21 March 2023, 15:25
Victorian Legislative Council, Melbourne

David ETTERSHANK (Western Metropolitan):

I rise to make a contribution on behalf of Legalise Cannabis Victoria on the Human Source Management Bill 2023. This bill sets out to regulate Victoria Police’s registration, use and management of human sources and to provide a framework for police to obtain and use information from human sources in an ethical and justifiable manner. We are all aware of the context: the reprehensible conduct engaged in by Victoria Police and Nicola Gobbo that fundamentally breached foundational principles of our criminal justice system in a way that should never, ever be repeated. That conduct led to a royal commission, and this bill delivers on 25 of the 111 recommendations that followed. I do congratulate the government for causing that royal commission and for its commitment to those recommendations.

There is no doubt that a framework must be established to manage the use of human sources and to ensure that gross Gobbo mistake is never repeated by police in this state. However, this bill in its original form was almost unanimously criticised and seemingly would have enabled the holders of privileged information, including lawyers, to be registered as human sources in certain circumstances that may well have provided a pathway to permit exactly what this bill should have been seeking to prevent. It seemingly contradicted the views of the High Court and the Supreme Court of Victoria and was widely opposed by stakeholders. I thank Liberty Victoria, the Centre for Public Integrity and others for their consultation on these matters. We too should be very respectful of the significant work of the royal commission and the heavy weight that its recommendations bear. It is the highest order of inquiry that can be conducted in this state, and we should not forget that fact.

We could not have supported this bill in its original form, but the concerns of stakeholders are significantly addressed by amendments foreshadowed in this house, including quite fulsome house amendments from the government that go to the heart of many concerns that we and others in this place have identified. We are also sympathetic to the concept that, just as lawyers’ professional conduct rules allow now, there are some circumstances where lawyers should be able to pierce their veil of confidentiality to, for example, alert police to a serious and imminent threat to someone’s life. We would not want to see a situation where the laws we make today inadvertently prevent that from occurring or contradict legal profession uniform conduct rules.

But there are points on which we will not compromise. Children should never be tasked by police as human sources. Lawyers should never be tasked by police as human sources. The piercing of any legal confidence should be a matter for the legal professional and only where it is consistent with their existing professional obligations and in circumstances of a serious and imminent threat to save a life or lives or prevent serious harm. The ultimate decision-maker, should a lawyer be registered for the purpose of that type of information disclosure, must be judicial, not the Chief Commissioner of Police. It is utterly implausible to believe that oversight of the commissioner of police in real time should be the commissioner of police. In that sense we consider it not negotiable that critical oversight be provided by an independent and eminent third party of suitable standing.

In no way should we permit confidence in our criminal justice system to be undermined by interference in the lawyer–client relationship and the requirement that the lawyer act in the best interests of the client. We cannot jeopardise the client’s right to a fair hearing and the integrity of the administration of justice. As I stand no amendments have been circulated in the chamber, and it is probable that we will need more time to consider all the moving parts of this important legislation.


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