Chapter 4

Introduction

Central to the Commission’s inquiry was determining: (a) whether it was appropriate for Victoria Police to seek, acquire and use information from a human source who was legally obliged to keep that information confidential; and (b) the appropriateness of a lawyer, Ms Nicola Gobbo, divulging to Victoria Police information that her clients had entrusted to her. The Commission’s analysis and conclusions about these matters are contained in Volume II of this final report.

In addition to identifying and reporting on the consequences of these events, the Commission was required to examine Victoria Police’s current processes for using and managing human sources with legal obligations of confidentiality or privilege, and for using information acquired from such sources.

Before examining the adequacy and effectiveness of these processes, the Commission had to define and examine the term ‘legal obligations of confidentiality or privilege’, and consider the implications of using human sources who may be subject to these obligations.

Legal obligations of confidentiality or privilege are duties imposed on people entrusted with confidential or privileged information to keep it confidential and not disclose or disseminate (distribute) it. These duties exist primarily to protect communications in certain professional relationships (such as lawyer–client and doctor–patient relationships), but also to protect sensitive or secret information entrusted to individuals in their work (for example, government officials and employees).

Obligations of confidentiality or privilege arise from diverse legal sources, including legislation, contract, common law and equitable principles, and codes of conduct. The law not only imposes obligations of confidentiality and privilege; it also defines and regulates exceptions to these obligations. That is, it prescribes how and when confidential or privileged information may be lawfully disclosed. As explained in this chapter, such disclosure may happen if there is a competing interest that justifies it.

It is important to understand the difference between confidential and privileged information, and the corresponding obligations not to disclose or disseminate this information. Privileged information is confidential information that attracts a higher level of protection. So, while a court can order disclosure of confidential information in legal proceedings, it cannot order disclosure of privileged information unless an exception applies. Privilege only applies to certain information shared in some circumstances with lawyers, doctors, counsellors, journalists and religious clerics.

It is also important to focus not just on who—because of their profession or occupation—is subject to legal obligations, but on the nature of the information being provided. That is, when considering the implications of using a human source, it is important to determine whether the specific information that they provide is confidential or privileged, rather than simply looking at the source’s occupation.

Confidentiality and privilege limit the scope of information available to law enforcement agencies and prosecuting authorities when building and presenting a case against a person. While it might be advantageous for police to have ready access to information that supports their investigations of criminal activity, other important and competing interests need to be considered. Permitting police to ‘override’ confidentiality protections enshrined in law raises several concerns. It risks:

• interfering with a person’s right to and expectations of privacy
• undermining the public interest in professional relationships built on trust
• damaging the reputation and integrity of the profession and professionals involved.

Critically, it may also jeopardise investigations and prosecutions, if the access to and/or use of the information is later found to be illegal or improper.

Some stakeholders consulted by the Commission, particularly law enforcement agencies, considered that there are circumstances where it may be appropriate for police to use a human source with legal obligations of confidentiality or privilege; for example, to provide information unconnected to their legal obligations. Stakeholders even considered there might be very limited circumstances where police might appropriately recruit a human source with the specific intention of obtaining confidential or privileged information; for example, to prevent serious harm to a person or the community.

Other stakeholders were wholly opposed to police use of human sources with legal obligations of confidentiality or privilege, arguing that the risks are too significant and not realistically able to be managed. In particular, some legal profession associations and regulatory bodies submitted that lawyers’ duties and obligations are inherently incompatible with using them as human sources.

Having considered the evidence, the Commission’s view is that it is rarely appropriate for police to seek confidential or privileged information from a human source. The only circumstances where it might be appropriate for police to use a human source for this purpose would be when there are exceptional and compelling reasons for doing so, such as a need to respond to a significant threat to community safety. Any proposed use of a human source to obtain confidential or privileged information in these circumstances would still need to be subject to significant safeguards, including independent oversight by an agency external to Victoria Police.

The Commission acknowledges that there are some circumstances in which the use of human sources subject to legal obligations of confidentiality or privilege might pose fewer risks—if, for example, the information being provided is unrelated to the person’s occupation and professional duties, or an exception to the duty of privilege or confidentiality applies. Such scenarios involve complex legal questions, however; and resolving them will often depend on a detailed assessment of the particular case. Consequently, the Commission considers that when deciding whether to use any human source who is reasonably expected to provide confidential or privileged information, this decision must involve rigorous risk assessment and legal advice. The use of such a source should also be referred to senior police decision makers for authorisation.

Current context and law

Terms of reference 3–6 required the Commission to focus on Victoria Police’s use of human sources subject to legal obligations of confidentiality or privilege.

Before examining the adequacy and effectiveness of current processes relating to the use and management of such human sources, the Commission had to:

• define and examine legal obligations of confidentiality and the circumstances in which they arise
• define and examine legal obligations of privilege and the circumstances in which they arise
• identify the risks associated with police accessing and using confidential or privileged information
• consider how police currently manage any risks associated with the use of such human source information.

These matters are discussed in turn below.

Legal obligations of confidentiality

Obligations of confidentiality are duties imposed on people entrusted with confidential information not to disclose or disseminate that information.

Broadly, legal obligations of confidentiality arise when a person entrusts confidential information to another person:

• for limited use
• in circumstances in which the law imposes an obligation on the person who receives the information to keep it confidential.¹

At its core, confidentiality is about control over information, which empowers the person disclosing the information to ‘influence what others know and … how they behave’.² For this reason, the law also recognises that obligations of confidentiality can extend to people who have received confidential information—even when they receive it from someone other than the person who originally disclosed it.³

While those subject to legal obligations of confidentiality must not disclose that information to any other party, a court is able to ‘override’ the confidentiality and order them to reveal or disclose the information in the context of legal proceedings.⁴

A failure to comply with confidentiality obligations may expose a person providing professional services (referred to in this chapter as the ‘professional’) to legal or disciplinary action. The person to whom the professional owes the obligation (referred to in this chapter as the ‘client’) may take legal action against a professional who breaches their confidentiality.⁵ They could seek an award of damages to compensate them for the effects of the unlawful disclosure, or, in the case of a threatened disclosure, an injunction to prevent the breach. The client may also report the professional to the appropriate regulatory body. Disciplinary proceedings may follow, and these may result in the professional’s licence to practise being restricted or revoked.

People subject to obligations of confidentiality

People may have legal obligations of confidentiality in a broad range of circumstances, including:

• in the context of service-based professional relationships (such as between lawyers and their clients, and doctors and their patients)
• where a person is entrusted with knowledge of or access to information designated as sensitive or secret (such as government officials and those with responsibility for handling individuals’ private information)
• under commercial and employment contracts
• a combination of the above.

The Commission has focused primarily on legal obligations of confidentiality arising from professional relationships, and, by extension, confidential information derived from those relationships. This is because the law affords particular status to information divulged in these contexts, which is in turn a reflection of broader social interests.⁶ As discussed further below, legal protection of confidential information supports the operation of important public and social institutions, such as the administration of justice and medical and health services.

Communications that arise in some professional relationships are legally confidential.⁷ There is no legally recognised definition of ‘professional’ or ‘profession’ that determines whether the law protects the confidentiality of the relationship between the professional and their client.⁸ Professional status tends to be given to certain occupations based on factors such as training and skill, power imbalances and the likelihood of confidential communications being made.⁹

The lawyer–client and the health practitioner–patient relationships (the latter most commonly illustrated by the doctor–patient relationship) are the most familiar examples. Other examples of professional relationships where obligations of confidentiality may arise include journalist–source, clergy–penitent, accountant–client and banker–customer.¹⁰

In addition to confidentiality obligations arising out of professional relationships, people in certain roles may also be subject to legal obligations to keep the information they acquire in the course of their occupation secret. Cabinet ministers, Members of Parliament and government employees are all required to keep certain categories of information that they obtain in the course of their public duties confidential.¹¹ Legislated protection of sensitive and secret information is similarly important for a range of other public policy objectives, including to facilitate the work of government and its agencies.

The basis for obligations of confidentiality in professional relationships

In professional relationships, legal obligations of confidentiality exist for several reasons. When the relationship involves the giving of professional advice, confidentiality obligations encourage frank and open communication, and foster trust and loyalty.¹² The underlying assumption is that the professional will be best able to assist the client if the client discloses information fully and freely.¹³ In other circumstances, such as in the financial sector, confidentiality obligations are considered to promote public confidence in the banking system and capital markets.¹⁴

Obliging a professional to maintain confidentiality is not only in the individual client’s interest, but also in the public interest.¹⁵ For example, a client’s trust in their lawyer is in the interests of the administration of justice, and a patient’s trust in their doctor is in the interests of maintaining public health.¹⁶ The obligations enhance public confidence in the standards and integrity of the legal, health and other systems, and help to ensure that citizens feel confident to use these services.¹⁷

Legal obligations to maintain confidentiality

Generally, legal obligations to maintain confidentiality come from three main sources: contract, equity and legislation.¹⁸ Obligations may also arise through professional codes of ethics prescribed by governing bodies.

Contract

A contract can create an obligation to maintain confidentiality. The terms of a contract can be express or implied, so an obligation of confidentiality may exist either expressly or by implication.¹⁹ An example of an express contractual obligation is a professional service provider, such as a lawyer or an accountant, signing a contract specifying that the service provider will keep the client’s affairs confidential and will not disclose them unless this is justified. In those circumstances, such an express contractual term is designed to reflect a mutually agreed position as to what can and cannot be done with the information.²⁰

Even if a contract does not include an express term requiring a service provider to keep the client’s information confidential, the law may still recognise an obligation of confidentiality implied in the agreement.²¹ A contractual obligation of confidentiality is often implied as a matter of law in a professional–client relationship (for example, between lawyers and clients, and doctors and patients), and sometimes also embedded in professional rules.²²

Equity

Equity is a branch of law that gives courts flexibility to rectify injustices even if a remedy is not available under other areas of law, such as contract or tort. While a contract may not exist in every confidential professional relationship or circumstance in which confidential information is shared, the equitable doctrine of confidentiality (or confidence) may be relied on to protect the disclosure of sensitive information intended to be kept confidential. If information is communicated in circumstances of confidence²³—even if there is no contractual or legislated obligation of confidentiality—equity empowers the court to make orders to restrain the release of confidential information or to give a remedy for a breach of confidentiality.²⁴

For example, there is usually a contract between a patient and their doctor when the patient attends a doctor’s surgery or clinic.²⁵ In some circumstances, such as in a public hospital, there may not be a contract between the doctor and patient, but with or without a contract, a doctor would have an equitable duty of confidentiality to protect the patient’s health information.²⁶

Legislation

Legislation may establish legal obligations of confidentiality and impose penalties for unlawfully obtaining or disclosing certain categories of information. For example, the Health Records Act 2001 (Vic) and Privacy and Data Protection Act 2014 (Vic) regulate the handling by public and private sector organisations of a person’s health and personal information.

In Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) protects a person’s rights not to have unlawful or arbitrary interference with their privacy, family, home or correspondence.²⁷ The Charter requires public officials and authorities to act in a way that is compatible with these rights.²⁸ This imposes obligations on government employees to comply with confidentiality requirements.

Codes of ethics

In professions where there is a special commitment to ethical conduct, codes of ethics or professional rules may mandate an obligation of confidentiality to a client. Breach of professional ethics may result in disciplinary proceedings. Professional ethics may also assist the courts in determining the scope of the legal obligation of confidentiality in cases concerning a breach. Professional codes of ethics typically reflect or are underpinned by obligations owed by the professional at law.

Professional codes of ethics are usually made by an industry’s governing regulatory board or peak body.²⁹ They may also be enacted as subordinate legislation,³⁰ or given particular weight under an Act. Lawyers’ obligations to maintain their clients’ confidentiality are set out in the legal profession’s conduct rules.³¹

Exceptions to obligations of confidentiality

The law does not give a client a ‘cast-iron guarantee of confidentiality’.³² A professional may disclose confidential information; for instance, where an exception in the public interest arises, or where they have a duty to disclose the information because of legislation or a court order. As Lord Diplock stated in Parry-Jones v Law Society:

Such a duty of confidence is subject to, and overridden by, the duty of any party to that contract to comply with the law of the land. If it is the duty of such a party to a contract, whether at common law or under statute, to disclose in defined circumstances confidential information, then he must do so, and any express contract to the contrary would be illegal and void. For example, in the case of banker and customer, the duty of confidence is subject to the overriding duty of the banker at common law to disclose and answer questions as to his customer’s affairs when he is asked to give evidence on them in the witness box in a court of law.³³

Professionals can rely on exceptions to legal obligations of confidentiality to defend allegations that they have breached those obligations.

The main exceptions to an obligation of confidentiality are:

• waiver by the person to whom the obligation is owed through express or implied consent (when a person waives confidentiality, they give up their right to insist that it be maintained)
• where the professional collaborates with colleagues to fulfil the expected service to the client
• disclosure of de-identified information (for example, to support medical research)
• legislation that overrides any obligations of confidentiality and imposes a statutory duty to disclose (for example, mandatory reporting obligations that require people in particular roles to report suspected child physical or sexual abuse to authorities)
• compulsory court processes (for example, where a subpoena is issued, or the recipient of the information is called as a witness)
• disclosure in the public interest.³⁴

The public interest exception allows the person who has received confidential information to disclose it to a third party, even if the person who provided the information has not consented, and even if there is no specific legislative provision requiring them to do so. This exception generally applies to information relating to unlawful conduct. The exception, also known as the ‘iniquity rule’, was established in 1856 in the English case of Gartside v Outram:

There is no confidence as to the disclosure of an iniquity. You cannot make me confidant of a crime or a fraud, and be entitled to close up my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part; such a confidence cannot exist.³⁵

More recently, Australian courts have confirmed that courts will not protect duties of confidentiality when enforcing such duties would obstruct the administration of criminal law.³⁶

What constitutes an iniquity is not clearly defined in case law, but it tends to mean information concerning ‘crimes or civil wrongs of a serious nature’.³⁷ For example:

… the more serious the nature of the misdeed, the more likely the iniquity defence will succeed. At the other end of the spectrum, breach of a statutory proscription against misleading and deceptive conduct, or proof of actionable negligence, is unlikely to amount to ‘iniquity’ by itself. Nor is behaviour that some, or even many, in society may consider to be immoral, depraved or scandalous, if it is not otherwise illegal.³⁸

As such, the threshold for satisfying the ‘iniquity rule’ is high. When a person becomes aware of serious criminal conduct and believes there is a compelling public interest in providing confidential information to a law enforcement agency, they must ensure that ‘the information is required in the course of the investigation of an actual or reasonably apprehended breach of the criminal law’,³⁹ and not simply because a crime has been committed and they wish to disclose general information that may be only vaguely related.⁴⁰

The public interest exception may also justify disclosure of confidential information to prevent imminent serious physical harm to the client or another person.⁴¹ In these circumstances, care must be taken about what information to disclose, and to whom, so that the disclosure is only as extensive as is necessary to achieve the purpose of the exception.⁴²

When a person raises a claim that the public interest requires the disclosure of otherwise confidential information, the courts have to carefully examine whether the disclosure is in fact warranted by law.⁴³ This exercise, at least implicitly, requires some assessment of whether the specified public interests are best served by disclosure or non-disclosure.⁴⁴

Due to the many different ways public interest issues can arise, the legal rules about disclosure in the public interest are complex and can be confusing.⁴⁵ Despite the guidance case law provides, the courts have refrained from prescribing all the circumstances where a person may or must make a disclosure of confidential information.⁴⁶ Instead, the individual professional must decide whether to disclose, and this may be difficult to navigate.

Challenges associated with the exceptions to the duty of confidentiality owed specifically by lawyers are discussed in Chapter 15.

Legal obligations of privilege

Privileged information can be considered a subset of confidential information. It is confidential information that has additional protections. In essence, the law of privilege allows a person to resist the otherwise compulsory disclosure of information in legal proceedings. If information is privileged, a court cannot order a person to reveal or disclose it. Therefore, its protection from disclosure is stronger than the protection attaching to confidential information generally.

There is a public interest in transparency and uncovering the truth, which facilitates access by courts and parties to any and all information relevant to a matter under consideration in a legal proceeding, even if it is considered confidential in all other contexts.⁴⁷ In certain narrow circumstances, however, the law recognises that there may be a competing public interest that outweighs the public interest in courts and parties gaining access to particular information. If that is the case, information will be regarded as ‘privileged’ and protected from disclosure requirements unless an exception applies.

Exceptions to privilege are outlined in more detail below, but generally speaking, privilege will not apply if the client waives the privilege—for example, if they intentionally disclose or consent to disclosure of the information. Nor will the privilege apply if the law permits it to be displaced by other public interest considerations, such as not protecting illegal conduct.

Obligations of privilege, therefore, are duties imposed on people entrusted with certain information to protect it, and not disclose or disseminate that information, including in the context of relevant legal proceedings.

People subject to obligations of privilege

In Victoria, privilege applies to these people, in certain defined circumstances:

• lawyers
• doctors and counsellors
• journalists
• religious clerics.

Whether an individual member of these professions holds an obligation of privilege will depend on a range of legal and factual questions, including:

• the nature of the information communicated
• the circumstances in which it was communicated
• whether there are any exceptions to the privilege.

The basis for obligations of privilege

Obligations of privilege exist for the same reasons as obligations of confidentiality, as outlined in each category of privilege below. The additional protection given to privileged information (over and above confidential information) suggests that the law places a particularly high degree of importance on the need to foster open communication in relationships with these categories of professionals.

Categories of privilege

In Victoria, there are four legislated categories of privilege: legal professional privilege (or client legal privilege), medical privilege, journalist privilege, and religious privilege. These categories are discussed in turn below.

Legal professional privilege

Legal professional privilege is the most well-known type of privilege. It exists at common law and also in statute.⁴⁸

Legal professional privilege is a fundamental tenet of the administration of justice and cannot be displaced for reasons of convenience: it is regarded as a substantive right, rather than a mere rule of evidence or aspect of court procedure.⁴⁹

As with confidentiality obligations, legal professional privilege exists to ensure that a client can speak candidly to their lawyer and obtain frank, independent legal advice without fear that the information will be disclosed in court.⁵⁰ This facilitates the proper administration of justice, by helping to ensure that individuals can receive adequate legal advice and a fair trial.⁵¹

The statutory form of legal professional privilege in Victoria is called client legal privilege.⁵² There are two types of communication protected by client legal privilege:

• communications made for the dominant purpose of seeking and providing legal advice (advice privilege)⁵³
• communications for use in existing or anticipated legal proceedings (litigation privilege).⁵⁴

Client legal privilege protects both written and oral communication.⁵⁵ The communication must be confidential to be privileged.⁵⁶ The privilege belongs to the client, and the obligation to protect it rests on the client’s lawyer, as well as any employees or agents of the lawyer (for example, a legal secretary).⁵⁷ Communications may be privileged even if there is no formal lawyer–client retainer (contract) in place.⁵⁸

Client legal privilege can be lost when there is an inconsistency between the conduct of the client and the obligation to maintain the confidentiality.⁵⁸ This can occur when:

• the client expressly waives privilege⁶⁰
• the client impliedly waives privilege—for example, if the client discusses the legally privileged information with third parties in such a way that it is no longer confidential⁶¹
• communications are made by the client to their lawyer or a third party in furtherance of the commission of:
  • a fraud
  • an offence
  • an act that makes a person liable to a civil penalty
  • a deliberate abuse of power (for example, if the client asks their lawyer to destroy documents knowing that they are required to be produced to a court, the communications about that request would not be privileged).⁶²

Medical privilege

Medical privilege protects certain communications made between a doctor and their patient from disclosure in a court proceeding.⁶³ Medical privilege reflects the importance of encouraging people to seek treatment for medical and psychological problems without fear that their sensitive and personal information may be disclosed in court proceedings and potentially used against their interests.

In Victoria, medical privilege is only available in the limited circumstances set out in the Evidence (Miscellaneous Provisions) Act 1958 (Vic).⁶⁴

A doctor (described in the legislation as a ‘physician or surgeon’) cannot be compelled to give evidence in any civil proceeding about information acquired in attending their patient and that was necessary to enable them to treat the patient.⁶⁵ The privilege does not apply to certain proceedings, including those relating to the death of the patient or in which the sanity or capacity of the patient is in dispute. Nor does it apply to criminal proceedings— in those matters, health information is treated as confidential information, meaning that it must be disclosed to the other parties to the proceeding if it is relevant.⁶⁶

Additionally, registered medical practitioners⁶⁷ and counsellors⁶⁸ cannot be compelled to give evidence in a legal proceeding (either civil or criminal) about any confidential information divulged to them by a victim of sexual assault.⁶⁹ This privilege is not absolute—the court may allow evidence of a confidential communication to be given if, for example, the public interest in preserving the confidentiality of the information is outweighed by the public interest in admitting the communication into evidence.⁷⁰ In determining whether to order disclosure of the confidential communication, the court must assess how relevant that particular information is to proving the issues in the proceedings, and must also consider whether disclosure would cause harm to the victim, or could discourage other victims from seeking counselling.⁷¹

Journalist privilege

Journalists have obligations of privilege relating to the identity of a person (referred to as a ‘source’ or an ‘informant’) who has given them information in the expectation that the information may be published in a news medium.⁷²

Journalist privilege (also known as a ‘shield law’) recognises the importance of the freedom of the press and ‘the important role that journalists play in a democracy’ in providing information and opinions to the public.⁷³ To fulfil this role, journalists need access to information, and are often asked to assure sources that they will not disclose from whom they obtained the information. If journalists were compelled to reveal the identity of confidential sources in court proceedings, this could dissuade those with information about matters of public importance from coming forward, thereby preventing facts and opinions from being aired.

The Evidence Act 2008 (Vic) provides that if a journalist has promised a source not to disclose their identity, neither the journalist nor their employer can be compelled by a court to give evidence or produce a document that would disclose the source’s identity or enable their identity to be ascertained.⁷⁴

In Victoria, journalist privilege only applies to people ‘engaged in the profession or occupation of journalism in connection with the publication of information, comment, opinion or analysis in a news medium’ and who must comply with recognised standards or codes of practice.⁷⁵ It is therefore unlikely that the privilege would apply to people merely posting material on blogs or social media platforms.⁷⁶

Journalist privilege is not absolute—it has been described as a ‘discretionary rule of evidence created by the Evidence Act’.⁷⁷ A court may override the privilege if the public interest in knowing the source’s identity outweighs:

• any likely adverse effect of the disclosure on the source or any other person
• the public interest in the communication of facts and opinion to the public by the news media and in the ability of the news media to access sources of facts.⁷⁸

Religious privilege

In Victoria, religious privilege enables members of the clergy of any church or religious denomination to refuse to give evidence that a religious confession was made to them or what the contents of a religious confession were.⁷⁹ A religious confession is ‘a confession made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the church or religious denomination concerned’.⁸⁰

This privilege recognises the value to society of encouraging people to seek advice about personal problems from a trusted cleric, such as a minister, rabbi or priest, in circumstances where they may be reluctant to ‘bare their souls’ to a stranger.⁸¹

There are exceptions to the privilege. A cleric may be compelled to give evidence about a religious confession if the communication was made for a criminal purpose. They can also be compelled to give evidence in proceedings for an offence involving a failure to:

• comply with mandatory reporting requirements about a child in need of protection
• disclose information that leads a person to reasonably believe that a sexual offence has been committed against a child.⁸²

The risks of police accessing and using confidential or privileged information from human sources

The Commission’s terms of reference required it to examine policies and processes relating to the use of human sources who are subject to legal obligations of confidentiality or privilege.

As discussed in Chapter 2, human sources are people who covertly supply information about crime or people involved in criminal activity to law enforcement agencies. There are risks associated with the use of all human sources. There are additional risks associated with using human sources to obtain information that is confidential or privileged.

These additional risks fall into two broad categories:

• the risk of undermining the important objectives that underpin confidentiality and privilege protections, with negative implications for individuals, professions and the community
• the risk of interfering with the proper administration of justice, as illegal and improper investigation methods (and a failure to disclose how evidence was obtained) can compromise the integrity and ultimate success of prosecutions.

Arguably, these risks do not arise, or they are justifiable risks, if the human source provides information to police in one of these circumstances:

• there is an exception to the source’s legal obligations to keep the information confidential
• they obtained the information outside the scope of their professional responsibilities.

Nevertheless, as discussed later in this chapter, determining whether any exceptions apply involves considering complex legal, ethical and operational questions. This makes it difficult to establish simple processes for avoiding or mitigating the risks involved.

Undermining the objectives of confidentiality and privilege protections

As noted above, confidentiality and privilege protections underpin and foster relationships of trust and candour that are important for broader policy purposes.

When people confide in professionals about personal or sensitive matters, they do so with the expectation that their confidentiality will be respected and maintained. Such an expectation may be founded on assurances or undertakings provided by the professional in question (including in written privacy policies), a general understanding of the nature of the relationship, and/or a knowledge of the applicable legal principles. Information shared in the context of a professional relationship attracts greater legal protections than information that a person considers sensitive or confidential and shares in the context of a personal relationship.

Therefore, if a professional engaged by a person discloses the person’s confidential or privileged information to others in a way that is inconsistent with their expectations or rights, this undermines the person’s trust in the professional. It also exposes the person to the consequences of having others know their private information. Dissemination of such information may compromise their legal interests (if, for example, their opponents can use the information against them in legal proceedings), jeopardise their safety (if, for example, their whereabouts are made known to someone who intends to harm them) or expose them to discrimination (if, for example, someone treats them less favourably because they know they are suffering from a particular medical condition). Alternatively, it could merely cause them personal embarrassment.

Permitting police to access legally confidential or privileged information—or providing scope for professionals to breach their legal and ethical obligations—undermines the confidence that people can have in professionals. This may result in people not seeking advice and support for important legal problems or health concerns, not confiding in counsellors or religious advisers, or not coming forward with important information for journalists. All of this would have negative consequences not only for individuals, but for the community generally.

If professionals disclose confidential or privileged information about their clients to police or others, the reputation of the entire profession to which they belong may be damaged, and public confidence in institutions undermined. These risks are heightened if the disclosure is made to a person whose interests are in direct conflict with or adverse to those of the client.

Interfering with the proper administration of justice

To the extent that police acquisition and use of confidential information involves contraventions of laws or ethical standards (by the police or by the human source), such acquisition and use may ultimately result in a prosecution being withdrawn or a conviction being overturned on appeal. Non-disclosure of the full details relating to the acquisition of evidence may also jeopardise the outcome of a prosecution. As discussed in Chapters 2 and 5, this is because such actions can prevent an accused person from obtaining a fair trial and may result in a substantial miscarriage of justice.

Given the higher level of protection afforded to privileged information, the consequences associated with its disclosure are likely to be more pronounced. Courts have held that the deliberate invasion of legal professional privilege may lead to a criminal proceeding being stayed on the basis that it involves ‘a serious affront to the integrity of the justice system’.⁸³ In considering whether to stay the proceeding, the court will consider the particular circumstances of the case, including the gravity of the crime and whether the conduct prejudiced the accused person.⁸⁴

Police management of risks associated with confidential or privileged information

Due to the risks involved in seeking information that may be confidential or privileged, some law enforcement agencies prescribe additional or more rigorous processes for acquiring, using and disseminating material from human sources that may be confidential or privileged. Such processes variously involve requirements:

• for senior representatives of the agency, or an external authority, to approve the use of the human source
• to apply a threshold test or criteria for using the human source—for example, a compelling public safety or national security reason
• to obtain legal advice about the implications of using the human source
• for police officers to refer any information obtained from a human source that may be confidential or privileged to more senior personnel and/or their legal advisers
• to notify prosecuting authorities that a human source with legal obligations of confidentiality or privilege has been engaged and/or that confidential or privileged information has been obtained.

These processes are discussed in detail in Chapter 12 but key features are outlined briefly here. Processes relevant to the disclosure of information obtained from human sources by police to prosecuting agencies and accused persons are discussed in Chapter 14.

The risks associated with police obtaining and using confidential or privileged information apply not only in relation to the use of human sources, but also to the use of other covert or coercive means, such as controlled operations, covert surveillance, coercive questioning or search warrants. The Commission understands that Victoria Police has operating procedures in place for ‘quarantining’ privileged information obtained through certain covert powers.⁸⁵ In the case of information obtained through telephone intercepts under the Telecommunications (Interception and Access) Act 1979 (Cth), for example, a dedicated unit of Victoria Police undertakes the initial monitoring of legally intercepted information and identifies any sensitive material, such as conversations between the target and a lawyer. If this information is assessed by senior officers and/or the Victorian Government Solicitor’s Office as being subject to legal professional privilege, it is quarantined so that it is not available to investigators working on the case. The staff in the responsible unit are provided with one-on-one training about this process and their role in identifying sensitive material.⁸⁶

Approval

In Victoria, New South Wales, the Northern Territory, the United Kingdom and the United States of America, human source policies expressly address police access to and use of confidential and/or privileged information. These policies take varying approaches to approving the use of human sources with legal obligations of confidentiality or privilege.

In certain circumstances and subject to a prescribed approval process, the Victoria Police Manual—Human Sources (Human Source Policy) permits:

• the registration of a human source with legal obligations of confidentiality or privilege
• the use of information that is or appears to be in breach of a human source’s legal obligations of confidentiality or privilege.⁸⁷

In cases where approval is granted, it must be for a specific time period and specific purpose, and the human source must be managed as a ‘high-risk’ source.⁸⁸

At the time when the Commission conducted its consultations with interstate law enforcement agencies, New South Wales and the Northern Territory were the only other Australian jurisdictions in which official police policies and procedures contained any specific guidance about the use of human sources with legal obligations of confidentiality or privilege.

New South Wales Police’s Human Source Management Policy instructs that, if a lawyer or legal representative is to be registered as a human source, caution should be exercised to ensure that any information provided does not impinge upon or breach obligations of legal professional privilege. It also explains to officers what legal professional privilege is, its purpose and that it can only be waived by the client.⁸⁹ Further information about this policy is contained in Chapter 12.

Northern Territory Police advised the Commission that its Human Source Management Instruction states that people bound by an obligation based in either legal or medical privilege cannot be used as human sources.⁹⁰ This would not, however, prevent a lawyer or doctor from providing information that falls outside the scope of their professional obligations.

Agencies in Tasmania and Western Australia advised the Commission that policies addressing the issue were being developed.⁹⁰ The policy under development by Western Australia Police is likely to require an elevated authorisation process for the recruitment of a human source with legal obligations of confidentiality or privilege.⁹²

In the United Kingdom, the Covert Human Intelligence Sources (CHIS)⁹³ Code of Practice establishes a detailed process for approving access to and use of legally privileged or confidential information obtained from human sources.⁹⁴

In the United States of America, at the federal level, the Attorney General’s Guidelines Regarding the Use of Confidential Informants introduced in the early 2000s state that special approval is required if federal law enforcement agencies wish to use human sources (referred to as ‘confidential informants’) ‘who are under the obligation of a legal privilege of confidentiality’.⁹⁵ The Commission was unable to confirm whether this version of the guidelines is still current.

Permitted circumstances

In Victoria, if the specific purpose of using a human source is to obtain confidential or privileged information, or if police wish to use information that appears to have been provided in breach of a human source’s legal obligation of confidentiality or privilege, approval will only be given if there are ‘exceptional and compelling reasons’.⁹⁶ Those reasons must relate to national security or the prevention of a serious threat to life or serious injury, and there must be no other reasonable means of obtaining the information.⁹⁷ These provisions were inserted into the Human Source Policy in May 2020.⁹⁸

In the United Kingdom, the use of any human source must be both necessary and proportionate to the aim of using the human source.⁹⁹ The policy framework includes additional safeguards for the use of human sources where confidential or privileged information may be acquired.¹⁰⁰ The requirements differ depending on whether the information is confidential or privileged in nature, and whether the use or conduct of the human source is intended or likely to obtain such information. The most stringent requirements apply where the use or conduct of a source is intended to obtain, provide access to or disclose legally privileged information. The authorisation of human sources in these circumstances requires prior notification to and approval of an independent Judicial Commissioner from the Investigatory Powers Commissioner’s Office.¹⁰¹ An authorisation should only be sought where there are ‘exceptional and compelling circumstances that make the authorisation necessary’—for example, in the interests of national security.¹⁰²

Under the available guidelines in the United States, at the federal level, no specific test appears to be applied to the decision about whether to register a human source under the ‘obligation of a legal privilege of confidentiality’. The decision is made by the Confidential Informant Review Committee based on information contained in reports about the person’s suitability to be registered as a source. However, the guidelines do prescribe a process for authorising a human source to engage in otherwise illegal activity if it is necessary for one of these reasons:

• to obtain information or evidence essential for the success of an investigation that is not otherwise reasonably available
• to prevent death, serious bodily injury or significant damage to property.¹⁰³

In either case, the benefits to be obtained must outweigh the risks.¹⁰⁴ This process cannot be used to obtain information that would be unlawful if conducted by a law enforcement agent (for example, illegal wiretapping, illegal opening or tampering with the mail, or trespass amounting to an illegal search).¹⁰⁵

How police define legal obligations of confidentiality or privilege

The policies and processes in Victoria, New South Wales, the United Kingdom and the United States of America define legal obligations of confidentiality or privilege by reference to categories of sources, the nature of the information or a combination of both.

Since 2014, Victoria Police’s Human Source Policy has defined human sources with legal obligations of confidentiality or privilege by reference to the source’s occupation. In May 2020, the policy was amended to refer both to the occupation of the human source and the nature of information that may be obtained from a source.¹⁰⁶ Police officers must follow a special approval process before they receive information from or consider approaching a person to whom a legal obligation of confidentiality or privilege may apply as a result of their occupation. These occupations are lawyers, doctors, parliamentarians, court officials, journalists and priests, and such people are classified as ‘Category 1’ sources in the policy.¹⁰⁷ Police also need to follow this special approval process:

• if a potential human source has a ‘connection to’ a lawyer, doctor, parliamentarian, court official or priest, and information may be obtained that would breach a legal obligation of confidentiality or privilege
• if an active human source who is not subject to a legal obligation of confidentiality or privilege provides information that appears to be subject to a legal obligation of confidentiality or privilege.¹⁰⁸

A person who has a ‘connection to’ a Category 1 occupation is someone who previously worked in a Category 1 occupation; is likely to receive confidential or privileged information from a person in a Category 1 occupation; or is in a similar occupation or role where they are likely to receive such information.¹⁰⁹ The Human Source Policy does not provide any additional guidance to explain what roles or occupations may fall within ‘a similar occupation or role where they are likely to receive legally privileged or confidential information’.¹¹⁰

The Human Source Policy mandates that the decision to approach or approve a source in a Category 1 or connection to Category 1 occupation can only be made by the Victoria Police Human Source Ethics Committee—regardless of whether the information the person may be able to give to police appears to have been received in connection with their professional duties or whether it does in fact engage any legal obligations of confidentiality or privilege.¹¹¹

The occupations listed in Category 1 include those who owe obligations of privilege as well as confidentiality (lawyers, doctors, journalists and priests). The inclusion of parliamentarians and court officials appears to be in response to the Kellam Report, which listed them as examples of human sources who may have conflicting duties.¹¹²

In the United Kingdom, it is the confidential or privileged nature of the material or information obtained or likely to be obtained from a human source, rather than the professional status of the human source, that is the focus of the policy and associated safeguards. Examples of professions are provided as guidance:

Particular consideration should be given in cases where the subject of any intrusion might reasonably assume a high degree of confidentiality, or where confidential information is involved. Confidential information consists of matters subject to legal privilege, confidential personal information, confidential constituent information, or confidential journalistic material. So, for example, extra care should be taken where, through the use or conduct of a CHIS, it would be possible to acquire knowledge of discussions between a minister of religion and an individual relating to the latter’s spiritual welfare, or between a Member of Parliament and an individual or group of constituents relating to private constituency matters, or wherever matters of medical or journalistic confidentiality or legal privilege may be involved.¹¹³

The United Kingdom Code of Practice also addresses law enforcement agencies’ management of any information obtained from a human source that may be privileged. Agencies must consult with their legal adviser if they believe they have acquired information that is privileged. The legal adviser, rather than the investigating officer, determines whether the material is privileged, and, in cases of doubt, the Investigatory Powers Commissioner’s Office may be consulted.¹¹⁴

The approach outlined in the available federal United States guidelines considers both the professional status of a potential source and the nature of any information that might be provided. When initially assessing the suitability of a potential source, federal law enforcement officers must consider, among other things, whether the source is ‘a party to, or in a position to be a party to privileged communications (eg a member of the clergy, a physician, or a lawyer)’.¹¹⁵ Further, if the law enforcement agency, in conducting an investigation involving a human source, believes that the source ‘will obtain or provide information that is subject to, or arguably subject to, a legal privilege of confidentiality belonging to someone other than the [source]’, they must notify the attorney assigned to the matter in advance whenever possible.¹¹⁶

Issues and challenges

In light of the risks associated with police using human sources with legal obligations of confidentiality or privilege—or otherwise accessing confidential or privileged information—the Commission considered whether it is ever appropriate for police to seek out or use such sources or information, and, if so, in what circumstances and subject to what safeguards. A key question is: Can the risks be meaningfully mitigated given the complexity of the legal and policy issues involved?

In the sections below, the Commission outlines:

• different views about the appropriateness of using human sources with legal obligations of confidentiality or privilege
• the challenges associated with identifying potentially confidential or privileged information.

The Commission primarily focused on the use of lawyers as human sources. The subject matter of its inquiry was one reason for this, but so were the potentially more significant consequences for the criminal justice system of using lawyers in this way. In particular, the accused person’s right to a fair trial is more likely to be impacted by the use of a lawyer as a human source than it is by using other categories of people with legal obligations of confidentiality or privilege in this capacity.

The appropriateness of using human sources with legal obligations of confidentiality or privilege

Stakeholders consulted by the Commission expressed different views about the appropriateness of using lawyers and other professionals as human sources.

Several Australian law enforcement agencies supported policies enabling the potential use of lawyers and other professionals as human sources, arguing that their obligations of confidentiality and privilege can be identified and appropriately managed. They argued that it would not be reasonable to impose a blanket prohibition on a person acting as a human source simply because they had obligations of confidentiality or privilege arising from their occupation.¹¹⁷ Such a prohibition would hinder the provision of information that may be important for preventing a significant risk to the public or solving a very serious crime.¹¹⁸

Victoria Police stated that it may be appropriate to use a lawyer as a human source in some circumstances:

This can occur most obviously when the information that the person is giving has nothing to do with that person’s professional role. Also, Victoria Police’s current policy recognises that there may be situations of significant and immediate risk to public safety that can justify such use.¹¹⁹

Other stakeholders similarly noted that there may be limited circumstances in which a lawyer could act as a human source without compromising their obligations and duties—for example, if they were passing on information at the request of a client, or information obtained in their capacity as a private citizen, unconnected with their professional role.¹²⁰

Victorian legal profession and regulatory bodies consulted by the Commission generally opposed the use of lawyers as human sources—both in respect of their clients and in relation to matters outside the scope of their practice—arguing that the nature of lawyers’ duties and obligations is inherently incompatible with their use as human sources.¹²¹

In their view, using a lawyer as a human source would risk:

• undermining the lawyer–client relationship and the trust required to support that relationship
• damaging the reputation of the legal profession overall, as clients may doubt that lawyers would treat their information as confidential
• placing conflicting duties (to clients, the courts and law enforcement agencies) on lawyers, which they would have difficulty reconciling
• creating unidentifiable conflicts of interest when representing a client who, unbeknown to the lawyer, was charged on the basis of information first derived from the lawyer—such a conflict of interest would be impossible to identify because human sources generally do not know how the information they provide is ultimately used
• compromising a lawyer’s independence if they appear in a matter in opposition to a law enforcement agency with whom they also have a covert relationship.

The Criminal Bar Association emphasised the heightened risk of using a criminal lawyer as a human source, as compared to lawyers engaged in other areas of practice. The Association submitted that ‘there is no possible justification for counsel acting in a criminal matter to provide information to police unless strictly on instructions of the client’.¹²² To do so would create an inherent conflict of interest, and would prevent the lawyer from being able to act independently when opposed to law enforcement or regulatory authorities that they have covertly assisted in the past.¹²³ It would also place the personal safety of the lawyer at risk, because unsuccessful defendants may suspect that their lawyer contributed to an adverse result in a criminal trial.¹²⁴

The Victorian Bar also noted the significant burden that would be placed on police responsible for managing human sources with legal obligations of confidentiality or privilege ‘to ensure that professional standards are not compromised by virtue of that person’s status as an informer’.¹²⁵ The Victorian Bar submitted that it would be practically impossible for law enforcement officers to discharge this responsibility satisfactorily in respect of human sources who are practising lawyers, and concluded that lawyers should not be used as human sources ‘in any circumstances in which there is a risk of a breach of professional obligation’.¹²⁶

The Law Institute of Victoria expressed the view that it would never be appropriate for a lawyer to act as a human source, even if the information being provided to police related to their family or other contacts rather than to their clients. This is due to the risks that the information may still be subject to the duty of confidentiality; that the individual being informed on may believe they are in a lawyer–client relationship with the lawyer; and that the reputation of the profession may be damaged.¹²⁷

The Victorian Legal Services Board and Commissioner (VLSB+C) similarly opposed lawyers disclosing information derived from social activities to police, but acknowledged that in the absence of a specific prohibition, law enforcement agencies may continue to consider registering and using lawyers as human sources. In their view, if this were to occur, it should be limited to matters wholly unconnected with the person’s practice as a lawyer.¹²⁸

Several interstate legal profession bodies also concluded that it would be inappropriate to use lawyers as human sources in any circumstance, due to the centrality of obligations of confidentiality and privilege to the legal profession, and because it would be unacceptable to allow police to determine in which situations it would be appropriate to use lawyers as human sources.¹²⁹

In light of the circumstances that led to the Commission’s inquiry, legal profession bodies in Victoria and New South Wales have published guidance for lawyers about their duty of confidentiality and the circumstances in which voluntarily providing information to police may be permissible.

The VLSB+C regulatory guideline titled Lawyer Conduct in Providing Information to the Police encourages lawyers to seek guidance from the Law Institute of Victoria or Victorian Bar ethics advisers if they are unsure about how to resolve competing obligations arising out of information they have received from or about their clients.¹³⁰

Guidelines published by the New South Wales Bar Association provide unequivocal advice that ‘a barrister must never act as [a human source] against a current or former client’.¹³¹ The Association also concludes that acting as a human source against a non-client would risk compromising a barrister’s independence, especially if they practise in criminal proceedings or other matters touching on the operation of law enforcement agencies.¹³² The guidelines advise that a decision ‘to disclose threatened criminality for preventative purposes is largely a matter of professional conduct and ethics’.¹³³ It suggests that any barrister wanting to take such action should first attempt to advise the client against the threatened conduct. If no satisfactory reassurance is received, they should then seek ethical guidance, discuss the proposed disclosure with the client (if safe to do so), explain the conflict of interest that has arisen and the need to withdraw from representing the client, assist the client to access alternative legal representation if possible, and cease acting for the client.¹³⁴

Other options for clarifying the exceptions to lawyers’ duty of confidentiality, and stakeholders’ views about them, are discussed in Chapter 15.

Identifying legal obligations of confidentiality and privilege

The complex nature of legal obligations of confidentiality and privilege has implications for human source management at both a policy and an operational level. It is difficult to specify the full range of legal obligations and exceptions in official policies. It is equally challenging for individual officers to identify the precise legal constraints that apply to a human source or the information they hold, and to assess the risks of acquiring and using that information.

In many instances, it will be readily apparent that a human source has legal obligations of confidentiality or privilege in relation to the information provided—for example, when the source is a lawyer who is providing information obtained directly from an existing client while advising them about their legal position.

There will be other circumstances, however, in which it will be more difficult to determine whether legal obligations of confidentiality or privilege arise because:

• it is unclear whether the human source is subject to legal obligations of confidentiality or privilege in respect of the information being offered
• it is unclear whether an exception to the source’s legal obligations applies
• the source does not owe a relevant legal obligation to the person being informed on, but the information being provided may still be confidential or privileged.

In practice, it may be unrealistic to expect police officers to accurately determine the obligations of a potential human source, or the status of a category of information at face value. An assessment of whether particular legal principles apply generally requires the careful application of complex legal tests to the pertinent facts.

At the same time, given the risks that illegally or improperly obtained evidence can ultimately have for the outcome of a criminal prosecution, there is a strong imperative for police to understand and respect the boundaries of confidentiality and privilege when dealing with human sources.

Unclear application and scope of legal obligations

Although many relationships of confidentiality or privilege will be readily apparent, the breadth and complexity of the law relating to such obligations means that there is a lack of clarity about their existence or scope in any given circumstance.

Legal obligations to keep certain information confidential can arise in very specific contexts, such as government employees who are subject to secrecy obligations,¹³⁵ or in very broad circumstances, such as when the equitable duty of confidence (discussed earlier in this chapter) applies.¹³⁶

An equitable duty of confidence can be difficult to identify. In Australia, the test requires the court to ask whether the information is actually confidential and whether ‘a reasonable man in the position of the recipient would have recognised that the information was given to him in confidence’.¹³⁷

The principles of equity have been used widely by courts to protect a range of relationships, including commercial, professional and personal relationships where the trust associated with confidentiality is necessary for the relationship to operate effectively.¹³⁸ The broad range of equitable obligations adds to the complexity in identifying who has obligations of confidentiality.

As noted above, even if a human source falls into a category of professionals who generally owe legal obligations of confidentiality or privilege to their clients, their professional status alone may not necessarily determine whether the information they are providing is legally confidential or privileged.¹³⁹

For example, the information may have no connection to their professional or legal obligations—instead, it might relate to family members or friends based purely on the human source’s personal knowledge and relationships, in their capacity as a private citizen. Nevertheless, while certain matters may ostensibly be within a professional’s personal knowledge, the circumstances in which they received that information may still carry an expectation of confidentiality (and even privilege), given broad community perceptions about the obligations professionals—such as lawyers and doctors—generally owe. A lawyer may be subject to an equitable obligation of confidence, and even an obligation of privilege, to a non-client, regardless of whether the lawyer considers this to be the case.¹⁴⁰ For example, as evident in the case of Ms Gobbo, individuals might provide information to a lawyer in a personal or social context, yet still consider that the lawyer will keep the information confidential due to their professional obligations.

Other legal considerations may make it difficult to readily determine whether information is confidential or privileged:

• Confidential information is not limited to information communicated by the client to the professional. It can also include information or opinions based on observations or assessments by the professional.¹⁴¹
• How long an obligation of confidentiality must be observed depends on the professional relationship. For example, an obligation of confidentiality in professional relationships with lawyers, doctors and clergy may continue indefinitely; whereas in other cases, it may cease when the service contract comes to an end.¹⁴²

The applicability of privilege will also depend on the precise terms of any legislative provisions establishing the privilege and the tests that have been developed by the courts concerning the privilege.

It may be challenging for a police officer to assess whether particular provisions apply to the information they have been given; for example, whether communications between a lawyer and their client were made for the ‘dominant purpose’ of seeking and providing legal advice. Further, the availability of some categories of privilege will depend on the nature of the legal proceeding in which disclosure of information may ultimately be sought. If, at the time when police are assessing the status of information, no legal proceedings are yet under way or contemplated, there may be uncertainty about whether the information should be regarded as privileged.

Unclear exceptions to legal obligations

A human source who owes legal obligations of confidentiality or privilege to clients may be able to provide information to police without breaching those obligations, if there is a recognised exception permitting or encouraging disclosure despite the obligations of confidentiality. This would be the case, for example, if the confidential or privileged information was within an unambiguous legislative exception or communicated for a criminal purpose, or where it is in the public interest to disclose the information to prevent injury or death. These exceptions are, however, seldom clear-cut.

Exceptions to a person’s legal obligations of confidentiality or privilege may exist at common law and in legislation, and may also be contained in codes of conduct. Sometimes, the exceptions may be too vague or ambiguous to apply swiftly in operational settings, have not yet been tested thoroughly in court, or rely on the professional’s judgement and interpretation of the exception. For instance, Australian courts have established no prescriptive rules as to what constitutes disclosure under ‘public interest’ grounds for doctors.¹⁴³ Without clarity and certainty, a doctor in Australia must essentially make a professional judgement in each case as to whether they should disclose confidential information, a decision that could expose them to legal or disciplinary proceedings.¹⁴⁴

Confidential information provided by human sources not subject to direct legal obligations

As noted above, circumstances may arise where police are dealing with a human source who does not owe any direct legal obligations of confidentiality or privilege to the person being informed on, but who nevertheless has access to, and is in a position to provide police with, information that is itself confidential or privileged. In these circumstances, there may be restrictions on what the recipient of the information is permitted to do with it.

For example, if a person accompanies a friend to a meeting with the friend’s lawyer for the purpose of the friend receiving legal advice, the person will become privy to information that is confidential and privileged. Although the person does not owe obligations of confidentiality or privilege to their friend (these are owed by the lawyer), there may be legal consequences if they disclose confidential or privileged information to others—for example, a court could order an injunction preventing further disclosure of the information, or order that the person to whom it was disclosed destroy all records of it in their possession.

In these circumstances, police may not be alerted by the occupation or role of the human source to consider whether the information the source provides is likely to be confidential or privileged, yet acquiring and using that information may jeopardise an investigation or prosecution if it turns out that using it is illegal or improper.

Accordingly, policies or procedures that rely solely or predominantly on the obligations or duties of the human source arising out of their professional or other employment arrangements may not necessarily explicitly capture all individuals with the potential to access and divulge confidential or privileged information. Therefore, they may fail to protect against the inappropriate use of confidential or privileged information in these circumstances.

Conclusion

Having considered the risks associated with using lawyers and other professionals with legal obligations of confidentiality or privilege as human sources, the Commission has formed the view that their future use should be restricted and subject to strict requirements and safeguards.

In particular, the Commission considers that it is almost never appropriate for police to use a lawyer as a human source to provide information about their own client. This is because it is highly likely that doing so would undermine the fundamental purpose of the lawyer–client relationship, jeopardise the client’s right to a fair hearing, and interfere with the proper administration of justice.

The Commission has stopped short of recommending a complete prohibition on using lawyers and other professionals with legal obligations of confidentiality or privilege as human sources. It accepts that there may be limited circumstances in which the use of such sources may be justified—for example, when there is a compelling public interest reason for acquiring and using the information, there is an unambiguous exception to the duty of confidentiality or privilege, and/or the source is providing information they have come by well beyond the scope of their professional obligations.

Even if one of these limited circumstances arises, justifying this use of lawyers and other professionals as human sources raises very complex legal and ethical questions. As evident in Ms Gobbo’s case, it also increases the potential for significant consequences—for individual rights and for the integrity of the criminal justice system. Accordingly, as noted above, any decision to use such a human source must, in the Commission’s view, be subject to strict requirements and safeguards. Police working in human source management must be vigilant in identifying whether a potential human source may be subject to relevant legal obligations, or whether the information the source is likely to provide may be legally confidential or privileged. They must also proactively consider the ultimate implications of using the source. Among other things, such implications may include compromising an investigation or the proper administration of justice, potentially resulting in a prosecution being withdrawn, a trial being stayed or an appeal against conviction being brought on the basis that a substantial miscarriage of justice has occurred.

The use of human sources where legal obligations of confidentiality or privilege exist must be limited to circumstances where access to the information the source possesses has been assessed as being necessary and proportionate to the aim of using the source. There would need to be a robust risk assessment to determine whether the need for the confidential or privileged information was so great that it outweighed the risks associated with obtaining and/or using it. As set out in Chapters 12 and 13, the Commission considers that a senior Victoria Police officer would need to authorise the use of any human source who is reasonably expected to have access to confidential or privileged information, after having considered the recommendation of an external and independent agency. In addition, if Victoria Police was seeking to use a human source with the intention of obtaining confidential or privileged information, it would need to establish that there were exceptional and compelling reasons for doing so—for example, to avert a risk to the community or the safety of a person, in circumstances where the information cannot be obtained by any other reasonable means.

The Commission recognises the practical challenges in identifying and navigating legal obligations of confidentiality and privilege. These obligations are broad and intricate. Therefore, the Commission also proposes measures to build the capacity of those working within human source management, and to make seeking legal advice more routine. In particular, detailed training and guidance should be provided to police officers about:

• identifying people who are likely to be subject to legal obligations of confidentiality or privilege
• determining whether information likely to be provided by any human source may be legally confidential or privileged.

The Commission’s conclusions and recommendations about how to avoid (or, when appropriate, to manage) the risks associated with using human sources with legal obligations of confidentiality or privilege, and with acquiring in other ways information that is confidential or privileged, are detailed in Chapters 12–15.

Endnotes