New informant legislation risks rerun of Lawyer X scandal, experts and opposition say
Victoria’s peak legal bodies have warned that proposed new laws responding to the Lawyer X scandal will open the door to police using other lawyers to snitch on their clients.
Under legislation revealed in parliament on Wednesday, the Victorian government has moved to give police discretion to register children, lawyers, journalists, doctors, priests, parliamentarians and judges as human sources.
Former criminal barrister turned police informer Nicola Gobbo.Credit:The Age
The bill was drafted in response to the McMurdo royal commission, which recommended the government legislate the management of police informants, rather than leaving it to police regulations and policies.
The Victorian Bar and the Law Institute of Victoria are concerned that the legislation, if passed unamended, would not prohibit defence lawyers from providing information to police about their clients.
“We welcome the transparency that the bill provides for the registration, use and management of human sources by Victoria Police,” Law Institute president Tania Wolff said.
“However, if we have learned anything from the royal commission, it’s that lawyers should never be used as human sources.
“Despite royal commission findings and a High Court ruling that a lawyer who informs on their client to the police while purporting to act for them is a clear breach of ethical obligations, this legislation in its current form would legitimise such conduct.”
Victorian Bar president Sam Hay, KC, said a provision in the legislation to enable the registration of lawyers as informants would lead to the same conduct that resulted in a royal commission in the first place.
Defence barrister Nicola Gobbo’s secret life as a police informant and the extent to which Victoria Police used her to secure convictions against gangland figures, including her own clients, was at the heart of the Lawyer X scandal, first exposed by The Herald Sun journalist Anthony Dowsley.
In a unanimous 2018 decision that led to the Royal Commission into the Management of Police Informants, the High Court said Victoria Police were guilty of “reprehensible conduct” and “atrocious breaches” of their sworn duty.
Two of Gobbo’s former clients, Faruk Orman and Zlate Cvetanovski, have had their convictions overturned, and high-profile crime figures, including Tony Mokbel and Rob Karam, are pursuing appeals. A special investigator has been appointed to determine whether criminal charges should be brought against current and former members of police.
Orman’s lawyer, Ruth Parker, said the legislation had the potential to create a “travesty” in the justice system.
“It is giving police members essentially a carte blanche to use people with professional obligations such as lawyers to inform on their clients without the appropriate safeguards in place,” she said.
The Human Source Management Bill provides a legal framework for the registration and management of police informants. It establishes a special category of “reportable human sources” for children aged 15 and over and anyone who is reasonably expected to have access to privileged information.
The legislation states privileged information includes journalistic privilege, client-legal privilege, medical privilege, parliamentary privilege, judicial privilege and the confidentiality of the confessional.
To register an informant in this category, the police commissioner must be satisfied that there is a threat to national security, the community or a person and that the information can’t be obtained by other means.
Attorney-General Jaclyn Symes said the proposed laws had multiple levels of robust oversight and would increase public confidence in the justice system.
Had the laws applied when Gobbo was registered as a police informant at the height of Melbourne’s gangland war, it is likely she would have satisfied the proposed criteria.
The legislation makes it a crime for anyone, including journalists, to reveal the identity of a registered police informant.
Shadow attorney-general Michael O’Brien said the government appeared to have not learnt the lessons of the Lawyer X scandal.
“This appears to be an attempt by the Andrews Labor government to ensure that more Lawyer X-type scandals can occur in the future,” he said. “With this bill, the government seems to be saying that outrageous breach of ethics is something they are going to allow to occur again.”
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