I rise today to speak on the Special Investigator Repeal Bill 2023, and I would like to show my support for the member for Malvern’s reasoned amendment, which states:
That all the words after ‘That’ be omitted and replaced with the words ‘this house refuses to read this bill a second time until the government puts in place measures to ensure that those responsible for the Lawyer X scandal are held to account’.
The Special Investigator Repeal Bill 2023 is yet another bill that has come to this place following the Lawyer X fiasco, something that drew considerable scrutiny and media attention and introduced new concerns over legality and due process – I am conscious that Hansard is listening. Ultimately this situation resulted in a royal commission that recommended several changes to legislation to uphold the integrity and effectiveness of our legal system.
When it comes to this Special Investigator Repeal Bill it is important to provide some broader context to the Lawyer X scandal. As many will be aware, this case involved Victoria Police’s use of criminal barrister Nicola Gobbo as a police informant. Within this role Gobbo secretly gave evidence against her own clients to Victoria Police, which ultimately resulted in many of these clients receiving criminal convictions. In July 2014 there was a review of Victoria Police’s human source management, and a subsequent report found a high degree of negligence by VicPol and directed VicPol to provide a copy of the report to the Director of Public Prosecutions. In reviewing this report the DPP formed the view that Gobbo’s clients should be informed about her actions as a human source for VicPol.
This led to VicPol seeking court orders to suppress this information and a highly public media investigation into these matters. After numerous Victorian courts issued suppression orders to ban the reporting of these facts, the High Court of Australia ruled unanimously that Gobbo’s identity should no longer be suppressed. In their judgement the court determined that Gobbo’s decision to covertly inform against her clients while also acting as their counsel was fundamentally an appalling breach of a lawyer’s obligation both to the clients and to the court. The language used back in February by the Law Institute of Victoria’s president Tania Wolff was strong:
… if we have learned anything from the Royal Commission, it’s that lawyers should never be used as human sources …
She also outlined how the use of lawyers as sources is contradictory to the trusted role they play in the integrity of our legal system. Victoria Police’s decision to encourage Gobbo to act as she did was heavily condemned by the courts too. This condemnation came down to a breach 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. While the actions of the police in this situation were well below what is expected, I want to thank all our officers for the excellent work they do in keeping our community safe. Ultimately the prosecution of each convicted person was corrupted in a manner which brought the fundamental premise of our justice system into question. Both the exposure of the Lawyer X scandal and the High Court’s findings led to a number of convicted persons having their convictions quashed.
Earlier this year I had the opportunity to speak on the Human Source Management Bill 2023, which also arose from the Lawyer X case and the subsequent Royal Commission into the Management of Police Informants that was brought forward to address several of the issues raised in this scandal. In total the royal commission made 111 recommendations, with 55 of those directed to the state government. Then Attorney-General Jill Hennessy announced on 30 November 2020 that the government would implement all of these recommendations.
When it comes to the technicalities of this bill, there are essentially three main components: repealing the Special Investigator Act 2021; abolishing the Office of the Special Investigator, making necessary transitional arrangements; and making consequential and related amendments to other acts. Through this, all assets and liabilities of the OSI will be transferred to the state and the state will be substituted as a party to legal proceedings in which the OSI was involved. Through the dismantlement of the OSI this bill effectively ends the prospect of accountability for those responsible for the Lawyer X fiasco. This was a scandal that compromised Victoria’s justice system, perverted the course of justice and has had repercussions that continue to reverberate throughout the legal system.
The government has said that Victorians can be confident that the OSI has done its job and is no longer necessary. They say it has fully investigated the criminal conduct and breaches of discipline that arose from Victoria Police’s use of Ms Gobbo as a human source to the extent possible, although this is simply not enough. Those involved in this case have avoided accountability and will walk free. This goes against findings from former High Court judges as well as the court of public opinion. A reasoned amendment to this bill would ensure that those responsible for the Lawyer X situation are still held to account and that those involved in this reprehensible conduct are subject to the criminal charges that they deserve. Due to the several shortcomings in this proposed legislation, I oppose this bill.