Chapter 10

Introduction

In January 2019, the Commission obtained a copy of a letter from Victoria Police to the Independent Broad-based Anti-corruption Commission (IBAC) regarding its identification of seven human source files that required an assessment to determine whether there had been ‘any possible breaches of legal professional privilege’.¹ Those files related to people in occupations associated with the legal profession. The disclosure prompted an amendment to the Commission’s Letters Patent, to extend the scope of its terms of reference to inquire into Victoria Police’s use of human sources, other than Ms Nicola Gobbo, with legal obligations confidentiality or privilege.²

Term of reference 5 required the Commission to recommend any measures that may be taken to address:

1. the use of other human sources subject to legal obligations of confidentiality or privilege who came to the Commission’s attention during the inquiry
2. any systemic or other failures in Victoria Police’s processes for its disclosures about and recruitment, handling and management of human sources who are subject to legal obligations of confidentiality or privilege, and in the use of such human source information in the broader justice system, including how those failures may be avoided in future.

This chapter examines term of reference 5a and the use of other human sources subject to legal obligations of confidentiality or privilege who were disclosed to the Commission during the course of its inquiry.

The use of a human source who is subject to legal obligations of confidentiality or privilege, such as a lawyer, doctor, journalist or priest, is not necessarily problematic if the information the source provides to law enforcement agencies does not relate to the person to whom they owe such an obligation. For example, a doctor may provide information to a law enforcement agency about a relative or a personal associate that does not relate to the doctor’s occupation or professional duties.

Where, however, a person provides confidential or privileged information to a law enforcement agency in possible breach of legal obligations owed to other people, including their clients or patients, and that information is then used in the investigation and prosecution of a crime, it puts at risk the validity of any criminal convictions that may be obtained from the use of that information.

During the Commission’s inquiry:

• Victoria Police identified the seven human source files mentioned above, plus a further five files relating to people associated with the legal profession, dated between 1990 and 2016. The Commission reviewed these 12 files and, in some cases, examined relevant issues in private hearings.
• Victoria Police identified 91 human source files, dated between 15 March 2016 and 30 September 2019, relating to people associated with other occupations that are potentially subject to legal obligations of confidentiality or privilege, such as nurses and government workers. The Commission audited a sample of 31 of these files.
• Members of the public alleged that 45 people with legal obligations of confidentiality or privilege were used by Victoria Police as human sources. The Commission undertook inquiries to investigate the allegations, including by seeking information from Victoria Police.

Based on the information available to the Commission, there is no evidence to indicate that Victoria Police’s use of any human sources, other than Ms Gobbo, resulted in the use of confidential or privileged information that may have affected the validity of any criminal prosecutions or convictions.

There were, however, some limitations to the Commission’s inquiries. The Commission had to rely on Victoria Police to identify and disclose its relevant human source files, and it did not provide all relevant files to the Commission. During the Commission’s audit, Victoria Police steadfastly refused to make 11 human source files available, on the grounds of public interest immunity (PII). The Commission recommends that those 11 human source files be reviewed by an independent and suitably qualified person appointed by the Victorian Government to ensure that any issues relating to the use of those human sources are identified and addressed as a matter of priority. Security arrangements should be put in place to enable the appointed person to review all relevant information.

Of the human source files that were reviewed, the Commission identified some instances of non-compliance with Victoria Police’s policies and procedures and a potential lack of understanding among police officers about issues and risks arising from the use of human sources subject to legal obligations of confidentiality or privilege. These observations were consistent with observations arising from other aspects of the Commission’s work, including its focus groups with Victoria Police officers who hold human source management responsibilities.

In Chapters 12 and 13, the Commission makes recommendations to improve Victoria Police’s human source management practices and support officers’ compliance with policies and procedures, including by introducing a legislative framework to govern Victoria Police’s use of human sources, improved training for officers who work in human source management, and external oversight of Victoria Police’s registration and management of human sources. The Commission anticipates that the implementation of these reforms will help to address some of the issues and risks identified in this chapter.

The use of other human sources with legal obligations of confidentiality or privilege

Victoria Police’s use and management of human sources is governed by an internal policy, the Victoria Police Manual—Human Sources (Human Source Policy).³ Since 2008, all information relating to the registration and approval of human sources, contact with sources and the dissemination of information provided by them has been recorded in Interpose, Victoria Police’s intelligence and case management system.⁴

The use of human sources who are subject to legal obligations of confidentiality or privilege is not prohibited by Victoria Police policy or procedures; however, since 2014 there have been specific safeguards and requirements in place for their use and management.⁵ Those requirements were introduced following two reviews into Victoria Police’s use of Ms Gobbo as a human source between 2005 and 2009: the Comrie Review and the Kellam Report.⁶

As discussed in Chapter 11, both the Comrie Review in 2012 and the Kellam Report in 2015 identified failures and shortcomings in Victoria Police’s human source policies and practices in relation to its use of Ms Gobbo as a human source when she was registered for a third time in 2005 until 2009. Key recommendations of the Comrie Review and Kellam Report focused on the need for better safeguards around the use of human sources with legal obligations of confidentiality or privilege, including that:

• the ‘utmost caution … be exercised before engaging a human source who may have conflicting professional duties (eg lawyers, doctors, parliamentarians, court officials, journalists and priests etc)’
• legal advice be obtained prior to the registration of a human source who may be subject to legal obligations of confidentiality or privilege.⁷

Victoria Police made changes to its Human Source Policy during 2014–16 and again in 2018, in response to the recommendations of the Comrie Review and Kellam Report. These changes are detailed in Chapter 11.

Victoria Police considers that these changes will prevent the reoccurrence of the types of failures identified by these reviews.⁸ Then Assistant Commissioner Neil Paterson, APM, Intelligence and Covert Support Command, told the Commission:

The failures that have occurred in relation to Ms Gobbo could not occur in the context of our current policies, intrusive supervision and practice and [governance] framework.⁹

That view was shared by Deputy Commissioner Wendy Steendam, APM, Special Operations. In her evidence to the Commission, she explained that the reforms made by Victoria Police, prompted by the Comrie Review and the Kellam Report, mean that the circumstances relating to the use of Ms Gobbo as a human source ‘cannot and will not happen again’.¹⁰

The human source files considered by the Commission and detailed throughout this chapter were dated between 1990 and 2020. As such, some files pre-dated the Comrie Review and Kellam Report and associated changes to Victoria Police’s Human Source Policy, while others were created after Victoria Police implemented many of the recommendations of those inquiries between 2014 and 2018.

The following section details the Commission’s approach to examining these files.

‘Human sources’ and ‘community sources’

Term of reference 5a required the Commission to recommend measures that could be taken to address Victoria Police’s use of any other human sources subject to legal obligations of confidentiality or privilege, who came to the Commission’s attention during its inquiry.

When the Commission’s terms of reference were prepared, Victoria Police’s Human Source Policy distinguished between ‘human sources’ and ‘community sources’, as follows:

• Human source—a ‘person who provides information to Victoria Police (or another law enforcement agency) with an expectation that their identity will be protected’. A human source may ‘actively seek out intelligence or information at the direction, request or tasking of police’; may be in potential danger or harm due to their active relationship with police; and may be the primary source of information in targeted investigations or controlled operations.
• Community source—a person who volunteers information to Victoria Police ‘with an expectation that their anonymity will be preserved’. Also referred to as a ‘community contact’, a community source may provide information to police on a single occasion or on numerous occasions regarding events they see or hear in the context of their everyday habits and routines, and ‘must not be requested or tasked to actively gather intelligence’.¹¹

The Commission interpreted its obligation to consider Victoria Police’s use of human sources with legal obligations of confidentiality or privilege to apply to both source categories, given that both human sources and community sources refer to people who provide information to Victoria Police on a confidential basis.

Additionally, under Victoria Police’s Human Source Policy at the time, both human sources and community sources had to be registered and were subject to certain safeguards, such as the completion of a risk assessment, and supervision and internal oversight by senior officers.¹² The risks relating to the use of sources subject to legal obligations of confidentiality or privilege also apply regardless of whether a person is categorised as a human source or a community source.

In this chapter, the Commission uses the term ‘human source’ to refer collectively to both categories of sources.

During the Commission’s inquiry, in May 2020, Victoria Police removed the category of ‘community source’ from its Human Source Policy.¹³ All sources are now classified as ‘human sources’.

Identifying relevant human source files

The Commission did not have access to the Interpose system and had no means of undertaking its own independent search of Victoria Police’s human source records.

The Commission relied on Victoria Police to:

• identify human source files relating to people with possible legal obligations of confidentiality or privilege who were used, or considered for use, by Victoria Police
• disclose those files and all relevant information to the Commission
• advise if any information was disseminated or Information Reports (IRs) created from information provided by a human source with possible legal obligations of confidentiality or privilege and shared with investigators, and whether that information was used in a criminal prosecution or conviction
• make inquiries, at the Commission’s request, into allegations made by members of the public that certain people with legal obligations of confidentiality or privilege had been used as a human source.

The following sections detail:

• the human source files identified and disclosed by Victoria Police relating to people associated with the legal profession
• the human source files identified and disclosed by Victoria Police relating to people from other professions or occupations that potentially hold legal obligations of confidentiality or privilege and that were dated between 2016 (after the completion of the Kellam Report) and 2019
• the inquiries undertaken by Victoria Police, at the request of the Commission, into allegations from members of the public that a lawyer or other person subject to legal obligations of confidentiality or privilege was used as a human source.

Human sources: the legal profession

The Commission first learned that Victoria Police had identified seven human source files relating to people associated with the legal profession in January 2019, when it was forwarded a copy of a letter from Victoria Police to IBAC by the Department of Justice and Community Safety.¹⁴ The letter, dated 18 December 2018, indicated that Victoria Police had identified:

• six human source files that required an assessment to determine whether there had been any possible breaches of legal professional privilege
• one human source file relating to a lawyer that had previously been disclosed by Victoria Police to IBAC in March 2018.¹⁵

In January 2019, the Commission issued a notice to Victoria Police requiring it to produce all records in relation to the use of any human sources with legal obligations of confidentiality or privilege other than Ms Gobbo.¹⁶

In March 2019 and August 2019, a further five human source files relating to people associated with the legal profession were identified by Victoria Police and disclosed to the Commission and IBAC.¹⁷ In total, 12 human source files relating to people associated with the legal profession were identified by Victoria Police and disclosed to the Commission.

By late August 2019, Victoria Police had provided the Commission with hard copies of reconstructed Interpose human source files for these 12 people, with substantial redactions to de-identify them. Following a series of requests and a discussion of the issue in a public hearing in May 2020, Victoria Police ultimately allowed the Commission to inspect copies of the human source files with fewer redactions at Victoria Police’s offices, so that a more meaningful review could be conducted.¹⁸

The Commission’s review of the 12 human source files

The 12 Victoria Police human source files relating to people associated with the legal profession were dated between 1990 and 2016. Some of those files related to human sources, or prospective sources, whose interactions with Victoria Police occurred before 2014, which is when significant changes were made to Victoria Police human source policies and procedures to implement the recommendations of the Comrie Review and the Kellam Report.

Given the significant changes to Victoria Police’s human source management policies and practices in recent years, the Commission did not seek to undertake a full and comprehensive assessment of the 12 files’ compliance with the Human Source Policy in place at the time. The primary focus of the Commission’s review was to identify whether the use of any of these people as human sources may have resulted in the acquisition and use of confidential or privileged information and, if so, whether this may have affected criminal prosecutions or convictions.

Scope of the review

To examine the 12 human source files, the Commission:

• reviewed the reconstructed human source files from Interpose prepared by Victoria Police
• considered additional information produced by Victoria Police, including copies of legal advice it had obtained
• examined issues in hearings that were closed to the public to protect the identity of the human sources or prospective human sources.

In relation to each human source file, the Commission’s review focused on identifying whether:

• the human source or prospective source, by virtue of their occupation, was subject to a legal obligation of confidentiality or privilege, or had access to confidential or privileged information
• the source had potentially provided confidential or privileged information to Victoria Police
• any information provided by the source had been recorded in an IR and disseminated within Victoria Police
• any information provided by the source had been used in a criminal investigation or prosecution
• Victoria Police officers had turned their minds to any issues relating to the source’s possible legal obligations of confidentiality or privilege
• Victoria Police had obtained legal advice to inform its decision making prior to the registration and use of the source.

Summary of the human source files reviewed

A summary of the 12 human source files is outlined below. These files are numbered in the order provided to the Commission by Victoria Police.

One file dates back to 1990 and the other 11 files range from 2005 to 2016.

Observations from the Commission’s review

Of the 12 human source files reviewed, the Commission observed that:

• Two people were unlikely to have been subject to legal obligations of confidentiality or privilege and, on the evidence available to the Commission, it appears that they did not have access to confidential or privileged information during the time they provided information to Victoria Police.²³
• 10 people were subject to legal obligations of confidentiality or privilege, or had access to confidential or privileged information, during the time they provided information to Victoria Police.

Of those 10 people:

• Eight provided information to Victoria Police that appeared to be of a personal nature or was not otherwise confidential or privileged information, such as legal policy advice.²⁴
• Two may have been in a position to communicate confidential or privileged information to Victoria Police.²⁵

Those two people, both practising lawyers at the time of their contact with Victoria Police, were not registered as human sources. In both cases, the police officers identified, at some point during their engagement with them, that the use of lawyers as human sources could give rise to a potential risk for Victoria Police, and a conflict for the lawyers. These were the only examples among the 12 files reviewed indicating that police officers had identified potential issues with the use of people with legal obligations of confidentiality or privilege as human sources.

Disseminating information provided by people not registered as human sources

The Commission observed that Victoria Police generated and disseminated IRs from information provided by three people who had not been registered as human sources.²⁶ Two of those were subject to legal obligations of confidentiality or privilege:

• a court officer who provided information regarding their personal associations and observations in 2014
• a lawyer who may have provided privileged and confidential information in 2008 and 2014, though Victoria Police advised that no person was charged as a result of the information provided.²⁷

The dissemination of IRs before the registration of a human source is approved, or where there is ultimately no approval, is not permitted under the current Human Source Policy.²⁸

Obtaining legal advice

None of the 12 human source files indicated that Victoria Police had obtained legal advice about the use, or prospective use, of any of those people as human sources. This is despite Victoria Police having received legal advice in October 2011 that raised concerns regarding the use of a lawyer, Ms Gobbo, as a human source. That legal advice led to the commissioning of the Comrie Review.²⁹ Of the 12 human source files reviewed by the Commission, nine related to periods of engagement with Victoria Police after October 2011.

The requirement under the Human Source Policy to obtain legal advice related to the use of human sources with potential legal obligations of confidentiality or privilege was not introduced until September 2014.³⁰ Even then, the requirement was limited to specific circumstances.

The Human Source Policy in 2014 only required the Human Source Management Unit (HSMU) to obtain legal advice from Victoria Police’s Legal Services Department in relation to the quarantine or use of information obtained from a human source that ‘may breach a professional obligation’.³¹

Three of the source files reviewed by the Commission were commenced on Interpose after September 2014, which is when the requirement to obtain legal advice came into effect.³²

The Commission notes, however, that one of those files related to a source (a legal secretary) who provided information obtained from their personal associations and observations; one file related to a person (a self-proclaimed legal adviser) who was unlikely to have been subject to legal obligations of confidentiality or privilege; and one file related to a person (a retired solicitor) who was not used as a human source and no IRs were generated or disseminated from the information they provided.³³

Consequently, while it would have been open for officers to obtain legal advice relating to these three source files, it was not required under the specific policy provisions operating at the time. There was no requirement to obtain legal advice simply because a prospective human source had an occupation that may have been subject to legal obligations of confidentiality or privilege.³⁴ This is now a mandatory requirement under the Human Source Policy.³⁵

Disclosure of a human source in 2020

In May 2020, Victoria Police advised the Commission of a lawyer who was used as a human source in 2019.³⁶ The information was provided to the Commission as a recent example of the operation of Victoria Police’s compliance and audit functions of its human source policies. The source was not included in the 12 human source files reviewed by the Commission.

Victoria Police advised the Commission that in 2019, a lawyer contacted a police officer to provide information in relation to the potential criminal offending of their personal associates.³⁷ In early 2020, the officer submitted several IRs containing information derived from the lawyer, in which the officer claimed that the source of the information was either ‘anonymous’ or that it was provided by an unnamed member of the public. This was contrary to the Human Source Policy, which required a person to be named, or alternatively to be registered as a human source, before an IR is completed.³⁸

Detectives reminded the officer that if information was being provided on a confidential basis, the officer needed to register the lawyer as a human source. When that registration process commenced and the officer entered the person’s occupation into the Interpose system as ‘lawyer’, the HSMU was automatically notified.³⁹

As a result, the matter was brought to the attention of the Victoria Police Human Source Ethics Committee (Ethics Committee), which requested:

• a full chronology of matters and the IRs generated
• legal advice
• that the HSMU complete a complaint/incident form and submit it to Professional Standards Command in respect of the actions of the officer, which could amount to a breach of Victoria Police policy.⁴⁰

The Ethics Committee ‘administratively approved’ the dissemination of the IRs that had already been created and disseminated. As the officer and the handling team no longer sought to register the lawyer, the Ethics Committee did not approve their registration on an ongoing basis.⁴¹

Victoria Police considers that this human source file demonstrates an ‘excellent example of its governance processes operating effectively’.⁴²

Human sources: other occupations

As discussed in Chapter 4, in addition to the legal profession, a range of other professions and occupations are bound by legal or ethical obligations of confidentiality or privilege, including medical practitioners and journalists. It is difficult to identify all of these occupations, due to the wide range of legislation, regulations and professional codes of conduct that set out the relevant obligations of confidentiality. It is important to note, however, that a breach of confidentiality by a person is arguably less likely to affect a criminal prosecution or conviction than a breach of legal professional privilege.

To identify whether human sources in other occupations with legal obligations of confidentiality or privilege had been used by Victoria Police, the Commission asked Victoria Police to provide advice regarding the number of human source files relating to people with those obligations, as discussed below. Victoria Police undertook a process of identifying relevant human source files within its Interpose database.⁴³

Identifying other human source files

Due to the limitations of the Interpose system and because there is no automatic way to search and identify human sources who hold or potentially hold legal obligations of confidentiality or privilege, Victoria Police took a very broad approach to identifying relevant human source files. Broad searches were undertaken of the ‘occupation’ and ‘employer’ fields in Interpose; for example, sources described as ‘writers’ were considered potentially relevant to the ‘journalist’ profession, and sources described as ‘carers’ were considered potentially relevant to the ‘medical’ profession, regardless of whether a clear legal obligation of confidentiality or privilege could be identified.⁴⁴

In March 2019, Victoria Police provided initial advice to the Commission that it had identified 285 human sources who may have been subject to legal obligations of confidentiality or privilege. The 285 sources had been used, or considered for use, by Victoria Police between 21 October 2008 (the earliest file created on Interpose) and 12 February 2019.⁴⁵

Following that advice, the Commission initiated an audit of Victoria Police’s human source files.

The Commission’s audit of human source files

The purpose of the Commission’s audit was to:

• inform the Commission’s assessment as to the adequacy and effectiveness of Victoria Police’s current human source management policies and practices, and its compliance with the recommendations of the Kellam Report, relevant to term of reference 3
• identify any issues arising out of Victoria Police’s use of other human sources with legal obligations of confidentiality and privilege, relevant to term of reference 5a.

Scope of the audit

Term of reference 3 required the Commission to inquire into whether Victoria Police’s practices continue to comply with the recommendations of the Kellam Report. As discussed in Chapter 11, according to Victoria Police, the recommendations of the Kellam Report were incorporated into the Human Source Policy on 15 March 2016.⁴⁶ The audit therefore focused on human sources with potential legal obligations of confidentiality or privilege whose files were dated between 15 March 2016 and 30 September 2019, and assessed whether the files were compliant with the iteration of the Human Source Policy operating at the relevant time.⁴⁷

Following Victoria Police’s initial advice that 285 files dated between October 2008 and February 2019 related to human sources who may have been subject to legal obligations of confidentiality or privilege, the Commission sought revised data from Victoria Police relating to files dated between March 2016 and September 2019. As noted above, Victoria Police’s process to identify these files was to search the ‘occupation’ and ‘employer’ fields in Interpose, using broad search terms. Consequently, in addition to capturing the specific occupations identified in the Kellam Report and Victoria Police’s Human Source Policy—doctors, parliamentarians, court officials, journalists and priests—the search also captured a range of other occupations.⁴⁸ For example, occupations under the ‘medical’ category included general practitioner, nurse, youth worker, social worker and therapist.

Lawyers and occupations associated with the legal profession were excluded from the audit as Victoria Police informed the Commission that it had separately disclosed these files, as discussed above.

Victoria Police provided audit data to the Commission in late 2019. In 2020, it identified additional relevant files after discovering that its human source records were incomplete. Of the active human source registration files in Interpose between 15 March 2016 and 30 September 2019, Victoria Police identified that 43 per cent did not have an entry in either or both of the ‘occupation’ and ‘employer’ fields.⁴⁹ These files were subsequently reviewed by Victoria Police, and the human source files they considered relevant to the audit were brought to the Commission’s attention in early 2020.

Based on the data provided in 2019 and 2020, a total of 91 human source files were identified as being within the scope of the audit. Victoria Police provided the Commission with summary information for all 91 files, from which the Commission identified files to audit.

Victoria Police refused to provide the Commission with access to 11 human source files identified as relevant to the audit, claiming that the files were subject to a PII claim. This is discussed further below.

Of the remaining 80 files, 31 were selected for the audit where the summary information indicated:

• the human source or prospective human source’s occupation was clearly subject to legal or ethical obligations of confidentiality or privilege;
• the information provided by the human source to police appeared to be connected with or obtained as a result of their occupation, or it was not clear from the summary whether this was the case; and/or
• there was insufficient detail in the summary information to describe the circumstances in which an individual had been used as a human source or considered for use as a source, or the nature of the information they had provided to police.⁵⁰

Access to hard copy redacted versions of Interpose records for the 31 files was provided to Commission staff undertaking the audit. The 31 files included eight human sources, 22 community sources and one confidential contact. The files related to three professional categories: government, journalist and medical. These files are set out in Figure 10.1.

Figure 10.1: The 31 files audited by occupation

Audit methodology

The Commission’s audit involved reviewing the 31 reconstructed human source files from Interpose and assessing the contents of the files against requirements in place under Victoria Police’s Human Source Policy operating at the time.

The audit focused particularly on compliance with policy requirements arising from the recommendations of the Kellam Report, along with other key policy safeguards designed to manage the risks of using human sources, including those with legal obligations of confidentiality or privilege. These included requirements for officers to:

• obtain approval for the registration of a human source before creating and disseminating IRs containing information provided by the individual⁵¹
• be ‘mindful’ that some human sources, as a result of their occupation, may be bound by duties of confidentiality, privilege or ethical or professional obligations; and to consider the legal and ethical implications when registering a human source⁵²
• seek advice from the HSMU as to the method of handling and recording information from such human sources, and for the HSMU to obtain legal advice from Victoria Police’s Legal Services Department⁵³
• refer a matter to the Ethics Committee where information provided by a human source may be in breach of a legal obligation of confidentiality or privilege, to make a recommendation as to how the information and the source will be treated.⁵⁴

Observations from the Commission’s audit

Of the 31 human source files subject to the audit, the Commission observed that:

• In 18 files, people had provided information to Victoria Police that had been obtained in their personal capacity; for example, information related to their personal associates—including family members and/or neighbours— or from their own personal observations.
• In 13 files, people had provided information to Victoria Police that had been obtained in the course of their employment. Based on the information provided, it does not appear advice was sought from Victoria Police’s Legal Services Department in relation to any of these files, nor were these people subject to consideration by the Ethics Committee.

The Commission’s review of these 13 human source files identified that in only seven of the 13 files did officers identify issues relating to confidentiality or privilege. The files where these issues were identified and the files where those issues were not identified, are discussed in turn below.

Human source files where possible legal obligations of confidentiality or privilege were identified

The Commission observed that seven of the 13 human source files indicated that Victoria Police officers had identified issues relating to potential legal obligations of confidentiality or privilege.⁵⁵ These issues were identified by officers at various stages of the registration and approval process.

The seven human source files where potential legal obligations of confidentiality or privilege were identified by officers included people with occupations as a school counsellor, a prison employee and government workers.⁵⁶

Examples of these files are outlined below.

Human source files where possible legal obligations of confidentiality or privilege were not identified

The Commission observed that for six of the 13 human source files where an individual was providing information to police obtained in the course of their employment, officers had not considered or identified any possible issues relating to legal obligations of confidentiality or privilege.

Upon review of the files, the Commission considered that five of the six files related to information provided by sources that did not appear to be subject to legal obligations of confidentiality or privilege. Rather, the information was gained from personal observations in the workplace or access to official records that, based on the nature of the information, would not have breached an obligation of confidentiality or privilege.

The remaining file related to a nurse who provided information about a patient. An obligation of confidentiality may have existed but was not identified by officers at any stage of the registration process. A summary of this file is outlined below.

In a submission to the Commission, Victoria Police considered that the results of the audit:

… demonstrate that members have generally been able to identify the existence of potential issues relating to legal obligations of privilege or confidentiality and that, with the possible exception of one source, there was no need for the position of the proposed sources to be considered by the [Ethics Committee]. This reflects the reality that most information provided by human sources is not subject to any legal obligation of [confidentiality] or privilege.⁵⁷

Dissemination of information

From the information available to the Commission, it was not always possible to determine if IRs were completed or if information provided by the human sources was shared with investigators. The Commission observed that:

• for some files, IRs were not created or disseminated, as the registration of the human source was not approved or did not eventuate
• notations on other files demonstrated that information obtained from the human source was utilised by investigators or assisted in obtaining search warrants; however, it was not always clear how that information was shared; that is, through IRs or directly with investigators.

The Commission did observe some good, clear examples where IRs were appropriately de-identified to protect the confidentiality of the source’s identity, and where Victoria Police officers took care not to disseminate IRs prior to the approval and registration of a human source.

Human source files subject to a claim of public interest immunity

For 11 of the 91 human source files identified as being within the scope of the Commission’s audit, Victoria Police provided the Commission with a confidential affidavit in support of a claim of PII.⁵⁸ It said these files were extremely sensitive.

Victoria Police did not provide these 11 files for viewing by the Commissioner or Commission staff conducting the audit; instead it provided brief summary information on each of the files and verbally briefed the Commission’s Chief Executive Officer, answered specific questions in relation to the files, and produced advice from senior counsel.⁵⁹ The PII claim over the files was reviewed by ‘independent senior counsel’ for Victoria Police.⁶⁰

The Commission understands that each file was subject to an internal review within Victoria Police, but that none of the files has been subject to an independent or external audit.⁶¹

Further inquiries made in relation to the prospective use of a human source

In 2020, the Commission’s review of documents produced by Victoria Police identified that a religious leader, who was potentially subject to legal obligations of confidentiality or privilege, may have provided information regarding possible criminal activity to Victoria Police as a human source in 2014.

In July 2020, the Commission issued a notice to produce to Victoria Police seeking the production of all documents, correspondence and legal advice relating to the use of, or any decision to use, that person as a human source.⁶²

In response, Victoria Police produced a redacted copy of legal advice received in relation to the prospective use of the person as a human source, and following an additional request by the Commission, provided a copy of an IR detailing the information the person had provided to police regarding possible criminal activity.⁶³

Victoria Police advised the Commission that this person was not registered as a human source and provided information on one occasion. That information was contained in the one IR produced to the Commission.⁶⁴ The Commission understands that no person was charged based on the information provided by the person in 2014.⁶⁵

Human sources identified by members of the public and Ms Gobbo

In February 2019, the Commission invited members of the public and organisations to make written submissions relevant to the Commission’s terms of reference.

The Commission received 27 submissions relevant to term of reference 5a. Those submissions detailed allegations from people alleging that their lawyer, or another person with legal obligations of confidentiality, was a human source. Most of those submitters alleged that their lawyer (or multiple lawyers) was a human source, and that their use as a human source by Victoria Police had affected the criminal investigation and/or prosecution of the submitter’s case.

Some submitters also alleged that their case had been affected by the use of Ms Gobbo as a human source (in addition to alleging that their case was affected by another individual). Those submissions were also considered as part of the Commission’s work on term of reference 1 and its identification of cases potentially affected by the conduct of Ms Gobbo as a human source.

Ms Gobbo herself also alleged that other lawyers may have been used as human sources.

Alleged human sources identified in public submissions

In the submissions received:

• 43 people—comprising 41 lawyers, one court officer and one public servant—were alleged to have been human sources
• four of those lawyers were alleged to have been a human source by more than one submitter.

The detail provided by submitters to support their allegations varied. Some submitters provided reasons for their belief that a person was a human source, while other submitters suggested that their lawyer (for example) was a human source based on the inadequacy of legal assistance they believed they received or the interactions their lawyer had with prosecuting authorities during their trial.

Regardless of the detail provided in submissions, if the Commission was able to reasonably infer that a submitter believed a person with legal obligations of confidentiality or privilege is or was a human source, the Commission made inquiries into the allegations made.

Unlike the Commission’s inquiries under term of reference 1, term of reference 5a did not require the Commission to inquire into and report on the extent to which cases may have been affected by the use of other human sources with legal obligations of confidentiality or privilege. The Commission’s task under term of reference 5a required it to recommend measures to be taken to address any issues arising from Victoria Police’s use of any such human sources, if required.

The inquiries the Commission made on behalf of submitters are discussed below.

Alleged human sources identified by Ms Gobbo

On 10 December 2019, prior to Ms Gobbo giving evidence at the Commission’s public hearings, the Australian Broadcasting Corporation (ABC) broadcast a televised interview with her on its 7.30 program.

During that interview, Ms Gobbo was asked whether she knew of other lawyers who had acted as human sources. She advised the ABC that she was aware of other lawyers, and at least one who was still practising.⁶⁶ Subsequently, Ms Gobbo provided the Commission with the names of two lawyers who she believed may have been used by Victoria Police as human sources.

The inquiries made by the Commission in relation to those two lawyers are discussed below.

Inquiries made into allegations made by members of the public and Ms Gobbo

The Commission took steps to investigate the allegations made by members of the public and Ms Gobbo by seeking information from Victoria Police.

In December 2019, the Commission issued a notice to Victoria Police with a list of the names of 41 people identified by members of the public, including the two people identified by Ms Gobbo, requesting that Victoria Police produce all documents relating to the use or registration of any of those people as human sources.⁶⁷ The names of a further four people identified by members of the public were provided by the Commission to Victoria Police in May 2020, bringing the total number to 45.⁶⁸

The Commission also asked Victoria Police to confirm whether any of the 45 people provided information to Victoria Police in possible breach of their legal obligations of confidentiality or privilege.⁶⁹ Subsequently, with the permission of submitters, brief details of some of the allegations made were provided to Victoria Police to further aid a search of their information systems.⁷⁰

No evidence was produced to the Commission to indicate that any of the 45 people were used, considered for use or registered as human sources.⁷¹

The Commission was unable to ascertain whether any of the 45 people had ever provided information to Victoria Police in possible breach of their legal obligations of confidentiality or privilege. Information received from a human source is recorded in Victoria Police’s Interpose system and there is no dedicated field in the system for officers to input information they consider may be subject to legal obligations of confidentiality or privilege, and no simple automated search function to retrieve such information.⁷²

Conclusions and recommendations

Term of reference 5a required the Commission to inquire into Victoria Police’s use of human sources, other than Ms Gobbo, subject to legal obligations of confidentiality or privilege. In undertaking its task, the Commission sought to determine whether any such human sources had been used by Victoria Police, and if so, the manner in which they had been used. The Commission undertook a review of relevant human source files and, where necessary, examined any issues in private hearings.

While Victoria Police has used, or considered using, other human sources with legal obligations of confidentiality or privilege, there is no evidence before the Commission to indicate that Victoria Police’s use of any of these sources resulted in the dissemination of information that may have affected the validity of any criminal prosecutions or convictions.

The Commission did identify some evidence of officers not complying with Victoria Police’s Human Source Policy or where the Human Source Policy at the time was insufficient to prevent certain actions or manage certain risks. For example, the Commission observed some instances where IRs were disseminated before the registration of a human source was approved, or where there was ultimately no approval. This is not permitted under current Human Source Policy. Victoria Police advised the Commission that this should not have occurred, but that there were no adverse outcomes resulting from the dissemination of information.⁷³

There was also evidence that officers might not have fully understood and addressed issues relating to obtaining and using confidential or privileged information from human sources.

In undertaking its inquiry into term of reference 5a, the Commission was heavily reliant on Victoria Police to identify and disclose relevant files. As detailed further below, the Commission also encountered numerous obstacles in obtaining access to necessary and relevant information. Consequently, the Commission’s conclusions about Victoria Police’s use of other sources with legal obligations of confidentiality or privilege need to be considered with these constraints in mind.

The challenges faced by the Commission mean that further work is needed to examine the use of certain human sources whose files were not provided by Victoria Police. Those challenges also demonstrate that, should any agency or inquiry be assigned responsibility for examining Victoria Police’s use of human sources in future, that agency or inquiry must have full and unobstructed access to the information necessary for it to undertake this task effectively.

The Commission’s conclusions and recommendations are set out in more detail below.

Issues affecting other criminal prosecutions or convictions

The Commission reviewed 12 human source files associated with the legal profession and completed an audit of 31 human source files relevant to other occupations with possible legal obligations of confidentiality or privilege. Based on the limited information made available by Victoria Police, the Commission did not identify any evidence to suggest that Victoria Police’s use of these people as human sources resulted in the dissemination and use of confidential or privileged information that may have affected the validity of any criminal prosecutions or convictions.

The Commission also received no evidence to substantiate allegations from members of the public and Ms Gobbo that 45 people subject to legal obligations of confidentiality or privilege were used as human sources.

Policy and procedural issues

The Commission’s review of the 12 human source files associated with the legal profession identified some shortcomings and inconsistencies in Victoria Police policy and practices at the time relating to the use of human sources. Key examples included officers:

• engaging people subject to possible legal obligations of confidentiality or privilege as human sources without proper identification or consideration of the risks and issues that the use of such sources could pose
• registering such people as human sources without seeking legal advice (though there was not a formal requirement to do so under Human Source Policy at the time)
• disseminating information received from people who were neither approved nor registered as human sources.

Only two of the 12 human source files demonstrated any evidence that officers had turned their minds to potential issues of confidentiality and privilege as part of the risk assessment and registration process.⁷⁴

The Commission’s audit of 31 human source files relevant to other occupations with possible legal obligations of confidentiality or privilege identified some evidence of officers turning their minds to issues relating to confidentiality or privilege, but this was not consistent across the files. Additionally, none of the files were referred for legal advice or consideration by the Ethics Committee. This may be due to a lack of clarity in the Human Source Policy at the time about the types of matters requiring legal advice and Ethics Committee consideration.⁷⁵

The Commission’s audit also suggested that there is a lack of understanding among officers about issues relating to obtaining and using confidential or privileged information from human sources. This corroborated themes and observations that emerged from other aspects of the Commission’s work, including its focus groups with Victoria Police officers; evidence provided by witnesses at the Commission’s hearings; and information produced to the Commission.⁷⁶

As outlined in Chapter 12, Victoria Police most recently amended its Human Source Policy in May 2020.⁷⁷ Some of the changes introduced provide greater clarity about the requirements for legal advice, Ethics Committee consideration and the types of matters that must be referred to the Committee.

Changes to policy alone, however, do not ensure a greater understanding among officers about why the use of a human source with legal obligations of confidentiality or privilege may be problematic; nor a greater understanding of the effect that the use of information improperly obtained from these sources may have on individual criminal prosecutions and the effective operation of the justice system.

As discussed in Chapter 12, the Commission considers that changes to Victoria Police’s policy framework must be accompanied by the training of all officers who work in human source management to:

• support their ability to identify potential legal obligations of confidentiality or privilege
• promote an understanding of the consequences of using improperly obtained confidential or privileged information.

The Commission also considers that changes to Victoria Police’s policy framework and training must be supported by a governance and decision-making structure that provides robust internal oversight and clear accountabilities for decisions about the registration and use of human sources.

As discussed in Chapter 13, the Commission also considers that independent external oversight of Victoria Police’s use of human sources is necessary to:

• enable regular inspection and monitoring of its use of human sources to encourage compliance with the Human Source Policy and detect any issues at an early stage
• promote community confidence in Victoria Police’s use of human sources
• ensure that this high-risk area of policing is subject to independent scrutiny
• promote a culture of greater transparency and accountability to Government, the criminal justice system and the community, and continuous improvement within Victoria Police.

Access to human source files subject to a claim of public interest immunity

During the Commission’s audit of human source files, 11 files were not provided to the Commission for review due to a claim of PII. Victoria Police told the Commission these files were extremely sensitive.

Under the Inquiries Act 2014 (Vic), a person to whom a royal commission has issued a notice to produce documents has a reasonable excuse not to comply with that notice if the information requested is the subject of PII.⁷⁸ The challenges arising from Victoria Police’s many PII claims over material relevant to the Commission’s inquiry are discussed in Chapter 16.

In a submission to the Commission, Victoria Police considered that it would be unreasonable for the Commission to criticise it for ‘upholding its legal responsibilities to the community by maintaining’ its PII claim over these 11 files. It noted that it was open to the Commission to dispute the PII claim by referring the matter to the Supreme Court of Victoria for determination.⁷⁹

The Commission notes Victoria Police’s submission, and further that it is not in a position to assess or question the legitimacy of its PII claim. The Commission did not challenge Victoria Police’s PII claim in the Supreme Court because, given time and budget constraints, it was impractical to do so.

The Commission maintains that it was disappointing that Victoria Police did not provide these human source files to the Commission to review, given the relevance of the files to the inquiry and the fact that the Commission had been specifically tasked to consider the use of such human sources under its terms of reference. This task could have been restricted to a few trusted people who fully understood their obligations of confidentiality, including the Commissioner. Other human source files and documents were provided to the Commission with redactions to information subject to PII claims. With these 11 human source files, however, Victoria Police did not provide the files or any relevant documents in those files, even in redacted form.

While Victoria Police provided the Commission with a brief summary and advice in relation to the 11 files, without full access or, at a minimum, redacted copies of the files, the Commission was unable to confirm whether the use of these human sources was appropriate, or whether it involved any acquisition or use of confidential or privileged information. The Commission understands that these 11 files have not been independently reviewed or audited by any other body for the purpose of identifying whether any of the human sources provided information to Victoria Police in possible breach of their legal obligations of confidentiality or privilege.

In Chapter 13, the Commission recommends that IBAC should be provided with new powers and functions to oversee Victoria Police’s use and management of human sources. Though it is intended that IBAC will have the power to review Victoria Police’s human source files, it will take time, potentially up to two years, to develop and implement the legislation necessary for IBAC to assume its proposed role.

The Commission considers that the 11 human source files subject to a claim of PII need to be reviewed as a priority. For this reason, the Commission recommends that the Victorian Government appoints, within three months, an independent person with suitable legal qualifications and experience to review the 11 human source files.

The review should identify whether the Chief Commissioner of Victoria Police should make a referral to the Victorian Director of Public Prosecutions (DPP) and/or the Commonwealth Director of Public Prosecutions (CDPP), if there is evidence to suggest that any criminal prosecutions were affected either because evidence was improperly obtained by Victoria Police from any of the 11 human sources, or because relevant evidence that should have been disclosed to prosecuting authorities and accused persons was not disclosed.

Any necessary security clearances and protocols should be arranged to ensure that the person appointed to undertake the review has full and unfettered access to the human source files and all relevant information.

The Commission expects that if the independent review recommends that a referral be made to the DPP and/or CDPP, a copy of the independent report and all relevant information should be provided to the appropriate prosecuting agency to enable them to consider whether Victoria Police’s use of any of the human sources potentially resulted in miscarriages of justice.

Victoria Police’s identification and disclosure of other human source files

The Commission necessarily relied entirely on Victoria Police to identify relevant human source files and disclose those files to the Commission. These disclosures occurred at different—and sometimes late—stages of the Commission’s inquiry. For example, Victoria Police:

• disclosed human source files associated with the legal profession to IBAC in December 2018, then disclosed additional files to the Commission in March and August 2019

• identified files relevant to the Commission’s audit in 2019, before identifying additional relevant files in early 2020, after discovering that a large proportion of human source records on Interpose were incomplete.

On 26 November 2020, when this final report was going to print, Victoria Police disclosed to the Commission that it had identified further information relating to one of the 12 human source files associated with the legal profession. The Commission was unable to consider this new information.

System limitations within Victoria Police, and the Commission’s inability to undertake its own independent search of the Interpose system, mean that the Commission is unable to provide assurance that every human source subject to a potential legal obligation of confidentiality or privilege was identified by Victoria Police and disclosed to the Commission. For example, the limitations of the Interpose system reportedly prevented Victoria Police from identifying sources relevant to the Commission’s audit who were not themselves subject to legal obligations of confidentiality or privilege, but who provided information that may have been subject to such obligations.

The difficulty Victoria Police claimed to have in identifying relevant human source files and information points to issues within its record management, audit and system capability. These shortcomings were also evident in Victoria Police’s disclosure of information to the Commission relating to the use of Ms Gobbo as a human source.

As discussed in Chapter 11, in October 2019, a number of enhancements were made to the Interpose system to assist officers in identifying and managing sources with possible legal obligations of confidentiality or privilege, and to better assist in managing compliance with policy timeframes. Those enhancements include prompts for officers when registering human sources to require them to consider whether information provided by a source may be subject to legal obligations of confidentiality or privilege.

The Commission considers that further enhancements to the Interpose system are required to support the identification of potentially privileged or confidential information. In Chapter 12, the Commission recommends that Victoria Police makes further changes to Interpose to enable the timely and accurate recording of the acquisition or use of any such information.

Access to human source files

The Commission encountered a range of other challenges in obtaining access to files and information relating to Victoria Police’s use of other human sources with legal obligations of confidentiality or privilege.

Despite the Commission having issued a notice to produce to Victoria Police in January 2019 requiring the production of all documents relating to the human source files associated with the legal profession, hard copy reconstructed human source files were not provided to the Commission until late August 2019.⁸⁰ Those files were heavily redacted by Victoria Police due to its claims of PII. As the Commissioner was not given access to the unredacted files, she was unable to determine the merits of those claims. Without full access to the files, the Commission could not satisfy itself that Victoria Police, in its use of such human sources, had appropriately considered issues around the use of confidential or privileged information.

Following negotiations with Victoria Police and discussion of the issue in a public hearing, the Commission was provided with access to view the human source files at Victoria Police offices, with some redactions removed in accordance with the Commission’s request. That access was not provided until May 2020, some 16 months after the notice to produce was issued.⁸¹

Additionally, the Commission’s audit of the 31 human source files relevant to other occupations with possible legal obligations of confidentiality or privilege required substantial discussion and negotiation with Victoria Police before Commission staff were provided with access to hard copies of redacted files. As noted above, the Commission was also unable to obtain access to the 11 files, due to Victoria Police’s claim of PII.

The challenges in gaining access to human source files were heightened by Victoria Police responding to the Commission’s requests for information in the form of confidential affidavits, with restrictions on which Commission staff were able to view the information.

In a submission to the Commission, Victoria Police said it granted the Commission appropriate access to relevant human source files as soon as practicable, given the security and PII issues; that Interpose records were difficult to convert into hard copy files; and that redactions were required to protect the identity of the human sources. Victoria Police submitted that it was necessary to approach the provision of information with ‘extreme care’ and that the risk of not doing so could result in someone being seriously harmed or killed. It noted that Victoria Police has legal and moral obligations to take reasonable steps to ensure that this does not happen.⁸²

The Commission appreciates the critical need to protect the confidentiality of a human source’s identity to prevent harm coming to them or those close to them. The challenges the Commission faced regarding timely and full access to human source files, however, underscore the need to provide assurance to the Victorian community that Victoria Police is using human sources appropriately and in accordance with relevant policies and procedures. It also raises the question, as discussed in Chapter 16, of whether the Inquiries Act should be amended to remove the application of PII to royal commissions.

In Chapter 13 of this final report, the Commission recommends that Victoria Police’s use and management of human sources be subject to external oversight. It will be important that the agencies responsible for these oversight functions are provided with full and unfettered access to Victoria Police’s human source files, with appropriate security protocols to facilitate access and protect highly sensitive information.

Endnotes