, including through complaints to the relevant regulatory bodies. Complaints can be about:

  • disciplinary matters, which involve unsatisfactory professional conduct or professional misconduct
  • consumer matters, such as those relating to disputes about lawyers’ costs.56

Unsatisfactory professional conduct includes ‘conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer’.57

The more serious matter of professional misconduct includes:

  1. unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
  2. conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.58

A variety of conduct may amount to unsatisfactory professional conduct or professional misconduct, including breaches of professional rules, committing a serious offence or charging more than a fair and reasonable amount for legal costs.59

Complaints or information about the misconduct of lawyers can be received in a number of ways, including as a result of lawyers’ obligations to disclose ‘show cause’ events (outlined earlier), complaints lodged by clients or complaints lodged by other members of the legal profession.60 Regulators can also initiate ‘own motion’ investigations into lawyers’ conduct, based on their own concerns or referrals from other bodies, such as the courts.61

As noted earlier in this chapter, the relevant body for handling complaints is the Victorian Legal Services Commissioner, which has delegated this role in part to the Victorian Bar in the case of barristers.

Figure 15.3 gives an overview of the complaints made about lawyers in Victoria in 2018–19.

Figure 15.3: Complaints about lawyers, Victoria, 2018–19 62
Figure 15.3- Complaints about lawyers, Victoria, 2018–19

Regulators have several tools available when considering the most appropriate approach to resolving a complaint. The VLSB+C outlines a ‘Compliance and Enforcement Pyramid’ setting out the graduated use of interventions: education and informational activities; negotiated or agreed penalties; disciplinary penalties; and finally, regulatory penalties, including cancelling a practising certificate or removing a lawyer from the Roll of Practitioners.63

The VLSB+C considers several factors when determining which regulatory tool is appropriate, including the nature and seriousness of the behaviour and its consequences, and the circumstances of each case.64

Reporting misconduct of other lawyers

Solicitors in Victoria have discretion to report suspected misconduct of another lawyer to the VLSB+C. The Solicitors’ Conduct Rules require that a solicitor must have ‘reasonable grounds’ to report another lawyer and the allegation must be made in good faith. That is:

… a solicitor must not make an allegation against another Australian legal practitioner of unsatisfactory professional conduct or professional misconduct unless the allegation is made bona fide [in good faith] and the solicitor believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it.65

The Barristers’ Conduct Rules do not contain a similar rule in relation to reporting suspected barrister misconduct to the Victorian Bar or VLSB+C.

Lawyers are currently only required to report very limited misconduct matters. A lawyer must report to a regulator if they ‘believe on reasonable grounds that there is an irregularity in connection with the receipt, recording or disbursement of any trust money received by a law firm’.66

Ethical and practice support

Lawyers are often required to deal with complex, sensitive matters. Ethical issues can arise in a variety of situations during the course of a lawyer’s everyday work; for example, in relation to a potential conflict of interest between two different clients or between a lawyer’s own interests and those of their client. Ethical issues may also involve circumstances where a lawyer is concerned that their client may present a risk to someone’s safety.

The professional conduct rules provide some guidance about how lawyers should approach such matters, but given the many situations in which ethical issues can arise, a number of support services, resources and guidance materials are also available through the Law Institute of Victoria and the Victorian Bar for members. There are also services that provide broader wellbeing and practice support to lawyers, such as assistance with mental health issues.

Solicitors in Victoria can seek assistance from the Law Institute of Victoria’s Ethics Support Line, which provides telephone advice on ethical issues.67 Assistance is also available from the Law Institute of Victoria’s Ethics Committee, which considers solicitors’ requests for rulings on ethical issues.68 The Law Institute of Victoria also produces Ethics Guidelines, which contain further information on specific ethical issues that may arise in the course of a lawyer’s practice, including case studies on particular circumstances and scenarios.69 An Ethics Information Hub, available on the Law Institute’s website, provides solicitors with online information about various ethical issues, including links to relevant court decisions, frequently asked questions about ethics and ethics rulings from disciplinary proceedings.70

In addition, the Law Institute of Victoria offers the LIVwell Program, which is ‘designed to help members build and develop their wellbeing skillset and resources through a range of events, activities, services and support’,71 as well as a mentoring program that connects lawyers to more experienced colleagues to discuss issues that arise through their practice.72

The Victorian Bar Ethics Committee assists barristers with managing ethical issues they may face in their practice. Guidance from the Ethics Committee can be obtained by requesting a formal resolution on the proper way to deal with an ethical dilemma, seeking urgent individual advice and informal discussions with a barrister prior to a formal request being made for a resolution.73 Bulletins from the Ethics Committee are also published to provide guidance on common ethical issues, particularly in circumstances where similar issues have arisen on numerous occasions.74

The Victorian Bar’s Health and Wellbeing Committee also assists the Victorian Bar with the provision of education, encouragement and support to barristers.75 A counselling service is available for members (or immediate family members who are supporting a member in need) who are experiencing mental health and wellbeing issues. The service offers sessions with a clinical psychologist who has specialist knowledge of the particular stresses faced by barristers in the work they undertake.76 The Victorian Bar has implemented several health and wellbeing initiatives during 2020, including mental health awareness training, and is developing a health and wellbeing online portal.77

Challenges and opportunities

The Commission consulted with legal professional associations and regulators in Victoria and across Australia to gain an understanding of the current framework and opportunities for reform. A list of agencies consulted can be found at Appendix G.

The Commission also undertook literature reviews and assessed alternative models and approaches in other Australian and international jurisdictions, including aspects of legal profession frameworks in the United Kingdom, Canada and New Zealand.

This section outlines the main issues identified by the Commission through these consultations and reviews. There are six broad issues:

  • public trust and confidence in the legal profession
  • adequacy of the admission process
  • ethical and professional conduct rules, including the duty of confidentiality, conflict of interest and maintaining professional boundaries
  • legal ethics education and support services
  • complaints about lawyers and reporting and investigation mechanisms
  • access to lawyers for people in police custody.

These topics are discussed in turn below.

Public trust and confidence in the legal profession

As noted above, lawyers’ ethical duties and obligations support the integrity of the criminal justice system and the administration of justice more broadly.

The Law Council of Australia has noted the importance of these obligations, reinforcing that lawyers ‘are vested with a unique, paramount duty to the court and to promote the rule of law, which goes to the very heart of our democracy’.78 The Victorian Bar highlighted Justice Brennan’s observation that the ‘law is administered more frequently and more directly by legal advisers than it is by judges’, pointing to the unique role lawyers play in promoting the administration of justice.79

Professor Gino Dal Pont, professor of law at University of Tasmania, has stated that ‘[t]rust in the legal profession … may translate to trust in the administration of justice’.80 This sentiment was reflected in Victoria Legal Aid’s submission to the Commission, which noted that lawyers’ duties to their clients:

… are a necessary precondition for maintaining a relationship of trust and confidence between lawyers and their clients, as well as general trust in the integrity of the legal profession and the legal system.81

The use of Ms Gobbo as a human source involved fundamental breaches of crucial safeguards that support the fair operation of the criminal justice system. While stakeholders such as the Law Institute of Victoria noted that Ms Gobbo’s conduct is not representative of the conduct and attitudes of the legal profession, it has been acknowledged that her conduct may have diminished the public’s confidence in the profession and the administration of justice.82

Since revelations of Ms Gobbo’s conduct, the potential for such detrimental impacts on public trust has been noted in many media articles.83 The Law Institute of Victoria has recognised that Ms Gobbo’s conduct ‘will contribute to potential public concern about whether [clients] can trust their lawyer to keep their communications confidential’.84

Former President of the Law Council of Australia, Mr Arthur Moses, SC, has commented that any threats to legal professional privilege may negatively affect a client’s willingness and confidence to interact openly and honestly with their lawyer and may have a ‘chilling effect’ on the lawyer/client relationship and the administration of justice. He explained:

Clients should know their legal adviser will not disclose information they provide. This confidence is necessary for them to develop a full understanding of their rights and responsibilities under Australia’s complex, ever-changing system of laws.85

Community distrust in lawyers may not only affect trust in the justice system, but also act as a barrier to people accessing legal services, particularly in the case of vulnerable groups, such as young people, people from culturally and/or linguistically diverse backgrounds and Aboriginal and Torres Strait Islander people.86

Adequacy of the admission process

In Chapter 7, the Commission notes that in 1997, Ms Gobbo likely misled the then Board of Examiners in seeking admission to the legal profession.87 The Commission has examined the current admissions process as part of its inquiry into aspects of legal profession regulation.

As noted above, applicants for admission as a lawyer are required to disclose certain information to the VLAC (acting on the VLAB’s behalf) to confirm that they are a ‘fit and proper person’.88

Under the Uniform Law, the VLAB may ‘communicate with, and obtain relevant information from Australian or foreign authorities or courts in connection with the consideration of an application for a compliance certificate’.89 The VLAB told the Commission that it has experienced challenges with requesting documents from agencies such as Centrelink (in relation to failures to provide information on income from other sources) and Victoria Police (where information may not be released if charges are not laid) to support its assessment of the fitness of the applicant for admission. Privacy restrictions have prevented documents being released to both the applicant themselves and the VLAB.90

The VLAB noted that while such circumstances are uncommon, it would be useful for it to have a power to obtain information and/or documents from Victoria Police and other agencies such as Centrelink.91 The VLAB considered that it would have benefited from such a power in six to eight instances in the past three years, and that such information could assist to determine whether an applicant is a fit and proper person to be admitted to the legal profession.92

The VLAB advised that no other equivalent admissions authority in Australia has a similar power to seek information and/or documents.93

Ethical and professional conduct rules

As described above, the professional conduct rules are a key source of lawyers’ ethical duties and obligations.

The Commission received submissions on potential areas for improvement in three main areas of the professional conduct rules: the duty of confidentiality; conflict of interest; and maintaining professional boundaries. These are discussed in turn below.

The duty of confidentiality

Lawyers owe a broad duty of confidentiality to their clients, enshrined in the professional conduct rules, which means they are not permitted to disclose confidential information learned from a lawyer–client relationship.94 As discussed in Chapter 4, together with legal professional privilege, the duty of confidentiality is central to facilitating and preserving the trust between a client and their lawyer. It also supports the operation of the justice system by ensuring that people can obtain frank legal advice and provide all relevant information to their lawyer without fear of such information being misused.95 In turn, this assists lawyers in providing better advice and representation to their clients, and ultimately supports the public’s long-term trust in lawyers and the justice system.96

Given the significance and importance of confidentiality to the lawyer–client relationship, there are only very limited circumstances in which lawyers can release information that is subject to the duty.

Some of the key exceptions to the duty of confidentiality relate to lawyers disclosing information to prevent the commission of criminal offences or harm being caused. These are outlined in Table 15.1.97

Table 15.1: Key exceptions to the duty of confidentiality in the professional conduct rules98

Professional conduct rules

     Exception to the duty of confidentiality

Solicitors’ Conduct Rules

  • may disclose information for the sole purpose of avoiding the probable commission of a serious criminal offence
  • may disclose information for the purpose of preventing imminent serious physical harm to the client or to another person.

Barristers’ Conduct Rules

  • where a client informs their barrister that the client intends to disobey a court’s order and the barrister believes on reasonable grounds that the client’s conduct constitutes a threat to any person’s safety, the barrister can advise the court or the opponent
  • where a client threatens the safety of any person and the barrister believes on reasonable grounds that there is a risk to any person’s safety, the barrister may advise the police or other appropriate authorities.
The exceptions to confidentiality in the Solicitors’ Conduct Rules

As outlined in Table 15.1, under the Solicitors’ Conduct Rules, a solicitor may disclose information where it is done for the purpose of preventing ‘imminent serious physical harm’ to a client or another person. A solicitor may also disclose information where it is done ‘for the sole purpose of avoiding the probable commission of a serious criminal offence’. The rules do not specify to whom the information may be disclosed, focusing on the permitted purposes for disclosure.

The VLSB+C noted that the concepts of ‘imminent’ and ‘serious’ physical harm are vague:

On a plain reading of the rule, it appears that a solicitor may not disclose information for the purpose of preventing physical harm that is serious (but not imminent) or physical harm that is imminent (but not serious).99

The VLSB+C also noted that it is unclear what constitutes a ‘serious criminal offence’, querying the practical utility of the rule.100

The Law Institute of Victoria considered that exceptions to the duty of confidentiality within the Solicitors’ Conduct Rules are well understood in the profession. In its experience, solicitors seek guidance on their obligations and proposed approach to disclosing information, including through its Ethics Support Line service.101  It observed that issues relating to the exceptions to the duty of confidentiality ‘frequently’ arise for solicitors, particularly where a client indicates that they are at risk of harming themselves. It also noted, though, that its members reported that there were rarely scenarios where they would be conflicted as to whether to disclose confidential information.102

Ultimately, the Law Institute of Victoria suggested there is a need for further guidance and that the matters examined by the Commission are unique, requiring careful, targeted ethics guidance for the legal profession. It suggested such guidance could take the form of an Ethics Guideline issued by the Law Institute, as the profession and courts are familiar with these and find them helpful, although such guidelines are not conduct rules and are not enforceable.103

The Legal Services Council considered that the terms ‘imminent’, ‘serious physical harm’ and ‘serious criminal offence’ in rule 9 of the Solicitors’ Conduct Rules are clear. It argued that ‘attempts to improve “clarity” may limit the scope for sensible, practical interpretations that might well vary according to the particular circumstances’.104

The Law Council of Australia commented that the Solicitors’ Conduct Rules are intended to be higher-level principles of general application.105 The commentary to the rules, also developed by the Law Council of Australia, provides additional information and in-depth guidance to aid solicitors’ understanding of the application of the rules in certain situations, including through case studies and practical examples. The commentary is itself intended to be supplemented by guidance developed by law societies to assist solicitors to apply the rules in daily practice.106

The Law Council of Australia reviewed the rules in 2018. The review did not consider the specific matters that were raised with the Commission regarding the clarity of exceptions to the duty of confidentiality, but did consider whether the definition of ‘harm’ should be extended to include psychological harm or where the client is at significant risk of financial exploitation.107 The Law Council of Australia’s Professional Ethics Committee, which conducted the review, determined that no specific rule changes were required to address the professional conduct issues that led to this Commission. Following feedback from regulatory bodies, legal assistance organisations, government agencies and professional bodies, however, the Law Council has said it will expand the commentary, to provide further guidance to practitioners and explain how to interpret and apply the rules.108

Following the review, the revised rules were endorsed by Law Council of Australia Directors in March 2020. The Law Council of Australia has advised it will progress implementation of the revised rules before expanding the commentary.109 At the time of writing this final report, there is no additional guidance or information about the exceptions to the duty of confidentiality in the commentary, although the glossary does define the term ‘serious criminal offence’.110

In June 2020, the VLSB+C published a regulatory guideline for the legal profession to assist lawyers to understand the circumstances in which they may provide information to police, such as where a client has advised them that they are going to seriously injure someone.111 The guideline outlines the VLSB+C’s position on the scenarios where lawyers should and should not provide information to police, and encourages lawyers to seek the advice of the Law Institute of Victoria’s Ethics Support Line or the Victorian Bar’s Ethics Committee.112

The exceptions to confidentiality in the Barristers’ Conduct Rules

The Victorian Bar told the Commission that the exceptions to the duty of confidentiality are deliberately expansive, given the wide circumstances in which they might operate and the degree of judgement the individual lawyer must exercise in different circumstances. The Victorian Bar also observed that barristers can obtain assistance in the form of individual advice or formal rulings from its Ethics Committee as needed.113

The Victorian Bar recommended that further guidance, if developed, should take the form of supporting commentary to complement the professional conduct rules, as this would enable inter-jurisdictional consistency and guard against the risk of different interpretations.114

The VLSB+C noted that the exceptions in the Barristers’ Conduct Rules are unclear about the degree of risk to a person’s safety that would justify reporting the risk to the authorities.115

The Criminal Bar Association, the peak body for criminal barristers in Victoria, highlighted that barristers who are considering disclosing information in accordance with an exception to the duty of confidentiality will usually seek the advice of a colleague, a senior barrister or the Ethics Committee. The Criminal Bar Association stated that further guidance regarding the term ‘authorities’ used in the rules, and a protocol or agreement about how to provide such information, would be beneficial.116

The New South Wales Bar Association has issued guidance to assist its members to consider whether it may be appropriate to breach confidentiality, outlined in Box 15.1.

BOX 15.1: NEW SOUTH WALES BAR ASSOCIATION GUIDANCE NOTE

In a guidance note published in late 2019, the New South Wales Bar Association noted that the term ‘safety’ used in the Barristers’ Conduct Rules is ‘vague’ and ‘would encompass a range of risks of injury or harm of widely varying degrees of severity’.117 It also noted that the Barristers’ Conduct Rules through the scope of the term ‘safety’ appear to envisage a lower threshold of severity of harm than that contemplated by the Solicitors’ Conduct Rules.118 That is, it appears that barristers may breach confidentiality, where required, to prevent lower levels of harm.

The guidance note also states that the Barristers’ Conduct Rules ‘appear to recognise that a level of [judgement] and discretion is available to barristers … when considering whether to breach confidentiality to report threats to the safety of others’.119

The guidance note advises its members that where a barrister forms the view that there is a real risk to a person’s safety, and it is safe and practicable to do so, they should:

  • attempt to dissuade the client from, or advise them against, taking the course of conduct they are threatening
  • if the client gives no satisfactory reassurance, raise the circumstances with the Bar Association’s ethical guidance panel
  • after having sought advice and concluded that disclosure is warranted, discuss the proposed disclosure with the client (where safe to do so), and explain the need to withdraw from representing the client
  • where possible, help the client to access alternative legal representation
  • stop acting for the client.120

In Canada, the Model Code of Professional Conduct sets out the minimum standard of ethical conduct expected of Canadian lawyers as well as associated guidance.121 The parts of the Code relating to the disclosure of confidential information by lawyers are outlined in Box 15.2.

BOX 15.2: THE POSITION IN CANADA RELATING TO LAWYERS’ DUTY OF CONFIDENTIALITY

The Canadian Model Code of Professional Conduct states that a lawyer may disclose confidential information where they believe ‘on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm’.122

The Model Code provides additional commentary on the application of this rule, including guidance for lawyers on:

  • the factors they should consider when assessing whether a disclosure of confidential information is justified
  • contacting a local law society for ethical advice when contemplating making a disclosure
  • steps lawyers should take to document their actions regarding the information they have received and disclosure they have made.123
Differences in approach in the Solicitors’ and Barristers’ Conduct Rules

As noted above, there appear to be differences in how the Solicitors’ and Barristers’ Conduct Rules express the exception to the duty of confidentiality relating to potential harm. One commentator explains the difference as follows:

… the exception for barristers is limited to threats of harm from the client, whereas the exception for solicitors focuses on whether the disclosure of the confidential information may prevent imminent serious harm or a serious offence.124

Some stakeholders consulted by the Commission suggested that the different wording within the exceptions may have arisen because different organisations held responsibility for drafting each set of rules125 and it may be an ‘accident of history’.126

Although the VLSB+C noted that there is no specific evidence of practical consequences arising from the lack of clarity in the two sets of rules, it argued that there is nonetheless:

  • a lack of clarity in some of the terms and concepts used in the Solicitors’ Conduct Rules and the Barristers’ Conduct Rules
  • an unclear rationale for the different approach to how they are expressed, in the context of a ‘fused profession’ (that is, where there is a single admission to practise as a barrister and solicitor, as is the case in Victoria).127

The VLSB+C noted that given the ‘crucial role that obligations of confidentiality play in underpinning client confidence in their lawyers, the limits and exceptions to those obligations should be clear and unambiguous’.128 The VLSB+C suggested that it would be appropriate for the legal profession to have the same, singular rule regarding the disclosure of information about the commission of a serious criminal offence or to prevent physical harm.129

The Law Institute of Victoria told the Commission that the underlying principle supporting the duty of confidentiality and its exceptions are consistent across the Solicitors’ Conduct Rules and the Barristers’ Conduct Rules, despite the differences in language used in the exceptions. In its experience, there are no practical issues arising from the lack of harmony between the rules, given the consistency of the underlying principle.130

The Victorian Bar views the difference between the rules to be ‘inconsequential’ on the basis that they would likely operate the same way in practice.131 The Criminal Bar Association agreed, stating that it is unaware of any current issues in relation to the rules being interpreted differently.132 Both indicated, however, that it would be sensible to harmonise the rules.133

The Australian Bar Association noted that the expressions used in the Solicitors’ Conduct Rules are more prescriptive and potentially set a higher threshold; for example, physical and imminent harm. Although it considered it unlikely that there are differences in practical application, the Australian Bar Association noted that there is an opportunity to improve the formulation of these exceptions, with a focus on the principle that disclosing confidential information is an extraordinary step that must be measured against the threat to public safety.134

The Legal Services Council indicated that there may be a case to harmonise the rules to improve clarity, noting that the lawyer is likely to have the same considerations whether they are a barrister or solicitor.135

Conflicts of interest

Like adhering to the duty of confidentiality, avoiding conflicts of interest is a fundamental obligation enshrined in the professional conduct rules that lawyers must uphold. Conflicts of interest can arise when a lawyer’s duty to their client conflicts with the ethical duties and obligations they owe to another current or former client, or with the lawyer’s own personal interests.136 Such conflicts may affect the ability of a lawyer to act independently and in their client’s best interests.

The Victorian Director of Public Prosecutions (DPP) suggested that the professional conduct rules relating to conflicts of interest could be improved to better address specific issues that can arise for criminal defence lawyers.137 The DPP suggested that the rules should be amended to clarify that in criminal proceedings:

  • instructions should only be obtained from a client, even when another person is paying the lawyer’s fees
  • if there is a conflict between the interests of the client and the interests of the person paying the lawyer’s fees, the lawyer should act in the best interests of the client
  • if there is a real possibility of conflict between the interests of the client and the interests of the person paying the lawyer’s fees, the lawyer should cease acting.138

The DPP also suggested that a rule should be introduced for criminal proceedings that would prohibit defence lawyers from acting in a matter where: (a) they are aware that a witness will give evidence in proceedings concerning their client; and (b) they have acted for that witness in a previous proceeding.139

Regulators and professional associations consulted by the Commission did not raise any specific concerns regarding lawyers’ understanding of their obligation to avoid conflicts of interest.

The Law Institute of Victoria considered that a professional conduct rule covering fee payments for criminal defence lawyers would be unnecessary because existing professional conduct rules regarding a solicitor’s duty to act in the best interests of a client are adequate.140

The VLSB+C suggested that the existing rules are clear that a lawyer is required to act in the best interests of their client. In the VLSB+C’s view, when a client’s interests conflict with those of the person paying their costs, there is little doubt that the client’s interests are to prevail. The VLSB+C was concerned that the prohibition proposed by the DPP could be problematic and prevent lawyers from acting in cases where there is no potential for the misuse of information; for example, where they have acted for a witness in an entirely unrelated matter.141

The Law Council of Australia examined the professional conduct rules relating to conflicts of interest in its 2018 review as discussed above, and concluded that rule 11, which deals with conflicts of interest concerning current clients, was too lengthy, cumbersome and in some areas repetitive. The Law Council recommended that the rule be simplified to express the scope of the duties that might come into conflict (for example, duties relating to trusts, contracts or confidentiality) and the ethical principles involved, such as informed consent.142 As noted above, the revised rules were being implemented at the time of writing this final report.

The Commission understands that in addition to the specific professional conduct rules, a range of general guidance and supporting materials are available for lawyers regarding conflicts of interest, including the commentary to the Solicitors’ Conduct Rules, guidance published by the VLSB+C in June 2020, rulings of the Law Institute of Victoria’s and the Victorian Bar’s Ethics Committees, and the Good Conduct Guide for barristers.143

Maintaining professional boundaries

The VLSB+C succinctly outlined the importance of maintaining appropriate professional boundaries:

A lawyer’s position in the justice system is assisted by the lawyer ensuring that they maintain a professional relationship with their clients. That is because fitness to practise law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges.144

The Victorian Bar also highlighted the importance of barristers maintaining appropriate professional boundaries, noting that professional detachment is essential for a barrister to maintain objectivity and independence.145

As noted in Chapter 7, the Commission heard evidence that Ms Gobbo socialised extensively with some of her clients. Some former peers of Ms Gobbo, including barristers with whom she shared chambers, made observations about her interactions with both clients and police officers.146 In a statement provided to the Commission, Mr Robert Richter, QC, who shared chambers with Ms Gobbo and worked with her on various matters, said:

There were observations as well as rumours circulating about Ms Gobbo’s personal intimacy with her clients, other people’s clients and police officers—in professional as well as private contexts—which we considered had the potential to give rise to conflicts of interest because her conduct seemed to lack discretion and a sense of what was appropriate.147

The Commission explored the regulatory approach and the nature of the guidance provided to lawyers about maintaining appropriate professional boundaries, and asked stakeholders about their views on the current regulatory approach to professional boundaries.

There is no specific professional conduct rule that outlines the appropriate parameters for a lawyer’s relationship with their clients or other people with whom they interact on a frequent basis, such as police officers. The Australian Bar Association and the Criminal Bar Association agreed that guidance in this area could be improved.148

The Criminal Bar Association considered that guidance should be provided to lawyers about how socialising with clients intersects with their ethical duties and obligations, and the need to exercise caution. It suggested greater specificity about what constitutes an appropriate relationship between a barrister and a client, which could take the form of a specific rule or further guidance and education on professional boundaries.149

The Victorian Bar has been addressing the issue of professional relationships through several recent initiatives, including:

  • a review of the Victorian Bar’s education services
  • implementing a targeted CPD seminar on ‘professional relationships with clients’
  • developing guidance notes on the specific ethical issues that might arise in the context of barristers’ professional relationships
  • educating mentors about expressly addressing the topic with those they mentor
  • reminding members that where they have concerns about the nature of their relationship with a client, they are able to seek guidance from the Ethics Committee.150

The Law Institute of Victoria noted that issues relating to maintaining appropriate professional boundaries are currently addressed in ethical seminars and that lawyers understand these boundaries in their interactions with clients.151

As noted earlier in this chapter, the VLSB+C has published a guideline about lawyer conduct in providing information to police.152 The guidance also addresses the importance of maintaining professional independence and offers practical guidance on how to limit social interactions with clients, their family members and associates.153

Legal ethics education and support services

As noted above, lawyers’ ethical duties and obligations are drawn from a range of sources, including the common law, legislation and professional conduct rules. The requirement for lawyers to undertake ongoing legal education seeks to ensure that they understand these ethical duties and obligations and how they should be applied in practice.

The Australian Law Reform Commission has noted the importance of legal education:

Education is vital to ensuring lawyers are aware of their legal ethical obligations and are able to consider and apply their obligations in practice. It also plays a key role in shaping legal culture.154

In their joint submission, Emeritus Professor Adrian Evans and his colleagues were critical of the teaching of legal ethics in CPD, stating that legal ethics education in this environment is ‘unregulated and arguably, of minimal benefit’.155

The Commission focused specifically on legal ethics education and did not explore legal education in general, which is beyond its terms of reference. Further, given the constraints of the Commission’s terms of reference, it did not conduct a detailed examination of how legal ethics education is delivered, but rather focused more specifically on how such professional education supports a lawyer’s understanding of and adherence to their ethical duties and obligations.

Legal ethics education throughout a lawyer’s career

Lawyers in Victoria have been required to undertake compulsory CPD since 2004.156 CPD was developed as a means of ensuring that lawyers maintain a certain level of knowledge so that clients can be sure they are receiving sound and current legal advice.157 The topic of legal ethics is a required component of both eligible university degrees for legal admission and as part of ongoing CPD for lawyers.

A range of bodies provide CPD activities that lawyers may access. Professional associations also play a role in CPD, including the delivery of CPD sessions relating to ethics, and the production of formal guidelines and other resources. For example, the Victorian Bar conducts regular training and CPD seminars on legal ethics and professional responsibilities.158

Concerns raised with the Commission regarding CPD requirements included that, while every lawyer must complete 10 hours of CPD each year, the CPD activities undertaken need not have a strong link to the lawyer’s practice or professional needs.159 The VLSB+C and the Law Institute of Victoria observed that the CPD market seems to be geared towards lawyers gaining the ‘points’ they need to fulfil the CPD requirements, rather than encouraging lawyers to engage with the material, gain knowledge and address their professional needs.160

During the Commission’s inquiry, the VLSB+C commenced a review of the current CPD arrangements in Victoria, to examine matters such as:

  • the accessibility, quality, relevance and costs of CPD activities
  • views of the Victorian legal profession, and other relevant stakeholders, on the value of the current CPD scheme (in particular, whether it is meeting the current and future needs of the legal profession)
  • the VLSB+C’s effectiveness in regulating CPD
  • any problem areas in the current CPD scheme
  • any opportunities for potential improvements, and the risks and challenges of these opportunities.161

Emerging themes from the VLSB+C’s CPD review included:

  • opportunities for the VLSB+C to issue additional guidance about CPD expectations, including how CPD content and delivery needs to improve and what practical matters are included in the four compulsory fields: ethics and professional responsibility; practice management and business skills; professional skills; and substantive law
  • feedback from stakeholders that ethics CPD units are traditionally dry and rules-based, without practical, content-rich scenarios
  • recognition that education provided to junior lawyers is particularly important, to shape and guide their future career in the law.162

The review is expected to be finalised by the VLSB+C’s Board in late 2020.163

The VLSB+C told the Commission that, while it holds the power to make policies about CPD content, approve CPD activities, make CPD categories subject to certain requirements and require additional CPD for barristers, similar powers do not exist for solicitors’ CPD and would be useful.164

Support services and resources for lawyers on ethical issues

Support services and resources are important for helping lawyers understand their ethical duties and obligations under the professional conduct rules. Advisory bodies such as ethics committees can act in a preventative way— by helping lawyers to discuss and resolve ethical dilemmas before they escalate and potentially result in misconduct or detrimental impacts on the lawyer’s wellbeing.

Issues that can arise for a lawyer may often converge; for example, there is often a relationship between wellbeing issues and professional misconduct.165 Consequently, it is important that lawyers also have access to support services that focus on wellbeing. The Law Institute of Victoria has recently undertaken work focused on assisting solicitors through a combination of ethics, wellbeing and practice support—recognising the different aspects of legal practice, and how they intersect and interact.166

The Commission heard that in circumstances where Ms Gobbo was acting for clients about whom she had also provided information to Victoria Police, she did not seek the assistance of established support services, such as a ruling from the Ethics Committee of the Victorian Bar, to check whether her conduct was appropriate.167

As part of its examination of legal profession regulation, the Commission considered the nature and extent of professional supports available to lawyers in Victoria.

Ethical and wellbeing support services for Victorian barristers

The Victorian Bar told the Commission that it seeks to ensure that barristers faced with ethical issues have access to sufficient support services and resources to navigate those issues carefully. It also seeks to embed a comprehensive understanding of professional duties and obligations among all members so that they are equipped to deal with the ethical issues that will inevitably arise in their practice.168 As noted above, barristers may access support from the Victorian Bar Ethics Committee, which has issued approximately 300 resolutions since January 2015. Since 2015, 18 Ethics Committee Bulletins have been published and the Victorian Bar is currently reviewing the ethics resources it makes available.169

The Victorian Bar has focused on a range of health and wellbeing initiatives in 2020, including:

  • delivering 19 virtual wellbeing events, mental health awareness training, COVID-19 webinars and inclusive virtual social activities to keep members connected during the COVID-19 pandemic
  • working to establish an online health and wellbeing portal, which is anticipated to be completed in late 2020
  • undertaking literature reviews of studies into mental health in the legal profession.170

The Criminal Bar Association advised that the supports available to assist with an ethical issue are ‘sufficient, sound and strong’. It noted that the support services available to barristers are outlined in the Bar Readers’ Course and are reinforced during a barrister’s initial period of practice with a mentor.171

Ethical and wellbeing support services for Victorian solicitors

Solicitors in Victoria access support services to help them understand and deal with ethical issues. The Commission heard from the Law Institute of Victoria that the number of queries received through its Ethics Support Line indicates a high level of engagement with the profession on these issues.172 In its 2019–20 annual report, the Law Institute of Victoria noted that it received more than 5,300 enquiries to its ethics and practice support enquiries line, with practice support calls making up 55 per cent of the enquiries, and ethics-related calls 45 per cent. The Law Institute’s Ethics team delivered 73 seminars on topics derived from the queries received on the ethics and practice support lines.173

The Law Institute’s Ethics Committee met seven times in 2019–20 and provided rulings on 15 matters and informal advice on other matters that did not require a formal ruling. The Law Institute’s Guidelines Review Sub-Committee is in the process of developing three ethics guidelines for the profession.174

A number of other ethics-related projects were implemented by the Law Institute of Victoria from 2019 to 2020, including re-commencing the publication of de-identified Ethics Committee rulings in the Law Institute Journal and a series of short videos addressing ethical issues.175

Awareness of ethical and wellbeing support services among lawyers

The Law Council of Australia noted that, while it supports the efforts of professional associations in providing guidance, there could be more widespread awareness of and/or education about the availability of these services.176

The Law Institute of Victoria told the Commission that it is difficult to estimate levels of awareness about its services among the legal profession. While there is no current data available in relation to awareness of the services offered, it noted that there is information about the frequency of access to some services.177 In addition to the number of enquiries received by the Ethics Support Line (noted above), in 2019, more than 100 solicitors participated in the Law Institute of Victoria’s Mentoring Program.178

The Australian Bar Association believes that barristers are aware of the services they can access.179 The available data shows that 53 barristers and six immediate family members accessed the Victorian Bar’s counselling service between July and December 2019.180

The VLSB+C noted that notwithstanding the number of enquiries received on ethics and practice support, there is room to improve the profession’s awareness of available ethics assistance. It told the Commission it intends to publicise support services on its website and develop targeted communications along with guidance on key themes arising from disciplinary actions.181

Complaints about lawyers and reporting and investigation mechanisms

As outlined above, any person can make a complaint about the conduct of a lawyer. There are various ways in which matters relating to unsatisfactory professional conduct or professional misconduct can be raised with a regulator. These include: a client making a complaint; a lawyer reporting certain matters (such as a ‘show cause’ event); and a lawyer voluntarily reporting the suspected misconduct of another lawyer.

A complaint can lead to an investigation and potentially to sanctions, including a lawyer no longer being permitted to practise.

In Ms Gobbo’s case, one of her former clients, Mr Carl Williams, complained to regulators about her conduct and a potential conflict of interest in 2006.182 Ms Roberta Williams also made a complaint about Ms Gobbo in 2008.183 Some lawyers also informed the Commission that they were concerned about her professional behaviour.184

Mr Williams’ complaint was unsuccessful and was considered ‘misconceived and lacking in substance’.185 Ms Williams’ complaint was summarily dismissed.186 It may be that regulators preferred Ms Gobbo’s deceptive account given Mr Williams’ criminal history. It is worth contemplating, however, if Mr Williams’ complaint had been corroborated by lawyers who also held concerns about Ms Gobbo’s conduct, whether a more thorough regulatory investigation might have occurred and her unethical conduct exposed much earlier.

Mandatory reporting of suspected misconduct in the legal profession

The Commission examined whether it should be mandatory for lawyers to report the suspected misconduct of their peers.

This issue is relevant because, as noted above, the Commission understands that some of Ms Gobbo’s fellow members of chambers and other colleagues, while not aware of her activities as a human source, held concerns about aspects of her conduct, including socialising with clients and police officers.187

Despite these concerns, the Commission could find no evidence that any of her fellow lawyers or colleagues made complaints about Ms Gobbo to a regulator around that time.188

Different perspectives were put to the Commission in relation to mandatory reporting. These are outlined below, along with some of the approaches taken in other jurisdictions and professions.

Arguments for and against mandatory reporting

Some stakeholders suggested that a reporting obligation is an important aspect of regulation—one that is best pursued by a mandatory requirement, rather than a voluntary, opt-in approach. The rationale for this view is that the integrity of the legal profession can be maintained only if the conduct of lawyers in breach of the professional conduct rules is reliably brought to the attention of regulators. Such reporting works ‘to remove bad lawyers from the practice, deter others from engaging in misconduct, [and foster] public confidence in the profession’.189 It enhances the public image of the legal profession and promotes professionalism.190

It has been suggested that lawyers are well placed to report suspected misconduct of other lawyers:

Lawyers, because of their training in the law, and their day-to-day interactions with other lawyers, are better situated than most to observe and evaluate the conduct of other [lawyers].191

A 2019 study of around 15,800 disciplinary complaints made against 4,180 Victorian lawyers over a 10-year period found that while 7 per cent of complaints were made by other lawyers, 91 per cent were lodged by clients or members of the public, and 2 per cent were lodged by the VLSB+C itself.192 The research noted that while lawyers are well placed to observe and assess the misconduct of their peers, ‘this finding raises questions about barriers to lawyers speaking up about poor performance within the profession’.193

It has been argued that a mandatory reporting requirement could, in part, address the general reluctance of lawyers to report the misconduct of their peers. Professor Dal Pont, for example, has observed that unless there are sufficient protections in place in the process of reporting, it is unlikely that lawyers will report on other lawyers’ misconduct, especially given the collegial culture of the legal profession.194

A concern raised in relation to mandatory reporting is the risk that reports may be made vexatiously; that is, a report made falsely without evidence or not in good faith. Similar concerns have been raised regarding the introduction of mandatory reporting requirements in other professions, such as health practitioners.195 A 2018 study, however, found that the number of vexatious health practitioner complaints dealt with in Australia and internationally is very small (less than 1 per cent) and that under-reporting of well-founded concerns is likely a far greater problem.196

Both the New South Wales Office of the Legal Services Commissioner (OLSC) and the Bar Association of Queensland noted barriers to the self-reporting of potential misconduct by lawyers and for lawyers reporting the conduct of other lawyers. The Bar Association of Queensland noted that there is a reluctance in the legal profession to report colleagues.197 It also noted that there is no significant difference between lawyers and medical practitioners, who are currently obliged to report suspected misconduct of their peers.198

The OLSC considered that a mandatory reporting mechanism would help to prevent conduct similar to Ms Gobbo’s occurring again. The OLSC and Bar Association of Queensland noted, however, that if mandatory reporting obligations were introduced, it would be important to set the requirement at an appropriate threshold, such as serious misconduct.199

The Law Council of Australia stated that there is an argument for mandatory reporting of suspected misconduct but added that comprehensive consultation with relevant stakeholders would need to occur to ensure that all potential ramifications were considered.200

The Legal Services Council noted that the introduction of mandatory reporting requirements would need careful consideration due to the practical, evidentiary and other issues that may impact on such reporting.201

The Law Institute of Victoria does not support a mandatory reporting requirement, suggesting it would create more problems than it would solve, and would be damaging for the profession and ultimately detrimental to the justice system. Particularly, the Law Institute highlighted the potential for a mandatory reporting requirement to erode professional collegiality, and to dissuade lawyers from seeking advice and guidance from their peers to prevent and resolve ethical issues, which may lead to an unsatisfactory outcome for their clients and ultimately the community.202

Similarly, the Victorian Bar does not support introducing mandatory reporting due to concerns about how such a mechanism might affect both the reporter of the conduct and the lawyer being reported. The Victorian Bar’s concerns include the:

  • risk (perceived or actual) of the reporter suffering victimisation, which could lead to a lack of reports
  • disruptions to the conduct of hearings if the obligation to report is used as a weapon
  • impact on the mental health of the reported barrister where mental health and wellbeing is already challenged by the nature of the job.203

The Victorian Bar further noted that any such requirement would be followed by an increase in reports. This in turn would require increased resources to deal with investigations and create flow-on impacts, because disclosures would then be required for insurance and practising certificate renewals (and, for barristers, silk applications).204

The Victorian Bar argued that lawyers should be empowered to use their own judgement in deciding whether to report conduct or make complaints about their peers, and noted that barristers can currently make such reports and complaints under the Victorian Bar’s conduct policies or its Grievance Protocol.205

If a mandatory reporting mechanism were introduced, however, the Victorian Bar recommended that it be confined to situations where a lawyer reasonably believes that serious misconduct has occurred, reflecting the requirements that apply to barristers in the United Kingdom and New Zealand. The Victorian Bar noted that serious misconduct would need to be defined carefully and not include issues of competence or impairment unless they posed a serious risk to the public or would diminish public trust and confidence in the profession. The Victorian Bar also noted that any mandatory reporting mechanism would need to be subject to rules or exceptions that recognise the lawyer’s duty of confidentiality to their clients. To ensure clarity about any new mechanism, it suggested that guidance could be included in the supporting commentary to the professional conduct rules, such as a non-exhaustive list of the types of conduct that would meet the reportable threshold.206

The Australian Bar Association noted that significant complexities and challenges would be associated with imposing a mandatory reporting obligation on the legal profession, particularly for barristers.207 It raised several concerns, including that:

  • the collegial nature of the Bar could be undermined and conduct driven underground, with barristers less likely to seek assistance and guidance from their colleagues
  • there is an inherent potential for abuse; the requirement could encourage reports for a collateral purpose such as in litigation
  • it could impact on the orderly progress of litigation while complaints are investigated or alternative counsel briefed, leading to delays, costs and wasted court resources
  • it could result in breaches of legal professional privilege, as the conduct could arise from instructions or matters subject to privilege.208

The VLSB+C noted that while a mandatory reporting requirement could lead to a range of benefits, the key question is whether such a requirement is necessary. It observed that the legal profession and regulators have a shared role in upholding professional standards and a shared responsibility in maintaining integrity and public confidence in the profession. These stem from a lawyer’s fundamental duty to the court and the administration of justice.209 The VLSB+C considered that lawyers should already be reporting genuine suspected misconduct, even in the absence of a mandatory reporting obligation.210

The VLSB+C noted that there would be practical impacts from a new reporting obligation, including lawyers’ time spent documenting, reporting and providing statements to the VLSB+C, along with regulators’ time and resources spent assessing and investigating reports and potentially bringing disciplinary actions. Like other stakeholders, the VLSB+C expressed concern that mandatory reporting could weaken the collegiality of the profession and reduce the amount of informal but valuable ‘intelligence’ it currently receives about potentially worrying lawyers or firms.211

The VLSB+C suggested that while a mandatory reporting obligation would have benefits such as reinforcing lawyers’ shared responsibility to guard the integrity of the profession and a degree of protection for the reporter, overall, the potential benefits of such an obligation would not outweigh the challenges it would create.212

International approaches to mandatory reporting

Mandatory reporting requirements for lawyers have been considered extensively and implemented in similar jurisdictions overseas. Jurisdictions that require lawyers to report on the suspected misconduct of other lawyers include the United States of America, the United Kingdom, New Zealand, Canada and Hong Kong.213

Mandatory reporting requirements in the United Kingdom are outlined in Box 15.3.

BOX 15.3: MANDATORY REPORTING IN THE UNITED KINGDOM

In 2018–19, the Solicitors Regulation Authority (SRA) in the United Kingdom emphasised the important role of mandatory reporting obligations, stating that it is:

… critically important in a profession founded on trust and integrity, for the development of personal accountability, for shared values, and a culture of openness which allows for learning from mistakes. It is also important to ensure effective regulation, enabling us to have timely receipt of potential risks and issues and to identify whether we need to take any action.214

It further asserted that:

… reporting behaviour that presents a risk to clients, the public or the wider public interest, goes to the core of the professional principles of trust and integrity. All solicitors and firms have a role in helping maintain trust in the profession.215

Through consultations, the SRA found that it was important for the obligation to be drafted so that the decision maker, and not the lawyer reporting, decides whether conduct is a serious breach. The obligation states that reports should comprise ‘facts or matters’ that may equate to a serious breach, ‘rather than allegations identifying specific and conclusively determined breaches’. The SRA noted that it does not consider this leads to over reporting, and that early reporting helps to ensure that the SRA is aware of trends and can respond appropriately.216

The SRA also agreed with stakeholders that the obligation should contain both a subjective element and an objective element—meaning that it is necessary to hold the belief and that the belief was reasonable, ‘bearing in mind the circumstances, information and evidence available to the decision-maker’.217 The SRA considered that the obligation should contain both elements to prevent reporting of ‘mere allegations or suspicion’.218

The SRA also noted that it was important for the obligation to protect the people who report.219 The updated obligation thus states that no person can be subjected to ‘detrimental treatment’ for making a report, regardless of the outcome.220

The SRA has prepared guidance to support the operation of the mandatory reporting obligation.221

The United States also has mandatory reporting requirements in some of its jurisdictions. The mandatory reporting requirements in the United States are outlined in Box 15.4.

BOX 15.4: MANDATORY REPORTING IN THE UNITED STATES OF AMERICA

In the United States, a mandatory reporting requirement is contained in rule 8.3 of the American Bar Association’s Model Rules of Professional Conduct.222

A 2003 comprehensive analysis of mandatory reporting in the legal profession in the United States found that the vast majority of the states and the American Bar Association favoured mandatory reporting and would continue to do so in the absence of a more compelling case to dispense with such rules.223

Although there is not complete consensus about mandatory reporting in the United States, Professor Arthur Greenbaum observed that previous reliance on a voluntary reporting system was found to be a failure and that mandatory reporting was seen as necessary to overcome the general reluctance of barristers to report the misconduct of their peers.224

Guidance to support the operation of mandatory reporting obligations has also been prepared in other jurisdictions with mandatory reporting requirements. For example, the New Zealand Law Society provides information on its website, including about when a report should be made, to whom, the information that must be included, and the types of support available to those making a report.225

Mandatory reporting in other professions

Other professions have introduced requirements to report suspected misconduct of their colleagues to regulators, including in the health and policing fields.

Requirements were created for medical practitioners to report suspected misconduct of their peers in New South Wales and Queensland in 2008 and 2009, respectively.226 The proposal to introduce mandatory reporting requirements for medical practitioners in hospitals in Queensland was described as ‘a very practical way to improve the safety of patients in [Queensland] hospitals and ensure that problems are identified early and acted on’.227

In Victoria, since 2010, the health practitioner national regulation scheme has required health practitioners (including psychologists, nurses and doctors) to notify the relevant regulator of ‘notifiable conduct’ once they reasonably believe the conduct is occurring.228 Notifiable conduct includes a practitioner ‘placing the public at risk of harm by practising the profession in a way that constitutes a significant departure from accepted professional standards’.229

The Australian Health Practitioner Regulation Agency has developed guidelines to accompany this requirement, which explain:

  • the mandatory notification requirements
  • the role of the relevant regulator
  • protection available for those making a report.230

Closer to the events that led to this Commission, Victoria Police officers are required to make a complaint to a police officer of a more senior rank to that officer, or to the Independent Broad-based Anti-corruption Commission, about the conduct of another police officer if they have reason to believe that the other officer is guilty of misconduct.231 Misconduct includes conduct likely to bring Victoria Police into disrepute; disgraceful or improper conduct; or conduct that constitutes an offence punishable by imprisonment.232

Investigation of complaints about barristers

As discussed earlier, the Victorian Legal Services Commissioner has delegated authority to the Victorian Bar to investigate complaints regarding barristers; however, the Commissioner retains the power to decide, for each complaint, which body—the VLSB+C or the Victorian Bar—will undertake the investigation.233

The VLSB+C noted that all complaints are generally transferred to the Victorian Bar for investigation where they relate to barristers, unless there is a related complaint regarding a solicitor.234 In comparison, all complaints about solicitors in Victoria are managed by the VLSB+C; its powers are not delegated to the Law Institute of Victoria.235

In 2019, the Victorian Bar and the VLSB+C reviewed the Victorian Bar’s processes, including those covering the management of complaints and investigations. The review considered whether the governance structures and operational arrangements helped to ensure that the Victorian Bar was effectively discharging its powers, performing its duties and implementing its delegated functions.

The review made several observations about the Victorian Bar’s management of its delegated complaints function, including that:

  • processes for gathering information for the purpose of investigating complaints were inefficient (including a culture of ‘letter swapping’, where complainants, respondents and third parties were rarely spoken to for the purpose of eliciting information or testing written statements)
  • investigation reports containing recommendations to the VLSB+C had insufficient detail to explain the basis for those recommendations
  • reporting deadlines stipulated by the VLSB+C were often not complied with, and complainants and respondents were not provided with timely closure of their complaints.236

As a consequence of the review, changes to improve and strengthen the Victorian Bar’s performance of its delegated functions have been developed to:

  • ensure that the processes and procedures used by the Victorian Bar to investigate complaints are aligned with those of the VLSB+C
  • bolster the rigour of the regulatory process, including through the appointment of a special investigator to the Victorian Bar to conduct investigations.237

To strengthen the relationship between the two organisations, the VLSB+C and the Victorian Bar have agreed on a set of principles to govern the co-regulation of barristers in Victoria. The principles set out shared aims, expectations, roles and responsibilities, risk management matters, governance and review processes.238 The two organisations have also developed a joint risk register, along with monitoring and evaluation measures covering delegated functions and projects and plans for annual internal reviews. After two years, an external expert will be engaged to evaluate the collaboration and assess its effectiveness.239

The Victorian Bar noted that a key benefit of it having responsibility for investigating complaints made against barristers is its ability to draw upon the practical insights of its members regarding the accepted standards of advocacy and conduct. It also noted that its model for investigating complaints has the checks and balances of an external regulator, combined with the benefits of utilising the expertise of the legal profession itself.240

The VLSB+C highlighted that key benefits of the current arrangements are the esteem in which the Victorian Bar is held by its members, and its subject matter expertise. It noted that the main challenge arising from these arrangements is the risk that the Victorian Bar may be perceived as lacking—or may in fact lack—the independence necessary to investigate its members.241

The VLSB+C suggested that any risk of an actual lack of independence is largely mitigated by:

  • the VLSB+C retaining responsibility for making all final decisions on investigations regarding barristers
  • the VLSB+C’s oversight of the conduct of investigations
  • the Victorian Bar’s recent employment of a non-member to investigate complaints involving barristers242
  • the Victorian Bar adopting the VLSB+C’s investigative procedures, policies and training for the independent investigator
  • increased reporting to the VLSB+C on investigations.243

In 2016, the Solicitors Regulation Authority (SRA) in the United Kingdom undertook research into the ways in which public trust and confidence in the legal profession can be impacted by regulatory independence. The research ascertained the views of 1,810 members of the public regarding the importance of solicitors’ regulatory independence. Sixty-eight per cent of those who responded reported that they would be more likely to trust a profession that is independently regulated, and 69 per cent said they would be more comfortable making a complaint if the regulator was fully independent of solicitors.244

There has not been significant research examining the independence of legal regulatory agencies in the Australian context, perhaps due to the co-regulatory or self-regulatory models that have primarily been adopted to date.

Access to lawyers for people in police custody

As noted throughout this final report, lawyers support the integrity and proper operation of the broader justice system and help to ensure that accused persons receive a fair trial. Defence lawyers provide independent advice to, and represent, accused persons at various stages of the criminal justice process, including at the point of being arrested and taken into custody by police.

Some evidence before the Commission suggested that there were occasions when Victoria Police charged a person and officers referred them to Ms Gobbo specifically.245 As part of its inquiry into term of reference 6, the Commission examined current Victoria Police processes to support people taken into custody to communicate with a lawyer.

The right to communicate with a lawyer

The involvement of a criminal defence lawyer often begins when a person suspected of committing a crime is arrested and taken into custody by the police. Under section 464C of the Crimes Act 1958 (Vic) (Crimes Act), before police can question a suspect, they must:

  • inform the person that they may communicate, or attempt to communicate with a lawyer
  • afford the person reasonable facilities as soon as practicable to enable the person to do so
  • allow the person’s lawyer to communicate with the person in custody in circumstances in which, as far as practicable, the communication will not be overheard.246

The police officer must defer questioning for a time that is reasonable in the circumstances to enable the person to make contact or attempt to communicate with a lawyer. This is unless the police officer believes on reasonable grounds that the communication would result in an accomplice escaping or evidence being fabricated or destroyed, or the questioning is so urgent, having regard to the safety of other people, that it should not be delayed.247

The Crimes Act obligations are important safeguards to ensure that people taken into custody by police are treated fairly and that their interests are protected from the beginning of their contact with the criminal justice system.

The right of a person charged with a criminal offence to communicate with a lawyer is also enshrined in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter), which provides that an accused person is entitled ‘to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her’.248

Victoria Police provided an extract of the Victoria Police Manual to the Commission entitled ‘Exercising their rights to communicate with a friend, relative or legal practitioner’. This section of the manual requires officers to:

Provide the person with reasonable time and facilities to make any required communication. The communication, as far as practicable, should not be overheard (s.464C, Crimes Act), except if the investigating member believes, on reasonable grounds, that communication would result in any of the following:

  • the escape of an accomplice
  • the fabrication or destruction of evidence
  • danger to the safety of other people, if questioning is delayed.

If reasonable grounds do not exist to refuse a person an opportunity to exercise their rights, an interview may be ruled inadmissible.

If the investigating member or supervisor refuses access to communication, the details of such refusal should be recorded in the Attendance Module.249

The Victoria Police Manual does not outline the requirement under section 464C of the Crimes Act to defer questioning for a reasonable time to enable the person to make or attempt to make the communication.250 It does not mention Victoria Police’s obligations under the Charter; nor does it mention a person’s right to independent legal advice or set out procedures for officers to facilitate a person’s access to a lawyer. Similarly, training material for Victoria Police recruits outlines the Crimes Act requirements, but does not emphasise the importance of a person’s right to obtain independent legal advice, or refer to the Charter.251

Victoria Police advised the Commission that aside from these materials, there are no other current policies, procedures or manuals related to referring people charged with criminal offences to a legal practitioner.252

Victoria Legal Aid told the Commission that practical and operational challenges mean that the right of a person in custody to speak with a lawyer before police questioning is not adequately protected. It noted that because there is no centralised pre-interview or referral service, it is difficult for Victoria Police to efficiently connect people with the most appropriate lawyer for their circumstances.

Both the Law Institute of Victoria and Victoria Legal Aid advised that in practice, when a person in custody would like to communicate with a legal practitioner but does not have an existing relationship with a specific lawyer or law firm, Victoria Police will usually provide the person with a telephone book to help them make contact with a lawyer.253

Victoria Legal Aid identified the following issues with providing the telephone book as a means of facilitating access to a lawyer:

  • entries are not arranged by the language spoken, geographic location or what area of law a firm specialises in, making it difficult for people to select a lawyer best suited to their circumstances
  • entries do not display which lawyers are available 24 hours a day, seven days a week, or which services can be accessed at no cost
  • the information may not be current, as many lawyers no longer maintain contact details in hard copy telephone books.254

Victoria Legal Aid commented:

The process of being arrested and taken to a police station is often overwhelming. When presented with a phone book to choose a lawyer to speak with, people find it very difficult to independently find a lawyer who is suited to their presenting legal issue, location or language needs. It is our experience that many people will ask police for a recommendation or guidance.255

To address identified issues, Victoria Legal Aid suggested a range of measures to strengthen requirements and processes, including:

  • stronger obligations to enable people in custody to exercise their right to access pre-interview advice, with clearer requirements to provide a closed, private and safe space, such as an interview room rather than a cell
  • a training course, which could be jointly developed and delivered by Victoria Police and Victoria Legal Aid, on pre-interview advice, addressing the importance of police processes to support people in custody to communicate with a lawyer
  • a newly funded and created centralised telephone number, available 24 hours a day, seven days a week, that would link callers directly to existing services, including to Victoria Legal Aid; the Law Institute of Victoria; and the Youth Referral and the Independent Person Program
  • a dedicated after-hours, pre-interview legal advice telephone service for adults and children in custody or at police stations for questioning, to cover service gaps.256

Recognising that these services and processes would require time and funding to establish, Victoria Legal Aid suggested that in the meantime, adults should be routinely provided with the Victoria Legal Aid Legal Help telephone number, as well as the existing Law Institute of Victoria directory, and that these should regularly be circulated to all police stations.257

The Law Institute of Victoria suggested developing a list of all lawyers in the state who nominate themselves as practising in the field of criminal law, together with their office and out of hours phone number, which could be made available to Victoria Police.258

Conclusions and recommendations

When they are admitted to the legal profession, lawyers agree to uphold high standards of ethical behaviour, reflecting the importance of their independent role in the administration of justice.

The most important ethical duty owed by lawyers is to the court. This duty overrides all others and is designed to maintain the integrity of the administration of justice. It helps ensure that the public interest is being served and not undermined by dishonest or obstructive practices.259 Accordingly, the justice system cannot operate effectively unless lawyers adhere to their ethical duties and obligations. Legal profession regulation exists to ensure that lawyers maintain these high ethical and professional standards. This, in turn, protects consumers of legal services, and supports public trust in the justice system.

The Commission has been mindful of the parameters of its inquiry. It has not conducted a comprehensive review of legal profession regulation, but rather focused on aspects of the regulatory framework that are most relevant to the events it has examined, including whether lawyers’ ethical conduct is appropriately supported and safeguarded, and whether additional measures are needed to effectively prevent, detect and deter improper or unethical conduct.

The Commission is conscious that Ms Gobbo’s conduct does not reflect that of the vast majority of lawyers in Victoria, almost all of whom pride themselves on acting ethically and professionally in the interest of their clients and the community. The Commission is also aware that Ms Gobbo’s aberrant behaviour occurred over a decade ago. It would be unwarranted and disproportionate to recommend sweeping reforms based on the improper conduct of one individual. Instead, the Commission has focused on the operation of the current legal profession regulatory framework and opportunities to strengthen it, informed by a range of stakeholder perspectives and other evidence.

The Commission makes recommendations aimed at:

  • restoring community confidence in the legal profession through targeted communications on lawyers’ ethical duties and obligations
  • enhancing the clarity and consistency of key professional conduct rules, such as the duty of confidentiality, conflict of interest and maintaining professional boundaries
  • promoting awareness and access to ethical support offered to lawyers throughout their careers, including through CPD
  • strengthening the independence of complaints investigations into barristers, so that there is a single consistent approach to the management of complaints regarding all lawyers in Victoria.

Combined with a new requirement for lawyers to report suspected misconduct, these changes will support the continued maintenance of high ethical standards in the legal profession, both to protect consumers and strengthen public confidence in it. The Commission has also identified improvements required to better protect individuals’ rights to communicate with a lawyer while in police custody.

In making the recommendations outlined below, the Commission appreciates that some of the changes may involve divergence from aspects of the Uniform Law, which seeks to harmonise legal profession regulation in the participating states of Victoria and New South Wales. The Commission acknowledges the benefits of consistency in the legal profession regulatory framework across Australia, but notes that, ultimately, it will be a matter for the other participating states to determine whether they could benefit from these recommendations. The Commission is nonetheless satisfied that reforms to certain relevant aspects of the regulatory framework in Victoria are justified.

Reforms to legislation and professional conduct rules will require sufficient time for consultation and drafting; accordingly, the Commission recommends that these be completed within 12 months from the delivery of this final report. Updates to the professional conduct rules should be implemented in the same timeframe. Changes to the delegations for investigating complaints about barristers will require implementation planning for a smooth transfer of functions and may also require up to 12 months.

Communications materials on lawyers’ ethical duties can be prepared more quickly and there is greater urgency, given the need to rebuild public trust and confidence in the legal profession. As such, the Commission recommends these be completed within six months. The Commission also considers that further guidance on the treatment of ethics as part of CPD requirements and enhancement of ethical support services can be completed within six months.

The ability to access legal assistance and advice is vital to a fair and inclusive society. Lawyers are an important source of support and assistance for people who need to engage with the justice system. They provide advice on rights and responsibilities, and how these can be exercised; and they advocate for people in court. Accordingly, it is imperative that members of the public feel confident in accessing the services of a lawyer when needed.

The Commission is concerned that the use of Ms Gobbo as a human source may have diminished the public’s confidence in the legal profession and generated distrust of lawyers. In particular, the Commission is concerned that members of the public may question whether information they provide to their lawyer will remain confidential and whether their lawyer will act in their best interests. If a client has doubts that sensitive information they provide to their lawyer will be kept confidential, they might choose not to provide relevant information or not to obtain legal advice at all, to the detriment of the justice system and our democracy. Stakeholders have acknowledged the potential impact of Ms Gobbo’s conduct on public trust in the legal profession. The Victorian Bar, the Law Institute of Victoria and the Law Council of Australia publicly addressed these issues when the Commission commenced.260

With the inquiry having now concluded, the Commission recommends that legal profession regulators and professional associations in Victoria, in partnership with community legal centres and Victoria Legal Aid, prepare and distribute communications to the public about lawyers’ ethical duties and obligations, and their rights as consumers if dissatisfied with their lawyer, thus providing the community assurance they can have confidence in the conduct of the legal profession.

These communications should be multifaceted to meet the needs of all community members from a range of culturally and linguistically diverse backgrounds. It is especially important that the communications are tailored to those who may be more vulnerable or disadvantaged, and who may already face barriers in accessing legal services. It is vital that such groups are not discouraged from engaging with the legal system and that they understand they can trust their lawyer to advocate for them.

RECOMMENDATION 76

That the Victorian Legal Services Board and Commissioner, the Law Institute of Victoria and the Victorian Bar work with community legal services and Victoria Legal Aid to, within six months, prepare and distribute communications aimed at restoring and promoting public and client confidence in the legal profession. These communications should:

  1. educate clients and the public on lawyers’ ethical duties and obligations, particularly in relation to confidentiality, conflicts of interest and legal professional privilege
  2. inform clients and the public about where they can seek help or advice regarding concerns they may have about their lawyer.

Strengthening the admission process

The legal profession regulatory framework ensures that each individual is assessed as a fit and proper person when they are admitted to the legal profession and as they continue to practise as a lawyer.

A pivotal part of this framework is the admission process governed by the VLAB, which, as noted earlier, has delegated its function to assess admission applications to the VLAC.

Under the supervision of the Supreme Court, the VLAB is the ‘gatekeeper’ to the legal profession, charged with making a proper assessment of applicants. The process of admissions depends on each applicant self-disclosing facts that are relevant to the consideration of whether they are a fit and proper person. This involves applicants disclosing relevant information to the VLAB.

The Commission heard that it may be beneficial to provide the VLAB with the power to request documentation from Victoria Police and other agencies, relevant to its assessment of whether an applicant is a fit and proper person. This would enable it to more rigorously and efficiently perform its function in the admission process. The VLAB told the Commission that the absence of such a power has sometimes resulted in delays in processing admission applications.

It is possible that, if the admitting authority had such powers in Ms Gobbo’s case, it may have obtained her accurate police record, determined she had supplied false information, and questioned whether she was a fit and proper person for admission as a lawyer. If ultimately admitted, she may have been more closely supervised and mentored. The unfortunate course of events leading to this inquiry may have been averted.

The Commission considers there may be merit in introducing such a power to improve the rigour of legal admission processes in Victoria. Before granting such a considerable power, however, further consultation and more detailed work is required to ascertain the extent of the problem, and to ensure that any additional powers are appropriately targeted and balanced against applicants’ privacy and other relevant Charter rights.

The VLAB advised the Commission that it was unaware of any authorities responsible for governing admissions processes in other jurisdictions in Australia holding such powers. Victoria’s participation in the Uniform Law and the desirability of harmonised admission rules and reciprocal admission across jurisdictions should be taken into account in considering whether to give the VLAB this power.

If such a power is introduced, the Commission considers that there would be value in the Council of Attorneys-General examining whether an equivalent power could be adopted in other Australian jurisdictions through a working group of officials.

RECOMMENDATION 77

That the Victorian Government, within six months, considers whether the Victorian Legal Admissions Board requires any additional powers to request and consider documentation from other agencies for the purpose of assessing applications for admission to the legal profession.

If such powers are conferred in Victoria, a Council of Attorneys-General working group should consider whether a harmonised approach could be adopted in all Australian jurisdictions.

Harmonising lawyers’ ethical duties and obligations

Exceptions to the duty of confidentiality

The Commission heard that it would be beneficial to clarify the exceptions to the duty of confidentiality that relate to disclosures for the purpose of preventing the commission of criminal offences, or preventing harm or injury being caused.

Given the importance of confidentiality to a client’s trust in their lawyer, the Commission considers that the exceptions should be clear and that a lawyer should be able to apply them in their work. The Commission considers that harmonising the Solicitors’ Conduct Rules and the Barristers’ Conduct Rules in relation to the exceptions to the duty of confidentiality would strengthen the consistency of their interpretation by practitioners and the courts.

The Commission acknowledges that some stakeholders believe that the differences in expression between the conduct rules in this area do not have significant practical consequences. Nonetheless, the Commission is concerned that there are different perspectives about the scope of the exceptions, and further that the variations in the rules could be perceived as intentional—that is, it could be perceived that solicitors are subject to a higher threshold than barristers in relation to the circumstances that may warrant disclosure of confidential information.

It is often difficult for a lawyer to decide whether to disclose information that is the subject of the duty of confidentiality, and it is a significant decision to make. Disclosing such information may be urgent, and lawyers may need to decide whether to disclose in complex circumstances involving safety and security risks. Further, disclosure may require contact with law enforcement agencies.

The Commission considers that, given the significance of the duty of confidentiality, it is imperative that exceptions to this duty are clear and unambiguous. Accordingly, the Commission recommends harmonising the exceptions to the duty of confidentiality related to disclosures for the purpose of preventing the commission of criminal offences or preventing harm or injury.

The professional conduct rules should outline:

  • the circumstances that give rise to the exceptions
  • the type and degree of potential harm
  • the categories of offences that are intended to be captured by the exceptions.

The Commission recognises the need for flexibility within the professional conduct rules and encourages close consultation with professional bodies through the Law Council, to ensure that amendments to harmonise the rules are practical. The Commission notes that the Uniform Law provides for consultation processes where amendments are proposed to the professional conduct rules.261

Guidance for lawyers on the duty of confidentiality

Compared with certain other professional conduct rules, there is less guidance regarding exceptions to the duty of confidentiality within the legal profession.

As noted above, the Commission believes that harmonising and clarifying the exceptions to the duty of confidentiality in the professional conduct rules would improve their operation. The Commission also considers that there is a need for additional guidance to support lawyers who are considering whether they should disclose information in accordance with these exceptions.

The professional conduct rules are not designed to cater for every individual situation that may arise in practice. While it is impossible for the rules’ supporting commentary to specify every circumstance that may give rise to an exception, it can provide lawyers with advice and guidance about how to apply the principles expressed in the rules in a variety of situations.

The Commission acknowledges that the VLSB+C has recently released guidance to support lawyers regarding the provision of information to police.262 The Commission welcomes this guidance but considers that guidance in the commentary to the Solicitors’ Conduct Rules is also warranted. This would ensure that solicitors who consult their professional conduct rules as a primary source of authority about their obligations of confidentiality would receive appropriate assistance.

Similarly, additional guidance for barristers regarding the exceptions to the duty of confidentiality would be useful. As there is no commentary to the professional conduct rules for barristers, the Commission considers that guidance should be developed by the Victorian Bar.

In preparing such commentary, the Commission considers that Canada’s comprehensive approach provides a useful model for the scope of information that could be included. That is, it would be beneficial for an update to the commentary to include guidance about:

  • the factors to be considered when assessing whether a disclosure of confidential information is justified
  • where and how a lawyer can obtain advice on ethics when they are considering making a disclosure
  • steps to be taken to document the actions taken by the lawyer regarding the information received and disclosure made
  • any further actions the professional association considers would be appropriate where a lawyer is considering making, or has made, a disclosure.263

RECOMMENDATION 78

That the Legal Services Council, Law Council of Australia and Australian Bar Association work together to, within 12 months, clarify and harmonise the duty of confidentiality and its exceptions, as contained in the Solicitors’ Conduct Rules and the Barristers’ Conduct Rules.

RECOMMENDATION 79

That the Law Council of Australia, within 12 months, updates the commentary to the Solicitors’ Conduct Rules in relation to the duty of confidentiality and its exceptions, to include guidance on:

  1. the factors to be considered when assessing whether a disclosure of confidential information is justified
  2. where and how a solicitor can obtain advice on ethics when considering making a disclosure
  3. steps to be taken to document the actions taken by a solicitor regarding the information received and the disclosure made
  4. any further actions that a solicitor should take when considering making a disclosure.

RECOMMENDATION 80

That the Victorian Bar, within 12 months, prepares guidance in relation to the duty of confidentiality and its exceptions, including:

  1. the factors to be considered when assessing whether a disclosure of confidential information is justified
  2. where and how a barrister can obtain advice on ethics when considering making a disclosure
  3. steps to be taken to document the actions taken by a barrister regarding the information received and the disclosure made
  4. any further actions that a barrister should take when considering making a disclosure.
Managing conflicts of interest

The DPP proposed that the professional conduct rules be amended to clarify a range of matters, particularly to support the unique role of criminal defence lawyers, their fee arrangements and potential conflict of interest scenarios. After careful consideration, the Commission concludes that such specific amendments would be inconsistent with the professional conduct rules, which are intended to be broad and apply to lawyers generally.

Therefore, the Commission does not consider that there is sufficient evidence to warrant any changes to the professional conduct rules in respect of conflicts of interest at this time. It does consider, however, that there is scope for more tailored guidance for criminal defence lawyers, especially those early in their career, on the issues raised by the DPP.

RECOMMENDATION 81

That the Victorian Bar, within six months, develops ethics guidance on specific conflict of interest issues and scenarios that can arise for criminal defence barristers.

The Victorian Bar should prepare this guidance in consultation with the Criminal Bar Association, Victoria Legal Aid and other relevant stakeholders.

Maintaining appropriate professional boundaries

Professional boundaries are key to the effective administration of justice and the reputation of the legal profession. Lawyers must be, and must be seen to be, independent. A lawyer must maintain clear professional boundaries with clients, other lawyers and courts, tribunals or other decision makers, acting independently and in their client’s best interests at all times.

There are no specific professional conduct rules that define the appropriate parameters of a lawyer’s relationship with their clients, police officers or other associates with whom they may interact on a regular basis. There are, however, a range of rules that a lawyer would potentially be at risk of breaching if they formed an inappropriate relationship; including, for instance, in relation to conflicts of interest.

The Commission believes there is merit in providing clearer guidance about lawyers’ professional boundaries, especially regarding their relationships with clients, other lawyers and, in criminal cases, police officers involved in a case in which the lawyer is involved.

The Commission considers that such guidance would be particularly useful for new lawyers entering the legal profession. It would help lawyers identify situations that may involve a risk of engaging in inappropriate conduct and, ideally, inform them about where they can go to obtain advice and assistance. The Commission believes that this guidance would encourage ethical behaviour, better protect the public and promote community confidence in the legal profession.

The Commission notes that some steps have already been taken with respect to this issue, including a CPD seminar by the Victorian Bar and the guideline recently published by the VLSB+C. The Commission is of the view, however, that it is essential for guidance to be included within the commentary to the Solicitors’ Conduct Rules in relation to lawyers’ professional boundaries, and that the Victorian Bar should do likewise.

RECOMMENDATION 82

That the Law Council of Australia, within 12 months, includes specific guidance on maintaining appropriate professional boundaries in the commentary to the Solicitors’ Conduct Rules.

RECOMMENDATION 83

That the Victorian Bar, within 12 months, develops specific guidance for barristers on maintaining appropriate professional boundaries.

Improving ethics education and training for lawyers

Legal ethics education is integral to supporting lawyers’ understanding and application of their ethical duties and obligations in practice, as well as their ongoing professional development.

The Commission believes that CPD plays a vital role in reinforcing and supporting the ethical conduct of lawyers. It provides opportunities for lawyers to learn about the ethical problems that commonly arise in legal practice, discuss ethical education with peers, and develop the knowledge and tools necessary to manage ethical challenges that may arise in their own professional life.

Stakeholders consistently told the Commission that the current model of CPD may not be meeting its intended aims. In particular, some stakeholders told the Commission that the practical operation of the current system emphasises compliance with the process and requirements—that is, obtaining the necessary CPD units—rather than encouraging meaningful professional development and improved knowledge.

CPD should support lawyers to maintain and enhance their capacity to provide ethical legal services to their clients. Ethical conflicts arise in every area of legal practice, whether that be commercial law, personal injury, environmental or criminal law. Given the concerns raised by stakeholders during the inquiry and the themes emerging from the VLSB+C’s current review of CPD, it is clear that there is room for improvement to the current approach to CPD on legal ethics.

Some of the ethics education issues examined by the Commission are being considered in the VLSB+C’s CPD review, which was underway at the time of writing this final report. The Commission encourages the VLSB+C to implement reforms seeking to improve the quality of CPD on ethical issues for lawyers. The Commission considers that legal ethics education should be more routinely embedded into subject specific CPD activities, rather than continuing to be delivered in isolation.

To support the VLSB+C to drive these changes, the Commission recommends changes to the CPD rules, to align regulatory powers between barrister and solicitor CPD requirements. If agreement to these changes cannot be achieved at the national level through the Uniform Law framework, the Commission recommends that the Victorian Government progresses legislative change so that the VLSB+C has the power to regulate solicitors’ CPD in the same way that it can for barristers.

RECOMMENDATION 84

That the Victorian Legal Services Board and Commissioner, within six months, issues clear guidance about how legal ethics education should be embedded in the four compulsory fields of continuing professional development, including through the use of practical, scenario-based learning.

RECOMMENDATION 85

That the Legal Services Council, Law Council of Australia and Australian Bar Association work together to, within 12 months, harmonise the powers held by local regulatory authorities through the Solicitors’ Continuing Professional Development Rules, so that policies and requirements for continuing professional development can be made for solicitors as they can already for barristers.

If this change has not been made within 12 months, the Victorian Government should, within a further 12 months, provide the Victorian Legal Services Board and Commissioner with the power to regulate solicitors’ continuing professional development, as it is currently able to do in respect of barristers.

Reporting suspected misconduct

When lawyers engage in professional misconduct, clients and the broader community rightly expect that this will be promptly and appropriately managed by regulators. Therefore, a respected, functional system to deal with complaints about lawyers is essential to protect consumers of legal services and maintain public confidence in the legal profession.

Lawyers are often better placed than clients to recognise potential breaches of the professional conduct rules and ethical obligations, given their greater familiarity with them. The legal profession regulatory framework recognises this expertise through the existing mandatory requirement for a lawyer to report to a regulator if they believe ‘on reasonable grounds that there is an irregularity in connection with the receipt, recording or disbursement of any trust money received by a law practice’.264

Currently, a large proportion of disciplinary matters brought to the attention of regulators arise from complaints made by clients.

As noted earlier in this chapter, in Ms Gobbo’s case, a client, Mr Carl Williams, complained to regulators about her conduct, with good reason as it turned out. Some lawyers told the Commission that they had observed Ms Gobbo’s unethical behaviour but did not make formal complaints, instead informally raising these concerns with Ms Gobbo, or in some cases, not raising them at all. Had they too complained to regulators, a more thorough investigation may have been undertaken and the unethical conduct exposed much earlier.

If disciplinary and regulatory action had been taken earlier, Ms Gobbo could also have been removed from the Victorian Bar Roll. At the time of writing this final report, although Ms Gobbo had been struck off the Roll of Legal Practitioners by the Supreme Court, she remained on the Victorian Bar Roll’s list of retired counsel, due to the Victorian Bar Council’s inability to remove barristers from this list. In Chapter 7, the Commission recommends that this be addressed as a priority.

Whether there should be a mandatory requirement to report suspected misconduct within the legal profession has been the subject of significant debate in Australia and in other jurisdictions. In Australia, it has been suggested that the legal profession regulatory framework focuses too much on self-reporting. Indeed, the collegial culture of the legal profession may well have been a factor in the reluctance of Ms Gobbo’s peers to report their concerns to the regulator.

The Commission notes that other jurisdictions, such as the United States, the United Kingdom, New Zealand, Hong Kong and Canada, have taken steps to introduce mandatory reporting requirements.

After examining the approach to mandatory reporting requirements adopted in comparative legal systems and analysing the strengths and weaknesses of the current regulatory framework, the Commission concludes that lawyers have an important role to play in reporting suspected misconduct of their peers.

Some stakeholders raised concerns that the introduction of mandatory reporting was unnecessary, given that the legal profession and its regulators have a shared responsibility to uphold professional standards and the integrity of the legal profession. Stakeholders also suggested that mandatory reporting could:

  • lead to vexatious complaints
  • result in unintended consequences, such as negative repercussions or counter-complaints about the reporting lawyer
  • undermine the collegial nature of the legal profession.

The Commission notes that any vexatious complaints made would constitute unsatisfactory professional conduct or professional misconduct. Similarly, any unjustified countercomplaints made about the reporting lawyer would exacerbate the seriousness of the original offending conduct and ultimate penalty.

Members of other professions, such as medical practitioners, are required to report suspected misconduct by their peers. There are of course differences between these two professions. While lawyers are not generally dealing with imminent risks to a person’s health or physical wellbeing, their misconduct can still have dreadful consequences, including loss of liberty, financial loss, substantial miscarriages of justice, mental anguish for clients and diminished public confidence in the justice system. It seems incongruous that medical practitioners, police officers and others are required to report the misconduct of their peers, while lawyers are not.

The Commission notes that similar reporting requirements in the Australian health sector have not produced a large volume of vexatious complaints and as mentioned above, a 2017 University of Melbourne study found that less than 1 per cent of complaints were vexatious.265

Also, as noted earlier in this chapter, Victoria Police officers have, for many years, been subject to a mandatory reporting requirement. It is the Commission’s view that if a workforce such as law enforcement can operate effectively under mandatory reporting requirements, then members of the legal profession, who hold extremely high ethical responsibilities to their clients and the courts, should also have a positive obligation to report suspected misconduct.

The Commission believes that the existing ethical duties and obligations of lawyers operate as a safeguard against actions such as lodging a vexatious complaint. This is particularly so if a complaint leads to the abuse of a court’s process, as this would be a serious breach of a lawyer’s ethical duties.

The Commission appreciates stakeholders’ views that many details would need to be considered before introducing mandatory reporting. The Commission agrees that the threshold for mandatory reporting should be balanced appropriately—so that lawyers are required to report only significant suspected misconduct, not minor or trivial complaints.

The Commission heard concerns that, given the importance of reputation in the legal profession, there is the potential for repercussions or adverse consequences for lawyers making a report. Stakeholders noted that there could be a chilling effect in relation to reporting due to the fear of repercussions. The Commission notes that if a lawyer subjected another lawyer to detrimental treatment because the second lawyer had complied with their professional obligations by reporting suspected misconduct, this would itself be a breach of those obligations. It agrees that the possibility of such detrimental treatment needs to be considered and sensitively managed; however, the primary concern must be protecting clients and the public and developing a culture where help with ethical matters is sought early.

Introducing mandatory reporting may deter misconduct. It would certainly contribute to increasing and maintaining public confidence in the legal profession. The Commission believes that the trust placed in lawyers by their clients must be matched by lawyers’ accountability. The public should be able to expect that a lawyer who becomes aware of another lawyer’s misconduct will promptly report that behaviour to a regulator for consideration and action.

Mandatory reporting would contribute to increasing and maintaining high ethical standards within the legal profession. It would help protect the public and the administration of justice; strengthen public confidence in the legal profession; and:

  • reinforce the accountability of every lawyer to the administration of justice and the public
  • reinforce the accountability of the legal profession collectively to uphold professional standards
  • support greater public confidence in the legal profession
  • address a current gap in the regulatory framework.

Any mandatory reporting requirement would need to specify:

  • an appropriate reporting threshold
  • any necessary protections for those making the complaint
  • how legal professional privilege and the duty of confidentiality affect lawyers’ provision of information to the regulator
  • the consequences for non-compliance with mandatory reporting.

The VLSB+C, in its capacity as the main complaints-handling body in Victoria, is the appropriate body to hear complaints or reports of suspected misconduct.

In making this recommendation, the Commission has also taken into account Victoria’s participation in the Uniform Law framework. The Commission is aware that the objectives of the Uniform Law are to achieve consistency in the regulation of the legal profession. Accordingly, the Commission recommends that the Victorian Government should firstly pursue the introduction of a mandatory reporting requirement through the framework for amendments provided by the Uniform Law, in consultation with the other participating jurisdictions.

If such a requirement is not supported by the other jurisdictions participating in the Uniform Law, the Commission considers that the Victorian Government should implement a mandatory reporting requirement for lawyers in Victoria. To this end, the Commission notes that that the Uniform Law already contains matters specific to the operation of the law in Victoria.

While this recommendation could give rise to the potential for inconsistency in the legal profession regulatory framework, on balance the Commission considers that the value of a mandatory reporting requirement in supporting both the Victorian public’s trust and confidence in the legal profession, and the ability of regulators to respond effectively to suspected misconduct, would outweigh any possible divergence from the Uniform Law. It would also address the existing apparent inconsistency whereby a solicitor must have ‘reasonable grounds’ to report suspected misconduct of another lawyer and the allegation must be made in good faith, which is not mirrored in the Barristers’ Conduct Rules.266

To support the introduction of a mandatory reporting requirement, the Commission also considers that the VLSB+C, the professional associations and other relevant stakeholders should develop guidance and CPD activities on how it can be applied, in particular:

  • the elements of the mandatory reporting requirement
  • when lawyers are likely to need to report suspected misconduct
  • the consequences of not reporting suspected misconduct; making vexatious counter-complaints; or subjecting a lawyer who reports suspected misconduct to detrimental treatment
  • the role of the VLSB+C in receiving the reports.

RECOMMENDATION 86

That the Victorian Government, within 12 months, pursues through the Council of Attorneys-General and the Legal Services Council, an amendment to the Legal Profession Uniform Law introducing a mandatory requirement for lawyers to report the suspected misconduct of other lawyers. The Victorian Government should ensure the Victorian Legal Services Board and Commissioner is appropriately resourced to implement this recommendation.

If the amendment incorporating a mandatory reporting obligation has not been agreed within 12 months, the Victorian Government should, within a further 12 months, introduce a mandatory reporting requirement for Victorian lawyers to report the suspected misconduct of other lawyers.

RECOMMENDATION 87

That the Victorian Legal Services Board and Commissioner, the Victorian Bar and the Law Institute of Victoria, in consultation with other relevant stakeholders and prior to the commencement of the mandatory reporting obligation proposed in Recommendation 86, prepare harmonised guidance and continuing professional development activities for the legal profession to accompany and support the introduction of a mandatory reporting requirement.

Enhancing the independence of investigating complaints

The efficient and effective management of complaints against lawyers is vital for public confidence in the legal system and its effective operation.

There are different approaches to managing and handling complaints regarding lawyers in Victoria. Complaints regarding solicitors are handled exclusively by the VLSB+C, whereas complaints regarding barristers are generally delegated to the Victorian Bar for investigation.

The Commission was advised that the current co-regulatory approach recognises the specialist skills and experience necessary to consider complaints against barristers, and allows the practical expertise of barristers to be drawn on in considering complaints. As discussed above, the delegated function to the Victorian Bar to investigate complaints was recently reviewed, and several changes have been made to improve and strengthen the co-regulatory model, after some shortcomings were identified.267

The Commission believes that a key challenge with the current framework for investigating complaints about Victorian barristers is the perception of insufficient independence. This perceived absence of independence could lead to consumers lacking confidence in the complaints-management process generally, as well as the public believing that barristers operate with a lack of transparency and accountability.

The Commission was told that the risk of a perceived lack of independence is currently mitigated by the VLSB+C’s oversight of investigations into barristers and the fact that it makes the final decision about complaint outcomes.

The Commission acknowledges that this oversight provides a degree of public accountability and assurance, but considers that there is still a risk that the public would perceive that the Victorian Bar’s dual function of both investigating complaints and advocating on behalf of its members involves competing interests— one, the administration of justice and the public, and the other, its members.

The Commission notes the current legal profession regulatory framework already recognises the significance and importance of complaints regarding solicitors being independently investigated and considers that there should be a consistent approach to the management and investigation of complaints regarding lawyers in Victoria. While the Commission acknowledges the benefits of drawing upon the skills and expertise of barristers in resolving complaints, it believes that given the VLSB+C’s experience and capability in investigating complaints about solicitors, this experience can also be developed and maintained within the VLSB+C.

Further, there would be efficiencies in consolidating the investigation of complaints, given the VLSB+C’s established complaints processes and expertise. This would also reduce the potential for double handling, given that the VLSB+C must consider the recommendations made by the Victorian Bar regarding the outcome of a complaint under the current system.

The Commission is acutely conscious of the critical role of the independent legal profession, particularly advocates in the courts, in upholding the rule of law, in providing access to justice and in supporting the independence of the judicial arm of government. But the Commission is satisfied that this independence would not be compromised by the VLSB+C, specifically the Victorian Legal Services Commissioner, resuming the role of receiving and handling all complaints against barristers.

RECOMMENDATION 88

That the Victorian Legal Services Commissioner, within 12 months, revokes the Instrument of Delegation conferred on the Victorian Bar for receiving and handling complaints regarding barristers and resumes that function.

Improving awareness of supports for lawyers

Professional associations and the VLSB+C provide a range of important support services and resources to lawyers to assist them to understand their ethical duties and obligations. The Commission heard from stakeholders that such supports are important in helping to ensure that lawyers comprehend and follow the professional conduct rules. Broader services are also available to support lawyers’ personal wellbeing and their professional practice.

The Commission appreciates that the current range of support services and resources already cover a wide range of topics. It would be beneficial, however, for the professional associations to better understand the extent to which their members are aware of, use and find helpful the various services and resources. This would help ensure that the services currently offered can be more widely accessed, improved and refined and increase the likelihood that they would be used when needed. While the professional associations advised the Commission that there is data about how often their services are accessed, there was no data to quantify the level of awareness among members regarding the availability of such services, or their effectiveness.

The Commission understands that the Victorian Bar is currently reviewing the ethics support resources it makes available to barristers. The Commission considers this to be an appropriate opportunity to also review its members’ awareness, use and views of broader support services covering health and wellbeing.

The Commission also recommends that the Law Institute of Victoria conducts a similar review of its members’ awareness, use and views of its support services and resources for solicitors.

These reviews should be followed by any necessary targeted measures, such as an awareness campaign, or CPD units, should the level of awareness be found to be low. As part of continuous improvement, support services and resources should also be reviewed and modernised to ensure they continue to be of use to members.

RECOMMENDATION 89

That the Victorian Bar and the Law Institute of Victoria, within six months, assess the awareness level, use and views of the ethical, health and wellbeing support services and resources offered to their members. If the awareness levels and usage are found to be low, the Victorian Bar and the Law Institute of Victoria should review the quality of the services and resources and improve marketing and communications to ensure members are aware of the useful supports available.

The Victorian Bar and the Law Institute of Victoria should regularly review the effectiveness of these services and resources (at least every two years) and update them as required to meet the needs of members.

Supporting access to lawyers for people in police custody

People who have been taken into custody by police should be made aware of their right to communicate with a lawyer and obtain independent legal advice and representation. They should also be provided with reasonable facilities to do so. Given the events leading to this inquiry, it is important that Victoria Police never recommends a particular lawyer, in case it calls into doubt the lawyer’s independence.

Victoria Legal Aid told the Commission that a person’s right to seek legal advice before they are questioned in criminal proceedings is not adequately protected. It observed that people in custody often do not exercise their right to seek legal advice, sometimes because they have difficulty finding a lawyer through the methods offered by the police officer or because private space for a confidential discussion is not facilitated.268

The Commission reviewed Victoria Police policy and training materials and identified that they do not appear to set out all the rights and safeguards under section 464C of the Crimes Act for people taken into custody. Further, the materials do not refer to the relevant rights and safeguards under section 25 of the Charter, or the importance of a person having access to independent legal advice.

There do not appear to be any procedures specified in either the Victoria Police Manual or the training material about how to provide information to people in custody about accessing a lawyer. It is likely that this has led to the default practice that the Law Institute of Victoria and Victoria Legal Aid observed of police providing people with a telephone book.269

Without more specific procedural and policy guidance, there is a risk that police officers may take inconsistent approaches to the fundamental obligation of enabling a person in custody to communicate with a lawyer, including the importance of providing a private space for a confidential discussion. The development of policies and procedures would help to support adherence to these important criminal justice safeguards and more effectively connect people in custody with appropriate legal services.

Earlier in this report, the Commission recommended improved training and education for police about duties of confidentiality and privilege, including those held by lawyers. In addition, the Commission considers that Victoria Police should, in consultation with relevant stakeholders, amend the Victoria Police Manual and its training to incorporate advice about the rights of people in custody to speak with an independent lawyer; and Victoria Police’s responsibilities to support access to legal advice.

The Commission believes that these rights under the Crimes Act and the Charter would be better protected if accompanied by revised policies and procedures that help officers understand, in practical terms, how to support a person in custody to access legal advice. As submitted by stakeholders, the Commission considers that the revised procedures could require that Victoria Police provides people in custody with a list jointly issued by the Law Institute of Victoria and Victoria Legal Aid and updated annually, setting out:

  • contact details for lawyers working in the field of criminal law
  • any relevant specialist free services
  • any assistance required because of particular vulnerabilities; for example, illiteracy, English language difficulties, or mental or physical health issues.

The Commission notes that some stakeholders highlighted a broader need to consolidate and modernise the mechanisms by which people in custody are linked to legal services. Reforms to address this need would require time and resources to implement. The Commission suggests that the Victorian Government considers this issue further, in consultation with Victoria Police, Victoria Legal Aid, the Law Institute of Victoria and other relevant stakeholders.

RECOMMENDATION 90

That Victoria Police, within 12 months, amends the Victoria Police Manual and relevant training materials to comprehensively set out obligations under section 464C of the Crimes Act 1958 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) related to the right of a person in police custody to communicate with a lawyer.

Victoria Police should undertake this work in consultation with relevant stakeholders including Victoria Legal Aid, the Department of Justice and Community Safety, Law Institute of Victoria, Victorian Bar, Federation of Community Legal Centres and Victorian Aboriginal Legal Service.

Endnotes

1 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 3.

2 See generally Arie Freiberg, ‘Re-Stocking the Regulatory Toolkit’ (Conference Paper, Regulation in the Age of Crisis, 17 June 2010) 10.

3 Victorian Legal Services Board and Commissioner, Annual Report 2019 (Report, 2019) 43.

4 Victoria, Parliamentary Debates, Legislative Assembly, 12 December 2013, 4662 (Robert Clark, Attorney-General); Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 3.

5 Legal Profession Uniform Law Application Bill 2020 (WA).

6 See, eg, Civil Procedure Act 2010 (Vic); Supreme Court (General Civil Procedure) Rules 2015 (Vic).

7 The Uniform Law establishes the Legal Services Council and the Commissioner for Uniform Legal Services Regulation to oversee its operation, while state regulatory bodies are responsible for the day-to-day regulation of the legal profession, including admissions: see Legal Profession Uniform Law Application Act 2014 (Vic) s 10; sch 1 pts 8.2–8.5.

8 Based on the ‘Roles of Bodies under the Legal Profession Uniform Law’, Legal Services Council (Web Page) < www.legalservicescouncil.org.au/Pages/about-us/about-us.aspx&gt

9 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 6(1) (definition of ‘Standing Committee’), 391.

10 Law Council of Australia, Australian Solicitors’ Conduct Rules 2011 and Commentary (August 2013) 3.

11 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 427.

12 Róisín Annesley, Good Conduct Guide: Professional Standards for Australian Barristers (Federation Press, 2nd ed, 2019).

13 Consultation with Law Institute of Victoria, 4 June 2020.

14 Self-regulation means that legal professional associations—rather than independent bodies—play a direct role in regulating the legal profession.

15 Co-regulation means that legal professional associations and independent bodies work together to regulate the legal profession.

16 Submission 116 Victorian Legal Services Board and Commissioner, 5.

17 Christine Parker and Adrian Evans, Inside Lawyers’ Ethics (Cambridge University Press, 3rd ed, 2007) 46. Increasing transparency and accountability was identified as an objective in introducing the Legal Practice Act 1996 (Vic): see Victoria, Parliamentary Debates, Legislative Assembly, 20 June 1996, 983–4 (Jan Wade, Attorney-General).

18 Legal Profession Uniform Law Application Act 2014 (Vic) s 10.

19 ‘About the Victorian Legal Admissions Board’, Victorian Legal Admissions Board (Web Page) < www.lawadmissions.vic.gov.au/about-the-victorian-legal-admissions-board….

20 Submission 116 Victorian Legal Services Board and Commissioner, 1.

21 Submission 116 Victorian Legal Services Board and Commissioner, 1. The Victorian Legal Services Board can suspend or cancel a lawyer’s practising certificate at any time if it reasonably believes that the lawyer is unable to fulfil the requirements of being a legal practitioner: Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 82.

22 Legal Profession Uniform Law Application Act 2014 (Vic) s 10; sch 1 ch 5.

23 Submission 116 Victorian Legal Services Board and Commissioner, 3.

24 Victorian Legal Services Commissioner, Instrument of Delegation (28 August 2015); Submission 116 Victorian Legal Services Board and Commissioner, 4.

25 Submission 116 Victorian Legal Services Board and Commissioner, 4, 7; Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020.

26 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cls 16, 23.

27 Legal Profession Uniform Admission Rules 2015 r 5, sch 1. This requirement is satisfied by, for example, obtaining a law degree at either undergraduate (Bachelor of Laws) or postgraduate (Juris Doctor) level.

28 Legal Profession Uniform Admission Rules 2015 r 6, sch 2.

29 Applicants must provide the Victorian Legal Admissions Board with an academic transcript from their university as evidence of their legal qualifications and a certificate of completion of a Practical Legal Training course: Legal Profession Uniform Admission Rules 2015 r 15.

30 Frugtniet v Board of Examiners [2002] VSC 140, [10].

31 Legal Profession Uniform Admission Rules 2015 rr 10, 16-20.

32 Legal Profession Uniform Admission Rules 2015 r 10.

33 Legal Profession Uniform Admission Rules 2015 rr 16, 22; ‘Appearing Before the Board’, Victorian Legal Services Board (Web Page) < www.lawadmissions.vic.gov.au/about-us/appearing-before-the-board&gt.

34 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 19.

35 Victorian Bar, Application and Reading Regulations (3 May 2018) reg 3(2).

36 Victorian Bar, Application and Reading Regulations (3 May 2018) regs 2(1) (definition of ‘required grade’), 6; Victorian Bar, Victorian Bar Entrance Examination General Information (22 August 2019) 1.

37 Victorian Bar, Application and Reading Regulations (2 May 2018) reg 4(1); ‘Bar Readers’ Course’, Victorian Bar (Web Page) < www.vicbar.com.au/public/about/becoming-barrister/bar-readers-course&gt.

38 Victorian Bar, Application and Reading Regulations (3 May 2018) regs 2(1) (definition of ‘reading period’), 7(1). The regulations require that the mentor has the needed seniority, be ‘in active practice’ and ‘likely to be substantially in attendance in chambers in Victoria during the whole of the Reading Period’.

39 There are some exceptions, including licensed conveyancers doing conveyancing work: Legal Profession Uniform General Rules 2015 r 10.

40 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cls 43-5.

41 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 45(2).

42 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 52; Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 r 6; Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 r 8.

43 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cls 86, 90.

44 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 53; Legal Profession Uniform General Rules 2015 r 16.

45 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 4.1.1; Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 4(d), 35.

46 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 9.1; Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 114, 116; Evidence Act 2008 (Vic) ss 118, 119; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403, 414–15 (Bowen CJ); Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 589 (Kirby J).

47 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 Law Quarterly Review 63, 63.

48 Chief Justice Thomas Balthurst, ‘Duties to the Court, Duties of the Court’ (Speech, Law Society Planning Conference, Bowral, 14 November 2014).

49 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 52; Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 r 6; Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 r 9.

50 Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 r 8; Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 r 6A.

51 Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 r 14; Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 r 15. Rule 7 of the Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 requires the CPD activity to be of significant intellectual or practical content and deal primarily with matters related to the solicitor’s practice of law; conducted by qualified persons; and extend the solicitor’s knowledge or skills in areas related to their practice needs or professional development.

52 Victorian Legal Services Board and Commissioner, Annual Report 2019 (Report, 2019) 9.

53 Actions that may be taken to address CPD non-compliance include: a notice requiring rectification; conditions imposed on the practising certificate; annual monitoring; individual verification audits; referral to the Legal Services Commissioner and ultimately failure to have a practising certificate reissued: ‘Continuing Professional Development Policy’, Victorian Legal Services Board and Commissioner (Web Page) < www.lsbc.vic.gov.au/resources/continuing-professional-development-polic…, 4–5.

54 Victorian Legal Services Board and Commissioner, Annual Report 2019 (Report, 2019) 9.

55 Victorian Legal Services Board and Commissioner, Annual Report 2019 (Report, 2019) 9, 43.

56 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cls 268-270. See also Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 6th ed, 2017) 790.

57 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 296.

58 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 297(1).

59 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 298.

60 Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 6th ed, 2017) 782-3, 796.

61 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 266(2).

62 Based on Victorian Legal Services Board and Commissioner, Annual Report 2019 (Report, 2019) 51, 53.

63 Victorian Legal Services Board and Commissioner, Policy: Compliance and Enforcement (2017) 3–4.

64 Victorian Legal Services Board and Commissioner, Policy: Compliance and Enforcement (2017) 1, 3.

65 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 32.1.

66 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 154. Trust money is money held on behalf of a client by a law firm. This can include, for example, money that is held by a law firm for the purpose of paying stamp duty in connection with the purchase of a property. See ‘Trust and Controlled Money Accounts’, Law Society of New South Wales (Web Page) < www.lawsociety.com.au/for-the-public/going-court-and-working-with-lawye….

67 ‘Support Services and Resources’, Law Institute of Victoria (Web Page) < www.liv.asn.au/Professional-Practice/Practice-Management/LIV-Support-Se….

68 ‘Ethics Committee’, Law Institute of Victoria (Web Page) < www.liv.asn.au/Professional-Practice/Ethics/LIV-Ethics-Committee&gt;

69 ‘Ethics Guidelines’, Law Institute of Victoria (Web Page) < www.liv.asn.au/Professional-Practice/Ethics/Ethics-Guidelines&gt.

70 ‘LIV Members’ Ethics Information Hub’, Law Institute of Victoria (Web Page) < www.liv.asn.au/Professional-Practice/Ethics/Ethics-Resources-(2)&gt.

71 ‘LIVwell Program’, Law Institute of Victoria (Web Page) < www.liv.asn.au/Professional-Practice/Supporting-You/Health-and-Wellbein…;.

72 ‘LIV Mentoring’, Law Institute of Victoria (Web Page) < www.liv.asn.au/Professional-Practice/Supporting-You/Information-on-Ment…;.

73 Consultation with Victorian Bar, 28 January 2020.

74 ‘Ethics Bulletins’, Victorian Bar (Web Page) < www.vicbar.com.au/members/victorian-bar/ethics-complaints/ethics-bullet…;.

75 Consultation with Victorian Bar, 28 January 2020.

76 Consultation with Victorian Bar, 28 January 2020.

77 Consultation with Victorian Bar, 2 October 2020.

78 Arthur Moses, ‘Opinion Piece: Breach of Duties from Lawyers X, Police an Attack on Democracy and Justice’, Law Council of Australia (Web Page, 22 February 2019) < www.lawcouncil.asn.au/media/news/opinion-piece-breach-of-duties-from-la….

79 Submission 91 Victorian Bar, 4 [15], citing Carter v Northmore Hale Devy & Leake (1995) 183 CLR 121, 127 (Brennan J).

80 Gino Dal Pont, Law of Confidentiality (LexisNexis Butterworths, 2015) [9.10].

81 Submission 112 Victoria Legal Aid, 2.

82 Consultation with Law Institute of Victoria, 4 June 2020.

83 See, eg, Patrick Durkin, ‘Revealed: Lawyer X is Gangland Barrister Nicola Gobbo’, Australian Financial Review (online, 1 March 2019) < www.afr.com/companies/professional-services/revealed-lawyer-x-is-gangla….

84 Stuart Webb, ‘Message from LIV President Stuart Webb: Integrity of the Profession’, Law Institute of Victoria (Web Page, 6 February 2019) < www.liv.asn.au/Staying-Informed/General-News/General-News/February-2019….

85 Arthur Moses, ‘Opinion Piece: Breach of Duties from Lawyer X, Police an Attack on Democracy and Justice’, The Law Council of Australia (Web Page, 22 February 2019) < www.lawcouncil.asn.au/media/news/opinion-piece-breach-of-duties-from-la….

86 Louis Schetzer and Judith Henderson, Access to Justice and Legal Needs. Stage 1: Public Consultations (Report, August 2003) xvii;Parliament of Australia, House of Representatives Standing Committee on Legal and Constitutional Affairs, Older People and the Law (Report, 20 September 2007) 168 [5.45]; Victorian Government, Access to Justice Review (Report, August 2016) vol 1, 121.

87 Ms Gobbo was admitted to the legal profession on 7 April 1997: Exhibit RC0019 Certificate of Admission, 7 April 1997.

88 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 17 (2)(b); Legal Profession Uniform Admission Rules 2015 rr 10, 12.

89 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 437.

90 Consultation with Victorian Legal Admissions Board, 12 February 2020.

91 Consultation with Victorian Legal Admissions Board, 12 February 2020.

92 Consultation with Victorian Legal Admissions Board, 12 February 2020.

93 Consultation with Victorian Legal Admissions Board, 12 February 2020.

94 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 9.1; Legal Profession Uniform Conduct (Barristers) Rules 2015 r 114.

95 Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 6th ed, 2017) 344.

96 See Christine Parker, Suzanne Le Mire and Anita Mackay, ‘Lawyers, Confidentiality and Whistleblowing: Lessons from the McCabe Tobacco Litigation’ (2017) 40(3) Melbourne University Law Review 999, 1012.

97 The duty of confidentiality arises in contract law and equity and is replicated in the professional conduct rules: see generally Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 6th ed, 2017) 344.

98 Based on Legal Profession Uniform Law Australian Conduct Solicitors’ Rules 2015 rr 9.2.4, 9.2.5; Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 81, 82.

99 Submission 116 Victorian Legal Services Board and Commissioner, 10.

100 Submission 116 Victorian Legal Services Board and Commissioner, 10.

101 Consultation with Law Institute of Victoria, 15 January 2020.

102 Consultation with Law Institute of Victoria, 4 June 2020.

103 Consultation with Law Institute of Victoria, 4 June 2020.

104 Consultation with Legal Services Council, 1 June 2020.

105 Consultation with Law Council of Australia, 17 June 2020.

106 Law Council of Australia, Australian Solicitors’ Conduct Rules and Commentary (August 2013) 3.

107 Law Council of Australia, ‘Review of the Solicitors’ Conduct Rules’ (Discussion Paper, February 2018) 43, 44, 49.

108 Consultation with Law Council of Australia, 4 October 2019.

109 Consultation with Law Council of Australia, 17 June 2020.

110 Law Council of Australia, Australian Solicitors’ Conduct Rules 2011 and Commentary (August 2013) 41. The commentary defines ‘serious criminal offence’ as an indictable offence against a law of the Commonwealth or any jurisdiction; an offence against the law of another jurisdiction that would be an indictable offence against a law of this jurisdiction; or an offence against the law of a foreign country that would be an indictable offence against a law of the Commonwealth or this jurisdiction if committed in this jurisdiction (whether or not the offence can be dealt with summarily in all cases). Indictable offences are often heard in higher courts with more severe penalties while summary offences are less serious and heard in Magistrates’ Court.

111 Victorian Legal Services Board and Commissioner, Regulatory Guideline: Lawyer conduct in providing information to police (9 June 2020) 4.

112 Victorian Legal Services Board and Commissioner, Regulatory Guideline: Lawyer conduct in providing information to police (9 June 2020) 4.

113 Consultation with Victorian Bar, 28 January 2020.

114 Consultation with Victorian Bar, 11 June 2020.

115 Submission 116 Victorian Legal Services Board and Commissioner, 10.

116 Consultation with Criminal Bar Association, 30 January 2020.

117 New South Wales Bar Association, Guidance for NSW Barristers in the Wake of the Matter of Lawyer X (2019) 26 [83].

118 New South Wales Bar Association, Guidance for NSW Barristers in the Wake of the Matter of Lawyer X (2019) 32 [85].

119 New South Wales Bar Association, Guidance for NSW Barristers in the Wake of the Matter of Lawyer X (2019) 32 [85].

120 New South Wales Bar Association, Guidance for NSW Barristers in the Wake of the Matter of Lawyer X (2019) 32 [86].

121 At the date of writing, the Model Code of Professional Conduct had been implemented in whole or in part in most law societies in Canada. The Canadian Bar Association had also approved a resolution to discontinue its Code of Professional Conduct once no Canadian law society uses it or incorporates it. See ‘Implementation of the Model Code’, Federation of Law Societies of Canada (Web Page) < https://flsc.ca/resources/implementation-of-the-model-code&gt; ‘Codes of Professional Conduct’, Canadian Bar Association (Web Page) < www.cba.org/Publications-Resources/Practice-Tools/Ethics-and-Profession….

122 Federation of Law Societies of Canada, Model Code of Professional Conduct (19 October 2019) r 3.3–3.

123 Federation of Law Societies of Canada, Model Code of Professional Conduct (19 October 2019) r 3.3–3 [1]-[5].

124 Elyse Methven, ‘The Controversial Case of Lawyer X: Should Lawyers Be Prevented from Acting as Human Sources?’ (2019) 44(2) Alternative Law Journal 93, 98.

125 Consultation with Law Institute of Victoria, 15 January 2020; Consultation with Australian Bar Association, 9 March 2020; Consultation with Law Council of Australia, 4 October 2019.

126 Consultation with Victorian Bar, 28 January 2020.

127 Submission 116 Victorian Legal Services Board and Commissioner, 10.

128 Submission 116 Victorian Legal Services Board and Commissioner, 11.

129 Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020.

130 Consultation with Law Institute of Victoria, 15 January 2020.

131 Consultation with Victorian Bar, 28 January 2020.

132 Consultation with Criminal Bar Association, 10 February 2020.

133 Consultation with Victorian Bar, 28 January 2020; Consultation with Criminal Bar Association, 30 January 2020.

134 Consultation with Australian Bar Association, 9 March 2020.

135 Consultation with Legal Services Council, 1 June 2020.

136 See Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 rr 10-12; Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 35, 101, 119.

137 Submission 142 Director of Public Prosecutions (Victoria), 86-7.

138 Submission 142 Director of Public Prosecutions (Victoria), 87.

139 Submission 142 Director of Public Prosecutions (Victoria), 87.

140 Consultation with Law Institute of Victoria, 4 June 2020.

141 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

142 Law Council of Australia, ‘Review of the Solicitors’ Conduct Rules’ (Discussion Paper, February 2018) 67–8.

143 Law Council of Australia, Australian Solicitors’ Conduct Rules and commentary (August 2013) 8-22; Victorian Legal Services Board and Commissioner, Regulatory Guideline: Lawyer conduct in providing information to police (9 June 2020); Law Institute of Victoria, Guidelines for the Representation of Co-Defendants in Criminal Proceedings (27 October 2017); Róisín Annesley, Good Conduct Guide: Professional Standards for Australian Barristers (Federation Press, 2nd ed, 2019) 60-73.

144 Submission 116 Victorian Legal Services Board and Commissioner, 9.

145 Consultation with Victorian Bar, 28 January 2020.

146 Exhibit RC0977b Statement of Mr Robert Richter, 25 November 2019, 1 [3]; Exhibit RC0974 Statement of Mr Colin Lovitt, 14 November 2019, 1; Exhibit RC0968b Statement of Mr Alistair Grigor, 9 May 2019, 1; Exhibit RC0980b Statement of Mr Warren Peacock, 2 October 2019, 2 [12]; Exhibit RC0972b Statement of Mr Alex Lewenberg, 20 May 2019, 3 [11].

147 Exhibit RC0977b Statement of Mr Robert Richter, 25 November 2019, 1 [3].

148 Consultation with Criminal Bar Association, 30 January 2020; Consultation with Australian Bar Association, 9 March 2020.

149 Consultation with Criminal Bar Association, 30 January 2020.

150 Consultation with Victorian Bar, 28 January 2020.

151 Consultation with Law Institute of Victoria, 15 January 2020.

152 Victorian Legal Services Board and Commissioner, Regulatory Guideline: Lawyer conduct in providing information to police (9 June 2020).

153 Victorian Legal Services Board and Commissioner, Regulatory Guideline: Lawyer conduct in providing information to police (9 June 2020) 3.

154 Australian Law Reform Commission, Discovery in Federal Courts (Consultation Paper No 2, November 2010) 152 [4.214].

155 Submission 023 Emeritus Professor Adrian Evans et al, 5.

156 Continuing Professional Development (CPD) Scheme Rules 2004; ‘LIV Demands CPD, or Else’, Lawyers Weekly (online, 3 March 2012) < www.lawyersweekly.com.au/news/8142-liv-demands-cpd-or-else&gt.

157 Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 6th ed, 2017) 117.

158 Consultation with Victorian Bar, 28 January 2020.

159 Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020.

160 Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020; Consultation with Law Institute of Victoria, 15 January 2020.

161 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

162 Consultation with Victorian Legal Services Board and Commissioner, 28 September 2020.

163 Consultation with Victorian Legal Services Board and Commissioner, 28 September 2020.

164 Consultation with Victorian Legal Services Board and Commissioner, 28 September 2020; Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 rr 6, 6A, 9, 11.

165 Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020.

166 Consultation with Law Institute of Victoria, 15 January 2020.

167 Transcript of Ms Nicola Gobbo, 6 February 2020, 13305–6.

168 Consultation with Victorian Bar, 28 January 2020.

169 Consultation with Victorian Bar, 28 January 2020.

170 Consultation with Victorian Bar, 28 January 2020; Victorian Bar, The Victorian Bar: Quality of Working Life Survey (Report, October 2018).

171 Consultation with Criminal Bar Association, 30 January 2020.

172 Consultation with Law Institute of Victoria, 15 January 2020.

173 Law Institute of Victoria, Annual Report 2020 (Report, 2020) 12, 14–15.

174 Law Institute of Victoria, Annual Report 2020 (Report, 2020) 14.

175 Law Institute of Victoria, Annual Report 2020 (Report, 2020) 14.

176 Consultation with Law Council of Australia, 4 October 2019.

177 Consultation with Law Institute of Victoria, 15 January 2020.

178 Law Institute of Victoria, Annual Report 2020 (Report, 2020) 38.

179 Consultation with Australian Bar Association, 9 March 2020.

180 Consultation with Victorian Bar, 28 January 2020.

181 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

182 See Exhibit RC0187 Letter from Carl Williams to the Legal Services Commissioner, 4 September 2006; Exhibit RC0188 Letter from Carl Williams to the Victorian Bar Ethics Committee, 5 September 2006. Mr Williams’ complaint to the Legal Services Commissioner was referred to the Victorian Bar Ethics Committee to investigate.

183 See, eg, Exhibit RC0209 Letter from Legal Services Commissioner to Roberta Williams, 14 March 2008; Exhibit RC0210 Letter from Legal Services Commissioner to Roberta Williams, 6 May 2008.

184 See, eg, Exhibit RC0977b Statement of Mr Robert Richter, 25 November 2019, [3]; Exhibit RC0974b Statement of Mr Colin Lovitt, 14 November 2019, 5.

185 The Victorian Bar Ethics Committee considered the complaint and reported back to the Legal Services Commissioner: Exhibit RC0203 Letter from the Victorian Bar Ethics Committee to the Legal Services Commissioner, 4 October 2006, 1–2.

186 Exhibit RC0212 Letter from the Legal Services Commissioner to Nicola Gobbo, 30 May 2008.

187 See Exhibit RC0977b Statement of Mr Robert Richter, 25 November 2019, 1 [3]; Exhibit RC0974 Statement of Mr Colin Lovitt, 14 November 2019, 1; Exhibit RC0968b Statement of Mr Alistair Grigor, 9 May 2019, 1; Exhibit RC0972b Statement of Mr Alex Lewenberg, 20 May 2019, 3 [11]; Exhibit RC0980b Statement of Mr Warren Peacock, 2 October 2019, 2 [12].

188 On 8 March 2019, the Commission issued a notice to produce to the VLSB+C to produce all documents between 1 January 1995 and 31 December 2013 relating to Ms Gobbo. No information was produced to the Commission to indicate that Ms Gobbo’s fellow lawyers or colleagues made a formal complaint about her.

189 Arthur Greenbaum, ‘The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform’ (2003) 16(2) Georgetown Journal of Legal Ethics 2, 4; see also Eric H Steele and Raymond T Nimmer, ‘Lawyers, Clients, and Professional Regulation’ (1976) 1(3) American Bar Foundation Research Journal 917, 999.

190 Arthur Greenbaum, ‘The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform’ (2003) 16(2) Georgetown Journal of Legal Ethics 2, 4.

191 Arthur Greenbaum, ‘The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform’ (2003) 16(2) Georgetown Journal of Legal Ethics 1, 4 citing Douglas Richmond, ‘The Duty to Report Professional Misconduct: A Practical Analysis of Lawyer Self-Regulation’ (1999) 12 Georgetown Journal of Legal Ethics 175, 175.

192 Tara Sklar et al, ‘Characteristics of Lawyers Who Are Subject to Complaints and Misconduct Findings’ (2019) 16(2) Journal of Empirical Legal Studies 318, 328, 330. The study examined complaints made against 4,180 lawyers (out of an analytical sample of just over 20,000 lawyers) made over a 10-year period, between July 2005 and June 2015.

193 Tara Sklar et al, ‘Characteristics of Lawyers Who Are Subject to Complaints and Misconduct Findings’ (2019) 16(2) Journal of Empirical Legal Studies 318, 333.

194 Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 6th ed, 2017) 786.

195 Sophie McNamara, ‘Mandatory Reporting “Misused”’, MJA Insight (Web Page, 31 October 2011) < www.mja.com.au/insight/2011/41/mandatory-reporting-misused&gt.

196 Jennifer Morris, Rachel Canaway and Marie Bismark, ‘Reducing, Identifying and Managing Vexatious Complaints’, Melbourne School of Population and Global Health Centre for Health Policy, University of Melbourne, (November 2017), 4–5.

197 Consultation with Bar Association of Queensland, 2 September 2019.

198 Consultation with Bar Association of Queensland, 2 September 2019.

199 Consultation with New South Wales Office of the Legal Services Commissioner, 26 August 2019; Consultation with Bar Association of Queensland, 2 September 2019.

200 Consultation with Law Council of Australia, 4 October 2019.

201 Consultation with Legal Services Council, 1 June 2020.

202 Consultation with Law Institute of Victoria, 4 June 2020.

203 Consultation with Victorian Bar, 11 June 2020.

204 Consultation with Victorian Bar, 11 June 2020.

205 Consultation with Victorian Bar, 11 June 2020. Complaints under the Victorian Bar’s conduct policies cover matters such as bullying, discrimination, sexual harassment and other inappropriate conduct.

206 Consultation with Victorian Bar, 11 June 2020.

207 Consultation with Australian Bar Association, 9 March 2020.

208 Consultation with Australian Bar Association, 9 March 2020.

209 Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020.

210 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

211 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

212 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

213 See Solicitors Regulation Authority (UK), Code of Conduct (30 May 2018) 7.7; Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (NZ) rr 2.8, 2.9, 8.2; Federation of Law Societies of Canada, Model Code of Professional Conduct (19 October 2019) r 7.13; The Law Society of Hong Kong, Hong Kong Solicitors’ Guide to Professional Conduct (1995) r 11.03.

214 Solicitors Regulation Authority (UK), Reporting Concerns: Our Post-Consultation Position (Report, January 2019) 4 [11].

215 Solicitors Regulation Authority (UK), Reporting Concerns: Our Post-Consultation Position (Report, January 2019) 3 [4].

216 Solicitors Regulation Authority (UK), Reporting Concerns: Our Post-Consultation Position (Report, January 2019) 8.

217 Solicitors Regulation Authority (UK), Reporting Concerns: Our Post-Consultation Position (Report, January 2019) 9 [31].

218 Solicitors Regulation Authority (UK), Reporting Concerns: Our Post-Consultation Position (Report, January 2019) 9 [31].

219 Solicitors Regulation Authority (UK), Reporting Concerns: Our Post-Consultation Position (Report, January 2019) 3.

220 Solicitors Regulation Authority (UK), Code of Conduct (30 May 2018) 7.9.

221 Solicitors Regulation Authority (UK), Enforcement Strategy (25 November 2019) 1.2; Solicitors Regulation Authority (UK), Reporting Concerns: Our Post-Consultation Position (Report, January 2019) 6.

222 American Bar Association, Model Rules of Professional Conduct, r 8.3. Rule 8.3 provides that ‘a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority’.

223 Arthur Greenbaum, ‘The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform’ (2003) 16(2) Georgetown Journal of Legal Ethics 2, 3.

224 Arthur Greenbaum, ‘The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform’ (2003) 16(2) Georgetown Journal of Legal Ethics 2, 6 citing American Bar Association Standing Committee on Ethics and Professional Responsibility, Informal Opinion 1279 (1973).

225 ‘Reporting Unacceptable Conduct’, New Zealand Law Society (Web Page) < www.lawsociety.org.nz/for-lawyers/confidential-report&gt.

226 Medical Practice Act 1992 (NSW) s 71A(1); Medical Practitioners Registration Act 2001 (Qld) s 166.

227 Queensland Minister for Health, ‘Health Minister Releases HQCC Report into Mackay Hospital’ (Media Statement, 4 August 2008), 1.

228 Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic), which applies, by reference, the Health Practitioner Regulation National Law Act 2009 (Qld) ss 5, 141 as the law in Victoria.

229 Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic), which applies, by reference, the Health Practitioner Regulation National Law Act 2009 (Qld)s 140 as the law in Victoria.

230 Australian Health Practitioner Regulation Agency, Guidelines: Mandatory Notifications about Registered Health Practitioners (March 2020).

231 Victoria Police Act 2013 (Vic) s 167(3).

232 Victoria Police Act 2013 (Vic) s 166.

233 Victorian Legal Services Commissioner, Instrument of Delegation (28 August 2015).

234 Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020.

235 Submission 116 Victorian Legal Services Board and Commissioner, 4.

236 Victorian Bar, Summary of Review of Delegated Functions (2019) 1-2.

237 Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020.

238 Consultation with Victorian Bar, 11 June 2020.

239 Consultation with Victorian Bar, 11 June 2020.

240 Consultation with Victorian Bar, 28 January 2020.

241 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

242 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

243 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

244 Solicitors Regulation Authority, Headline Findings: Solicitors Regulation Authority (18 January 2016) 3.

245 See Exhibit RC0788b Transcript of conversation between Ms Nicola Gobbo and the Commission, 11 April 2019, 935–6.

246 Crimes Act 1958 (Vic) ss 464C(1)–(2).

247 Crimes Act 1958 (Vic) ss 464C(1)(c)–(d).

248 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(b).

249 Email from solicitors for Victoria Police to Solicitors Assisting the Commission, 11 June 2020.

250 Email from solicitors for Victoria Police to Solicitors Assisting the Commission, 11 June 2020.

251 Victoria Police, ‘Foundational Training Division Centre for Law and Operational Development: Caution and Rights’ 11, 1 October 2019, produced by Victoria Police in response to a Commission Notice to Produce.

252 Email from solicitors for Victoria Police to Solicitors Assisting the Commission, 12 June 2020.

253 Consultation with Law Institute of Victoria, 15 January 2020; Consultation with Victoria Legal Aid, 17 June 2020.

254 Consultation with Victoria Legal Aid, 17 June 2020.

255 Consultation with Victoria Legal Aid, 17 June 2020.

256 Consultation with Victoria Legal Aid, 17 June 2020.

257 Consultation with Victoria Legal Aid, 17 June 2020.

258 Consultation with Law Institute of Victoria, 4 June 2020.

259 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 Law Quarterly Review 63, 63, 65.

260 See, eg, Victorian Bar, ‘Statement by the Victorian Bar regarding Lawyer X’ (Media Release, 1 March 2019) < www.vicbar.com.au/news-events/media-release-%E2%80%93-statement-victori….

261 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 427(5).

262 Victorian Legal Services Board and Commissioner, Regulatory Guideline: Lawyer conduct in providing information to Police (9 June 2020).

263 Federation of Law Societies of Canada, Model Code of Professional Conduct (19 October 2019) r 33 [1][5].

264 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 154(2).

265 Jennifer Morris, Rachel Canaway and Marie Bismark, ‘Reducing, Identifying and Managing Vexatious Complaints’, Melbourne School of Population and Global Health Centre for Health Policy, University of Melbourne, (November 2017), 4–5.

266 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 32.1.

267 Victorian Bar, Summary of Review of Delegated Functions (2019) 1–2.

268 Consultation with Victoria Legal Aid, 17 June 2020.

269 Consultation with Law Institute of Victoria, 15 January 2020; Consultation with Victoria Legal Aid, 17 June 2020.


Chapter 16

Issues arising during the conduct of the Commission’s inquiry

Introduction

Chapters 3 and 5 describe how the Commission conducted its inquiry, including the methods it used to gather information, make findings and recommendations and meet its procedural fairness and other obligations under its Letters Patent and the Inquiries Act 2014 (Vic) (Inquiries Act).

This chapter discusses some of the issues that the Commission faced in conducting its inquiry. It proposes reforms aimed at improving these processes for future royal commissions and, where applicable, boards of inquiry.

The needs of each royal commission are different. This is because the work of each commission and the way it conducts its inquiry depend on the subject matter and the nature of its terms of reference.

This Commission had both an investigative task, focused on examining events that happened many years ago, and a policy reform task, focused on assessing current policies and processes and identifying ways that they could be strengthened. Both tasks required the Commission to use its powers under the Inquiries Act and to gather information from a range of sources, including, in particular, information from Victoria Police and other law enforcement agencies, statutory bodies and office holders, the courts and government departments.

A range of practical and legal constraints impeded the Commission’s ability to access relevant information in a timely way. Under the Inquiries Act, it is a reasonable excuse for a person not to comply with the Commission’s power to compel the production of documents on the basis that the information is subject to public interest immunity (PII).1 This legislative exception, combined with the volume of material over which Victoria Police claimed

PII and the broad nature of many claims, complicated and delayed the production, review and publication of pertinent material. Other challenges arose from the exemption of certain office holders from the requirement to comply with the Commission’s coercive powers.2

The Commission sought to conduct its work openly and with the participation of the Victorian community; in particular, those potentially affected by Victoria Police’s use of Ms Nicola Gobbo as a human source. For many years, the events that led to the establishment of the Commission were hidden from public view. It was therefore especially important for the Commission to conduct its inquiry as transparently as possible, both to restore community confidence in the integrity of the justice system and to demonstrate the fairness of the Commission’s processes. Historical suppression orders and the Witness Protection Act 1991 (Vic) (Witness Protection Act) at times made it difficult for the Commission to meet these objectives and communicate its work to the Victorian community.

This chapter discusses the impact of these issues on the Commission’s work and, where possible, suggests ways to remedy and manage them for future Victorian royal commissions. It also proposes some amendments to the Inquiries Act to clarify and modernise procedural aspects of the legislation.

The nature of the Commission’s inquiry

As noted earlier in this final report, the Commission had several tasks: to examine cases potentially affected by the conduct of Ms Gobbo as a human source; examine the conduct of Victoria Police officers involved in the use of Ms Gobbo as a human source; and consider the adequacy and effectiveness of current Victoria Police processes relating to human sources with legal obligations of confidentiality or privilege.

In undertaking these tasks, the Commission also aimed to fulfil several related and important objectives: to identify potential miscarriages of justice arising from this conduct; find out why the conduct occurred; assess whether existing laws, policies and practices are sufficient to prevent such conduct reoccurring; and support and restore community confidence in Victoria’s criminal justice system.

The Inquiries Act, in operation since 2014, gives Victorian royal commissions significant powers to seek and obtain information relevant to their terms of reference.

As noted in Chapter 3, the Commission sought to gather evidence in five key ways:

  • requesting the production of information from, and attendance by, individuals and organisations by issuing formal notices to produce and/or attend and requests for information
  • engaging with members of the public to provide them with an opportunity to contribute to the inquiry and follow the Commission’s work
  • conducting public hearings to examine evidence and promote the inquiry’s transparency
  • undertaking a comprehensive research program, including consultation with agencies and people with expertise in matters relevant to the terms of reference
  • reviewing submissions from Counsel Assisting, and submissions from affected people and organisations received in response to Counsel Assisting submissions.

The Commission’s inquiry involved highly sensitive matters that are not typically subject to public scrutiny. There are many good reasons for this. For example, as noted throughout this report, it is ordinarily critical that the identities of human sources are kept confidential, both for the safety of those sources and for the continued willingness of others to assist the police in solving crimes. It is also important that the precise details of covert police methods and tactics are generally not revealed to the public, because doing so might enable criminals to evade detection, and it might also hinder police in their efforts to disrupt and prevent criminal activity. Similarly, people in witness protection or the subject of suppression orders have their identities protected because if they are exposed, there may be harmful or even fatal consequences for them or those close to them. Accordingly, the nature of matters examined by the Commission created some unavoidable obstacles to accessing, using, sharing and publishing material.

To a significant degree, the Commission was able to manage and resolve these issues. In many cases, it developed protocols and arrangements that enabled access to and publication of relevant information in a way that mitigated the legal, operational and safety risks involved. It was also aided by the advice and cooperation of many people and agencies. A range of Victorian, interstate and international stakeholders provided information voluntarily to the Commission, including sensitive and confidential information. Through court applications the Commission was also able to have certain orders varied to give it greater discretion and flexibility in the ways it conducted and reported on the inquiry and shared information with affected parties.

Below, the Commission expands on these issues, before proposing some options to support the effective and efficient operation of future royal commissions in Victoria.

Constraints and challenges

During its inquiry, the Commission experienced some constraints and challenges related to:

  • the exemption of certain office holders from the coercive powers of a royal commission
  • the resolution of PII claims
  • historical suppression orders and non-publication orders
  • the operation of the Witness Protection Act
  • access to information from some Commonwealth agencies
  • certain procedural requirements under the Inquiries Act
  • the production of documents, particularly by Victoria Police.

These are addressed in turn below.

Scope of the Commission’s coercive powers

As noted above, the Inquiries Act gives extensive powers to royal commissions, including the power to compel a person to produce a document and/or to attend and give evidence.3

There are certain limitations and exceptions to the coercive powers of royal commissions in Victoria. Section 123 of the Inquiries Act provides that a royal commission cannot inquire into or exercise any powers in relation to various Victorian independent bodies and office holders, including:

  • a Victorian court
  • the Victorian Civil and Administrative Tribunal
  • a judicial officer or a staff member of Court Services Victoria in relation to the performance of judicial or quasi-judicial functions of a Victorian court
  • the Director of Public Prosecutions (DPP)
  • a Crown Prosecutor
  • the Independent Broad-based Anti-corruption Commission (IBAC)4
  • the Ombudsman
  • the Auditor-General.5

These limitations aim to ensure that the powers of royal commissions do not impede the independence and status of certain independent bodies and officers.6

This principle reflects the doctrine of the ‘separation of powers’, which describes the way that the law gives power to the institutions of the state in Australia. This doctrine is set out in the Victorian Constitution and seeks to ensure that the government’s powers are lawful and subject to checks and balances.

The exclusion of the DPP from a royal commission’s investigative authority is also consistent with its independence from government in relation to decisions about commencing and conducting criminal prosecutions. The Victorian approach to the exemptions under the Inquiries Act, however, is unique. No equivalent inquiries legislation in any other Australian jurisdiction includes a provision similar to section 123 of the Inquiries Act; that is, a provision preventing a royal commission from exercising coercive powers in relation to persons or bodies who hold specified independent statutory offices.7

Some legislation for investigatory bodies and independent offices in other Australian jurisdictions does, however, limit how far certain individuals and organisations can be required to assist proceedings and inquiries.8 For example, the Commonwealth Ombudsman and their delegates cannot be compelled to provide information acquired during their investigations.9 In addition, the uniform evidence law recognises that judges are not compellable witnesses, meaning they cannot be required to give evidence in relation to the exercise of their judicial functions.10

Impact on the Commission

The section 123 exemptions limited the Commission’s power to compel these office holders to attend or produce documents to the Commission. Exempt office holders relevant to the Commission’s inquiry included the DPP, certain Crown Prosecutors, the Ombudsman, the former Office of Police Integrity, and members of the judiciary (that is, judges or magistrates) who presided over certain court proceedings during the time that Ms Gobbo acted as a human source.

While the Commission understands why some office holders are exempt from the coercive powers of a royal commission, different interpretations of the exemption’s scope posed challenges for the inquiry. Some office holders involved in the events examined by the Commission—who did not hold that office at the time of these events—believed that they were exempt from the Commission’s powers under section 123.11 If it is accurate, that view gives section 123 a very broad operation: it effectively immunises any person who has held one of the prescribed offices from complying with a royal commission’s coercive powers, regardless of when they held that office.

Section 123 does not prevent a person or body from giving evidence or producing material voluntarily to a royal commission,12 and in many cases, limits on the Commission’s power to compel certain office holders to give evidence were overcome by their voluntary cooperation. The Victorian courts, the Office of Public Prosecutions, Victorian oversight and integrity agencies, the Commonwealth Director of Public Prosecutions, Commonwealth intelligence and law enforcement agencies and some members of the judiciary contributed to the Commission’s inquiry in this way.

These voluntary contributions included providing documents and evidence, responding to requests for information and notices to produce, making written submissions on policy issues and giving informal briefings to Commission staff. This assistance was vital to the Commission’s ability to conduct its inquiry. For example, IBAC disclosed approximately 3,400 relevant records (including over 130 records from the Victorian Ombudsman’s holdings) to the Commission. Without the documents and evidence these organisations provided, the Commission’s ability to fulfil its terms of reference would have been significantly impeded.

Public interest immunity claims

PII is a common law doctrine but also has a statutory basis in the uniform evidence law.13 When a PII claim is established, it allows the State to withhold information in legal proceedings or executive inquiries.14

Resolving a PII claim in the context of a royal commission involves balancing competing interests:

  • the public interest that requires certain types of material and information to stay confidential
  • the public interest in inquiries such as the commission being able to access, use and publish information relevant to its terms of reference and to conduct its inquiry transparently.

While the Commissioner, having regard to these public interests, formed a view on PII claims made over material relevant to the inquiry, ultimately the legitimacy of a PII claim is a matter for a court.

Section 18(1)(a) of the Inquiries Act provides that a person or organisation on whom a notice to produce or notice to attend is served may claim that they have, or will have, a reasonable excuse for not complying with the notice.

Section 18(2) of the Inquiries Act sets out a non-exhaustive list of the circumstances that are a reasonable excuse for failing to comply with a notice. Under this provision, it is reasonable to refuse to give information to a royal commission if the information is the subject of PII.15

In contrast to the approach taken in the Inquiries Act, most Australian and international legislation governing royal commissions, and the legislation governing standing crime and corruption commissions, does not mention the application of PII.16 Of the legislation that does address PII, some appears to abrogate (override) it for the purposes of a Commission conducting its inquiry.17 For example, the Royal Commissions Act 1968 (WA) provides that a Commission may require a public authority to produce information despite any rule of law that might justify an objection to its production ‘on grounds of public interest’.18

The Royal Commissions Act 1923 (NSW) also appears to override the application of PII. It gives royal commissions, when they are constituted or chaired by a judge or experienced legal practitioner, the power to prevent a person relying on the privilege against self-incrimination, ‘or on the ground of privilege or on any other ground’.19

The Victorian Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (IBAC Act) also overrides the application of PII in relation to certain documents or information that IBAC can compel production of for the purposes of undertaking an investigation.20 For example, the IBAC Act provides that the Crown cannot assert any privilege in response to IBAC exercising certain powers. This includes the power to compel police to provide information or documents when IBAC is investigating police conduct.21

Similarly, the legislation relating to New South Wales crime and corruption commissions also provides that the privilege against self-incrimination, a duty of secrecy ‘or other restriction on disclosure’ are not available grounds to refuse to disclose information at a hearing.22

Public interest immunity claims over material relevant to the inquiry

As explained further below, timely and complete production of material relevant to the Commission’s terms of reference was an issue from the start of the inquiry and continued throughout it. In large part, this difficulty arose because a significant amount of material that the Commission was required to examine was sensitive and subject to PII claims.

Victoria Police and other law enforcement agencies made thousands of PII claims to limit the disclosure of information presented before, and published by, the Commission.

The Inquiries Act expressly sets out that a PII claim is a reasonable excuse for not complying with a notice in relation to a royal commission23 but does not provide any guidance on the process for managing and resolving PII claims. In particular, the Inquiries Act does not outline the grounds on which the State can rely on a PII claim (this could include, for example, that a PII ruling in relation to the material has previously been made by a court).

Public interest immunity protocol

In 2019, the Commission, the State of Victoria and Victoria Police initially adopted a protocol to facilitate Victoria Police providing information to the Commission on a rolling basis. This protocol stated that PII claims ‘should be articulated with precision and supported by the evidence’ that justified the claims.24 When Victoria Police considered that relevant documents or evidence likely to be referred to in the Commission’s hearings were subject to a PII claim, the Commission was provided with documents in unredacted form prior to the claim being made, except for materials that would identify a human source or an individual subject to the Witness Protection Act.25 The Witness Protection Act is discussed further below.

The PII protocol stated that if the Commission was unable to resolve PII claims with Victoria Police, the documents the subject of the claims and the material explaining the basis for those claims were to be provided to the State of Victoria (represented by the Department of Justice and Community Safety) for the purpose of attempting to resolve the dispute.26 If agreement was not reached through this process, the Commissioner would determine the claim at a hearing as soon as possible. This aspect of the protocol was never activated, as the Commission tried to resolve PII disputes—which arose regularly during hearings, often many times a day—as quickly as possible.

When the Commissioner provided her preliminary view on PII claims relating to exhibits and transcripts that the Commission intended to publish immediately, Victoria Police routinely failed to respond promptly or at all. To end this deadlock and publish the documents as soon as possible after the related hearings, the Commissioner accepted the many Victoria Police PII claims on an interim basis and published the materials to the Commission’s website with the interim claims applied, without involving the State. She reserved her position on claims she considered were not substantiated and that may be critical to the Commission’s work.

Even after the Commission adopted this generous position to deal with Victoria Police’s large number of PII claims, long delays continued. Victoria Police repeatedly told the Commission that its ability to make and address PII claims was hampered by a lack of resources, particularly a shortage of experienced officers with the knowledge to do this work.27 The Commission notes, however, that Victoria Police expedited this process when the Commission aired these matters in public directions hearings and this resulted in media criticism of Victoria Police’s tardiness.

Public interest immunity claims over exhibits and transcripts

After the conclusion of the Commission’s hearings in May 2020, Victoria Police was again slow in making PII claims on documents the Commission sought to tender as exhibits, even though it was aware of the importance the Commission placed on the public having access to those documents. At 30 October 2020, the Commission was unable to publish 155 exhibits, as Victoria Police had not provided its PII claims or had not responded to questions from the Commission regarding redactions to the exhibits.28

Given the sheer number of PII claims and the Commission’s budgetary constraints and timeframes, it was generally impractical for disagreements about the scope of PII claims to be resolved in court.

In addition to delaying the PII process, Victoria Police interpreted matters subject to PII very broadly, including in its approach to the concept of a person’s ‘biodata’. This refers to all the features of a person that may allow them to be differentiated from others (including information about their character, physical features or activities). Victoria Police’s approach to claiming PII over ‘biodata’ also had an impact on the operation of certain provisions of the Witness Protection Act, discussed in more detail below.29

Victoria Police made numerous PII claims on the basis that the relevant information constituted biodata and that disclosing the information could enable the identification of a person and endanger their safety. Frequently, Victoria Police asserted that this biodata extended beyond the most obvious types of information that might identify a person, such as their name, address, names of family members, or specific details of their criminal history. For example, Victoria Police asserted that biodata would include details such as the name of a prison or the name of a suburb where certain conversations or meetings occurred. In these and many other cases, Victoria Police contended that, while the disclosure of that particular detail alone might not result in the identification of a person, it would be possible to piece together this detail and other information in the public domain to ascertain the person’s identity.

During the Commission’s inquiry, Victoria Police also produced several ‘confidential’ affidavits and statements to the Commission that it said could only be viewed by the Commissioner and designated members of the Commission’s legal team. This included documents related to Victoria Police’s policies and processes for the use and management of human sources subject to legal obligations of confidentiality or privilege.

The provision of information in this way meant that critical senior Commission staff and members of its legal team did not have access to information necessary to perform their duties. Ongoing negotiation with Victoria Police was required to obtain consent for these staff to access the materials, and/or to request that the material be produced in a form suitable for it to be used and referenced in the Commission’s reports. After the Commission explained that this was impeding the inquiry, Victoria Police eventually agreed to liaise with the Commission before producing ‘confidential’ material. Despite this agreement, Victoria Police continued to do so and to impose limits on information use and access.

Impact on the Commission

While Victoria Police’s general practice of providing unredacted documents before making a PII claim greatly assisted the Commission, the lack of procedural precision under the Inquiries Act for resolving competing interests limited the efficiency of the inquiry. This was particularly so when there was a disagreement between Victoria Police and the Commission about what constituted a legitimate claim.

As noted above, Victoria Police took a very broad interpretation of PII. Often, the Commission faced difficulties when considering the basis for Victoria Police’s PII claims because they were articulated in very general terms. In addition to asserting that information included biodata that could reveal the identity of a human source, Victoria Police also frequently asserted that information could reveal ‘confidential police methodology’, often without any details or rationale to support the claim. Victoria Police also frequently claimed PII over material that was publicly available in media reports and court records.

Additionally, Victoria Police’s PII claims were sometimes inconsistent. Often, information was discussed in a public hearing and counsel acting for Victoria Police did not raise a claim, only to subsequently request that the information be redacted from an exhibit or transcript before being published on the Commission’s website.

On many occasions, the Commissioner did not make the PII determination that Victoria Police sought because the claim was too broad and/or the information relied on for the claim did not support the initial submission.

This was also the case in relation to Victoria Police’s approach to making applications for non-publication orders under section 26 of the Inquiries Act, which allows the Commissioner to make an order restricting the release of information that might endanger a person’s life or safety. Not every potential risk to safety falls within the terms of the Commission’s power to prohibit the publication of information under section 26 of the Inquiries Act. The risk must be more than fanciful and must be in substance real or realistic.30 Victoria Police made numerous applications for non-publication orders that, in the Commissioner’s view, did not satisfy this threshold.31

As noted above, there were often long delays between documents being tendered before the Commission and Victoria Police completing its PII review. On several occasions, parties who had standing leave to appear before the Commission requested copies of documents in their original, unredacted form.32 Sometimes Victoria Police agreed to provide these documents, subject to those parties providing undertakings to keep the material confidential, but on many occasions it refused to do so.33 Some parties have submitted that this impacted upon the fairness of the Commission’s processes.34

On many occasions, after the Commission had published exhibits to its website with all of the requested redactions, Victoria Police would request that the exhibits be removed from the Commission’s website so that it could conduct a further PII review. The Commission had to ensure staff were available to remove the exhibits urgently. It then had to devote resources to republishing the exhibits with the additional redactions.

Despite Victoria Police’s general willingness to produce unredacted copies of documents in accordance with the protocol, there were several occasions where Victoria Police refused to provide the Commission, including the Commissioner, with unredacted versions of documents that were relevant to the inquiry. In some cases, Victoria Police did not produce relevant documents at all. For example, as discussed in Chapter 10, Victoria Police did not provide the Commission with access to 11 human source files identified as relevant to the Commission’s audit on the basis that those files were extremely sensitive and subject to a PII claim.

The Commission appreciates that PII claims can raise complex legal issues. Some of these complexities are explored in detail in Chapter 14. The many lengthy delays in Victoria Police’s provision of PII claims to the Commission, with the explanation that only a relatively small number of Victoria Police officers had the requisite knowledge to assess material for PII claims, indicates that more officers should be trained by qualified lawyers in this complex and important task.

The Commission acknowledges that Victoria Police often worked constructively with the Commission to resolve many PII issues as they arose. This occurred by way of conversation between Counsel Assisting the Commission and counsel for Victoria Police or via email correspondence between Solicitors Assisting the Commission and the solicitors for Victoria Police.

Overall, however, the Commission considers that Victoria Police’s approach to making PII claims had detrimental consequences on the inquiry. That approach:

  • led to a very large number of claims that diverted significant resources and time and added to the inquiry’s cost and duration
  • suggested that Victoria Police did not give appropriate care or consideration to tailoring its PII claims
  • suggested that Victoria Police did not sufficiently value the Commission’s processes, the need to provide all relevant material to the inquiry, or the importance of conducting as much of the inquiry as possible in public and the need to give procedural fairness to potentially affected persons.

Previous inquiries have encountered similar issues, often in circumstances when highly sensitive material relating to national security has been relevant to the investigation.35Some inquiries have considered whether the governing legislation should provide specific powers and procedures surrounding provision of sensitive material to commissions and inquiries. This has included, for example, whether legislative provisions should be introduced to allow a royal commission’s Letters Patent to specify a process for resolving issues relating to privileges and immunities, such as specifying that PII or legal professional privilege does not apply to that inquiry.36

Victoria Police’s response to public interest immunity issues

In its submission to the Commission in August 2020, Victoria Police acknowledged that the PII process was difficult for the Commission.37

Victoria Police highlighted examples where information that was the subject of a valid PII claim was inadvertently disclosed in correspondence or during a public hearing, or was published to the Commission’s website. These examples, Victoria Police submitted, illustrated the need for its careful and cautious approach to PII during the Commission’s inquiry.38 Accordingly, it rejected that its approach to PII claims was too broad.39

Victoria Police made the following specific points about its approach to PII in response to the issues identified by the Commission:

  • it rejected that there was anything improper about its PII claims with respect to biodata, noting that, viewed in isolation, individual claims over biodata may appear innocuous but even relatively innocuous information can be pieced together to identify someone40
  • it maintained that it was appropriate to provide confidential affidavits to the Commission on the limited occasions where Victoria Police considered it necessary, and submitted that it was within Victoria Police’s rights to refuse to provide that information41
  • it submitted that one of the great challenges for the Commission and Victoria Police was that PII claims were not resolved prior to hearings, and this meant Victoria Police had to make retrospective claims over the material42
  • it maintained that it was appropriate for Victoria Police to go back and consider its past claims and to make new claims on that material prior to its publication.43

In relation to the PII protocol, Victoria Police did not accept that the position under the Inquiries Act is unclear. It submitted that if the Commission did not accept a PII claim, it could refer the question to the Supreme Court of Victoria for determination.44

Victoria Police also submitted that it could have exercised its right under the Inquiries Act to refuse to produce material that was subject to a PII claim, which would have necessitated those claims being referred to the court if the Commission did not accept them. It submitted that it did not adopt this course because it was ‘contrary to its desire to fully cooperate with the inquiry’ and to ensure that the inquiry was conducted ‘as efficiently as possible’.45 Victoria Police also submitted that its approach to PII claims ‘evolved over time’ and was developed collaboratively in consultation with the Commission.46 It also noted that there were ‘comparatively very few’ documents that it refused to provide in unredacted form to the Commission.47

Victoria Police accepted that the PII protocol was never properly used but considered that the departure from the protocol was driven primarily by the Commission, not Victoria Police.48 While it acknowledged the difficulties it faced in complying with the Commission’s deadlines, it submitted that those assisting the Commission very rarely complied with the timeframes for notifying Victoria Police of witnesses to be called and did not take steps to resolve any PII issues before the relevant hearing. It asserted that, as a result, it was impractical for Victoria Police to resolve PII claims in accordance with the protocol.49

Victoria Police rejected that its approach to PII demonstrates that those responsible for preparing PII claims require further training. It submitted that it engaged external lawyers and counsel to ensure that its PII claims were appropriate and consistent.50 It also strongly rejected the Commission’s view that Victoria Police’s approach to PII demonstrated that it did not sufficiently value the processes of the Commission, the importance of conducting the inquiry as openly as possible or the need to give procedural fairness to potentially affected persons.51

Finally, Victoria Police did not accept that its approach to PII hindered the Commission’s inquiry.52 At its highest, it submitted, PII claims caused the Commission ‘inconvenience and prevented it from publishing documents at the time that they were tendered’. It contended that, given the subject matter of the inquiry, the public interest favours taking necessary steps to ensure community safety.53

Suppression and non-publication orders

Courts have a range of powers to make orders preventing the publication of harmful or prejudicial material (suppression or non-publication orders) and orders requiring published material to be removed (take-down orders).54 For clarity, this chapter will use the term ‘suppression orders’ to describe orders made by courts to prevent the publication or use of information. Royal commissions also have the power to make orders preventing the publication of information. To avoid confusion, these orders are referred to as ‘non-publication orders’ in this chapter.

Suppression orders serve important public interests, including protecting the fair trial of an accused person and facilitating the proper administration of justice—for example, by keeping certain information secret so that it does not prejudice the deliberations of a jury or put a person in danger. On the other hand, these orders may also limit access to open justice. The principle of open justice is a fundamental common law principle.55

The Open Courts Act

Since December 2013, courts have made suppression orders in relation to proceedings in Victoria using their statutory powers under the Open Courts Act 2013 (Vic) (Open Courts Act).56 The purpose of the Act is to create a clearer and more rigorous legislative framework for making suppression orders in Victoria while reinforcing the importance of open justice and the free communication of information relating to proceedings.57

Under the Open Courts Act, courts, and some specified tribunals, apply and enforce suppression orders and restrictions on publication of information for a range of reasons. As noted above, these reasons include protecting the identities of people involved in cases and shielding jurors from prejudicial material about an accused person who is on trial.58 The Open Courts Act applies to some tribunals, including the Victorian Civil and Administrative Tribunal, and can be extended by regulation to apply to other tribunals, persons or bodies.59 At present, the Open Courts Act does not apply to royal commissions.

Prior to the commencement of the Open Courts Act, the power of Victorian courts to order the restriction of access to, or prevent the publication of, information relating to court proceedings was derived from legislation and common law.60 In addition, Victorian courts had powers under their governing legislation to depart from open justice in a wide range of circumstances.61

Suppression orders made under the Open Courts Act must be of a specified duration and operate for no longer than is reasonably necessary.62 On the other hand, orders made under the old legislative framework often had no termination or end date. Some of these suppression orders continue to apply today.63

In 2017, an independent review of the Open Courts Act was conducted by the Honourable Frank Vincent, AO, QC (Open Courts Act Review).64 The review considered whether the existing legislative framework, and in particular the Open Courts Act, struck the right balance between the need to preserve open and transparent justice, and the need to protect the interests of victims, witnesses and accused persons and preserve the proper administration of justice.65

The Open Courts Act Review made 18 recommendations to ensure that courts make suppression orders only when absolutely necessary. The Victorian Government has committed to supporting, or supporting in principle, 17 of the 18 recommendations.66

The terms of reference for the Open Courts Act Review did not require examination of historical suppression orders (that is, suppression orders made before 2013). Accordingly, it made no recommendations in relation to these types of orders. As the Open Courts Act does not apply to non-publication orders made by royal commissions, these also fell outside the review’s terms of reference.

Impact on the Commission

A substantial volume of material relevant to the inquiry was subject to suppression orders and non-publication orders associated with court proceedings. This prevented the Commission from accessing, publishing and disseminating evidence that was the subject of these orders.

Numerous people relevant to the Commission’s inquiry were convicted of serious crimes and/or gave evidence against others for serious offences, and were the subject of suppression orders. All of these orders were made by the courts prior to the introduction of the Open Courts Act, and some do not have termination dates, instead operating in perpetuity or until a further order is made. Other orders include blanket bans that prohibited the Commission from mentioning that there was a court proceeding at all. This had a significant impact on the case reviews the Commission undertook as part of its inquiry into term of reference 1.

Certain suppression orders required the Commission to use pseudonyms to protect the identities of individuals during public hearings and in documents it produced and published. At times, this caused significant confusion for witnesses and interested people, and potentially also for members of the public, by making it difficult to understand the involvement of individuals in the matters being discussed in the hearings, and the relationships between individuals and events. Throughout the Commission’s hearings, Victoria Police maintained that these historical suppression orders remained justified in their terms.

To overcome some of these issues, in 2019, the Commission made three applications to the courts to vary suppression orders so that it could access protected information and enable witnesses to provide evidence at its hearings.67

As discussed in Chapter 3, the Commission later applied to the Court of Appeal of the Supreme Court of Victoria in May 2020 to vary a further 52 suppression orders made in the Magistrates’, County and Supreme Courts of Victoria, to overcome challenges the Commission faced in its reporting on matters relevant to those orders. The Court of Appeal granted that application on 23 June 2020.68 These processes caused significant delay, cost and effort for the Commission and all relevant parties.

Locating and accessing historical suppression orders

The Commission also experienced practical issues with locating and accessing historical suppression orders.

In Victoria, there is no publicly accessible register to locate suppression orders that Victorian courts and tribunals have made (including non-publication orders royal commissions and inquiries have made under the Inquiries Act), and find out their terms, duration and the reasons they were made. Similarly, it is unclear whether non-publication orders that previous royal commissions have made and not revoked once their inquiries have ended are retained and able to be searched for.

While Victorian courts have maintained a database of suppression orders for several years, it has limited search capability and there are potential gaps in the coverage of orders. The database was designed as an internal reference tool organised by case name; not as a comprehensive resource for journalists and others.

The Victorian courts gave certain Commission staff access to this existing online database so that they could search for suppression orders that may have been relevant to the inquiry. It became apparent as the Commission’s public hearings progressed, however, that the existing database had limited search functionality and did not contain all the relevant orders. Therefore, on many occasions, Commission and court staff undertook painstaking manual searches of court files kept by each Victorian court in an effort to locate all relevant suppression orders. The Commission greatly appreciates the assistance the courts provided in facilitating this process.

Recommendation 7 of the Open Courts Act Review was to establish a central, publicly accessible register of suppression orders made by all Victorian courts and tribunals.69 The Commission understands that courts are currently implementing a new database. The content of orders on this database will not be accessible by the general public, but it will be accessible by accredited users (for example, journalists). This decision to limit access has been taken because the courts are concerned that open public access would defeat the purpose of the orders.70

Initially the database will allow searching only of orders made from 1 January 2020, while the courts complete a process of auditing records dated from 1 December 2013 onwards, to ensure the accuracy and currency of records in the database. Records of orders predating 1 December 2013 from the original database will be maintained, and courts will still be able to conduct searches of these records as needed. In relation to matters that were subject to the Commission’s inquiry, the Supreme Court has sought to capture the work undertaken to search for those orders, and to update the historical database records accordingly.71

If there had been a comprehensive, central and accessible register for suppression orders while the Commission was conducting its inquiry, significant time and cost would have been saved, confusion and inadvertent breaches avoided and the safety of those who genuinely needed protection better managed.

Despite the steps being taken to implement a suppression order register in Victoria, it appears there will still be difficulties with the accessibility of historical suppression orders and processes to apply to revoke or vary orders. The Victorian Law Reform Commission’s (VLRC’s) Contempt of Court review considered whether there is a need for reform in relation to historical suppression orders (referred to as ‘legacy suppression orders’ by the VLRC).72

The VLRC report, tabled in the Victorian Parliament on 4 August 2020, recommended that:

  • the Victorian Government should resource courts to audit all existing historical suppression orders (the report also noted that ideally this audit would allow these orders to be searchable alongside the suppression orders under the Open Courts Act)73
  • the Open Courts Act should be amended to enable an interested party to apply to a court to revoke a historical suppression order it has made74
  • the courts should develop processes allowing an applicant and the court to have access to materials that provide evidence of why a historical suppression order was made.75

As at 30 October 2020, the Commission understands that the Victorian Government is considering the VLRC’s recommendations.

Operation of the Witness Protection Act

Section 12 of the Inquiries Act provides that a royal commission may conduct its inquiry in any manner that it considers appropriate, subject to:

  • the requirements of procedural fairness
  • its Letters Patent
  • the Inquiries Act, the regulations and any other Act.76

The Commission’s Letters Patent required the Commission to conduct its inquiry having regard to the safety of Ms Gobbo and other people affected by the matters raised by the inquiry. Because of section 12 of the Inquiries Act, the conduct of the Commission’s inquiry was also subject to the Witness Protection Act.77

A royal commission has wide powers in relation to how it conducts hearings, including to determine who may be present, and to make non-publication orders.78 The Witness Protection Act, however, limits a royal commission’s ability to conduct its proceedings entirely in public. This is because the Witness Protection Act creates a presumption that the relevant part of the hearing be held in private.79 There is also a presumption that proceedings will be subject to a non-publication order when either of the following matters are ‘in issue’ or ‘may be disclosed’:

  • the original or former identity of a participant who is in witness protection
  • the fact that a person in witness protection is taking part in proceedings.80

The only exception to this is where a royal commission considers that it is not in the interests of justice to keep the hearings private.81

Importantly, the Witness Protection Act does not excuse a person from producing documents to a royal commission or attending its hearings.82 Therefore, the prohibition on disclosure of certain information under the Act is not a reasonable excuse for failing to comply with a royal commission’s notice to provide information.83

Impact on the Commission

Numerous people relevant to the inquiry were participants in witness protection. Some of these people were also subject to suppression orders in relation to their involvement in court proceedings.

The limits on disclosure of information arising from the Witness Protection Act compounded the effects of suppression orders on the Commission. This affected the Commission’s ability to conduct hearings in public without disruption and ensure all parties with a relevant interest could participate. When information relevant to people subject to the Witness Protection Act was discussed, it was necessary for the Commission to hold hearings in private and make a non-publication order. In addition, Victoria Police restricted access to certain information that it considered subject to the Witness Protection Act to a small number of Commission staff and designated members of its legal team. This was despite the Commission explaining many times that these limitations were hindering its work.

Similarly, the interaction between provisions in the Inquiries Act and Witness Protection Act impaired relevant parties’ ability to be involved in the Commission’s hearings and required the Commission to apply many pseudonyms in this final report.

Over the objection of Victoria Police, the Commissioner often determined that while the Witness Protection Act operated to exclude the general public from private hearings, it did not require the exclusion of media accredited by the Commission from such hearings.84

The Commissioner considered such transparency to be in the public interest. She allowed the media to be present, with an order prohibiting the publication of everything said in the hearings, noting that this construction of ‘in private’ aligns with the Witness Protection Act’s purpose, objective and witness protection principles. The Commissioner noted that, although the media could not publish anything said in these private hearings, it was important that they understood what they could lawfully publish and the context of the narrative.85 Further, having the media present gave some assurance to the excluded public that the inquiry was being conducted in an accountable way.

Additionally, Victoria Police’s broad interpretation of the concept of biodata, as discussed above, also created obstacles for the Commission in determining when the Witness Protection Act provisions requiring the protection of a person’s ‘identity’ were engaged.

In a submission to the Commission, Victoria Police contended that its approach to information that was the subject of the Witness Protection Act was appropriate.86 The Commission, after carefully considering that submission, maintains the views set out above.

Interaction between the Inquiries Act and Commonwealth secrecy provisions

Generally, royal commissions established under the Inquiries Act can compel the production of evidence in circumstances when statutory secrecy provisions would ordinarily apply in Victorian legislation. This is because the powers under the Inquiries Act may override the operation of those provisions.87

The Inquiries Act states that it is not a reasonable excuse for a person to refuse or fail to comply with a requirement to provide information or produce a document because other legislation would either:

  • prohibit a person from providing information
  • impose a duty of confidentiality on that person, meaning that they cannot provide the information.88

The Inquiries Act also states that a person who provides such documents or evidence is protected from any liability for complying with a royal commission’s requirement to produce documents or provide evidence.89

Secrecy and confidentiality provisions in Commonwealth legislation, however, do not interact with the Inquiries Act in the same way as those in Victorian legislation. The interaction between the Inquiries Act and secrecy and confidentiality provisions contained in Commonwealth legislation raise some difficult constitutional issues; in particular, in some circumstances, Commonwealth secrecy and confidentiality provisions override, or otherwise render inapplicable, those parts of the Inquiries Act that allow a royal commission to compel the production of documents subject to a secrecy or confidentiality provision.

Impact on the Commission

Secrecy and confidentiality provisions contained in Commonwealth legislation prevented the Commission from obtaining evidence directly from certain parties.

For example, the inconsistency between provisions in the Inquiries Act and those included in the Australian Federal Police Act 1979 (Cth) (AFP Act) meant that Australian Federal Police staff (including the Commissioner and Deputy Commissioner) were unable to provide evidence directly to the Commission.

The Commission also encountered issues with obtaining relevant documents from the Australian Criminal Intelligence Commission (ACIC) (formerly the Australian Crime Commission—ACC) because of the inconsistency between provisions in the Inquiries Act and the Australian Crime Commission Act 2002 (Cth) (ACC Act). In particular, section 25A(9) of the ACC Act allows an ACIC examiner to direct that certain information must not be used or disclosed in some circumstances (through ‘confidentiality directions’). Using or disclosing information subject to a confidentiality direction is an offence.90

Both Victoria Police and the Commission were bound by ACIC confidentiality directions. Some directions prevented Victoria Police from providing the Commission with ACIC transcripts, while the Commission was prohibited from including certain information covered by a direction in public transcripts or submissions or disclosing it to other parties.

In certain circumstances, parties arranged for the Commission to receive evidence through an alternative party that was not subject to the relevant Commonwealth secrecy or confidentiality provision.91 The Commission also requested that ACIC vary some confidentiality directions. Despite ACIC’s cooperation, the need to take these steps complicated and delayed the production and receipt of documents.

General procedural issues

A royal commission must comply with the procedures set out in the Inquiries Act. The Commission encountered several practical issues due to some of these requirements, as discussed below.

Disclosure of information by the Ombudsman

The Ombudsman Act 1973 (Vic) (Ombudsman Act) states that the Victorian Ombudsman may provide or disclose information obtained in the performance of their duties and functions to certain persons or bodies specified under the Act.92 These include IBAC, the Auditor-General, Victoria Police and the DPP—but not royal commissions.93

The exclusion of royal commissions from this list of persons and bodies impacted the Commission. During the inquiry, the Ombudsman identified extensive historical records in their holdings that were relevant to the Commission’s terms of reference. To deal with the legislative constraints, which meant these records could not be provided directly to the Commission, an alternative method of obtaining the records was needed. Consequently, the Ombudsman disclosed the relevant material to IBAC in accordance with the IBAC Act, which gives IBAC information sharing powers, including the power to share information with a royal commission.94 IBAC then assessed the material and disclosed it to the Commission.

Obtaining written statements

As explained above, the Inquiries Act provides a royal commission with the power to compel the attendance of a witness or compel a person to produce a specified document or other thing to the commission.95

This power is limited to documents that are already in existence and may not extend to compelling a person to create a document for production to a royal commission and provide it to the Commission within a specified time; for example, a witness statement.96

Consequently, if a person declines to provide a statement, a royal commission must issue a notice to attend so that it can gather information from the person at a hearing.97 At various points during the inquiry, this posed challenges for the Commission. For example, without a written statement, it was difficult to assess whether the person’s evidence was necessary to this inquiry and whether it was appropriate to issue a notice to attend. As such, at times the Commission was required to call witnesses to give evidence and extend hearing dates unnecessarily.98

A similar issue was previously raised in relation to the provisions of the Royal Commission Act 1902 (Cth) by the Royal Commission into the Building and Construction Industry and the Home Insulation Royal Commission. Both commissions noted the difficulties and delays they encountered because that Act prevented them from compelling a person to provide a written statement.99

The ability to compel a person to create a written statement without issuing a notice to attend would have enabled the Commission to manage its hearing schedule more efficiently.

Requirement to place orders in a conspicuous place

The Inquiries Act sets out the circumstances in which a royal commission may make an order excluding access to proceedings or the publication of information.100 In particular, the Act replicates some provisions included in the Open Courts Act and specifies that copies of orders made by a royal commission must be placed either:

  • on the door of the place where hearings are conducted
  • in a conspicuous place where notices are usually posted.101

As discussed in Chapter 3, the Commission made in excess of 370 exclusion and non-publication orders. Given the large number of orders made, the door of the hearing room was soon covered with orders.

As the number of orders grew, Commission staff implemented various practical solutions in order to comply with the Inquiries Act (including compiling a folder of orders to place near the hearing room, and emailing orders to members of the media so they could create their own databases). In addition, when the Commission conducted its policy hearings in May 2020, the COVID-19 pandemic and related restrictions required these hearings to be conducted remotely, meaning there was no physical hearing room door. The Commission put these orders on the website, which it considered to be another ‘conspicuous place’.

Requirement for personal service of notices

The Inquiries Act provides that service of a notice to produce documents or to attend a royal commission must be by way of personal service (that is, serving the notice on that person personally).102 The Inquiries Act does not allow for alternative (‘substituted’) means of service. In contrast, the Supreme Court and the County Court are able to order service of a document by other means where personal service is not reasonably practical.103

Often, the Commission engaged with individuals before serving a notice upon them, to ask whether the notice could be served electronically. Fortunately, all those contacted agreed to this course. If the Commission could not contact an individual, it had to engage a process server to serve the notice, which added time and cost to the inquiry.

Victoria Police’s cooperation with the inquiry

As the Commission was tasked with examining the past conduct of Victoria Police officers and the adequacy and effectiveness of its current policies and practices, it relied heavily on Victoria Police’s cooperation.

Victoria Police has always maintained that it has done everything possible to assist the work of the Commission. This chapter has already outlined some of the ways that Victoria Police’s engagement with the Commission hindered and delayed the inquiry, despite its public assurances.104 In many respects, Victoria Police’s approach to the production of documents also hampered the Commission’s work.

Victoria Police’s approach to document production

Shortly after the inquiry commenced, in anticipation of the large volume of documents likely to be received, the Commission established a document management protocol that outlined the method by which all documents were to be prepared and provided to the Commission.105 This protocol specified various requirements, including the naming and dating of documents, preservation of metadata and removal of duplicated or unusable documents. There were also requirements for producing documents subject to a PII or privilege claim.

The Commission received over 155,000 documents during the inquiry, with some running to thousands of pages. Victoria Police produced over 84,000 documents (consisting of over 740,000 pages).106

Difficulties encountered in relation to Victoria Police’s production of documents included:

  • non-compliance with the document management protocol, including the production of untitled and undated documents, duplicate documents, documents that were not electronically searchable, large batches of unrelated documents, and documents classified incorrectly107
  • delays in producing documents
  • diaries/day books and other significant records being lost due to poor record keeping and document storage practices
  • non-compliance with specific categories of documents described in notices to produce.

Non-compliance with document management protocol

Victoria Police produced thousands of documents that were undated or had meaningless or inaccurate titles (for example, handwritten documents titled ‘diary entries’, with no reference to the name of the police officer to whom the diary belonged). The Commission had to follow up with Victoria Police continually; for example, to confirm whether policy and training documents produced were the current versions.

Further, police diaries were often produced in multiple productions, with redactions to multiple pages, or as extracts, making it difficult for the reviewer to determine page numbers and dates of entries. The Commission spent significant time and resources reviewing and ordering these diaries.

Delays in document production and ‘lost’ records

Document metadata accessed by the Commission indicated that there was often a significant delay between Victoria Police identifying a document as relevant and producing it to the Commission.108 For example, around 400 documents were located and reviewed by Victoria Police in April 2019 but not produced to the Commission until July 2019.109 Counsel for Victoria Police told the Commission that this was because, once a document was identified as being relevant, it was placed in a queue for the processes leading to production. These production processes took significant time and the resulting delays impacted not just the Commission, but the witnesses who appeared before it. These impacts are explained further below.110

Frequently, Victoria Police did not produce documents referred to in statements from its officers (such as diary entries and information reports) at the time a statement was provided to the Commission.111 This made it difficult for Counsel Assisting to assess whether a witness should be called to give evidence.

There were instances where statements and other documents relevant to a witness were produced to the Commission the night before the witness was to give evidence. When documents were produced in this manner, it meant there was little time for Counsel Assisting or the Commissioner to review the information prior to the witness being cross-examined. Several parties appearing before the Commission made complaints about this late production as it hampered their ability (and their counsel’s ability) to prepare for hearings.112

Victoria Police also produced a significant number of documents when the Commission was nearing the end of its hearings.113 For example, in late January 2020, Victoria Police identified approximately 970 documents of relevance to the inquiry.114 Most of these documents fell within the scope of notices to produce that the Commission issued in January 2019. On 27 April 2020, Victoria Police produced 38 hours of tapes of relevant intercepted phone conversations.

Some documents were also produced well after the conclusion of the Commission’s hearings—for example, a statement and its annexures produced in August 2020 that covered subject matter that was clearly relevant to issues addressed at the hearings throughout 2019.115 Victoria Police’s late and voluminous productions affected witnesses as well as the Commission. Late production of documents sometimes contained material related to witnesses who had already been examined, which meant that the witnesses did not have an opportunity to consider these materials before their attendance and the Commission did not have an opportunity to put the materials to them during the hearings.116 Time constraints on the Commission’s reporting did not allow for all such witnesses to be recalled. This resulted in some people making procedural fairness complaints. Those complaints were a factor in the Commissioner’s decision not to make any findings concerning potential criminal conduct.117

There were also significant issues regarding lost police diaries and other important records. The reasons for this varied, but one common reason was Victoria Police’s poor document storage practices.

On one prominent occasion, Victoria Police found diaries of former Chief Commissioner Simon Overland, APM after his former chief of staff and now Chief Commissioner Shane Patton, APM remembered packing them up in 2011. Mr Overland had previously given evidence to the Commission that he could not recall keeping a diary during his time at Victoria Police and so had to be re-examined on these matters.118 On another occasion, Inspector Martin Allison found his diaries in the roof of his house in May 2020, after having given evidence to the Commission in May 2019.119

Another example was Victoria Police locating Ms Gobbo’s 1995 human source registration documents in June 2018.120 The belated identification of these key documents led to the expansion of the Commission’s inquiry and amendments to the terms of reference.121

Some witnesses also gave evidence to the Commission about events recorded in police diaries or day books that Victoria Police could not locate. These witnesses submitted that they were hampered in giving accurate and reliable evidence as a result.122

Non-compliance with notices to produce

Victoria Police also took a very narrow view of the scope of various notices to produce.123 For example, on many occasions, the Commission was not provided with all relevant diary entries of officers. In other circumstances, entries that fell within the scope of notices to produce had been redacted.124 It became apparent that Victoria Police had interpreted ‘relevance’ very narrowly and only produced diary pages where there were specific references to Ms Gobbo’s name or human source number. Consequently, the Commission requested that the original diaries of witnesses be made available in the hearing room when the witnesses were giving evidence.

Victoria Police also resisted producing several policy-related documents on the grounds that they were not relevant to the Commission’s terms of reference; for example, policies relating to Victoria Police’s management of confidential or privileged information obtained through the use of certain covert police powers.125 On some occasions, this diminished the Commission’s ability to ensure that its proposed recommendations were consistent with broader Victoria Police processes and operational requirements. On many occasions, in respect of both policy-related material and of information related to Ms Gobbo and the conduct of Victoria Police, the Commissioner had to issue multiple notices to produce of increasing specificity to obtain all relevant documents, after Victoria Police asserted that the material was ‘out of scope’ of the original notices.126

Victoria Police’s response to document production issues

In a submission to the Commission in August 2020, Victoria Police asserted that, through the work of Taskforce Landow, it supported the work of the Commission ‘proactively and transparently’.127

It noted the very large number of documents that were required to be produced and the significant financial and human resources required to coordinate that production.128 Victoria Police submitted that it ‘pursued all reasonable lines of inquiry’ to support the work of the Commission and continued to search for and produce material even where it was clear that the production of this information would be ‘likely to draw criticism of [Victoria Police] because the material has not been available sooner’.129 It also submitted that while the time required to locate the material and prepare witness statements was challenging, given the time constraints imposed by the Commission, this ‘was a function of the nature of the task, not a reflection on the resources nor commitment to acquitting it’.130

Victoria Police also submitted that it took a proactive approach in responding to notices to produce. It stated that over 250 notices to produce were served on Victoria Police and its current and former officers, and that, while some of those notices required only a short investigation of Victoria Police databases, some notices were drafted ‘in a very broad-ranging way’ meaning the identification, consideration and production of material covered by these notices was a ‘substantial undertaking’.131

Victoria Police did not accept the Commission’s characterisation of its approach to notices to produce and submitted that any delays were a function of the volume and sensitivity of the material that had to be located and reviewed, as opposed to the attitude and commitment of Victoria Police to the task.132

Victoria Police’s cooperation in relation to other parts of the inquiry

Victoria Police did assist and cooperate with the Commission in several ways during the inquiry. This included preparing witness statements and providing contact information for persons of interest to the inquiry.133 Victoria Police also attended meetings with Commission staff in the first few months of the inquiry.134 The purpose of these meetings was to clarify and explain the Commission’s priorities as the inquiry progressed.

The Commission would especially like to acknowledge and express its gratitude to Victoria Police officers, Executive Command and Taskforce Landow for supporting the focus groups that the Commission conducted as part of its inquiry into term of reference 3.The focus group objectives and outcomes are outlined in Chapters 11 and 12.

Victoria Police assisted the Commission by identifying possible participants and encouraging and facilitating their participation in the focus groups. The positive engagement and contribution of focus group participants was of great benefit. It helped the Commission understand the practical operation of Victoria Police’s human source management framework and the possible operational impacts of system changes and improvements.

In contrast, in November 2019, The Police Association (TPA) advised the Commission that it did not support the focus groups, due to concerns that ‘whatever might be adduced during these sessions could subsequently inform the Commissioner’s findings in respect of some or all of a cohort of our members’. It further advised that it would communicate this position to any Victoria Police officers who contacted TPA regarding the focus groups.135

The Commission considered this position to be unhelpful and unwarranted. In response, TPA reiterated that it was providing legal representation to a particular cohort of its members and considered that their rights and interests may have been significantly affected by the matters being explored in the sessions.136 It submitted that it took a reactive response to the focus groups; that is, explaining its position to members on an individual basis when and if they sought TPA’s advice. It maintained that this approach to the focus groups was appropriate.137

The Commission acknowledges TPA’s response but also notes that its responsibilities are to all its members, not just those to whom it provided legal representation during this inquiry. The Commission considers it would have been in the interests of the majority of its members if TPA had supported police participation in the focus groups, which gave officers the opportunity to engage constructively with the Commission and contribute to the development of future policy and procedural reforms.

Conclusions and recommendations

As the Inquiries Act is relatively new, having commenced in 2014, this was the first Victorian royal commission that heavily relied on the use of the investigative and coercive powers the Act provides. This meant the Commission had to tackle novel issues that arose regarding the practical operation of several parts of the Act and its interaction with other areas of law.

The Inquiries Act is intended to provide a royal commission with the flexibility to conduct its inquiry in the manner it considers appropriate, subject to the express requirements of the Act and its Letters Patent. In large measure, it does so.

Below, the Commission makes only one recommendation concerning a proposed amendment to the Inquiries Act, in relation to the issue of PII. That is because the Commission considers that this issue seriously hindered the conduct of the inquiry and had a detrimental impact on the Commission’s ability to inquire into subject matter relevant to its terms of reference.

The Commission was generally able to navigate and resolve the other issues regarding the Inquiries Act and the Ombudsman Act, and consequently, does not make formal recommendations to address these issues. Nonetheless, if Government were to introduce legislative amendments to address these issues, the Commission considers that such reform would be in line with the broader objectives of the Act and would help future royal commissions and boards of inquiry operate effectively and efficiently.

In this section, the Commission presents potential reform options for Government’s consideration, to improve the legislative framework and processes for future inquiries.

Clarifying the scope of the Commission’s coercive powers

The exclusion of certain officers from the Commission’s coercive powers under section 123 of the Inquiries Act—and the ambiguity around whether that exclusion applies to conduct of an exempt office holder before they were in that role—presented some challenges for the Commission. Several witnesses who were relevant to the inquiry held multiple offices over the period the Commission was examining, and only some of these roles fell squarely within the terms of the exemption. As a result, several office holders declined to provide information or appear before the Commission voluntarily, and the Commission was unable to compel these officers to do so. There were, however, several exempt office holders and organisations who voluntarily responded to the Commission’s requests and provided documents, written submissions and informal briefings to the Commission’s staff. Their contributions greatly assisted the Commission’s work and the Commission is grateful to them.

The Commission notes the breadth of the exemption under section 123 of the Inquiries Act. In particular, it notes that in virtually all cases, the exemption attaches to the office and not to the office holder in the performance of their functions in that office.138 This statutory exemption does not align with arrangements in other Australian jurisdictions. No equivalent inquiries legislation includes a provision similar to section 123.

The Commission suggests that the Government considers amending section 123 of the Inquiries Act to clarify the restrictions on the scope and powers of a royal commission or board of inquiry in relation to certain office holders. It suggests that the restrictions should not extend to prevent inquiry into conduct outside the performance of those roles. For the avoidance of doubt, the Commission suggests that the section be amended to allow inquiry into matters that occurred before and after these office holders held the relevant office.

Removing the ability to claim public interest immunity

As outlined earlier in this chapter, the Commission experienced a range of difficulties due to Victoria Police’s approach to PII. Victoria Police has made a number of points in response to the issues the Commission identified.139 Overall, while it acknowledged that the PII process was difficult for the Commission, it did not accept that its approach to PII hindered the inquiry and reiterated the importance of taking steps to protect community safety given the subject matter of the inquiry.140 The Commission has considered Victoria Police’s submissions carefully. It acknowledges the importance of legitimate PII claims to the protection of both individuals’ safety and confidential police methodology. It also acknowledges the difficulties under which Victoria Police was operating in responding to the Commission’s inquiry. Nonetheless, the Commission is firmly of the view that Victoria Police’s approach to PII claims was detrimental to the work of the inquiry for the reasons given earlier in this chapter.

The Commission, and some of those appearing before the Commission, spent considerable time and resources managing and resolving PII claims. While this issue arose due to the sensitivity of matters and material the Commission examined, the process for resolving PII claims hampered its ability to progress the inquiry in an effective, timely and transparent manner. It delayed the publication of hearing transcripts and exhibits on the Commission’s website. It also prevented the Commission from promptly providing documents to potentially affected persons prior to Victoria Police conducting a review and redacting any material over which it claimed PII. At the time of finalising this report, the Commission was unable to assess and resolve many of Victoria Police’s PII claims.

As outlined earlier in this chapter, the Commission set up a protocol to resolve PII claims.141 However, without legislative guidance in the Inquiries Act, and for the reasons explained earlier in this chapter, the protocol was unable to deal with all the issues that arose in respect of the treatment of documents that were subject to PII claims. In a submission to the Commission, Victoria Police suggested that it did not need to produce anything subject to PII to the Commission because of the Inquiries Act, but it did nonetheless produce unredacted material, and in effect allowed the Commissioner to rule on the PII claims, in order to be cooperative.142

It is important to note that due to the current approach to PII under the Inquiries Act, if Victoria Police had refused to produce all material it claimed to be subject to PII, it would have been impossible to conduct the inquiry effectively. The Commission would have been required to determine and refer each unresolved PII claim to the Supreme Court before being able to access that material.

Ultimately, the approach to PII under the Inquiries Act impeded the Commission’s ability to conduct its inquiry. In particular, although Victoria Police often produced or permitted the Commission to review unredacted copies of documents subject to PII claims, there were several occasions where it declined to do so, either due to the operation of the Witness Protection Act, or where it considered the information was particularly sensitive. This left the Commission in the difficult position of being unable to independently assess the basis of the claim. It also inhibited the Commission’s ability to fully interpret the relevance of certain documents and potentially limited legitimate lines of inquiry.

The Commission notes that other jurisdictions appear to have abrogated the common law principle of PII from their inquiries legislation.143 The IBAC Act also abrogates PII in relation to certain documents or information that are subject to IBAC’s coercive powers.144

As it is likely that any future royal commission dealing with sensitive material will confront similar difficulties to those encountered in this inquiry, the Commission recommends that the Victorian Government amends the Inquiries Act to remove a PII claim as a reasonable excuse for a person failing to comply with a notice to produce information to, or attend, a royal commission. This would enable a commissioner to determine whether the material should be acted on or published, as for claims of legal professional privilege.145

The timeframe the Commission has set for this recommendation reflects the need for Government consultation with the relevant stakeholders on the proposed legislative amendments.

RECOMMENDATION 91

That the Victorian Government, within 18 months, amends the Inquiries Act 2014 (Vic) to:

  1. remove the ability for a person to refuse to comply with a notice to give information to a royal commission on the basis that the information is the subject of public interest immunity
  2. insert a provision to make clear that it is not a reasonable excuse for a person to refuse or fail to comply with a requirement to give information (including answering a question) or produce a document or other thing to a royal commission on the basis that the information, document or other thing is the subject of public interest immunity
  3. specify that any such information or document or other thing does not cease to be the subject of public interest immunity only because it is given or produced to a royal commission in accordance with a requirement under the Act.

Clarifying arrangements for providing confidential information

On many occasions during the inquiry, Victoria Police produced ‘confidential’ affidavits or statements that it said could only be viewed by the Commissioner and/or specified lawyers assisting the Commission. Providing information in this highly restrictive manner was often unnecessary and inappropriate. It frustrated the inquiry and delayed its work because of the time taken to obtain Victoria Police’s permission to allow other Commission staff and lawyers to view the material.

Victoria Police maintains that it was appropriate to produce information in this manner on these occasions, and that it could have exercised its rights under the Inquiries Actand claimed PII over that material, such that it was not produced in any form.146 The Commission acknowledges that Victoria Police did have that right in relation to parts of the material that were subject to a legitimate claim of PII. It remains of the view, however, that it was unnecessary to limit access to so few Commission staff and lawyers, particularly given that often Victoria Police later accepted it could be accessed by a much wider group, or advised that its PII claims were confined to smaller portions of that material.

The Commission suggests that in any future inquiry where similar issues are anticipated, it may be beneficial for the royal commission or board of inquiry to develop protocols and procedures that address the provision of information in this form from the outset. The Commission suggests that, if a party participating in an inquiry considers they need to provide information on a confidential basis, they should liaise first with the commission or board of inquiry to discuss the nature of the material and be advised which staff or legal representatives need access to the material in order to effectively carry out their duties.

Building on reforms to support open justice

As noted earlier in this chapter, because so many individuals relevant to the Commission’s inquiry were the subject of suppression orders made before the Open Courts Act was introduced in 2013, many orders do not have designated termination dates, but rather operate until further order or indefinitely. These orders were often difficult to locate in the existing courts’ database. These issues delayed the Commission’s proceedings and inhibited its ability to access evidence and provide it to people affected by the inquiry.

At times, these historical suppression orders meant that the Commission had to close its hearings. Further, it was often difficult to publicly present a coherent narrative of important past events because critical aspects of the story could not be discussed or published. Some historical suppression orders still in force are so broad that they prohibited the Commission from mentioning even the existence of a court proceeding related to a person potentially affected by Ms Gobbo’s use as a human source.

Some of these issues were overcome by making applications to courts to revoke or vary suppression orders, which took up the Commission’s limited time and resources. In determining the Commission’s application to vary several suppression orders in 2019, the Court of Appeal acknowledged the high public interest in permitting the Commission to conduct a thorough analysis of the matters relevant to the inquiry.147

As outlined earlier, before publishing Counsel Assisting submissions and completing this final report, the Commission successfully applied to the Court of Appeal to have 52 further suppression orders varied.148 These variations were necessary for the Commission to afford procedural fairness to affected parties, to consider responsive submissions from affected parties that referred to information otherwise subject to the orders and, where necessary, to publish that information.

While this enabled the Commission to conduct its inquiry in a more transparent and public way, it also caused significant delay, cost and additional work. It is noted that Victoria Police did not oppose the Commission’s application to the Court of Appeal to have the suppression orders varied.

In addition, the lack of a central register or database of suppression orders made the task of identifying all relevant suppression orders challenging, as the Commission and the courts had to perform extensive manual searches of court databases. In many cases, even once the orders were located, it was difficult to identify the grounds upon which they had originally been made, and therefore difficult to determine if it was appropriate to apply to have them varied or revoked.

As noted earlier, the Victorian courts are implementing a new database for suppression orders, along with data entry processes to improve the ability to search for and locate orders. Statistics from the database will be publicly available, and for the first time accredited journalists will have direct access to the database.149 While the Commission appreciates that the new database must have a mechanism to restrict public access to sensitive information, it also considers it important that the new database has sufficient capability so that all those with a legitimate reason to do so can obtain access to information about suppression orders (such as the grounds on which they were made) so that they can apply to vary or revoke orders. The Commission understands that the new database will have this capability.

While the implementation of this database is a very positive reform, the Commission remains supportive of the VLRC’s recommendation for the courts to conduct an audit of all historical suppression orders (that is, in addition to those dated from 2013 onwards),150 as it would bolster the important principle of open justice in Victoria.

The Commission appreciates, however, the courts’ concerns that it may be difficult to justify an audit stretching back before 2013, due to the resources involved; the limited utility given a high percentage of orders are of little interest; and the fact that even the most diligent audit cannot deliver a comprehensive database retrospectively due to the imperfect quality of historical records. These challenges may make an audit of historical suppression orders impractical.

The Commission also supports the VLRC’s recommendation to amend the Open Courts Act to enable an interested party to apply to the court for the revocation of a historical suppression order made by that court.151 This reform would harmonise the process for revoking or varying historic suppression orders with the process that already applies under the Open Courts Act. It would therefore simplify and clarify the law.

In addition, the Commission suggests that Government should consider amending the Open Courts Act so that it applies to royal commissions and boards of inquiry under the Inquiries Act. This would further harmonise the suppression order regime in Victoria.

Navigating the interaction of the Inquiries Act and the Witness Protection Act

The Witness Protection Act and its interaction with the Inquiries Act is complex and, given the subject matter of the Commission, this legal matrix was especially difficult to navigate. The Commission addressed many of the challenges presented by using pseudonyms to protect the identity of witnesses, but not all matters the Commission examined could be fully put into the public domain.

The Witness Protection Act performs an important function and the Commission was mindful of the need to take steps to protect the safety of people in witness protection and of those close to them. The Commission does not consider it necessary to make any amendments to how the Witness Protection Act interacts with the Inquiries Act, but has addressed the issue in this report to assist any future inquiries where Witness Protection Act matters are raised.

Identifying and managing the impacts of Commonwealth secrecy and confidentiality provisions

The Commission’s ability to compel production of evidence was limited by the interaction between provisions in the Inquiries Act and certain secrecy and confidentiality provisions contained in Commonwealth legislation.

As outlined earlier in this chapter, these issues are often legally complex and can give rise to constitutional issues. The Commission notes that reform options aimed at resolving these issues are relatively limited without the cooperation of the Commonwealth, given constitutional constraints. Consequently, the Commission does not propose any reforms. Where it is anticipated that future inquiries will involve engagement with Commonwealth agencies, it may be beneficial for the inquiry to identify the potential impacts of Commonwealth legislation at the outset and consider how best to manage them.

Addressing procedural issues related to the Inquiries Act

There are three further aspects of the Inquiries Act that the Victorian Government could consider addressing through legislative amendment:

  • the power to obtain written statements
  • the requirement to place orders on the hearing room door
  • the requirement for personal service.
Introducing a clear power to obtain written statements

As noted earlier in this chapter, some Australian jurisdictions have specific provisions giving royal commissions a power to compel a person to make a written statement without issuing them a notice to attend.

If the Commissioner had been able to rely on an equivalent power during this inquiry, it would have enabled the Commission to obtain and consider a written statement within a specified timeframe, and in so doing, to assess the need to issue a notice to attend to that person. Instead, the Commission was dependent on Victoria Police, its current and former officers, and Ms Gobbo to voluntarily produce statements within their own timeframes. When Ms Gobbo did eventually provide a statement, it did not fully address the Commission’s questions. Further, the inability to compel the production of statements from current and former officers delayed the inquiry and increased the overall hearing time. This was unsatisfactory.

It may be arguable that section 17(1) of the Inquiries Act already empowers a royal commission to compel a person to make and produce a written statement, but that submission was not made to this Commission. Given the absence of any clearly stated power to compel a written statement in a specified timeframe, the Commission considers that this could be clarified in the legislation.

Accordingly, the Commission suggests that the Victorian Government considers including a provision in the Inquiries Act to provide that a royal commission or board of inquiry can give a notice requiring a person to produce written information within a specified timeframe and in a specified way.

This suggested provision is modelled on section 5(1)(d) of the Commissions of Inquiry Act 1950 (Qld).

Modernising the requirement to publish non-publication orders

The Inquiries Act prescribes the circumstances in which a royal commission can make orders excluding access to its proceedings or preventing the publication of information relating to its inquiry. It requires that when an exclusion or non-publication order is made, a copy of the order must be posted on the hearing room door, or in another conspicuous place where notices are usually posted near the hearing room.152

The Commission made in excess of 370 exclusion and non-publication orders due to the sensitivity of issues and material it was examining. As the number of these orders grew, the requirement to place copies of all the orders in a conspicuous place became administratively impractical. It is also inconsistent with modern paperless systems and practices.

The requirement in the Inquiries Act is clearly designed to draw public and media attention to the existence of these orders. The Commission considers that this requirement could be modernised by instead providing for orders to be made available on the Commission’s website. A notice could still be posted on the hearing room door where practical, alerting people to the existence of the orders and referring them to the inquiry’s website or a contact person to obtain access to the orders.

The Commission considers there are several benefits to this approach. The orders would be available online to the public, not only those people who are physically able to attend the hearing venue. Many people viewed the Commission’s proceedings online through the live stream. Had the Commission been able to adopt this approach, these viewers could have accessed these orders as they were viewing the live stream. This would also support openness and transparency in a royal commission’s proceedings, by providing the public with a better understanding of the orders and why the hearing was closed to the public.

Additionally, making all non-publication orders available online would help the media to determine more easily what information cannot be published and to follow the orders with greater certainty. The Commission circulated non-publication orders to media by email and dealt with multiple media clarification requests regarding whether non-publication orders had been made. This process would have been more efficient if the Commission had been able to direct the media to online versions of the relevant orders.

Introducing more flexibility in the requirement for service of notices

The Inquiries Act requires that a notice to produce or notice to attend must be served on the person personally, with no option under the Act to serve a person through alternative, ‘substituted’ service when personal service is not practicable.153

In circumstances when the Commission was not able to contact a person to arrange service, it had to engage a process server to serve that individual. This added time and cost to the serving process.

Accordingly, the Commission suggests that the Inquiries Act be amended to allow for service of notices to produce and notices to attend through a means of substituted service, such as electronically. This would be in line with developments in how courts are allowing alternative means of service,154 including where appropriate by electronic means, and would modernise this procedural requirement under the Inquiries Act. It would also provide future inquiries with greater flexibility in the service of documents.

Enabling disclosure of information by the Ombudsman

The absence of a legislative provision under the Ombudsman Act enabling the disclosure of information to a royal commission meant that, to provide relevant information to the Commission’s inquiry, the Ombudsman had to disclose that information to IBAC, which then assessed the material and disclosed it to the Commission.155 This process was legally and procedurally complex.

Given the Ombudsman’s significant role in overseeing Victorian public sector organisations, the Commission suggests that Government considers amending section 26FB of the Ombudsman Act to allow for disclosure of materials to a royal commission. This would simplify future processes and provide consistency with the arrangements for other integrity and oversight agencies such as IBAC, which are able to facilitate disclosure of documents to royal commissions under their governing legislation.156

Addressing document production concerns

As outlined earlier in this chapter, the Commission faced considerable challenges in relation to document production. The Commission considers that these challenges could have been avoided to a significant degree if individuals and organisations participating in the inquiry had complied with the document production protocol established at the start of the inquiry.

As noted earlier, the Commission encountered difficulties arising from Victoria Police’s non-compliance with document production and notices to produce. The Commission acknowledges that Victoria Police committed extensive resources to this task. But instead of providing its records to trusted and responsible Commission staff, Victoria Police insisted on controlling the production of the requested documents, and drip feeding them to the Commission only after it had carefully considered, vetted and, on occasions, redacted them. The Commission remains of the view that this approach had a significant and negative impact on the Commission’s work.

Victoria Police’s frequent failure to produce documents in a timely and comprehensive manner, together with its, at times, narrow view of and obdurate approach to the scope of notices to produce, unnecessarily diverted the Commission’s resources and impeded the inquiry.

At the time of finalising this report, the Commission cannot be certain that it received all information from Victoria Police it considered relevant. Therefore, the Commission’s findings and recommendations, and the submissions of Counsel Assisting, are based on the material that was available to the Commission at the time of writing.

The Commission acknowledges that Taskforce Landow faced significant challenges in locating material required to be produced to the Commission because Victoria Police has no central repository of material.157

The Commission also acknowledges that many individual officers, including many of those involved with Taskforce Landow, made efforts to work effectively within these constraints and support the work of the Commission.

While it was outside the Commission’s terms of reference to examine Victoria Police’s record-keeping practices and information management systems, the Commission encourages Victoria Police to address some of the issues encountered by the Commission and ensure that they do not impede the conduct of future inquiries involving Victoria Police.

Endnotes

1 Inquiries Act 2014 (Vic) s 18(2)(c).

2 Inquiries Act 2014 (Vic) s 123.

3 Inquiries Act 2014 (Vic) s 17.

4 The Office of Police Integrity is also covered by this section as the predecessor to IBAC: Independent Broad-Based Anti-corruption Commission Act 2011 (Vic) sch cl 4.

5 Inquiries Act 2014 (Vic) s 123.

6 Victoria, Parliamentary Debates, Legislative Assembly, 21 August 2014, 2923 (Denis Napthine, Premier).

7 Royal Commissions Act 1923 (NSW); Special Commissions of Inquiry Act 1983 (NSW); Commissions of Inquiry Act 1950 (Qld); Royal Commissions Act 1917 (SA); Royal Commissions Act 1968 (WA); Commissions of Inquiry Act 1995 (Tas); Inquiries Act 1945 (NT); Royal Commissions Act 1991 (ACT); Inquiries Act 1991 (ACT).

8 See, eg, Ombudsman Act 1976 (Cth) s 8; Law Enforcement Integrity Commissioner Act 2006 (Cth) s 211; Inspector of Transport Security Act 2006 (Cth) s 87; Transport Safety Investigation Act 2003 (Cth) s 66.

9 Ombudsman Act 1976 (Cth) s 35.

10 Evidence Act 1995 (Cth) s 16. This provision is replicated in the uniform evidence legislation of other Australian jurisdictions including the Evidence Act 2008 (Vic) s 16.

11 For example, a Magistrate and a Justice of the Federal Court of Australia.

12 Inquiries Act 2014 (Vic) s 123(3).

13 In Victoria, the Evidence Act 2008 (Vic) sets out the State’s rules of evidence. That Act is in most respects uniform with the Commonwealth and New South Wales Evidence Acts: Evidence Act 1995 (Cth); Evidence Act 1995 (NSW).

14 Sankey v Whitlam (1978) 142 CLR 1; Evidence Act 2008 (Vic) s 130.

15 Inquiries Act 2014 (Vic) s 18(2)(c). Sections 32 and 33 of the Inquiries Act expressly state that a person cannot rely on other privileges including legal professional privilege and the privilege against self-incrimination as a reasonable excuse for failing or refusing to give information to a royal commission.

16 Australian Law Reform Commission, Making Inquiries: A New Statutory Framework (Report No 111, April 2009) 465 [17.116].

17 Although PII differs from a privilege in that it is not a right of an individual, the courts recognise that, like a fundamental right, it protects an important public interest such that it will only be considered to be abrogated (overridden) by express words or necessary implication. See Jacobsen v Rogers (1995) 182 CLR 572, 589.

18 Royal Commissions Act 1968 (WA) s 8A(5)(a). See similarly, the Law Enforcement Integrity Commissioner Act 2006 (Cth) s 96(5)(e), which provides that a person is not excused from answering a question or producing a document or thing on the basis that it ‘would be otherwise contrary to the public interest’.

19 Royal Commissions Act 1923 (NSW) s 17(1).

20 Independent Broad-based Anti-corruption Commission Act 2011 (Vic) s 84.

21 Independent Broad-based Anti-corruption Commission Act 2011 (Vic) s 98.

22 Law Enforcement Conduct Commission Act 2016 (NSW) s 74(2); Independent Commission Against Corruption Act 1988 (NSW); New South Wales Crime Commission Act 1985 (NSW) s 18B(1). A similar blanket provision applies in the Corruption and Crime Commission Act 2003 (WA) s 157(b).

23 Inquiries Act 2014 (Vic) s 18(2)(c).

24 Royal Commission into the Management of Police Informants, Protocol: In relation to claims of public interest immunity over documents required to be produced to the Royal Commission into the Management of Police Informants (5 June 2019) 2 [19].

25 Royal Commission into the Management of Police Informants, Protocol: In relation to claims of public interest immunity over documents required to be produced to the Royal Commission into the Management of Police Informants (5 June 2019) 2.

26 Royal Commission into the Management of Police Informants, Protocol: In relation to claims of public interest immunity over documents required to be produced to the Royal Commission into the Management of Police Informants (5 June 2019) 2.

27 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 24 May 2019; Transcript of Directions Hearing, 20 September 2020, 6733–36.

28 Of those outstanding exhibits, 54 were tendered in 2019.

29 In the context of the Witness Protection Act 1991 (Vic), Victoria Police relied on judicial statements that observed that a person’s ‘identity’ within the meaning of section 10(5) of that Act can be interpreted broadly to include all features that differentiate a person from others. In identifying these features, however, there must be some ‘connection between the information in question and the person’s status as a participant’ in the Witness Protection Program. See R v JP [2008] VSC 86, [17]–[19].

30 Chief Commission of Victoria Police v Chairperson of the Royal Commission into the Management of Police Informants [2020] VSCA 214, [29] (Beach, McLeish and Weinberg JJA).

31 Victoria Police only applied for judicial review in relation to one decision of the Commissioner to refuse an application for a non-publication order. The Court of Appeal rejected Victoria Police’s application, finding that there was no error in the Commissioner’s decision: Chief Commission of Victoria Police v Chairperson of the Royal Commission into the Management of Police Informants [2020] VSCA 214 (Beach, McLeish and Weinberg JJA).

32 Emails from Solicitors Assisting the Commission to solicitors for Victoria Police, 19 December 2019; 9 January 2020; 30 July 2020; 5 August 2020; 21 August 2020.

33 Emails from solicitors for Victoria Police to Solicitors Assisting the Commission, 2 December 2019; 5 December 2019; 31 July 2020.

34 Responsive submission, Mr Simon Overland, 18 August 2020, 18 [53]; Responsive submission, Ms Nicola Gobbo, 14 August 2020, 15 [59].

35 See, eg, Terence Cole, Report of the Inquiry into Certain Australian Companies in relation to the UN Oil-for-Food Programme (November 2006); John Clarke, Report of the Clarke Inquiry into the Case of Dr Mohamed Haneef (2008).

36 Terence Cole, Report of the Inquiry into Certain Australian Companies in relation to the UN Oil-for-Food Programme (November 2006) 275–6.

37 Victoria Police’s responsive submission was made in response to the then draft potentially adverse comments set out in this chapter.

38 Responsive submission, Victoria Police, 20 September 2020, 26 [5.6]–[5.7].

39 Responsive submission, Victoria Police, 20 September 2020, 30 [5.30].

40 Responsive submission, Victoria Police, 20 September 2020, 30 [5.33].

41 Responsive submission, Victoria Police, 20 September 2020, 31 [5.34].

42 Responsive submission, Victoria Police, 20 September 2020, 31 [5.38].

43 Responsive submission, Victoria Police, 20 September 2020, 31 [5.39].

44 Responsive submission, Victoria Police, 20 September 2020, 26 [5.9].

45 Responsive submission, Victoria Police, 20 September 2020, 26–7 [5.10].

46 Responsive submission, Victoria Police, 20 September 2020, 27 [5.12].

47 Responsive submission, Victoria Police, 20 September 2020, 27 [5.13].

48 Responsive submission, Victoria Police, 20 September 2020, 28 [5.25].

49 Responsive submission, Victoria Police, 20 September 2020, 29 [5.23]–[5.24].

50 Responsive submission, Victoria Police, 20 September 2020, 32 [5.40].

51 Responsive submission, Victoria Police, 20 September 2020, 32 [5.41].

52 Responsive submission, Victoria Police, 20 September 2020, 32 [5.43].

53 Responsive submission, Victoria Police, 20 September 2020, 32 [5.44].

54 See Scott v Scott [1913] AC 417; Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J); Hogan v Hinch (2011) 243 CLR 506; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47.

55 Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J).

56 Open Courts Act 2013 (Vic) s 3.

57 Frank Vincent, Open Courts Act Review (Report, September 2017) 38–9; Open Courts Act 2013 (Vic) s 1.

58 Open Courts Act 2013 (Vic) ss 18, 25–6.

59 Open Courts Act 2013 (Vic) s 3.

60 Frank Vincent, Open Courts Act Review (Report, September 2017) 37.

61 Supreme Court Act 1986 (Vic) ss 18–19; County Court Act 1958 (Vic) s 80, 88AA; Magistrates’ Court Act 1989 (Vic) s 126(2)(c).

62 Open Courts Act 2013 (Vic) s 12.

63 Some of these orders are still in force under the old legislation that gave each court the power to make suppression orders: Supreme Court Act 1986 (Vic) ss 18–19; County Court Act 1958 (Vic) s 80, 88AA; Magistrates’ Court Act 1989 (Vic) s 126(2)(c). The orders under these acts have not been varied or revoked. Suppression orders made under section 126 of the Magistrates’ Court Act can be set aside or varied in accordance with that section as if it had not been repealed.

64 Frank Vincent, Open Courts Act Review (Report, September 2017).

65 Frank Vincent, Open Courts Act Review (Report, September 2017) 13 [18].

66 Victorian Attorney-General, ‘First Stage of Suppression Order Overhaul Begins’ (Media Release, 19 February 2019). The Open Courts and Other Acts Amendment Act 2019 (Vic), which commenced on 7 February 2020, and the Justice Legislation Amendment (Victims) Act 2018 (Vic) implemented in full or in part recommendations 1–3, 6, 9, 13, 15 and 16 of the Review. Recommendation 4 was implemented by the establishment of the Victorian Law Reform Commission’s Contempt of Court review.

67 See, eg, The Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police [2019] VSCA 154 (Whelan, Beach and Weinberg JJA).

68 Chairperson of the Royal Commission into the Management of Police Informants v DPP [2020] VSCA 184 (Beach, McLeish and Weinberg JJA).

69 Frank Vincent, Open Courts Act Review (Report, September 2017). At present the Open Courts Act 2013 (Vic) does not apply to royal commissions or boards of inquiry.

70 Email from Solicitors Assisting the Commission to the Supreme Court of Victoria, 29 September 2020.

71 Email from Solicitors Assisting the Commission to the Supreme Court of Victoria, 29 September 2020.

72 ‘Legacy suppression orders’ are suppression orders made before the commencement of the Open Courts Act 2013 (Vic) that do not have an end date: Victorian Law Reform Commission, Contempt of Court (Report, February 2020) 288.

73 Victorian Law Reform Commission, Contempt of Court (Report, February 2020) 289–90, [17.12] (Recommendation 132).

74 Victorian Law Reform Commission, Contempt of Court (Report, February 2020) 291 (Recommendation 133).

75 Victorian Law Reform Commission, Contempt of Court (Report, February 2020) 291 (Recommendation 134).

76 Inquiries Act 2014 (Vic) s 12.

77 See especially Witness Protection Act 1991 (Vic) s 10A.

78 Inquiries Act 2014 (Vic) ss 24, 26.

79 Witness Protection Act 1991 (Vic) s 10A(2)(a).

80 Witness Protection Act 1991 (Vic) ss 10A(1), 10A(1)(b).

81 Witness Protection Act 1991 (Vic) s 10A(2)(a).

82 Inquiries Act 2014 (Vic) ss 18(2)(e), 34(2); The Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police [2019] VSCA 154, [71] (Whelan, Beach and Weinberg JJA).

83 See The Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police [2019] VSCA 154, [71] (Whelan, Beach and Weinberg JJA).

84 Transcript of Directions Hearing, 21 June 2019, 2722–3; Transcript of Directions Hearing, 20 September 2019, 6733.

85 Transcript of Directions Hearing, 21 June 2019, 2723.

86 Responsive submission, Victoria Police, 20 September 2020, 33 [6.2].

87 Inquiries Act 2014 (Vic) s 34. A royal commission’s ability to compel evidence, however, may not apply when secrecy or confidentiality provisions in other legislation specifically apply to giving evidence to a royal commission: Inquiries Act 2014 (Vic) s 34(3).

88 Inquiries Act 2014 (Vic) s 34(1).

89 Inquiries Act 2014 (Vic) s 34(2).

90 Australian Crime Commission Act 2002 (Cth) s 14A.

91 For example, in February 2020, the Commonwealth Director of Public Prosecutions produced relevant documents to the Commission. The ACIC’s legal representatives requested, however, that these be restricted, so access was only provided to certain Commission staff.

92 Ombudsman Act 1973 (Vic) s 26FB. Before amendments that came into effect on 2 January 2020, a mirror provision was at section 16L.

93 Ombudsman Act 1973 (Vic) s 26FB(3). The Victorian Ombudsman may only provide or disclose information to a specified person or body if the Ombudsman considers that the information is relevant to the performance of the duties, functions or powers of the person or body, and that it is appropriate to bring that information to their attention: Ombudsman Act 1973 (Vic) s 26FB(1).

94 Independent Broad-based Anti-corruption Commission Act 2011 (Vic) s 41(g).

95 Inquiries Act 2014 (Vic) s 17(1)(a).

96 Victoria Police told the Commission that its officers were under no legal obligation to prepare written statements to the Commission but they ‘did so willingly to support the Royal Commission’s task’: Responsive submission, Victoria Police, 24 August 2020, 335 [149.7].

97 Inquiries Act 2014 (Vic) s 17(1).

98 See, eg, Email from solicitors for Mr ‘Cooper’ to Solicitors Assisting the Commission, 23 September 2019; Email from Solicitors Assisting the Commission to solicitors for Mr ‘Cooper’, 3 October 2019. Ms Gobbo never provided a written statement fully addressing the Commission’s questions: Letter from Solicitors Assisting the Commission to solicitors for Nicola Gobbo (Annexure A), 20 August 2019, 1; Email from counsel for Nicola Gobbo to Counsel Assisting the Commission, 3 February 2020; Exhibit RC1141b Statement of Ms Nicola Gobbo, 3 February 2020.

99 Royal Commission into the Building and Construction Industry (Final Report, 2003), vol 2, 23 [42]–[43]; Report of the Royal Commission into the Home Insulation Program (Final Report, 2014) 22 [1.3.40].

100 Inquiries Act 2014 (Vic) ss 24(1), 26(2).

101 Inquiries Act 2014 (Vic) ss 24(2), 26(3).

102 Inquiries Act 2014 (Vic) s 19(3).

103 Supreme Court (Civil Procedure) Rules 2015 (Vic) r. 6.10; County Court (Civil Procedure) Rules 2018 (Vic) r 6.10.

104 See Responsive submission, Victoria Police, 24 August 2020, 334 [149.1].

105 Royal Commission into the Management of Police Informants, Document Management Protocol (8 February 2019).

106 Responsive submission, Victoria Police, 24 August 2020, 334 [149.5].

107 For example, instead of a diary being produced with data indicating that it was a ‘diary’ or ‘diary entry’, it was produced with the document type ‘electronic file’. The Commission had to invest significant resources to review documents that were produced with an incorrectly classified document type.

108 Transcript of Officer ‘Sandy White’, 31 July 2019, 3594–5.

109 Transcript of Officer ‘Sandy White’, 31 July 2019, 3594.

110 Transcript of Directions Hearing, 2 August 2019, 3777.

111 Letter from Solicitors Assisting the Commission to solicitors for Victoria Police, 10 May 2019.

112 See Responsive submission, Ms Nicola Gobbo, 14 August 2020, 12 [46]–[47]; Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 9–10 [15].

113 Transcript of Assistant Commissioner Thomas (Luke) Cornelius, 24 January 2020, 12382.

114 See Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 28 January 2020.

115 Exhibit RC1933a Statement of Assistant Commissioner Kevin Casey, 15 August 2020.

116 Transcript of Assistant Commissioner Thomas (Luke) Cornelius, 24 January 2020, 12383.

117 Royal Commission into the Management of Police Informants, Commissioner’s reasons for decision that the royal commission has jurisdiction to make findings of statutory misconduct by named current or former police officers (28 August 2020).

118 Transcript of Mr Simon Overland, 21 January 2020, 11958, 11961.

119 Exhibit RC0089 Statement of Inspector Martin Allison, 17 July 2020, 2 [8].

120 This information was provided to the Commission in response to a notice to produce it issued to Victoria Police on 23 January 2019: see Transcript of Opening Statements, 15 February 2019, 10, 19. This is discussed in Chapter 1.

121 The amendments to the Commission’s Letters Patent in February 2019 are discussed in Chapter 1.

122 Exhibit RC0275b Statement of Officer ‘Sandy White’, undated, [2]–[3]; Exhibit RC0485d Statement of Officer ‘Peter Smith’, 28 May 2019, 1.

123 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 27 July 2020.

124 Email from Solicitors Assisting the Commission to solicitors for Victoria Police, 16 June 2019; Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 10 October 2019.

125 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 12 March 2020; Letter from Solicitors Assisting the Commission to solicitors for Victoria Police, 19 March 2020.

126 See, eg, Notice to Produce served on Victoria Police, 7 July 2020; Notice to Produce served on Victoria Police, 7 August 2020.

127 Responsive submission, Victoria Police, 24 August 2020, 335 [150].

128 Responsive submission, Victoria Police, 24 August 2020, 334–5 [149.3]–[149.11], [150.1].

129 Responsive submission, Victoria Police, 24 August 2020, 335 [149.8]–[149.9].

130 Responsive submission, Victoria Police, 24 August 2020, 335 [149.10].

131 Responsive submission, Victoria Police, 24 August 2020, 339 [151.9]–[150.10].

132 Responsive submission, Victoria Police, 20 September 2020, 23 [4.2]–[4.3].

133 As explained earlier in this chapter, the Commission does not have a power under the Inquiries Act to compel the production of a written statement, so Victoria Police’s voluntary cooperation was essential to the Commission having the benefit of these statements: Responsive submission, Victoria Police, 20 September 2020, 33 [7.1].

134 Responsive submission, Victoria Police, 20 September 2020, 33 [7.2]–[7.3].

135 Letter from The Police Association to Victoria Police, 22 November 2019.

136 Responsive submission, The Police Association, 11 September 2020, 1.

137 Responsive submission, The Police Association, 11 September 2020, 2.

138 The exception is its application to ‘a member of the staff of Court Services Victoria in relation to the performance of judicial or quasi-judicial functionsof a Victorian court’: Inquiries Act 2014 (Vic) s 123(1)(l).

139 Responsive submission, Victoria Police, 20 September 2020, 25–32 [5.1]–[5.44].

140 Responsive submission, Victoria Police, 20 September 2020, 32 [5.43]–[5.44].

141 Royal Commission into the Management of Police Informants, Protocol: In relation to claims of public interest immunity over documents required to be produced to the Royal Commission into the Management of Police Informants (5 June 2019).

142 Responsive submission, Victoria Police, 20 September 2020, 26–7 [5.10].

143 Royal Commissions Act 1923 (NSW) s 17(1); Royal Commissions Act 1968 (WA) s 8A(5).

144 Independent Broad-based Anti-corruption Commission Act 2011 (Vic) s 98.

145 Inquiries Act 2014 (Vic) s 32.

146 Responsive submission, Victoria Police, 20 September 2020, 31 [5.35].

147 The Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police [2019] VSCA 154, [115] (Whelan, Beach and Weinberg JJA).

148 Chairperson of the Royal Commission into the Management of Police Informants v DPP [2020] VSCA 184 (Beach, McLeish and Weinberg JJA).

149 Email from Solicitors Assisting the Commission to the Supreme Court of Victoria, 29 September 2020.

150 Victorian Law Reform Commission, Contempt of Court (Report, February 2020) 254 (Recommendation 132).

151 Victorian Law Reform Commission, Contempt of Court (Report, February 2020) 255 (Recommendation 133).

152 Inquiries Act 2014 (Vic) ss 24(2), 26(3).

153 Inquiries Act 2014 (Vic) s 19(3). See also the service provision in relation to boards of inquiry in section 66(3).

154 Supreme Court (Civil Procedure) Rules 2015 (Vic) r. 6.10; County Court (Civil Procedure) Rules 2018 (Vic) r 6.10.

155 Ombudsman Act 1973 (Vic) s 26FB.

156 See, eg, Independent Broad-based Anti-corruption Commission Act 2011 (Vic) s 41(g).

157 Responsive submission, Victoria Police, 20 September 2020, 22 [2.4].


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 08 December 2020