Recommendations

Together, they aim to ensure that conduct associated with Victoria Police’s use of Ms Nicola Gobbo as a human source is thoroughly investigated; to prevent the recurrence of similar events in the future; and to help restore and maintain public confidence in Victoria Police, the legal profession and the criminal justice system.

The Commission has made 111 recommendations, as listed below. Further information about the purpose and context of the recommendations and their rationale is detailed in the Commission’s final report.

Volume II

The potential effects of Ms Nicola Gobbo’s conduct as a human source

RECOMMENDATION 1

That the Victorian Government, immediately after it has established the Special Investigator proposed in Recommendation 92, refers the conduct of Ms Nicola Gobbo to the Special Investigator to investigate whether there is sufficient evidence to establish the commission of a criminal offence or offences connected with her conduct as a human source for Victoria Police.

If the Special Investigator considers that there is sufficient evidence to establish the commission of a criminal offence or offences, they should prepare a brief of evidence for the Victorian Director of Public Prosecutions to determine whether to prosecute.

RECOMMENDATION 2

That the Victorian Bar Council, within three months, considers removing Ms Nicola Gobbo from the Victorian Bar Roll, including by any necessary amendment to the Victorian Bar Constitution.

The conduct of Victoria Police officers

RECOMMENDATION 3

That the Victorian Government, immediately after it has established the Special Investigator proposed in Recommendation 92, refers the conduct of current and former Victoria Police officers named in this report or the complete and unredacted submissions of Counsel Assisting to the Special Investigator to investigate whether there is sufficient evidence to establish the commission of a criminal and/or disciplinary offence or offences connected with Victoria Police’s use of Ms Nicola Gobbo as a human source.

If the Special Investigator considers that there is sufficient evidence to establish the commission of a disciplinary offence or offences, they should deal with those matters in accordance with Recommendation 99.

RECOMMENDATION 4

That the Chief Commissioner of Victoria Police, within three months:

takes steps to ensure that Victoria Police’s organisational and executive structure enables the role of Executive Director, Legal Services to provide independent legal advice to Victoria Police Executive Command (or creates an alternative senior legal advisory role for this purpose)
considers whether limits should be placed on the maximum time a person may spend in the position of Executive Director, Legal Services (or any alternative senior role created within Victoria Police for the purpose of providing independent legal advice to Executive Command).

Victoria Police’s conduct: systemic issues and causal factors

RECOMMENDATION 5

That Victoria Police provides monthly progress reports to the Implementation Taskforce proposed in Recommendation 107, regarding its progress in fulfilling its ongoing disclosure obligations to potentially affected persons identified by the Commission. These reports should also be made available to the Implementation Monitor proposed in Recommendation 108.

Volume III

Victoria Police’s use of other human sources with legal obligations of confidentiality or privilege

RECOMMENDATION 6

That the Victorian Government, within three months, appoints a suitably qualified and independent person to review the 11 Victoria Police human source files subject to a claim of public interest immunity. The appointed person should have full and unfettered access to the human source files and report to the Attorney-General, the Minister for Police and the Chief Commissioner of Victoria Police on whether:

any of the human sources provided information to Victoria Police in possible breach of their legal obligations of confidentiality or privilege
any confidential or privileged information provided by the human sources was used or disseminated by Victoria Police
a referral should be made to the Victorian Director of Public Prosecutions and/or Commonwealth Director of Public Prosecutions for further consideration, if there is evidence to suggest a prosecution or conviction was based on information improperly obtained by Victoria Police or may have been affected by the non-disclosure of relevant evidence.

Victoria Police’s implementation of the Kellam Report recommendations

RECOMMENDATION 7

That Victoria Police, within three months and consistent with its Capability Plan 2016–2025, establishes clear processes for the review and amendment of human source management policies and procedures, including processes for:

seeking and incorporating operational input from police officers involved in human source management
disseminating and communicating policy and procedural changes so that all relevant officers receive timely and accurate advice about impending change
reviewing and evaluating policies and procedures on an annual basis to ensure its human source management practices are responsive to emerging risks, changes to the operating environment and changes to any relevant legislation; and are consistent with Victoria Police’s human rights obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Victoria Police’s processes for the use and management of human sources involving legal obligations of confidentiality or privilege

RECOMMENDATION 8

That the Victorian Government, within two years, implements legislation for Victoria Police’s registration, use and management of human sources, to provide a clear framework for police to obtain and use information from human sources and to ensure they are used in an ethical and justifiable manner.

RECOMMENDATION 9

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, makes it an offence to disclose information relating to a human source without authorisation (including information that a human source provided or was tasked to provide, and information about the identity of a human source and their registration and management).

RECOMMENDATION 10

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, defines ‘reportable human sources’ as a class of people who are prospective or registered human sources and who are reasonably expected to have access to confidential or privileged information.

RECOMMENDATION 11

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, establishes clear decision-making arrangements that demonstrate alignment between the seniority of the decision maker and the level of risk posed by the registration of human sources. The legislation should:

empower the Chief Commissioner of Victoria Police to register human sources to assist in gathering criminal intelligence and/or investigating criminal activity
permit the Chief Commissioner to delegate the power to register reportable human sources to an officer of or above the rank of Assistant Commissioner and non-reportable human sources to an officer of or above the rank of Superintendent
require that an application for the registration of a prospective human source must be authorised by the Chief Commissioner or their delegate before the person can be used as a human source.

RECOMMENDATION 12

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, requires the Chief Commissioner of Victoria Police or their delegate to be satisfied that in registering any human source, the registration is appropriate and justified, including that:

the use of the person as a human source is necessary to achieve a legitimate law enforcement objective and is proportionate to that objective
the risks associated with the person’s registration have been identified and can be adequately managed.

RECOMMENDATION 13

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources:

empowers the Chief Commissioner of Victoria Police or their delegate to impose conditions in respect of the registration of any human source
requires the Chief Commissioner or their delegate to determine the period that a human source may be registered
requires the Chief Commissioner or their delegate to determine the frequency with which the registration of a human source should be reviewed.

RECOMMENDATION 14

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, requires that a prospective human source who is reasonably expected to have access to information that would be confidential or privileged but for an exception to the duty of confidentiality or privilege, should for the purpose of the human source registration process be treated as though they are a reportable human source.

RECOMMENDATION 15

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, requires that:

the Chief Commissioner of Victoria Police or their delegate must consider formal legal advice before deciding to register a reportable human source
the Chief Commissioner or their delegate must have regard to any recommendations or submissions on the proposed registration that the Public Interest Monitor has made before deciding to register a reportable human source.

RECOMMENDATION 16

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources:

requires that the Chief Commissioner of Victoria Police or their delegate must be satisfied that there are exceptional and compelling circumstances to justify the registration of a human source where Victoria Police intends to obtain or disseminate confidential or privileged information from that person
provides that ‘exceptional and compelling circumstances’ be defined as circumstances where there is a serious threat to national security, the community or the life and welfare of a person; and where the information cannot be obtained through any other reasonable means
requires that the Chief Commissioner or their delegate must consider formal legal advice before deciding to register a human source with the intention to obtain or disseminate confidential or privileged information from that person
requires that the Chief Commissioner or their delegate must have regard to any recommendations or submissions on the proposed registration that the Public Interest Monitor has made before deciding to register a human source with the intention to obtain or disseminate confidential or privileged information from that person.

RECOMMENDATION 17

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, requires that where a reportable or non-reportable human source provides confidential or privileged information to police that was not expected or authorised at the time of their registration as a human source:

Victoria Police must quarantine the confidential or privileged information
Victoria Police must cancel the registration and commence a new application (if Victoria Police considers it necessary to continue using the person as a human source), in line with Recommendations 11, 15 and 16.

RECOMMENDATION 18

That the Victorian Government, in developing the legislation for Victoria Police’s registration, use and management of human sources, allows the Chief Commissioner of Victoria Police or their delegate to make an emergency authorisation of a reportable human source. This power should only be used in circumstances where: there is a serious threat to national security, the community, or the life and welfare of a person; the threat is imminent; and the information is not able to be obtained through any other reasonable means.

RECOMMENDATION 19

That Victoria Police, within 12 months, implements changes to its decision-making model and associated requirements in the Human Source Policy, on an interim basis until the legislation proposed in Recommendation 8 comes into force. The Human Source Policy should:

provide that the Assistant Commissioner, Intelligence and Covert Support Command, is responsible for decisions to register Category 1–3 human sources and to disseminate confidential or privileged information obtained from any human source
provide that the Central Source Registrar is responsible for the registration of human sources other than Category 1–3 human sources
require the Assistant Commissioner to consider formal legal advice in deciding whether to authorise the registration of a Category 1 human source or to disseminate confidential or privileged information, and to consider other specialist advice as required in deciding whether to register a Category 2 or 3 human source
replace the requirement for officers to seek approval from the Human Source Ethics Committee to ‘approach’ a prospective Category 1–3 human source with a requirement for the handling team to consult with the Human Source Management Unit before approaching such a prospective source
remove Category 4 human sources as a separate category under the Human Source Policy.

RECOMMENDATION 20

That Victoria Police, within 12 months:

implements changes to its Human Source Policy to include a statement of the organisation’s objectives and guiding principles for the registration, use and management of human sources, including but not limited to principles of integrity, necessity and proportionality, accountability, effectiveness, consistency, and safety and sensitivity
obtains operational input to inform the development of these objectives, principles and associated guidance.

RECOMMENDATION 21

That Victoria Police, within 12 months, implements changes to its Human Source Policy to provide practical examples of the ways in which human source management can engage and limit the human rights set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic), and guidance for police officers in considering whether the use of a human source is necessary and proportionate.

RECOMMENDATION 22

That Victoria Police, within 12 months, implements changes to its Human Source Policy to provide practical guidance to assist police officers to identify potentially confidential or privileged information. This guidance should include advice and examples relating to:

the types of occupations and professional relationships that attract legal obligations of confidentiality or privilege
the exceptions to legal obligations of confidentiality or privilege and when these may apply
the implications of using confidential or privileged information, including the potentially adverse consequences for any resulting investigations, prosecutions or convictions
when and how to seek further advice, including from the Human Source Management Unit.

Victoria Police should seek legal advice from its Legal Services Department or the Victorian Government Solicitor’s Office in developing this guidance.

RECOMMENDATION 23

That Victoria Police, within 12 months, implements changes to its Human Source Policy to provide clear requirements and instructions to police officers on the use and handling of confidential and privileged information, including in relation to the quarantine, retention, dissemination and destruction of such information.

RECOMMENDATION 24

That Victoria Police, within 12 months, implements changes to its Human Source Policy to require that:

when dealing with human sources involving legal obligations of confidentiality or privilege, the Acknowledgement of Responsibilities must clearly set out any limitations on the information a human source can provide
police officers must not actively, without appropriate authority, seek information from a human source that would cause the human source to breach a legal obligation of confidentiality or privilege.

RECOMMENDATION 25

That Victoria Police, within 12 months, implements changes to its Human Source Policy to provide clear instructions and practical guidance on the circumstances in which it may be appropriate to dispense with the requirement for a sterile corridor and the measures that officers should adopt to manage the associated risks.

RECOMMENDATION 26

That Victoria Police, within two years, establishes an organisational model for the registration, use and management of human sources that provides for:

the management of all human sources by dedicated source teams
centralised internal oversight of the management of human sources by the Human Source Management Unit, the Central Source Registrar and the Assistant Commissioner, Intelligence and Covert Support Command.

RECOMMENDATION 27

That Victoria Police, within two years, removes the roles of Officer in Charge and Local Source Registrar from its decision-making process and organisational model for the registration, use and management of human sources.

RECOMMENDATION 28

That Victoria Police, within two years, introduces requirements limiting the maximum time that police officers can hold positions within dedicated source teams and the Human Source Management Unit to five years.

RECOMMENDATION 29

That Victoria Police, within two years:

develops a prevention and detection strategy to mitigate the risk of misconduct and corruption that may arise from the implementation of a centralised and dedicated human source management model, taking into account the Commission’s findings and those of previous inquiries
ensures that this strategy is regularly reviewed and refined as part of Victoria Police’s strategic management of this high-risk area of policing.

RECOMMENDATION 30

That Victoria Police, within 12 months and as part of its current work to improve its human source risk assessments, develops guidance on how to assess:

the source and nature of information reasonably expected to be provided by a human source, to identify whether that information could be confidential or privileged
the risks that the use of a human source could pose to the proper administration of justice
the engagement of any human rights set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic), including how any limitation is reasonable, necessary and proportionate in the circumstances.

RECOMMENDATION 31

That Victoria Police, within three years, engages an independent expert to evaluate and report on the effectiveness of its new human source management risk assessment tools, to determine whether they support effective identification and management of risks.

RECOMMENDATION 32

That Victoria Police, within 12 months, implements changes to its Human Source Policy to provide clear instructions and practical guidance about who is responsible for supervision of the handling team, why effective supervision is necessary and how it should be applied in practice.

RECOMMENDATION 33

That Victoria Police, within 12 months, develops guidance in its human source management training to assist police officers to identify confidential and privileged information, focusing on the origin of information and circumstances in which such information could be provided to police, including:

how to identify potential legal obligations of confidentiality or privilege through the risk assessment process
how to manage any professional conflicts of interest that may arise for a human source with legal obligations of confidentiality or privilege.

Victoria Police should seek legal advice from its Legal Services Department or the Victorian Government Solicitor’s Office in developing this training material.

RECOMMENDATION 34

That Victoria Police, within 12 months, develops guidance in its human source management training on:

the human rights set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic) that are generally engaged by the management of human sources, including the right to life, the right to privacy and the right to a fair hearing
how to assess whether the use of a human source unreasonably limits the human rights of the source or other people.

Victoria Police should seek input from the Victorian Equal Opportunity and Human Rights Commission in developing and delivering this training.

RECOMMENDATION 35

That Victoria Police, within 12 months, develops and implements training for controllers, the Human Source Management Unit, the Central Source Registrar and the Assistant Commissioner, Intelligence and Covert Support Command, focused on effective risk management, supervision, oversight and decision making in respect of the use of human sources. This training should include guidance on identifying confidential and privileged information, and the circumstances in which such information could be provided to police.

RECOMMENDATION 36

That Victoria Police, within 12 months, requires all handlers and controllers to successfully complete intermediate human source management training at a minimum.

RECOMMENDATION 37

That Victoria Police, within 12 months, introduces requirements for mandatory annual human source management training for all police officers with human source management responsibilities and timely training associated with any significant policy or legislative changes.

RECOMMENDATION 38

That Victoria Police, within 12 months, enhances Interpose or develops some other system for recording details of the origin of information provided by human sources and how it was obtained.

RECOMMENDATION 39

That Victoria Police, within 12 months, reviews the broader functionality of Interpose to ensure that it will support the effective implementation of the Commission’s recommendations.

RECOMMENDATION 40

That Victoria Police, within 12 months, implements changes to its Human Source Policy and associated processes to:

provide for six-monthly compliance audits of human source files at all risk levels by the Compliance and Risk Management Unit within the Intelligence and Covert Support Command
clearly set out the compliance monitoring functions of both the Compliance and Risk Management Unit and the Human Source Management Unit.

RECOMMENDATION 41

That Victoria Police, within 12 months, implements changes to its Human Source Policy and associated processes to require that:

the results of human source management audits be reported to the Assistant Commissioner, Intelligence and Covert Support Command
any system-wide risks or major failings that are identified through human source management audits be reported to the Victoria Police Audit and Risk Committee.

RECOMMENDATION 42

That Victoria Police, within three months, establishes a strategic governance committee to:

contribute to the development, and oversee Victoria Police’s implementation of, the human source management reforms recommended by the Commission
identify, address and monitor emerging risks, issues and opportunities in Victoria Police’s human source management program and provide strategic advice to the Assistant Commissioner, Intelligence and Covert Support Command and Deputy Commissioner, Specialist Operations
be responsible for strategic planning for Victoria Police’s human source management program.

RECOMMENDATION 43

That the Victorian Government ensures Victoria Police is appropriately funded and resourced to implement the Commission’s recommendations.

External oversight of Victoria Police’s use of human sources

RECOMMENDATION 44

That the Victorian Government, within two years, implements legislation for external oversight of Victoria Police’s registration, use and management of all human sources.

RECOMMENDATION 45

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, adopts a model comprised of the following three tiers:

The Public Interest Monitor should be involved in Victoria Police’s decision-making process for registering reportable human sources.
The Independent Broad-based Anti-corruption Commission should retrospectively monitor Victoria Police’s compliance with the human source management framework recommended by the Commission, including the proposed legislation, any regulations, Victoria Police’s Human Source Policy and related procedures.
The Independent Broad-based Anti-corruption Commission should continue to receive, handle and investigate complaints about Victoria Police, including any complaints about Victoria Police’s use of human sources.

RECOMMENDATION 46

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, provides the Public Interest Monitor with the following legislative functions in relation to Victoria Police applications to register reportable human sources:

test the sufficiency and adequacy of information relied on by Victoria Police in its application to register a reportable human source
ask questions of any person giving information about the application
assess the appropriateness of, and make recommendations or submissions on, the application to the Chief Commissioner of Victoria Police or their delegate
such other functions as considered necessary or appropriate.

RECOMMENDATION 47

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, provides the Public Interest Monitor with all necessary and reasonable powers required to fulfil its functions under the new legislation, including the power to:

request, access and receive relevant documents, information or other material from Victoria Police
require the Chief Commissioner of Victoria Police or other relevant Victoria Police personnel to answer questions relevant to an application to register a reportable human source
make recommendations to the Chief Commissioner or their delegate regarding Victoria Police’s decisions relating to human sources
refer to the Chief Commissioner for reconsideration a delegate’s decision not to accept a recommendation of the Public Interest Monitor relating to an application to register a reportable human source.

RECOMMENDATION 48

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, empowers the Public Interest Monitor to make retrospective submissions or recommendations to the Chief Commissioner of Victoria Police or their delegate about the adequacy of any decisions made or actions taken by Victoria Police in relation to an emergency authorisation (made in line with the process proposed in Recommendation 18).

RECOMMENDATION 49

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, requires the Public Interest Monitor to:

report to the Attorney-General annually on, among other things, the performance of its legislative functions, Victoria Police’s acceptance or rejection of its recommendations and its views about the adequacy of actions taken by Victoria Police
provide special reports to the Attorney-General on other occasions if it deems necessary, or on the Attorney-General’s request
provide copies of these annual and special reports to the Minister for Police and the Chief Commissioner of Victoria Police.

RECOMMENDATION 50

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, requires the Attorney-General to:

table in the Victorian Parliament annual and special reports prepared by the Public Interest Monitor
cause the reports to be published on a Victorian Government website, subject to any redactions that the Public Interest Monitor considers necessary on safety and security grounds.

RECOMMENDATION 51

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, provides that the Chief Commissioner of Victoria Police has obligations to:

notify the Public Interest Monitor of any application to register a reportable human source
provide all information relevant to the application, whether supportive or adverse, to the Public Interest Monitor
ensure that any relevant Victoria Police personnel provide information and answer questions relevant to an application when requested by the Public Interest Monitor
provide the Public Interest Monitor with all information relevant to an emergency authorisation of a reportable human source and a report explaining why the circumstances were exceptional and compelling and why the threat was imminent
respond to the Public Interest Monitor within a reasonable time after a recommendation has been made as to whether the recommended action has been or will be taken, or provide reasons as to why the recommendation is not accepted
ensure that Victoria Police personnel provide all reasonable assistance to support the Public Interest Monitor in the performance of its functions.

RECOMMENDATION 52

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, provides the Independent Broad-based Anti-corruption Commission with legislative functions to:

monitor Victoria Police’s compliance with the human source management framework recommended by the Commission
conduct inspections of Victoria Police human source records at least once every six months
receive and consider reports from Victoria Police regarding material breaches of compliance with, or material deviations from, the human source management framework
receive and consider reports from Victoria Police regarding its management of confidential or privileged information obtained from a human source
make findings and recommendations to the Chief Commissioner of Victoria Police.

RECOMMENDATION 53

enter any Victoria Police premises, after notifying the Chief Commissioner of Victoria Police
have full and free access to Victoria Police human source records and systems
make copies of records, in accordance with appropriate security measures
request Victoria Police personnel to answer questions and provide documents
request further inspection outside the legislative inspection period to monitor and assess Victoria Police’s implementation of any of its recommendations
do any other thing reasonably necessary to discharge its legislative functions effectively.

RECOMMENDATION 54

report regularly (every three or six months) to the Independent Broad-based Anti-corruption Commission on any material breach of, or material deviation from, the human source management framework recommended by the Commission, and explain the circumstances of that breach and steps taken or planned to rectify the breach and prevent it recurring
report regularly (every three or six months) to the Independent Broad-based Anti-corruption Commission on confidential or privileged information that Victoria Police has obtained from any human source and how that information has been or will be dealt with
respond in writing within a reasonable time of receiving a recommendation of the Independent Broad-based Anti-corruption Commission, either to accept the recommendation or explain why it has not been accepted
implement a recommendation of the Independent Broad-based Anti-corruption Commission within a reasonable time of receiving and accepting it
ensure that Victoria Police personnel provide all reasonable assistance to the Independent Broad-based Anti-corruption Commission in the performance of its functions.

RECOMMENDATION 55

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, requires the Independent Broad-based Anti-corruption Commission to:

report to the Attorney-General annually on, among other things, the performance of its legislative functions and Victoria Police’s compliance with the human source management framework recommended by the Commission
provide special reports to the Attorney-General on other occasions if the Independent Broad-based Anti-corruption Commission deems necessary, or on the Attorney-General’s request
provide copies of these annual and special reports to the Minister for Police and the Chief Commissioner of Victoria Police.

RECOMMENDATION 56

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, requires the Attorney-General to:

table in the Victorian Parliament annual and special reports prepared by the Independent Broad-based Anti-corruption Commission
cause the reports to be published on a Victorian Government website, subject to any redactions that the Independent Broad-based Anti-corruption Commission considers necessary on safety and security grounds.

RECOMMENDATION 57

That Victoria Police, within three months, implements changes to its Human Source Policy to require that all human sources are informed upon registration that they are able to make complaints to the Independent Broad-based Anti-corruption Commission, which may be confidential if they wish.

RECOMMENDATION 58

That the Victorian Government, in developing legislation for external oversight of Victoria Police’s registration, use and management of human sources, allows the Public Interest Monitor and Independent Broad-based Anti-corruption Commission to securely share information relevant to their respective legislative functions regarding Victoria Police’s use and management of human sources.

RECOMMENDATION 59

That the Public Interest Monitor and the Independent Broad-based Anti-corruption Commission, within two years and prior to the commencement of the proposed new legislation for external oversight of Victoria Police’s registration, use and management of human sources, implement appropriate security protocols and infrastructure to securely receive, share, store and dispose of sensitive human source information.

RECOMMENDATION 60

That the Victorian Government, within two years, ensures that the Public Interest Monitor, Independent Broad-based Anti-corruption Commission and Victoria Police are appropriately funded and resourced to undertake the additional legislative functions and fulfil associated obligations that the Commission has recommended for the external oversight of the use of human sources.

RECOMMENDATION 61

That the Victorian Government, within two years, undertakes a review of institutional and legislative structures for the oversight of Victoria Police’s exercise of powers, to ensure that Victoria’s police oversight system is consistent and coherent and contributes to improved police accountability, including through outcome-focused monitoring of police decisions and actions.

Volume IV

Use and disclosure of information from human sources in the criminal justice system

RECOMMENDATION 62

That the Victorian Government, within 12 months, introduces a legislative requirement for the responsible Victoria Police officer to:

provide the Victorian Director of Public Prosecutions with all material obtained during an investigation that may be relevant to either the prosecution or the accused person’s case, except for material that is subject to a claim of privilege, public interest immunity, a legislative immunity or publication restriction
notify the Director of the existence and nature of any material subject to a claim of privilege, public interest immunity, a legislative immunity or publication restriction
where requested, provide the Director with any material subject to a claim of privilege, public interest immunity, legislative immunity or publication restriction.

RECOMMENDATION 63

That the Victorian Government, within 12 months, introduces a legislative requirement for Victoria Police to complete a disclosure certificate in summary proceedings when a full brief is served and in indictable proceedings when a hand-up brief is served, which describes:

relevant material not contained in the brief of evidence that is subject to a claim of privilege, public interest immunity, a legislative immunity or publication restriction
the nature of the privilege or immunity claim or publication restriction in relation to each item.

A copy of the disclosure certificate should be provided to the Victorian Director of Public Prosecutions and served on accused persons.

RECOMMENDATION 64

That Victoria Police, within 12 months, amends its internal policies and procedures to align with the legislative changes proposed in Recommendations 62 and 63. These amendments should include guidance for the responsible Victoria Police officer on disclosure obligations and how to describe withheld materials in the proposed disclosure certificate.

Victoria Police should consult with the Victorian Director of Public Prosecutions in developing these amendments.

RECOMMENDATION 65

That the Victorian Director of Public Prosecutions, within 12 months, amends the Policy of the Director of Public Prosecutions for Victoria to align it with the legislative changes proposed in Recommendations 62 and 63.

RECOMMENDATION 66

That the Victorian Government, within 12 months, amends sections 41(e) and 110(e) of the Criminal Procedure Act 2009 (Vic) to clarify that any information, document or thing that is relevant to an alleged offence includes any material relevant to the credibility of a prosecution witness.

RECOMMENDATION 67

That the Victorian Government, within six months, in consultation with the Victorian Director of Public Prosecutions, Victoria Police, the Victorian courts, Victoria Legal Aid and other relevant stakeholders:

reviews the adequacy of existing court powers to make non-disclosure orders
considers whether a legislative power should be introduced to empower Victoria Police and/or the Director to initiate applications for a court to determine public interest immunity claims without giving notice to an accused person.

RECOMMENDATION 68

That the Victorian Director of Public Prosecutions, Victoria Police, the Victorian Government Solicitor’s Office and any other relevant stakeholders work together to establish clear protocols and procedures, within 12 months, to facilitate effective engagement with, and resolution of, complex issues arising from disclosure obligations and public interest immunity claims.

These protocols and procedures should:

ensure Victoria Police has adequate and early support, including legal advice, when making complex decisions about relevant and disclosable information that may be subject to public interest immunity
tailor the level of support provided to Victoria Police, to enable greater support in cases involving complex public interest immunity and disclosure issues
ensure the Director’s independence is maintained and potential conflicts of interest are avoided.

RECOMMENDATION 69

That the Victorian Director of Public Prosecutions, within 12 months, amends the Policy of the Director of Public Prosecutions for Victoria to provide appropriate guidance on when and how the Director can be consulted by Victoria Police in relation to complex issues arising from disclosure obligations and public interest immunity claims. These amendments should reflect the protocols and procedures proposed in Recommendation 68.

RECOMMENDATION 70

That Victoria Police, within 12 months, amends its internal policies and procedures to provide appropriate guidance on when and how Victoria Police can consult the Victorian Director of Public Prosecutions in relation to complex issues arising from disclosure obligations and public interest immunity claims. These amendments should reflect the protocols and procedures proposed in Recommendation 68 and the need for police officers to obtain early legal advice when potentially complex disclosure and public interest immunity issues arise; and provide a clear framework for seeking that advice.

RECOMMENDATION 71

That Victoria Police, within six months, implements the measures it has proposed to improve training and support for police officers regarding their disclosure obligations, across all levels of the organisation.

RECOMMENDATION 72

That Victoria Police commissions two independent reviews of the measures implemented in Recommendation 71, to ensure that they adequately reflect any applicable changes to law and policy and are effective in improving police officers’ understanding of their disclosure obligations. The reviews should be undertaken as follows:

an initial independent external review within two years of implementation
an additional independent external review within five years of the initial review.

RECOMMENDATION 73

That Victoria Police commissions two independent reviews of the implementation of its dedicated disclosure officer initiative, to ensure that it is effective in improving disclosure processes and practices. The reviews should be undertaken as follows:

an initial independent external review within two years of implementation
an additional independent external review within five years of the initial review.

RECOMMENDATION 74

That Victoria Police, within six months, reviews the information management systems it relies on to fulfill its disclosure obligations, to assess with specificity:

the extent to which the implementation of recent system reforms will enable Victoria Police to fulfil its disclosure obligations adequately
remaining system gaps and issues
system functionality needed to address any identified gaps and issues
investment requirements to develop and implement any additional system functionality needed.

RECOMMENDATION 75

That Victoria Police, within three months, establishes a disclosure governance committee that has responsibility for identifying and monitoring systemic disclosure issues and overseeing the development and implementation of reforms to improve disclosure processes and practices.

The committee’s membership should consist of stakeholders with expertise in policing, disclosure, public interest immunity and the conduct of criminal prosecutions, including the Victorian Office of Public Prosecutions, the Victorian Government Solicitor’s Office, the Department of Justice and Community Safety, Victoria Legal Aid and any other relevant legal profession representatives.

Legal profession regulation

RECOMMENDATION 76

That the Victorian Legal Services Board and Commissioner, the Law Institute of Victoria and the Victorian Bar work with community legal services and Victoria Legal Aid to, within six months, prepare and distribute communications aimed at restoring and promoting public and client confidence in the legal profession. These communications should:

educate clients and the public on lawyers’ ethical duties and obligations, particularly in relation to confidentiality, conflicts of interest and legal professional privilege
inform clients and the public about where they can seek help or advice regarding concerns they may have about their lawyer.

RECOMMENDATION 77

That the Victorian Government, within six months, considers whether the Victorian Legal Admissions Board requires any additional powers to request and consider documentation from other agencies for the purpose of assessing applications for admission to the legal profession.

If such powers are conferred in Victoria, a Council of Attorneys-General working group should consider whether a harmonised approach could be adopted in all Australian jurisdictions.

RECOMMENDATION 78

That the Legal Services Council, Law Council of Australia and Australian Bar Association work together to, within 12 months, clarify and harmonise the duty of confidentiality and its exceptions, as contained in the Solicitors’ Conduct Rules and the Barristers’ Conduct Rules.

RECOMMENDATION 79

That the Law Council of Australia, within 12 months, updates the commentary to the Solicitors’ Conduct Rules in relation to the duty of confidentiality and its exceptions, to include guidance on:

the factors to be considered when assessing whether a disclosure of confidential information is justified
where and how a solicitor can obtain advice on ethics when considering making a disclosure
steps to be taken to document the actions taken by a solicitor regarding the information received and the disclosure made
any further actions that a solicitor should take when considering making a disclosure.

RECOMMENDATION 80

That the Victorian Bar, within 12 months, prepares guidance in relation to the duty of confidentiality and its exceptions, including:

the factors to be considered when assessing whether a disclosure of confidential information is justified
where and how a barrister can obtain advice on ethics when considering making a disclosure
steps to be taken to document the actions taken by a barrister regarding the information received and the disclosure made
any further actions that a barrister should take when considering making a disclosure.

RECOMMENDATION 81

That the Victorian Bar, within six months, develops ethics guidance on specific conflict of interest issues and scenarios that can arise for criminal defence barristers.

The Victorian Bar should prepare this guidance in consultation with the Criminal Bar Association, Victoria Legal Aid and other relevant stakeholders.

RECOMMENDATION 82

That the Law Council of Australia, within 12 months, includes specific guidance on maintaining appropriate professional boundaries in the commentary to the Solicitors’ Conduct Rules.

RECOMMENDATION 83

That the Victorian Bar, within 12 months, develops specific guidance for barristers on maintaining appropriate professional boundaries.

RECOMMENDATION 84

That the Victorian Legal Services Board and Commissioner, within six months, issues clear guidance about how legal ethics education should be embedded in the four compulsory fields of continuing professional development, including through the use of practical, scenario-based learning.

RECOMMENDATION 85

That the Legal Services Council, Law Council of Australia and Australian Bar Association work together to, within 12 months, harmonise the powers held by local regulatory authorities through the Solicitors’ Continuing Professional Development Rules, so that policies and requirements for continuing professional development can be made for solicitors as they can already for barristers.

If this change has not been made within 12 months, the Victorian Government should, within a further 12 months, provide the Victorian Legal Services Board and Commissioner with the power to regulate solicitors’ continuing professional development, as it is currently able to do in respect of barristers.

RECOMMENDATION 86

That the Victorian Government, within 12 months, pursues through the Council of Attorneys-General and the Legal Services Council, an amendment to the Legal Profession Uniform Law introducing a mandatory requirement for lawyers to report the suspected misconduct of other lawyers. The Victorian Government should ensure the Victorian Legal Services Board and Commissioner is appropriately resourced to implement this recommendation.

If the amendment incorporating a mandatory reporting obligation has not been agreed within 12 months, the Victorian Government should, within a further 12 months, introduce a mandatory reporting requirement for Victorian lawyers to report the suspected misconduct of other lawyers.

RECOMMENDATION 87

That the Victorian Legal Services Board and Commissioner, the Victorian Bar and the Law Institute of Victoria, in consultation with other relevant stakeholders and prior to the commencement of the mandatory reporting obligation proposed in Recommendation 86, prepare harmonised guidance and continuing professional development activities for the legal profession to accompany and support the introduction of a mandatory reporting requirement.

RECOMMENDATION 88

That the Victorian Legal Services Commissioner, within 12 months, revokes the Instrument of Delegation conferred on the Victorian Bar for receiving and handling complaints regarding barristers and resumes that function.

RECOMMENDATION 89

That the Victorian Bar and the Law Institute of Victoria, within six months, assess the awareness level, use and views of the ethical, health and wellbeing support services and resources offered to their members. If the awareness levels and usage are found to be low, the Victorian Bar and the Law Institute of Victoria should review the quality of the services and resources and improve marketing and communications to ensure members are aware of the useful supports available.

The Victorian Bar and the Law Institute of Victoria should regularly review the effectiveness of these services and resources (at least every two years) and update them as required to meet the needs of members.

RECOMMENDATION 90

That Victoria Police, within 12 months, amends the Victoria Police Manual and relevant training materials to comprehensively set out obligations under section 464C of the Crimes Act 1958 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) related to the right of a person in police custody to communicate with a lawyer.

Victoria Police should undertake this work in consultation with relevant stakeholders including Victoria Legal Aid, the Department of Justice and Community Safety, Law Institute of Victoria, Victorian Bar, Federation of Community Legal Centres and Victorian Aboriginal Legal Service.

Issues arising during the conduct of the Commission’s inquiry

RECOMMENDATION 91

That the Victorian Government, within 18 months, amends the Inquiries Act 2014 (Vic) to:

remove the ability for a person to refuse to comply with a notice to give information to a royal commission on the basis that the information is the subject of public interest immunity
insert a provision to make clear that it is not a reasonable excuse for a person to refuse or fail to comply with a requirement to give information (including answering a question) or produce a document or other thing to a royal commission on the basis that the information, document or other thing is the subject of public interest immunity
specify that any such information or document or other thing does not cease to be the subject of public interest immunity only because it is given or produced to a royal commission in accordance with a requirement under the Act.

Work beyond the Commission

RECOMMENDATION 92

That the Victorian Government, within 12 months, develops legislation to establish a Special Investigator with the necessary powers and resources to investigate whether there is sufficient evidence to establish the commission of a criminal offence or offences (connected with Victoria Police’s use of Ms Nicola Gobbo as a human source) by Ms Gobbo or the current and former police officers named in the Commission’s final report or in the complete and unredacted submissions of Counsel Assisting.

RECOMMENDATION 93

That the Victorian Government, in developing the legislation to establish the Special Investigator, requires that the person appointed as the Special Investigator be an Australian lawyer with at least 10 years’ experience in criminal law or a related field.

RECOMMENDATION 94

That, where the Special Investigator compiles a brief of evidence containing sufficient evidence to establish the commission of a criminal offence or offences by Ms Nicola Gobbo or current or former Victoria Police officers, the Victorian Director of Public Prosecutions should be responsible for determining whether to prosecute and, if so, for the prosecution of the matter under the Public Prosecutions Act 1994 (Vic).

RECOMMENDATION 95

That the Victorian Government, in developing the legislation to establish the Special Investigator, requires the Special Investigator to report regularly to the Implementation Monitor proposed in Recommendation 108 on their progress to establish their operations, and on the outcomes of their investigations.

RECOMMENDATION 96

That the Victorian Government, in developing the legislation to establish the Special Investigator, requires the Special Investigator to investigate whether there is sufficient evidence to establish the commission of misconduct or a breach of discipline under the Victoria Police Act 2013 (Vic) (connected with Victoria Police’s use of Ms Nicola Gobbo as a human source) by current Victoria Police officers named in the Commission’s final report or in the complete and unredacted submissions of Counsel Assisting.

RECOMMENDATION 97

That the Victorian Government, in developing the legislation to establish the Special Investigator, empowers the Special Investigator to investigate:

whether there is sufficient evidence to establish the commission of a criminal offence or offences (connected with Victoria Police’s use of Ms Nicola Gobbo as a human source) by any current or former Victoria Police officers other than those named in the Commission’s final report or in the complete and unredacted submissions of Counsel Assisting
whether there is sufficient evidence to establish the commission of misconduct or a breach of discipline under the Victoria Police Act 2013 (Vic) (connected with Victoria Police’s use of Ms Gobbo as a human source) by any current Victoria Police officers other than those named in the Commission’s final report or in the complete and unredacted submissions of Counsel Assisting.

RECOMMENDATION 98

That the Victorian Government, in developing the legislation to establish the Special Investigator, provides the Special Investigator with all necessary and reasonable powers required to fulfil their role in investigating misconduct or breaches of discipline, including but not limited to the power to direct any police officer to give any relevant information, produce any relevant document or answer any relevant question during a disciplinary investigation.

Any information, document or answer given in response to such a direction should not be admissible in evidence before any court or person acting judicially, other than in proceedings for perjury or for a breach of discipline.

To support the Special Investigator’s powers, the failure of an officer to comply with a direction from the Special Investigator should itself constitute a breach of discipline.

RECOMMENDATION 99

That the Victorian Government, in developing the legislation to establish the Special Investigator, empowers the Special Investigator to lay disciplinary charges against relevant police officers if satisfied there is sufficient evidence to do so.

RECOMMENDATION 100

That the Chief Commissioner of Victoria Police ensures that a suitably qualified, independent authorised person, who is not a police officer, determines any disciplinary charges laid by the Special Investigator.

RECOMMENDATION 101

That the Chief Commissioner of Victoria Police reports to the Special Investigator and Implementation Monitor proposed in Recommendation 108 on the outcome of any disciplinary proceedings arising from the Special Investigator’s investigation of current Victoria Police officers.

RECOMMENDATION 102

That the Victorian Government ensures that under the Public Records Act 1973 (Vic), the Commission’s records be unavailable for public inspection for 75 years, subject to: any order of the Supreme Court of Victoria; the legislation providing the Special Investigator and the Independent Broad-based Anti-corruption Commission with access to the records; or any decision of the responsible Minister under section 9(2)(b) of the Act to permit all or any of the records to be open for inspection by any specified person or class of persons.

RECOMMENDATION 103

That the Victorian Government, in developing the legislation to establish the Special Investigator, ensures that the legislation:

gives the Special Investigator full and free access to the Commission’s records
requires the Special Investigator to establish appropriate security arrangements for access to and the management of such records.

The Victorian Government should also ensure that the Independent Broad-based Anti-corruption Commission has a legislative entitlement to obtain full and free access to the Commission’s records.

RECOMMENDATION 104

That the Department of Premier and Cabinet notifies Victoria Police of any court order or request to access the closed records of the Commission, except in relation to requests made by the Special Investigator or Independent Broad-based Anti-corruption Commission.

RECOMMENDATION 105

That Victoria Police and the Victorian Director of Public Prosecutions, within three months, in accordance with their ongoing disclosure obligations, apply the Commissioner’s determinations in relation to the public interest immunity claims (or as otherwise determined by a court) over the complete and unredacted submissions of Counsel Assisting, and, where relevant, facilitate disclosure of these revised versions of the submissions to potentially affected persons.

RECOMMENDATION 106

That Victoria Police and prosecuting agencies, within six months, make all reasonable attempts to advise the 887 people whose cases may have been affected in the manner identified in R v Szabo that their cases may have been affected by Ms Nicola Gobbo’s conduct as a human source, and facilitate ongoing disclosure of relevant information to those persons.

RECOMMENDATION 107

That the Victorian Government, within three months, establishes an Implementation Taskforce, chaired by a senior executive of the Department of Justice and Community Safety, with responsibility for coordinating and completing implementation of the Commission’s recommendations. The Taskforce should:

consist of members from the Department of Justice and Community Safety, Department of Premier and Cabinet, Victoria Police, the Victorian Office of Public Prosecutions, the Special Investigator and other relevant stakeholders
engage regularly with, and report formally and informally to, the Implementation Monitor proposed in Recommendation 108 throughout the implementation process.

RECOMMENDATION 108

That the Victorian Government, within three months, appoints an independent Implementation Monitor to monitor the implementation of the Commission’s recommendations until implementation is completed.

RECOMMENDATION 109

That the Victorian Government, in establishing the role of the Implementation Monitor, provides the Implementation Monitor with the support of a small secretariat located within the Department of Justice and Community Safety, and all necessary and reasonable legislative powers required to fulfil their role, including the power to:

assess the implementation of the Commission’s recommendations throughout the implementation process, not only once responsible agencies have reported on the completion of implementation
access Implementation Taskforce documents and attend meetings of the Implementation Taskforce
indicate to responsible agencies the extent to which their implementation of the Commission’s recommendations is considered adequate
request regular reports from Victoria Police on its progress in fulfilling its ongoing disclosure obligations to potentially affected persons identified by the Commission
request reports from the Special Investigator on progress to establish their operations and the outcomes of their investigations
request reports from the Chief Commissioner of Victoria Police on the progress and outcomes of any disciplinary proceedings arising from the Special Investigator’s disciplinary investigations.

RECOMMENDATION 110

That the Victorian Government, in establishing the role of the Implementation Monitor, requires it to report to the Attorney-General annually, or more frequently as it deems necessary, on the progress of the implementation of the Commission’s recommendations, the adequacy of implementation and what further measures may be required to ensure the Commission’s recommendations are implemented fully within the specified timeframes.

RECOMMENDATION 111

That the Attorney-General reports annually to the Victorian Parliament on the progress of the implementation of the Commission’s recommendations, until implementation is complete.

Reviewed 07 December 2020

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