An HSM Bill Which Sanctifies Corruption

How did we get here?

Any person living in Victoria over the last three years will have heard of the scandal of ‘Lawyer X’. Nicola Gobbo was a criminal barrister who became a registered Police informer. She informed on her clients. She gave Police privileged information. Information which was then used to prosecute them and undermine their defences at trial. After this conduct was revealed to the Director of Public Prosecutions John Champion SC (as His Honour was then), he spent years litigating that this information should be disclosed to Gobbo’s former clients. Disclosure is the ‘golden rule’ of the criminal justice system.

Police must disclose everything that they have and everything that they know in relation to a criminal investigation to the defence, unless there is a valid claim of public interest immunity. That claim should be determined by a court. Police investigations are supposed to be an open book so that the accused is in possession of all of the information gathered by investigators. The use of Ms. Gobbo as a human source against her clients, and the non-disclosure of this behaviour, undermined the process of many criminal trials and debased the criminal justice system.

The use of Gobbo as a human source went right to the top of Victoria Police Command. By the end of her registration, the Chief Commissioner of Police (CCP) knew, as did many of his subordinates. They never thought it would come out. But it did. After five years of litigation from the Supreme Court of Victoria all the way to the High Court of Australia, the High Court delivered a landmark judgment. The CCP and Gobbo fought to stop the Director of Public Prosecutions from advising former clients of Gobbo of what she had done. The High Court refused the CCP’s claim of public interest immunity. The following are words used to describe the conduct of the Victoria Police in recruiting Gobbo and using her against her client: debased, reprehensible, atrocious, corrupted. In short, the High Court declared that Victoria Police were corrupt.

Thereafter, the Victorian Government announced a Royal Commission into the Management of Police Informants. After many months, thousands of pages of evidence and millions of dollars, the Commissioner produced her recommendations and report. In the interim, two men have been released from prison and had their convictions overturned as a result of the conduct of Gobbo and the Victoria Police: Faruk Orman and Zlate Cvetanovski. They were our clients and two of the only three successful appellants, noting the concession made by the Commonwealth Director of Public Prosecutions in relation to Antonios Mokbel.

Those of us involved in the criminal justice system believe that, at the end of the Commission, steps would be taken to ensure that this kind of debased and corrupt conduct would never happen again. Quite the opposite has happened.

An introduction to a Bill sanctifying corruption:

On 8 February 2023, the Minister for Police, Crime Prevention and Racing, Anthony Carbines, introduced into the Victorian Parliament the Human Source Management Bill 2023 (the HSM Bill). We should point out that the Honourable Member for Ivanhoe, Mr. Carbines, is not a lawyer. Nor does he have any legal education. He is a former journalist and long-time Labor staffer. He produced the Bill in Parliament and declared that it was compatible with the Charter of Human Rights and Responsibilities. For reasons that will be expanded upon here, we cannot see how this is the case.

We should start with the purposes behind the bill:

To provide for the registration, use and management of human sources by Victoria Police; and
To provide for the external oversight of the use of human sources; and
To amend the Victoria Police Act 2013, to give the Victoria Police even more power than they already have to register and use human sources against persons of interest and accused people.

Of note, is the omission of any reference to any underlying purpose of the bill being to ensure the fair operation of the criminal justice system or to complying with the recommendations of the Royal Commission.

The proposed power bestowed by this bill is extensive. Firstly, it allows for the Chief Commissioner of Police (CCP) to delegate powers to an Assistant Commissioner of Police (or a rank above) the power to register a person as a reportable human source [1]. So who is a reportable person? Well, amongst others who owe obligations of confidentiality, a lawyer. If this bill passes through parliament, a police officer can apply to the CCP or his delegate to register a lawyer to be a human source, even if it is reasonably expected that they will have access to privileged information and that this information will be used against the lawyer’s own client as part of a criminal investigation and prosecution.

Privilege (well not anymore):

What is privileged information? It is information provided by a client as part of their instructions to their lawyer or advice given by that lawyer. For example, say a person is charged with an armed robbery on the basis of a confession that is said to have occurred at a park. The accused person knows that the park was flooded and closed at that time, so the confession as reported could not have happened, well that is privileged information until the client instructs their lawyer to use it in Court. The information can only be used to the client’s advantage and under their instruction. Similarly, if a lawyer gives advice to a client in relation to how to conduct a record of interview, they cannot then go and alert the Police in relation to what the client might say.

Why is privilege so important? Firstly, it maintains fairness. When a person is prosecuted for a crime, the resources of the state are against them. Unlimited funds are used to prosecute them: many Police members and extensive resources. By comparison, an accused person has to fund their defence themselves or rely upon legal aid, which is woefully underfunded. The real advantages that they have is that the state has to prove the charge beyond all reasonable doubt before a jury, which must be unanimous. In order to do so, the relationship they have with their lawyer is sacrosanct. They have a person to speak to, whose sole role is to protect them and preserve their interests. They are the person in their corner. And that person cannot reveal the discussions behind the veil of legal professional privilege and they cannot be compelled to do so. In fact, to disclose privileged information is a violation of the Legal Profession Uniform Law Australian Conduct Solicitors Conduct Rules.[2]

In the High Court case of Tuckiar v The King[3], the High Court of Australia states that ‘Our system of administering justice necessarily imposes upon those who practice advocacy duties which have no analogies, and the system cannot dispense with their strict observance’.[4]

However, the HSM Bill seeks to undermine the system of fairness which has been developed over hundreds of years. It seeks to break the seal and allow the state to incriminate individuals using information that the person rightfully was entitled to consider privileged and confidential.

“The ends justify the means”:

The justification for inclusion of lawyers into a category of people who can be registered as human sources really lies in section 23 of the HSM Bill. Section 23 allows for the CCP to register a lawyer if they are satisfied that ‘the use of the person as a human source is necessary to achieve legitimate law enforcement; and is proportionate to that objective’. There are no criteria attached to the level of ‘satisfaction’ that the CCP must have. It is a requirement that is totally subjective and relates to an unchallengeable state of mind held by the most senior Police Member.

However, the HSM Bill does require that the risks associated with the person’s registration as a reportable human source are identified and can be adequately managed; and the registration of the person as a reportable human source is otherwise appropriate and justified. How are these requirements met? Who knows. What does ‘adequately managed’ mean? The Bill is silent as to whether a lawyer, who is a reportable human source and has provided privileged information about their client to Police, can continue to act for them. So, in effect, the Bill allows for a lawyer to incriminate them and then continue to pretend that they are acting as their lawyers. There is also no prohibition in the Bill to the effect that the source cannot reveal defence strategies to the Police. In essence, the ‘vibe’ of the HSM Bill is that the “ends justifies the means”.

So what are the considerations which the CCP or their delegate can be satisfied that it is necessary and proportionate to recruit a lawyer as a human source? Well, amongst other considerations, the CCP must have regard to:

The seriousness of the offence and the imminence of any threat to which the person’s information or assistance relates;

This is not ground-breaking new law. In fact, there is an express exception in the Solicitors Conduct Rules and Bar Rules that a lawyer is not bound by privilege in circumstances where there is a threat to another. If a client, for example, tells a lawyer that they are going to go out and hurt someone, the lawyer can report the matter to Police and should. They should then cease to act for that client because they have become a witness. So, a HSM Bill is not required to avoid the imminence of a threat, because that is already covered by pre-existing law.[5]

The likelihood of investigators being able to obtain the information or assistance through other investigatory or intelligence methods;

Ie, where they have no evidence upon which to prosecute, they can now recruit the client’s lawyer to help them out, which begs the question: how can the CCP be satisfied that the lawyer should be recruited if they don’t have enough evidence of a threat to charge the person without the lawyer?

Whether the person is reasonably expected to have access to privileged information or privileged information in respect of which there is an exception to the privilege and, if so, whether that information is related to the information the person is expected to provide to a police officer if registered as a reportable human source;

The wording of this provision is terrible. However, breaking it down:

Does the lawyer have privileged information?
Does the lawyer have privileged information which is subject to an exception to privilege (ie, there has been a serious threat)?
Are either category of information the kind of information that the person is expected to provide to the Police if registered?
Whether the person is reasonably expected to have access to information that is subject to a legal obligation of confidentiality and, if so, whether that information is related to the information the person is expected to provide to a police officer if registered as a reportable human source;
Any legal advice or specialist advice regarding the registration of the person as a reportable human source; and
The purpose for their registration.

In addition to the above, here are additional criteria under section 26 of the HSM Bill, which are less convoluted. Firstly, the CCP must not register a person as a reportable human source for the purpose of a police officer obtaining or disseminating privileged information from the source, unless satisfied that –

There is a serious threat to national security, the community or the life and welfare of any person; and
The information that the person is expected to provide cannot be obtained through any other reasonable means;

The emboldened text (above) is intentional and raises real concerns:

‘Information the person is expected to provide’: How would a Police member know or expect to knowwhat information a reportable human source is likely to provide unless it has already been provided? Is this Bill is in essence curing the corruption already occurring? Or is it the case that the Police are expecting privileged information to be provided and the Bill is sanctifying this.
‘Legal advice or specialist advice’: It should be noted here that Victoria Police did get legal advice during the time that Gobbo was registered and thereafter. The High Court decided otherwise. Lawyers hired by Victoria Police should arguably not be the gate keepers of what they do. Google “Finn McRae” and you will read what the Commission said about his conduct.
‘Satisfied’ – Again that is a low threshold. So long as a Police officer is “satisfied” the test is, well, satisfied. They do not need to be reasonably satisfied nor satisfied on reliable evidence of sufficient weight or even satisfied and willing to commit to an affidavit to that effect. Just satisfied. A Police member may be satisfied because they believe that a person is a dangerous person. But belief and evidence are two entirely different concepts!
‘Serious threat’ – It is not defined in the act. What is a serious threat to the community? Is it the threat that someone might traffick drugs of dependence in the future? Is it that, at some point well in the future, they might relapse into drug addiction and become violent? What is a serious threat and how is that measured for the purposes of recruiting a person with overriding obligations to the Court and their clients? The Bill does not define it, so we are left to assume that what is regarded as a ‘serious threat’ will also be a matter for the CCP or his delegate.

But there’s “oversight”:

Despite what the Honourable Attorney-General of Victoria has said, there is no real oversight. There is “feedback” and “referral”.

The Public Interest Monitor

Those in support of this bill will point to the fact that a ‘Public Interest Monitor’ will have oversight over the process of registering a reportable human source. Well, if you want to have described for you the definition of a toothless tiger, then read Part 5 of this bill. The following are the functions of said tiger:

To provide retrospective oversight of any emergency registration of a reportable source. Emphasis on the word retrospective.
To inform the registration of a person as a reportable human source by testing the content and sufficiency of the information relied upon by the CCP in making the decision to register them. It is unclear what the term inform
To give recommendations to the CCP as to whether they should be registered. It should be noted that there is no power bestowed on the Monitor to prevent the person being registered. They are just there to give feedback. The Bill allows the CCP or their delegate to accept or reject the recommendation. The only review power allowed under the act is a review by the CCP themselves. If the recommendation was rejected, there is no review.
To give IBAC and the Victorian Inspectorate any information that the Monitor considers on reasonable grounds is relevant to the functions of IBAC or the Inspectorate. There is no time frame provided within which this information must be given. It could be given years after it is received. The other problem with this proposition is that IBAC is dysfunctional, under-funded and slow. A convicted person could have served their sentence by the time that either organisation even receives the information, let alone actions it.

However, the CCP is required to give reasonable assistance to the Monitor. What is reasonable assistance? Does the CCP decide what assistance is reasonable? Who knows. It is not defined in the Bill. Also, shouldn’t a Public Interest Monitor be given complete assistance?

In any event, the proposed legislation also requires that after a decision is made in relation to the registration of a person (after receiving the recommendation from the Monitor), the Monitor must return all documentation provided by Victoria Police including any copies. So there will be no record, independent of Victoria Police, kept of what occurred, the registration or the recommendation. Notwithstanding that they cannot keep any documentation, the Monitor is required to report to the Attorney-General in relation to the Monitor’s performance every financial year. Which begs the question, how can a Monitor report back to the Attorney-General on its performance when it cannot retain the documentation relevant to its…performance.

IBAC

If it wasn’t enough that the Public Interest Monitor has no powers to do anything in relation to misuse of human sources by Victoria Police, including reportable human resources, neither can the Independent Broad-Based Anti-Corruption Commission! IBAC is only empowered to monitor compliance with the existing framework and to report findings and make recommendations to the CCP. Yes, more feedback. It is proposed that the CCP report to IBAC the registrations which have occurred every three months and then report on all registrations every twelve months. These include reporting on how privileged information was received and dealt with. IBAC can then make recommendations. These recommendations are required to be made in private. The recommendation can be accepted or rejected. Once IBAC has completed its recommendation, it must return all documents provided by Victoria Police back to the CCP along with all copies.

Victorian Inspectorate

Perhaps the most puzzling element of the proposed oversight of the Police powers to register reportable human sources is the Victorian Inspectorate (VI). The Bill empowers the VI to make (yes, you might have expected this) recommendations to the Public Interest Monitor, which ironically is only empowered to make recommendations to the CCP, who can reject these recommendations without review. At the conclusion of the VI’s involvement they must (yes, you guessed it), return all documents produced back to the Victoria Police.

So in conclusion, the “robust” oversight cited by the Attorney-General (who arguably hasn’t read this Bill properly) is recommendation after recommendation that can be rejected. There is no power to refer any Police member for prosecution. There is no power to order that the Victoria Police de-register a source or cease use of privileged information. They can just give feedback.

Which leads us to offences:

Unsurprisingly, given that this Bill essentially sanctifies Police corruption, the only offences that exist within it are those which criminalise disclosure of human source information. And there are no exceptions. Accordingly, a fair-minded prosecutor could be prosecuting an individual entirely unaware that the genesis of the prosecution, or development of it, occurred using privileged information obtained by a reportable human source. This means that the Prosecution is duped in the conduct of the case and cannot meaningfully comply with their obligations of disclosure. They could be opposed to a lawyer, who themselves was the very source of information used to incriminate their own client. They could be entirely unaware that the defence tactics had been fed back to Police, who have then adjusted their case. So it is not an offence to corrupt the criminal justice system under this Bill. Although, such conduct would very much constitute an attempt to pervert the course of justice. It is only an offence to disclose the information obtained via corruption.

A Bill that breaches all others:

The Charter of Human Rights and Responsibilities Act 2008

Whilst the Honourable Member for Ivanhoe may have declared that this Bill is compatible with the Charter of Human Rights and Responsibilities, with respect, he is wrong. Section 24 of the Act requires that a person charged with a criminal offence has the right to have the charge decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The word “fair” is not defined in the legislation.

However, judicial comments exist in relation to fairness in criminal trials. In Roberts v The Queen[6], the Court of Appeal came to the conclusion in that case that ‘non-disclosure of material evidence to the defence, gave rise to a serious departure from proper process affecting the fundamental fairness of the trial’. So, there you have it, non-disclosure undermines the fairness in criminal trials.

In Orman v The Queen, Mr. Orman’s conviction was overturned as a result of Ms. Gobbo’s behaviour. Whilst acting for him, she pursued the presentation of the principal evidence against him. The Court found that this was a fundamental breach of her obligations to Mr. Orman and to the Court. In doing so, the Court found that she had ‘subverted Mr. Orman’s right to a fair trial and went to the very foundations of the system of criminal trial. There was, accordingly, a substantial miscarriage of justice.’

Accordingly, it is unfathomable that this Bill complies with the Charter of Human Rights and Responsibilities.

Legal Profession Rules and Legislation

Similarly, in allowing Victoria Police to use reportable human sources with obligations of confidentiality, Parliament is being asked to sanction extraordinary breaches of the Legal Profession Uniform Conduct (Barristers) Rules 2015 and the Legal Profession (Solicitors Conduct) Rules, which Rules were created pursuant to the Legal Profession Uniform Legal Profession Act 2015. The Bill permits lawyers to not only fall short of their obligations to promote and protect their client’s best interests, and to keep client’s information confidential, it permits them to share privileged information to the client’s detriment. It also undermines the role of a Prosecutor to fairly assist the court to arrive at the truth, impartially, because the Prosecutor will not been told that the client’s lawyer (perhaps the lawyer sitting on the other side of the bar table) is a reportable source providing information to the Police in relation to their client in the dock.

Contract Law

And finally, but by no means the most important violation = contract law. When clients engage a lawyer, they sign a Costs Agreement and deposit funds in trust. A contract is formed between the client and their lawyer that the lawyer will perform the function for which they are retained and the client will get the benefit of their advice and representation. We are not contract lawyers. However, one would think that if you enter into a contract to provide legal services to a client and then decide to become a human source who provides their privileged information to the very entity prosecuting them, then this is a breach of the contract. We expect that the client would want their money back.

Who knows…

So what does this Bill really do:

It violates both the case law handed down by the Court of Appeal and High Court of Australia;
It undermines, violates, disregards and damages the fair operation of the criminal justice system;
It gives total power, without safe guards, to Victoria Police to register lawyers as human sources to use privileged information against their former and current clients;
It removes all accountability for this corruption;
It is so poorly drafted and opaque that it essentially sanctions many different forms of corruption;
It allows lawyers to inform on vulnerable clients, including children;
It allows lawyers to be motivated by a person dislike of a client to fabricate information in order to become police informers to damage their client’s interests (see Madafferi v The Queen[7]); and
It creates offences to punish those who might reveal the conduct.

So in closing, if you want to properly understand what a Police State looks like, read the Human Source Management Bill 2023. Why would a liberal State Government apparently committed to fairness and transparency even consider a Bill like this? Who knows.

[1] Section 23 of the Bill;

[2] Rule 9

[3] (1934) 52 CLR

[4] Ibid, at 347

[5] Rule 82 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 & Regulation 9 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules.

[6] [2020] VSCA 277 at Paragraph 19(c)

[7] [2021] VSCA 1 at paragraph 62

How did we get here? A Human Source Management Bill 2023 which sanctifies corruption? Who knows?