Lawyer X royal commissioner concerned about new informant bill

The head of the royal commission into the Lawyer X scandal and her assisting counsel have raised concerns about the state government’s proposed informant laws, in a powerful intervention before the draft legislation is debated in parliament this week.

Legal experts have warned that the government’s bill – drafted in response to the legal scandal and aimed at giving police the discretion to register children, lawyers, journalists, doctors, priests, parliamentarians and judges as informants – undermines the fundamental principles of the criminal justice system and will lead to police using more lawyers to inform on their clients.

Justice Margaret McMurdo will raise concerns with the Andrews government about the new informant legislation.

Justice Margaret McMurdo said she would speak to the government on Monday about the Human Source Management Bill, which is due to be debated in the upper house when parliament resumes on Tuesday.

“[I] will be talking to the government about [my] concerns with the legislation,” McMurdo told The Age.

The counsel assisting the royal commission, Chris Winneke, KC, also said he held “grave reservations” about the government’s bill.

“I’d have grave reservations of the registration of a lawyer in providing information to police,” Winneke told The Age.

Chris Winneke, KC, pictured at the royal commission in 2019, also has concerns with the government’s bill.

“It raises so many problems, of the likes we saw in the royal commission.”

The bill was drafted in response to McMurdo’s royal commission into Victoria Police’s use of criminal defence barrister Nicola Gobbo to inform on her gangland clients.

In her final report, McMurdo recommended the government legislate the management of police informants rather than leave it to internal police policies.

But former Court of Appeal judge Stephen Charles, KC, said the bill proposed to legislate Gobbo’s unethical conduct despite the royal commission and High Court ruling she had committed “fundamental and appalling breaches” of her duties to both her clients and the court.

Nicola Gobbo, pictured in an interview in 2019, was a barrister used by police to inform on her clients. Credit:ABC

“Our whole system of criminal law and its fairness depends on a number of things: the absolute right of silence, the right not to be tortured, the obligation remaining on the prosecution throughout and never on the defence, and the duty not to communicate what your clients told you to police or anyone,” Charles said.

“If a lawyer is agreeing to be on a list of counsel who will provide information to police, that should be regarded at the very outset completely heretical. I hope the Bar will say to any lawyer that [providing information about a client to police] is a misconduct that would lead to disbarment.”

Charles joined an alliance of law groups – comprising the Law Institute of Victoria, Victorian Bar, Law Council of Australia, Australian Lawyers Alliance, Australian Bar Association, Australian Medical Association and the Centre for Public Integrity – to call for the bill in its current form to be scrapped. The law groups want the bill scrutinised by the Victorian Law Reform Commission, which examines and makes recommendations on legal issues referred by the attorney-general.

The state opposition wants the bill to prevent lawyers from informing on their clients and to provide greater protections for the use of children, journalists, doctors and MPs as police informants. The Greens and two Legalise Cannabis MPs have confirmed they will also move amendments to protect children.

Former Victorian Court of Appeal judge Stephen Charles, KC, has called for the bill to scrapped. Credit:Alex Ellinghausen

Animal Justice Party MP Georgie Purcell said she was still considering her position but was hopeful the bill would be amended to reflect concerns from interested parties, including the legal community.

Liberal Democrats MP David Limbrick said he strongly opposed the bill in its current form, and believed the government was working on amendments to allay concerns around the use of lawyers and children as informants.

The Andrews government has 15 MPs in the upper house and needs the support of at least five crossbenchers to pass legislation.

“This bill will allow the Lawyer X fiasco to happen again,” shadow attorney-general Michael O’Brien said.

“Lawyers should not be allowed to compromise the legal privilege of their clients. Moreover, as the High Court and the Court of Appeal found, this sort of arrangement is a miscarriage of justice.”

Gobbo, previously referred to as Lawyer X and also known as police Informer 3838, was a prominent defence barrister who became a police informant and provided information to investigators about her own clients. She was often defending clients in court at the same time she was giving confidential information to police.

The Royal Commission into the Management of Police Informants handed down a stinging 1000-page report in November 2020, when McMurdo described Gobbo’s conduct as a breach of her obligations as a lawyer that undermined the administration of justice, compromised criminal convictions and shaken public trust in Victoria’s criminal justice system.

Law Institute of Victoria president Tania Wolff said the centuries-old legal privilege between lawyers and their clients was sacrosanct and should not be touched. She said her members were receiving calls from the public concerned about whether they could trust their lawyers to uphold confidentiality.

Nicola Gobbo, with then-client Tony Mokbel, outside a court in 2004.Credit:Nine News

“It is absolutely essential that you don’t have lawyers who have ongoing confidentiality and privilege being used as informants,” Wolff said.

“We don’t think there is sufficient or robust oversight in the bill, and we think there is wide discretion given to police about the use of lawyers as human sources.

“We don’t think we were properly consulted about this bill, despite the very strong words from the commissioner in her report about the government being required to consult justice and legal professional stakeholders.”

Wolff said legal groups were not given draft copies of the bill, or the proposed wording, as was ordinarily the case during a consultation process.

Attorney-General Jaclyn Symes said she had considered the concerns of the law institute and the Victorian Bar throughout the process and disputed claims the organisations weren’t properly consulted.

“This bill proposes the most robust police informant management system of anywhere in Australia,” Symes said. “Victorians deserve nothing less to ensure what happened with Ms Gobbo can never happen again.

“In the rare circumstances in which Victoria Police may be allowed to consider the registration of a lawyer as a police informant, they will be subject to multiple stages of independent oversight with regular reporting to the attorney-general and parliament, and will be required to consider legal advice — all of which weren’t there before.”

But O’Brien argued the final decision would continue to rest with the chief commissioner of Victoria Police. He said the Coalition would push for a retired senior judge to be given the power to have the final say on the use of vulnerable human sources, such as children, or others who have access to privileged information, such as journalists and MPs.

Attorney-General Jaclyn Symes.Credit:Eddie Jim

The royal commission considered a blanket ban on the use of lawyers as informants but concluded that while it was rarely appropriate for police to seek confidential or privileged information from an informant, there might “exceptional and compelling circumstances to do so”.

Charles said the government had watered down that recommendation in the wording of its bill, as it proposes to give senior police officers – at the rank of assistant commissioner or higher – powers to register high-risk people as human sources if they are satisfied, for instance, there is a threat to someone’s life or welfare.

“A threat to welfare could be comparatively minor in the circumstances,” Charles said.

The government has insisted the draft legislation is in line with the royal commission’s recommendations. Under the draft legislation, Victoria Police will have to apply to a senior officer to register a person as a human source.

The force would also have to obtain legal advice and be advised by the Public Interest Monitor and the anti-corruption commission on whether the source’s information was appropriate enough to warrant registering them as an informant. The registration of human sources will be reviewed monthly.

Victorian Bar president Sam Hay, KC, said the bill had “significant problems” and should go through a more formal and considered process before it was voted on in parliament.

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