Chapter 16

Introduction

Chapters 3 and 5 describe how the Commission conducted its inquiry, including the methods it used to gather information, make findings and recommendations and meet its procedural fairness and other obligations under its Letters Patent and the Inquiries Act 2014 (Vic) (Inquiries Act).

This chapter discusses some of the issues that the Commission faced in conducting its inquiry. It proposes reforms aimed at improving these processes for future royal commissions and, where applicable, boards of inquiry.

The needs of each royal commission are different. This is because the work of each commission and the way it conducts its inquiry depend on the subject matter and the nature of its terms of reference.

This Commission had both an investigative task, focused on examining events that happened many years ago, and a policy reform task, focused on assessing current policies and processes and identifying ways that they could be strengthened. Both tasks required the Commission to use its powers under the Inquiries Act and to gather information from a range of sources, including, in particular, information from Victoria Police and other law enforcement agencies, statutory bodies and office holders, the courts and government departments.

A range of practical and legal constraints impeded the Commission’s ability to access relevant information in a timely way. Under the Inquiries Act, it is a reasonable excuse for a person not to comply with the Commission’s power to compel the production of documents on the basis that the information is subject to public interest immunity (PII).¹ This legislative exception, combined with the volume of material over which Victoria Police claimed

PII and the broad nature of many claims, complicated and delayed the production, review and publication of pertinent material. Other challenges arose from the exemption of certain office holders from the requirement to comply with the Commission’s coercive powers.²

The Commission sought to conduct its work openly and with the participation of the Victorian community; in particular, those potentially affected by Victoria Police’s use of Ms Nicola Gobbo as a human source. For many years, the events that led to the establishment of the Commission were hidden from public view. It was therefore especially important for the Commission to conduct its inquiry as transparently as possible, both to restore community confidence in the integrity of the justice system and to demonstrate the fairness of the Commission’s processes. Historical suppression orders and the Witness Protection Act 1991 (Vic) (Witness Protection Act) at times made it difficult for the Commission to meet these objectives and communicate its work to the Victorian community.

This chapter discusses the impact of these issues on the Commission’s work and, where possible, suggests ways to remedy and manage them for future Victorian royal commissions. It also proposes some amendments to the Inquiries Act to clarify and modernise procedural aspects of the legislation.

The nature of the Commission’s inquiry

As noted earlier in this final report, the Commission had several tasks: to examine cases potentially affected by the conduct of Ms Gobbo as a human source; examine the conduct of Victoria Police officers involved in the use of Ms Gobbo as a human source; and consider the adequacy and effectiveness of current Victoria Police processes relating to human sources with legal obligations of confidentiality or privilege.

In undertaking these tasks, the Commission also aimed to fulfil several related and important objectives: to identify potential miscarriages of justice arising from this conduct; find out why the conduct occurred; assess whether existing laws, policies and practices are sufficient to prevent such conduct reoccurring; and support and restore community confidence in Victoria’s criminal justice system.

The Inquiries Act, in operation since 2014, gives Victorian royal commissions significant powers to seek and obtain information relevant to their terms of reference.

As noted in Chapter 3, the Commission sought to gather evidence in five key ways:

• requesting the production of information from, and attendance by, individuals and organisations by issuing formal notices to produce and/or attend and requests for information
• engaging with members of the public to provide them with an opportunity to contribute to the inquiry and follow the Commission’s work
• conducting public hearings to examine evidence and promote the inquiry’s transparency
• undertaking a comprehensive research program, including consultation with agencies and people with expertise in matters relevant to the terms of reference
• reviewing submissions from Counsel Assisting, and submissions from affected people and organisations received in response to Counsel Assisting submissions.

The Commission’s inquiry involved highly sensitive matters that are not typically subject to public scrutiny. There are many good reasons for this. For example, as noted throughout this report, it is ordinarily critical that the identities of human sources are kept confidential, both for the safety of those sources and for the continued willingness of others to assist the police in solving crimes. It is also important that the precise details of covert police methods and tactics are generally not revealed to the public, because doing so might enable criminals to evade detection, and it might also hinder police in their efforts to disrupt and prevent criminal activity. Similarly, people in witness protection or the subject of suppression orders have their identities protected because if they are exposed, there may be harmful or even fatal consequences for them or those close to them. Accordingly, the nature of matters examined by the Commission created some unavoidable obstacles to accessing, using, sharing and publishing material.

To a significant degree, the Commission was able to manage and resolve these issues. In many cases, it developed protocols and arrangements that enabled access to and publication of relevant information in a way that mitigated the legal, operational and safety risks involved. It was also aided by the advice and cooperation of many people and agencies. A range of Victorian, interstate and international stakeholders provided information voluntarily to the Commission, including sensitive and confidential information. Through court applications the Commission was also able to have certain orders varied to give it greater discretion and flexibility in the ways it conducted and reported on the inquiry and shared information with affected parties.

Below, the Commission expands on these issues, before proposing some options to support the effective and efficient operation of future royal commissions in Victoria.

Constraints and challenges

During its inquiry, the Commission experienced some constraints and challenges related to:

• the exemption of certain office holders from the coercive powers of a royal commission
• the resolution of PII claims
• historical suppression orders and non-publication orders
• the operation of the Witness Protection Act
• access to information from some Commonwealth agencies
• certain procedural requirements under the Inquiries Act
• the production of documents, particularly by Victoria Police.

These are addressed in turn below.

Scope of the Commission’s coercive powers

As noted above, the Inquiries Act gives extensive powers to royal commissions, including the power to compel a person to produce a document and/or to attend and give evidence.³

There are certain limitations and exceptions to the coercive powers of royal commissions in Victoria. Section 123 of the Inquiries Act provides that a royal commission cannot inquire into or exercise any powers in relation to various Victorian independent bodies and office holders, including:

• a Victorian court
• the Victorian Civil and Administrative Tribunal
• a judicial officer or a staff member of Court Services Victoria in relation to the performance of judicial or quasi-judicial functions of a Victorian court
• the Director of Public Prosecutions (DPP)
• a Crown Prosecutor
• the Independent Broad-based Anti-corruption Commission (IBAC)⁴
• the Ombudsman
• the Auditor-General.⁵

These limitations aim to ensure that the powers of royal commissions do not impede the independence and status of certain independent bodies and officers.⁶

This principle reflects the doctrine of the ‘separation of powers’, which describes the way that the law gives power to the institutions of the state in Australia. This doctrine is set out in the Victorian Constitution and seeks to ensure that the government’s powers are lawful and subject to checks and balances.

The exclusion of the DPP from a royal commission’s investigative authority is also consistent with its independence from government in relation to decisions about commencing and conducting criminal prosecutions. The Victorian approach to the exemptions under the Inquiries Act, however, is unique. No equivalent inquiries legislation in any other Australian jurisdiction includes a provision similar to section 123 of the Inquiries Act; that is, a provision preventing a royal commission from exercising coercive powers in relation to persons or bodies who hold specified independent statutory offices.⁷

Some legislation for investigatory bodies and independent offices in other Australian jurisdictions does, however, limit how far certain individuals and organisations can be required to assist proceedings and inquiries.⁸ For example, the Commonwealth Ombudsman and their delegates cannot be compelled to provide information acquired during their investigations.⁹ In addition, the uniform evidence law recognises that judges are not compellable witnesses, meaning they cannot be required to give evidence in relation to the exercise of their judicial functions.¹⁰

Impact on the Commission

The section 123 exemptions limited the Commission’s power to compel these office holders to attend or produce documents to the Commission. Exempt office holders relevant to the Commission’s inquiry included the DPP, certain Crown Prosecutors, the Ombudsman, the former Office of Police Integrity, and members of the judiciary (that is, judges or magistrates) who presided over certain court proceedings during the time that Ms Gobbo acted as a human source.

While the Commission understands why some office holders are exempt from the coercive powers of a royal commission, different interpretations of the exemption’s scope posed challenges for the inquiry. Some office holders involved in the events examined by the Commission—who did not hold that office at the time of these events—believed that they were exempt from the Commission’s powers under section 123.¹¹ If it is accurate, that view gives section 123 a very broad operation: it effectively immunises any person who has held one of the prescribed offices from complying with a royal commission’s coercive powers, regardless of when they held that office.

Section 123 does not prevent a person or body from giving evidence or producing material voluntarily to a royal commission,¹² and in many cases, limits on the Commission’s power to compel certain office holders to give evidence were overcome by their voluntary cooperation. The Victorian courts, the Office of Public Prosecutions, Victorian oversight and integrity agencies, the Commonwealth Director of Public Prosecutions, Commonwealth intelligence and law enforcement agencies and some members of the judiciary contributed to the Commission’s inquiry in this way.

These voluntary contributions included providing documents and evidence, responding to requests for information and notices to produce, making written submissions on policy issues and giving informal briefings to Commission staff. This assistance was vital to the Commission’s ability to conduct its inquiry. For example, IBAC disclosed approximately 3,400 relevant records (including over 130 records from the Victorian Ombudsman’s holdings) to the Commission. Without the documents and evidence these organisations provided, the Commission’s ability to fulfil its terms of reference would have been significantly impeded.

Public interest immunity claims

PII is a common law doctrine but also has a statutory basis in the uniform evidence law.¹³ When a PII claim is established, it allows the State to withhold information in legal proceedings or executive inquiries.¹⁴

Resolving a PII claim in the context of a royal commission involves balancing competing interests:

• the public interest that requires certain types of material and information to stay confidential
• the public interest in inquiries such as the commission being able to access, use and publish information relevant to its terms of reference and to conduct its inquiry transparently.

While the Commissioner, having regard to these public interests, formed a view on PII claims made over material relevant to the inquiry, ultimately the legitimacy of a PII claim is a matter for a court.

Section 18(1)(a) of the Inquiries Act provides that a person or organisation on whom a notice to produce or notice to attend is served may claim that they have, or will have, a reasonable excuse for not complying with the notice.

Section 18(2) of the Inquiries Act sets out a non-exhaustive list of the circumstances that are a reasonable excuse for failing to comply with a notice. Under this provision, it is reasonable to refuse to give information to a royal commission if the information is the subject of PII.¹⁵

In contrast to the approach taken in the Inquiries Act, most Australian and international legislation governing royal commissions, and the legislation governing standing crime and corruption commissions, does not mention the application of PII.¹⁶ Of the legislation that does address PII, some appears to abrogate (override) it for the purposes of a Commission conducting its inquiry.¹⁷ For example, the Royal Commissions Act 1968 (WA) provides that a Commission may require a public authority to produce information despite any rule of law that might justify an objection to its production ‘on grounds of public interest’.¹⁸

The Royal Commissions Act 1923 (NSW) also appears to override the application of PII. It gives royal commissions, when they are constituted or chaired by a judge or experienced legal practitioner, the power to prevent a person relying on the privilege against self-incrimination, ‘or on the ground of privilege or on any other ground’.¹⁹

The Victorian Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (IBAC Act) also overrides the application of PII in relation to certain documents or information that IBAC can compel production of for the purposes of undertaking an investigation.²⁰ For example, the IBAC Act provides that the Crown cannot assert any privilege in response to IBAC exercising certain powers. This includes the power to compel police to provide information or documents when IBAC is investigating police conduct.²¹

Similarly, the legislation relating to New South Wales crime and corruption commissions also provides that the privilege against self-incrimination, a duty of secrecy ‘or other restriction on disclosure’ are not available grounds to refuse to disclose information at a hearing.²²

Public interest immunity claims over material relevant to the inquiry

As explained further below, timely and complete production of material relevant to the Commission’s terms of reference was an issue from the start of the inquiry and continued throughout it. In large part, this difficulty arose because a significant amount of material that the Commission was required to examine was sensitive and subject to PII claims.

Victoria Police and other law enforcement agencies made thousands of PII claims to limit the disclosure of information presented before, and published by, the Commission.

The Inquiries Act expressly sets out that a PII claim is a reasonable excuse for not complying with a notice in relation to a royal commission²³ but does not provide any guidance on the process for managing and resolving PII claims. In particular, the Inquiries Act does not outline the grounds on which the State can rely on a PII claim (this could include, for example, that a PII ruling in relation to the material has previously been made by a court).

Public interest immunity protocol

In 2019, the Commission, the State of Victoria and Victoria Police initially adopted a protocol to facilitate Victoria Police providing information to the Commission on a rolling basis. This protocol stated that PII claims ‘should be articulated with precision and supported by the evidence’ that justified the claims.²⁴ When Victoria Police considered that relevant documents or evidence likely to be referred to in the Commission’s hearings were subject to a PII claim, the Commission was provided with documents in unredacted form prior to the claim being made, except for materials that would identify a human source or an individual subject to the Witness Protection Act.²⁵ The Witness Protection Act is discussed further below.

The PII protocol stated that if the Commission was unable to resolve PII claims with Victoria Police, the documents the subject of the claims and the material explaining the basis for those claims were to be provided to the State of Victoria (represented by the Department of Justice and Community Safety) for the purpose of attempting to resolve the dispute.²⁶ If agreement was not reached through this process, the Commissioner would determine the claim at a hearing as soon as possible. This aspect of the protocol was never activated, as the Commission tried to resolve PII disputes—which arose regularly during hearings, often many times a day—as quickly as possible.

When the Commissioner provided her preliminary view on PII claims relating to exhibits and transcripts that the Commission intended to publish immediately, Victoria Police routinely failed to respond promptly or at all. To end this deadlock and publish the documents as soon as possible after the related hearings, the Commissioner accepted the many Victoria Police PII claims on an interim basis and published the materials to the Commission’s website with the interim claims applied, without involving the State. She reserved her position on claims she considered were not substantiated and that may be critical to the Commission’s work.

Even after the Commission adopted this generous position to deal with Victoria Police’s large number of PII claims, long delays continued. Victoria Police repeatedly told the Commission that its ability to make and address PII claims was hampered by a lack of resources, particularly a shortage of experienced officers with the knowledge to do this work.²⁷ The Commission notes, however, that Victoria Police expedited this process when the Commission aired these matters in public directions hearings and this resulted in media criticism of Victoria Police’s tardiness.

Public interest immunity claims over exhibits and transcripts

After the conclusion of the Commission’s hearings in May 2020, Victoria Police was again slow in making PII claims on documents the Commission sought to tender as exhibits, even though it was aware of the importance the Commission placed on the public having access to those documents. At 30 October 2020, the Commission was unable to publish 155 exhibits, as Victoria Police had not provided its PII claims or had not responded to questions from the Commission regarding redactions to the exhibits.²⁸

Given the sheer number of PII claims and the Commission’s budgetary constraints and timeframes, it was generally impractical for disagreements about the scope of PII claims to be resolved in court.

In addition to delaying the PII process, Victoria Police interpreted matters subject to PII very broadly, including in its approach to the concept of a person’s ‘biodata’. This refers to all the features of a person that may allow them to be differentiated from others (including information about their character, physical features or activities). Victoria Police’s approach to claiming PII over ‘biodata’ also had an impact on the operation of certain provisions of the Witness Protection Act, discussed in more detail below.²⁹

Victoria Police made numerous PII claims on the basis that the relevant information constituted biodata and that disclosing the information could enable the identification of a person and endanger their safety. Frequently, Victoria Police asserted that this biodata extended beyond the most obvious types of information that might identify a person, such as their name, address, names of family members, or specific details of their criminal history. For example, Victoria Police asserted that biodata would include details such as the name of a prison or the name of a suburb where certain conversations or meetings occurred. In these and many other cases, Victoria Police contended that, while the disclosure of that particular detail alone might not result in the identification of a person, it would be possible to piece together this detail and other information in the public domain to ascertain the person’s identity.

During the Commission’s inquiry, Victoria Police also produced several ‘confidential’ affidavits and statements to the Commission that it said could only be viewed by the Commissioner and designated members of the Commission’s legal team. This included documents related to Victoria Police’s policies and processes for the use and management of human sources subject to legal obligations of confidentiality or privilege.

The provision of information in this way meant that critical senior Commission staff and members of its legal team did not have access to information necessary to perform their duties. Ongoing negotiation with Victoria Police was required to obtain consent for these staff to access the materials, and/or to request that the material be produced in a form suitable for it to be used and referenced in the Commission’s reports. After the Commission explained that this was impeding the inquiry, Victoria Police eventually agreed to liaise with the Commission before producing ‘confidential’ material. Despite this agreement, Victoria Police continued to do so and to impose limits on information use and access.

Impact on the Commission

While Victoria Police’s general practice of providing unredacted documents before making a PII claim greatly assisted the Commission, the lack of procedural precision under the Inquiries Act for resolving competing interests limited the efficiency of the inquiry. This was particularly so when there was a disagreement between Victoria Police and the Commission about what constituted a legitimate claim.

As noted above, Victoria Police took a very broad interpretation of PII. Often, the Commission faced difficulties when considering the basis for Victoria Police’s PII claims because they were articulated in very general terms. In addition to asserting that information included biodata that could reveal the identity of a human source, Victoria Police also frequently asserted that information could reveal ‘confidential police methodology’, often without any details or rationale to support the claim. Victoria Police also frequently claimed PII over material that was publicly available in media reports and court records.

Additionally, Victoria Police’s PII claims were sometimes inconsistent. Often, information was discussed in a public hearing and counsel acting for Victoria Police did not raise a claim, only to subsequently request that the information be redacted from an exhibit or transcript before being published on the Commission’s website.

On many occasions, the Commissioner did not make the PII determination that Victoria Police sought because the claim was too broad and/or the information relied on for the claim did not support the initial submission.

This was also the case in relation to Victoria Police’s approach to making applications for non-publication orders under section 26 of the Inquiries Act, which allows the Commissioner to make an order restricting the release of information that might endanger a person’s life or safety. Not every potential risk to safety falls within the terms of the Commission’s power to prohibit the publication of information under section 26 of the Inquiries Act. The risk must be more than fanciful and must be in substance real or realistic.³⁰ Victoria Police made numerous applications for non-publication orders that, in the Commissioner’s view, did not satisfy this threshold.³¹

As noted above, there were often long delays between documents being tendered before the Commission and Victoria Police completing its PII review. On several occasions, parties who had standing leave to appear before the Commission requested copies of documents in their original, unredacted form.³² Sometimes Victoria Police agreed to provide these documents, subject to those parties providing undertakings to keep the material confidential, but on many occasions it refused to do so.³³ Some parties have submitted that this impacted upon the fairness of the Commission’s processes.³⁴

On many occasions, after the Commission had published exhibits to its website with all of the requested redactions, Victoria Police would request that the exhibits be removed from the Commission’s website so that it could conduct a further PII review. The Commission had to ensure staff were available to remove the exhibits urgently. It then had to devote resources to republishing the exhibits with the additional redactions.

Despite Victoria Police’s general willingness to produce unredacted copies of documents in accordance with the protocol, there were several occasions where Victoria Police refused to provide the Commission, including the Commissioner, with unredacted versions of documents that were relevant to the inquiry. In some cases, Victoria Police did not produce relevant documents at all. For example, as discussed in Chapter 10, Victoria Police did not provide the Commission with access to 11 human source files identified as relevant to the Commission’s audit on the basis that those files were extremely sensitive and subject to a PII claim.

The Commission appreciates that PII claims can raise complex legal issues. Some of these complexities are explored in detail in Chapter 14. The many lengthy delays in Victoria Police’s provision of PII claims to the Commission, with the explanation that only a relatively small number of Victoria Police officers had the requisite knowledge to assess material for PII claims, indicates that more officers should be trained by qualified lawyers in this complex and important task.

The Commission acknowledges that Victoria Police often worked constructively with the Commission to resolve many PII issues as they arose. This occurred by way of conversation between Counsel Assisting the Commission and counsel for Victoria Police or via email correspondence between Solicitors Assisting the Commission and the solicitors for Victoria Police.

Overall, however, the Commission considers that Victoria Police’s approach to making PII claims had detrimental consequences on the inquiry. That approach:

• led to a very large number of claims that diverted significant resources and time and added to the inquiry’s cost and duration
• suggested that Victoria Police did not give appropriate care or consideration to tailoring its PII claims
• suggested that Victoria Police did not sufficiently value the Commission’s processes, the need to provide all relevant material to the inquiry, or the importance of conducting as much of the inquiry as possible in public and the need to give procedural fairness to potentially affected persons.

Previous inquiries have encountered similar issues, often in circumstances when highly sensitive material relating to national security has been relevant to the investigation.³⁵Some inquiries have considered whether the governing legislation should provide specific powers and procedures surrounding provision of sensitive material to commissions and inquiries. This has included, for example, whether legislative provisions should be introduced to allow a royal commission’s Letters Patent to specify a process for resolving issues relating to privileges and immunities, such as specifying that PII or legal professional privilege does not apply to that inquiry.³⁶

Victoria Police’s response to public interest immunity issues

In its submission to the Commission in August 2020, Victoria Police acknowledged that the PII process was difficult for the Commission.³⁷

Victoria Police highlighted examples where information that was the subject of a valid PII claim was inadvertently disclosed in correspondence or during a public hearing, or was published to the Commission’s website. These examples, Victoria Police submitted, illustrated the need for its careful and cautious approach to PII during the Commission’s inquiry.³⁸ Accordingly, it rejected that its approach to PII claims was too broad.³⁹

Victoria Police made the following specific points about its approach to PII in response to the issues identified by the Commission:

• it rejected that there was anything improper about its PII claims with respect to biodata, noting that, viewed in isolation, individual claims over biodata may appear innocuous but even relatively innocuous information can be pieced together to identify someone⁴⁰
• it maintained that it was appropriate to provide confidential affidavits to the Commission on the limited occasions where Victoria Police considered it necessary, and submitted that it was within Victoria Police’s rights to refuse to provide that information⁴¹
• it submitted that one of the great challenges for the Commission and Victoria Police was that PII claims were not resolved prior to hearings, and this meant Victoria Police had to make retrospective claims over the material⁴²
• it maintained that it was appropriate for Victoria Police to go back and consider its past claims and to make new claims on that material prior to its publication.⁴³

In relation to the PII protocol, Victoria Police did not accept that the position under the Inquiries Act is unclear. It submitted that if the Commission did not accept a PII claim, it could refer the question to the Supreme Court of Victoria for determination.⁴⁴

Victoria Police also submitted that it could have exercised its right under the Inquiries Act to refuse to produce material that was subject to a PII claim, which would have necessitated those claims being referred to the court if the Commission did not accept them. It submitted that it did not adopt this course because it was ‘contrary to its desire to fully cooperate with the inquiry’ and to ensure that the inquiry was conducted ‘as efficiently as possible’.⁴⁵ Victoria Police also submitted that its approach to PII claims ‘evolved over time’ and was developed collaboratively in consultation with the Commission.⁴⁶ It also noted that there were ‘comparatively very few’ documents that it refused to provide in unredacted form to the Commission.⁴⁷

Victoria Police accepted that the PII protocol was never properly used but considered that the departure from the protocol was driven primarily by the Commission, not Victoria Police.⁴⁸ While it acknowledged the difficulties it faced in complying with the Commission’s deadlines, it submitted that those assisting the Commission very rarely complied with the timeframes for notifying Victoria Police of witnesses to be called and did not take steps to resolve any PII issues before the relevant hearing. It asserted that, as a result, it was impractical for Victoria Police to resolve PII claims in accordance with the protocol.⁴⁹

Victoria Police rejected that its approach to PII demonstrates that those responsible for preparing PII claims require further training. It submitted that it engaged external lawyers and counsel to ensure that its PII claims were appropriate and consistent.⁵⁰ It also strongly rejected the Commission’s view that Victoria Police’s approach to PII demonstrated that it did not sufficiently value the processes of the Commission, the importance of conducting the inquiry as openly as possible or the need to give procedural fairness to potentially affected persons.⁵¹

Finally, Victoria Police did not accept that its approach to PII hindered the Commission’s inquiry.⁵² At its highest, it submitted, PII claims caused the Commission ‘inconvenience and prevented it from publishing documents at the time that they were tendered’. It contended that, given the subject matter of the inquiry, the public interest favours taking necessary steps to ensure community safety.⁵³

Suppression and non-publication orders

Courts have a range of powers to make orders preventing the publication of harmful or prejudicial material (suppression or non-publication orders) and orders requiring published material to be removed (take-down orders).⁵⁴ For clarity, this chapter will use the term ‘suppression orders’ to describe orders made by courts to prevent the publication or use of information. Royal commissions also have the power to make orders preventing the publication of information. To avoid confusion, these orders are referred to as ‘non-publication orders’ in this chapter.

Suppression orders serve important public interests, including protecting the fair trial of an accused person and facilitating the proper administration of justice—for example, by keeping certain information secret so that it does not prejudice the deliberations of a jury or put a person in danger. On the other hand, these orders may also limit access to open justice. The principle of open justice is a fundamental common law principle.⁵⁵

The Open Courts Act

Since December 2013, courts have made suppression orders in relation to proceedings in Victoria using their statutory powers under the Open Courts Act 2013 (Vic) (Open Courts Act).⁵⁶ The purpose of the Act is to create a clearer and more rigorous legislative framework for making suppression orders in Victoria while reinforcing the importance of open justice and the free communication of information relating to proceedings.⁵⁷

Under the Open Courts Act, courts, and some specified tribunals, apply and enforce suppression orders and restrictions on publication of information for a range of reasons. As noted above, these reasons include protecting the identities of people involved in cases and shielding jurors from prejudicial material about an accused person who is on trial.⁵⁸ The Open Courts Act applies to some tribunals, including the Victorian Civil and Administrative Tribunal, and can be extended by regulation to apply to other tribunals, persons or bodies.⁵⁹ At present, the Open Courts Act does not apply to royal commissions.

Prior to the commencement of the Open Courts Act, the power of Victorian courts to order the restriction of access to, or prevent the publication of, information relating to court proceedings was derived from legislation and common law.⁶⁰ In addition, Victorian courts had powers under their governing legislation to depart from open justice in a wide range of circumstances.⁶¹

Suppression orders made under the Open Courts Act must be of a specified duration and operate for no longer than is reasonably necessary.⁶² On the other hand, orders made under the old legislative framework often had no termination or end date. Some of these suppression orders continue to apply today.⁶³

In 2017, an independent review of the Open Courts Act was conducted by the Honourable Frank Vincent, AO, QC (Open Courts Act Review).⁶⁴ The review considered whether the existing legislative framework, and in particular the Open Courts Act, struck the right balance between the need to preserve open and transparent justice, and the need to protect the interests of victims, witnesses and accused persons and preserve the proper administration of justice.⁶⁵

The Open Courts Act Review made 18 recommendations to ensure that courts make suppression orders only when absolutely necessary. The Victorian Government has committed to supporting, or supporting in principle, 17 of the 18 recommendations.⁶⁶

The terms of reference for the Open Courts Act Review did not require examination of historical suppression orders (that is, suppression orders made before 2013). Accordingly, it made no recommendations in relation to these types of orders. As the Open Courts Act does not apply to non-publication orders made by royal commissions, these also fell outside the review’s terms of reference.

Impact on the Commission

A substantial volume of material relevant to the inquiry was subject to suppression orders and non-publication orders associated with court proceedings. This prevented the Commission from accessing, publishing and disseminating evidence that was the subject of these orders.

Numerous people relevant to the Commission’s inquiry were convicted of serious crimes and/or gave evidence against others for serious offences, and were the subject of suppression orders. All of these orders were made by the courts prior to the introduction of the Open Courts Act, and some do not have termination dates, instead operating in perpetuity or until a further order is made. Other orders include blanket bans that prohibited the Commission from mentioning that there was a court proceeding at all. This had a significant impact on the case reviews the Commission undertook as part of its inquiry into term of reference 1.

Certain suppression orders required the Commission to use pseudonyms to protect the identities of individuals during public hearings and in documents it produced and published. At times, this caused significant confusion for witnesses and interested people, and potentially also for members of the public, by making it difficult to understand the involvement of individuals in the matters being discussed in the hearings, and the relationships between individuals and events. Throughout the Commission’s hearings, Victoria Police maintained that these historical suppression orders remained justified in their terms.

To overcome some of these issues, in 2019, the Commission made three applications to the courts to vary suppression orders so that it could access protected information and enable witnesses to provide evidence at its hearings.⁶⁷

As discussed in Chapter 3, the Commission later applied to the Court of Appeal of the Supreme Court of Victoria in May 2020 to vary a further 52 suppression orders made in the Magistrates’, County and Supreme Courts of Victoria, to overcome challenges the Commission faced in its reporting on matters relevant to those orders. The Court of Appeal granted that application on 23 June 2020.⁶⁸ These processes caused significant delay, cost and effort for the Commission and all relevant parties.

Locating and accessing historical suppression orders

The Commission also experienced practical issues with locating and accessing historical suppression orders.

In Victoria, there is no publicly accessible register to locate suppression orders that Victorian courts and tribunals have made (including non-publication orders royal commissions and inquiries have made under the Inquiries Act), and find out their terms, duration and the reasons they were made. Similarly, it is unclear whether non-publication orders that previous royal commissions have made and not revoked once their inquiries have ended are retained and able to be searched for.

While Victorian courts have maintained a database of suppression orders for several years, it has limited search capability and there are potential gaps in the coverage of orders. The database was designed as an internal reference tool organised by case name; not as a comprehensive resource for journalists and others.

The Victorian courts gave certain Commission staff access to this existing online database so that they could search for suppression orders that may have been relevant to the inquiry. It became apparent as the Commission’s public hearings progressed, however, that the existing database had limited search functionality and did not contain all the relevant orders. Therefore, on many occasions, Commission and court staff undertook painstaking manual searches of court files kept by each Victorian court in an effort to locate all relevant suppression orders. The Commission greatly appreciates the assistance the courts provided in facilitating this process.

Recommendation 7 of the Open Courts Act Review was to establish a central, publicly accessible register of suppression orders made by all Victorian courts and tribunals.⁶⁹ The Commission understands that courts are currently implementing a new database. The content of orders on this database will not be accessible by the general public, but it will be accessible by accredited users (for example, journalists). This decision to limit access has been taken because the courts are concerned that open public access would defeat the purpose of the orders.⁷⁰

Initially the database will allow searching only of orders made from 1 January 2020, while the courts complete a process of auditing records dated from 1 December 2013 onwards, to ensure the accuracy and currency of records in the database. Records of orders predating 1 December 2013 from the original database will be maintained, and courts will still be able to conduct searches of these records as needed. In relation to matters that were subject to the Commission’s inquiry, the Supreme Court has sought to capture the work undertaken to search for those orders, and to update the historical database records accordingly.⁷¹

If there had been a comprehensive, central and accessible register for suppression orders while the Commission was conducting its inquiry, significant time and cost would have been saved, confusion and inadvertent breaches avoided and the safety of those who genuinely needed protection better managed.

Despite the steps being taken to implement a suppression order register in Victoria, it appears there will still be difficulties with the accessibility of historical suppression orders and processes to apply to revoke or vary orders. The Victorian Law Reform Commission’s (VLRC’s) Contempt of Court review considered whether there is a need for reform in relation to historical suppression orders (referred to as ‘legacy suppression orders’ by the VLRC).⁷²

The VLRC report, tabled in the Victorian Parliament on 4 August 2020, recommended that:

• the Victorian Government should resource courts to audit all existing historical suppression orders (the report also noted that ideally this audit would allow these orders to be searchable alongside the suppression orders under the Open Courts Act)⁷³
• the Open Courts Act should be amended to enable an interested party to apply to a court to revoke a historical suppression order it has made⁷⁴
• the courts should develop processes allowing an applicant and the court to have access to materials that provide evidence of why a historical suppression order was made.⁷⁵

As at 30 October 2020, the Commission understands that the Victorian Government is considering the VLRC’s recommendations.

Operation of the Witness Protection Act

Section 12 of the Inquiries Act provides that a royal commission may conduct its inquiry in any manner that it considers appropriate, subject to:

• the requirements of procedural fairness
• its Letters Patent
• the Inquiries Act, the regulations and any other Act.⁷⁶

The Commission’s Letters Patent required the Commission to conduct its inquiry having regard to the safety of Ms Gobbo and other people affected by the matters raised by the inquiry. Because of section 12 of the Inquiries Act, the conduct of the Commission’s inquiry was also subject to the Witness Protection Act.⁷⁷

A royal commission has wide powers in relation to how it conducts hearings, including to determine who may be present, and to make non-publication orders.⁷⁸ The Witness Protection Act, however, limits a royal commission’s ability to conduct its proceedings entirely in public. This is because the Witness Protection Act creates a presumption that the relevant part of the hearing be held in private.⁷⁹ There is also a presumption that proceedings will be subject to a non-publication order when either of the following matters are ‘in issue’ or ‘may be disclosed’:

• the original or former identity of a participant who is in witness protection
• the fact that a person in witness protection is taking part in proceedings.⁸⁰

The only exception to this is where a royal commission considers that it is not in the interests of justice to keep the hearings private.⁸¹

Importantly, the Witness Protection Act does not excuse a person from producing documents to a royal commission or attending its hearings.⁸² Therefore, the prohibition on disclosure of certain information under the Act is not a reasonable excuse for failing to comply with a royal commission’s notice to provide information.⁸³

Impact on the Commission

Numerous people relevant to the inquiry were participants in witness protection. Some of these people were also subject to suppression orders in relation to their involvement in court proceedings.

The limits on disclosure of information arising from the Witness Protection Act compounded the effects of suppression orders on the Commission. This affected the Commission’s ability to conduct hearings in public without disruption and ensure all parties with a relevant interest could participate. When information relevant to people subject to the Witness Protection Act was discussed, it was necessary for the Commission to hold hearings in private and make a non-publication order. In addition, Victoria Police restricted access to certain information that it considered subject to the Witness Protection Act to a small number of Commission staff and designated members of its legal team. This was despite the Commission explaining many times that these limitations were hindering its work.

Similarly, the interaction between provisions in the Inquiries Act and Witness Protection Act impaired relevant parties’ ability to be involved in the Commission’s hearings and required the Commission to apply many pseudonyms in this final report.

Over the objection of Victoria Police, the Commissioner often determined that while the Witness Protection Act operated to exclude the general public from private hearings, it did not require the exclusion of media accredited by the Commission from such hearings.⁸⁴

The Commissioner considered such transparency to be in the public interest. She allowed the media to be present, with an order prohibiting the publication of everything said in the hearings, noting that this construction of ‘in private’ aligns with the Witness Protection Act’s purpose, objective and witness protection principles. The Commissioner noted that, although the media could not publish anything said in these private hearings, it was important that they understood what they could lawfully publish and the context of the narrative.⁸⁵ Further, having the media present gave some assurance to the excluded public that the inquiry was being conducted in an accountable way.

Additionally, Victoria Police’s broad interpretation of the concept of biodata, as discussed above, also created obstacles for the Commission in determining when the Witness Protection Act provisions requiring the protection of a person’s ‘identity’ were engaged.

In a submission to the Commission, Victoria Police contended that its approach to information that was the subject of the Witness Protection Act was appropriate.⁸⁶ The Commission, after carefully considering that submission, maintains the views set out above.

Interaction between the Inquiries Act and Commonwealth secrecy provisions

Generally, royal commissions established under the Inquiries Act can compel the production of evidence in circumstances when statutory secrecy provisions would ordinarily apply in Victorian legislation. This is because the powers under the Inquiries Act may override the operation of those provisions.⁸⁷

The Inquiries Act states that it is not a reasonable excuse for a person to refuse or fail to comply with a requirement to provide information or produce a document because other legislation would either:

• prohibit a person from providing information
• impose a duty of confidentiality on that person, meaning that they cannot provide the information.⁸⁸

The Inquiries Act also states that a person who provides such documents or evidence is protected from any liability for complying with a royal commission’s requirement to produce documents or provide evidence.⁸⁹

Secrecy and confidentiality provisions in Commonwealth legislation, however, do not interact with the Inquiries Act in the same way as those in Victorian legislation. The interaction between the Inquiries Act and secrecy and confidentiality provisions contained in Commonwealth legislation raise some difficult constitutional issues; in particular, in some circumstances, Commonwealth secrecy and confidentiality provisions override, or otherwise render inapplicable, those parts of the Inquiries Act that allow a royal commission to compel the production of documents subject to a secrecy or confidentiality provision.

Impact on the Commission

Secrecy and confidentiality provisions contained in Commonwealth legislation prevented the Commission from obtaining evidence directly from certain parties.

For example, the inconsistency between provisions in the Inquiries Act and those included in the Australian Federal Police Act 1979 (Cth) (AFP Act) meant that Australian Federal Police staff (including the Commissioner and Deputy Commissioner) were unable to provide evidence directly to the Commission.

The Commission also encountered issues with obtaining relevant documents from the Australian Criminal Intelligence Commission (ACIC) (formerly the Australian Crime Commission—ACC) because of the inconsistency between provisions in the Inquiries Act and the Australian Crime Commission Act 2002 (Cth) (ACC Act). In particular, section 25A(9) of the ACC Act allows an ACIC examiner to direct that certain information must not be used or disclosed in some circumstances (through ‘confidentiality directions’). Using or disclosing information subject to a confidentiality direction is an offence.⁹⁰

Both Victoria Police and the Commission were bound by ACIC confidentiality directions. Some directions prevented Victoria Police from providing the Commission with ACIC transcripts, while the Commission was prohibited from including certain information covered by a direction in public transcripts or submissions or disclosing it to other parties.

In certain circumstances, parties arranged for the Commission to receive evidence through an alternative party that was not subject to the relevant Commonwealth secrecy or confidentiality provision.⁹¹ The Commission also requested that ACIC vary some confidentiality directions. Despite ACIC’s cooperation, the need to take these steps complicated and delayed the production and receipt of documents.

General procedural issues

A royal commission must comply with the procedures set out in the Inquiries Act. The Commission encountered several practical issues due to some of these requirements, as discussed below.

Disclosure of information by the Ombudsman

The Ombudsman Act 1973 (Vic) (Ombudsman Act) states that the Victorian Ombudsman may provide or disclose information obtained in the performance of their duties and functions to certain persons or bodies specified under the Act.⁹² These include IBAC, the Auditor-General, Victoria Police and the DPP—but not royal commissions.⁹³

The exclusion of royal commissions from this list of persons and bodies impacted the Commission. During the inquiry, the Ombudsman identified extensive historical records in their holdings that were relevant to the Commission’s terms of reference. To deal with the legislative constraints, which meant these records could not be provided directly to the Commission, an alternative method of obtaining the records was needed. Consequently, the Ombudsman disclosed the relevant material to IBAC in accordance with the IBAC Act, which gives IBAC information sharing powers, including the power to share information with a royal commission.⁹⁴ IBAC then assessed the material and disclosed it to the Commission.

Obtaining written statements

As explained above, the Inquiries Act provides a royal commission with the power to compel the attendance of a witness or compel a person to produce a specified document or other thing to the commission.⁹⁵

This power is limited to documents that are already in existence and may not extend to compelling a person to create a document for production to a royal commission and provide it to the Commission within a specified time; for example, a witness statement.⁹⁶

Consequently, if a person declines to provide a statement, a royal commission must issue a notice to attend so that it can gather information from the person at a hearing.⁹⁷ At various points during the inquiry, this posed challenges for the Commission. For example, without a written statement, it was difficult to assess whether the person’s evidence was necessary to this inquiry and whether it was appropriate to issue a notice to attend. As such, at times the Commission was required to call witnesses to give evidence and extend hearing dates unnecessarily.⁹⁸

A similar issue was previously raised in relation to the provisions of the Royal Commission Act 1902 (Cth) by the Royal Commission into the Building and Construction Industry and the Home Insulation Royal Commission. Both commissions noted the difficulties and delays they encountered because that Act prevented them from compelling a person to provide a written statement.⁹⁹

The ability to compel a person to create a written statement without issuing a notice to attend would have enabled the Commission to manage its hearing schedule more efficiently.

Requirement to place orders in a conspicuous place

The Inquiries Act sets out the circumstances in which a royal commission may make an order excluding access to proceedings or the publication of information.¹⁰⁰ In particular, the Act replicates some provisions included in the Open Courts Act and specifies that copies of orders made by a royal commission must be placed either:

• on the door of the place where hearings are conducted
• in a conspicuous place where notices are usually posted.¹⁰¹

As discussed in Chapter 3, the Commission made in excess of 370 exclusion and non-publication orders. Given the large number of orders made, the door of the hearing room was soon covered with orders.

As the number of orders grew, Commission staff implemented various practical solutions in order to comply with the Inquiries Act (including compiling a folder of orders to place near the hearing room, and emailing orders to members of the media so they could create their own databases). In addition, when the Commission conducted its policy hearings in May 2020, the COVID-19 pandemic and related restrictions required these hearings to be conducted remotely, meaning there was no physical hearing room door. The Commission put these orders on the website, which it considered to be another ‘conspicuous place’.

Requirement for personal service of notices

The Inquiries Act provides that service of a notice to produce documents or to attend a royal commission must be by way of personal service (that is, serving the notice on that person personally).¹⁰² The Inquiries Act does not allow for alternative (‘substituted’) means of service. In contrast, the Supreme Court and the County Court are able to order service of a document by other means where personal service is not reasonably practical.¹⁰³

Often, the Commission engaged with individuals before serving a notice upon them, to ask whether the notice could be served electronically. Fortunately, all those contacted agreed to this course. If the Commission could not contact an individual, it had to engage a process server to serve the notice, which added time and cost to the inquiry.

Victoria Police’s cooperation with the inquiry

As the Commission was tasked with examining the past conduct of Victoria Police officers and the adequacy and effectiveness of its current policies and practices, it relied heavily on Victoria Police’s cooperation.

Victoria Police has always maintained that it has done everything possible to assist the work of the Commission. This chapter has already outlined some of the ways that Victoria Police’s engagement with the Commission hindered and delayed the inquiry, despite its public assurances.¹⁰⁴ In many respects, Victoria Police’s approach to the production of documents also hampered the Commission’s work.

Victoria Police’s approach to document production

Shortly after the inquiry commenced, in anticipation of the large volume of documents likely to be received, the Commission established a document management protocol that outlined the method by which all documents were to be prepared and provided to the Commission.¹⁰⁵ This protocol specified various requirements, including the naming and dating of documents, preservation of metadata and removal of duplicated or unusable documents. There were also requirements for producing documents subject to a PII or privilege claim.

The Commission received over 155,000 documents during the inquiry, with some running to thousands of pages. Victoria Police produced over 84,000 documents (consisting of over 740,000 pages).¹⁰⁶

Difficulties encountered in relation to Victoria Police’s production of documents included:

• non-compliance with the document management protocol, including the production of untitled and undated documents, duplicate documents, documents that were not electronically searchable, large batches of unrelated documents, and documents classified incorrectly¹⁰⁷
• delays in producing documents
• diaries/day books and other significant records being lost due to poor record keeping and document storage practices
• non-compliance with specific categories of documents described in notices to produce.

Non-compliance with document management protocol

Victoria Police produced thousands of documents that were undated or had meaningless or inaccurate titles (for example, handwritten documents titled ‘diary entries’, with no reference to the name of the police officer to whom the diary belonged). The Commission had to follow up with Victoria Police continually; for example, to confirm whether policy and training documents produced were the current versions.

Further, police diaries were often produced in multiple productions, with redactions to multiple pages, or as extracts, making it difficult for the reviewer to determine page numbers and dates of entries. The Commission spent significant time and resources reviewing and ordering these diaries.

Delays in document production and ‘lost’ records

Document metadata accessed by the Commission indicated that there was often a significant delay between Victoria Police identifying a document as relevant and producing it to the Commission.¹⁰⁸ For example, around 400 documents were located and reviewed by Victoria Police in April 2019 but not produced to the Commission until July 2019.¹⁰⁹ Counsel for Victoria Police told the Commission that this was because, once a document was identified as being relevant, it was placed in a queue for the processes leading to production. These production processes took significant time and the resulting delays impacted not just the Commission, but the witnesses who appeared before it. These impacts are explained further below.¹¹⁰

Frequently, Victoria Police did not produce documents referred to in statements from its officers (such as diary entries and information reports) at the time a statement was provided to the Commission.¹¹¹ This made it difficult for Counsel Assisting to assess whether a witness should be called to give evidence.

There were instances where statements and other documents relevant to a witness were produced to the Commission the night before the witness was to give evidence. When documents were produced in this manner, it meant there was little time for Counsel Assisting or the Commissioner to review the information prior to the witness being cross-examined. Several parties appearing before the Commission made complaints about this late production as it hampered their ability (and their counsel’s ability) to prepare for hearings.¹¹²

Victoria Police also produced a significant number of documents when the Commission was nearing the end of its hearings.¹¹³ For example, in late January 2020, Victoria Police identified approximately 970 documents of relevance to the inquiry.¹¹⁴ Most of these documents fell within the scope of notices to produce that the Commission issued in January 2019. On 27 April 2020, Victoria Police produced 38 hours of tapes of relevant intercepted phone conversations.

Some documents were also produced well after the conclusion of the Commission’s hearings—for example, a statement and its annexures produced in August 2020 that covered subject matter that was clearly relevant to issues addressed at the hearings throughout 2019.¹¹⁵ Victoria Police’s late and voluminous productions affected witnesses as well as the Commission. Late production of documents sometimes contained material related to witnesses who had already been examined, which meant that the witnesses did not have an opportunity to consider these materials before their attendance and the Commission did not have an opportunity to put the materials to them during the hearings.¹¹⁶ Time constraints on the Commission’s reporting did not allow for all such witnesses to be recalled. This resulted in some people making procedural fairness complaints. Those complaints were a factor in the Commissioner’s decision not to make any findings concerning potential criminal conduct.¹¹⁷

There were also significant issues regarding lost police diaries and other important records. The reasons for this varied, but one common reason was Victoria Police’s poor document storage practices.

On one prominent occasion, Victoria Police found diaries of former Chief Commissioner Simon Overland, APM after his former chief of staff and now Chief Commissioner Shane Patton, APM remembered packing them up in 2011. Mr Overland had previously given evidence to the Commission that he could not recall keeping a diary during his time at Victoria Police and so had to be re-examined on these matters.¹¹⁸ On another occasion, Inspector Martin Allison found his diaries in the roof of his house in May 2020, after having given evidence to the Commission in May 2019.¹¹⁹

Another example was Victoria Police locating Ms Gobbo’s 1995 human source registration documents in June 2018.¹²⁰ The belated identification of these key documents led to the expansion of the Commission’s inquiry and amendments to the terms of reference.¹²¹

Some witnesses also gave evidence to the Commission about events recorded in police diaries or day books that Victoria Police could not locate. These witnesses submitted that they were hampered in giving accurate and reliable evidence as a result.¹²²

Non-compliance with notices to produce

Victoria Police also took a very narrow view of the scope of various notices to produce.¹²³ For example, on many occasions, the Commission was not provided with all relevant diary entries of officers. In other circumstances, entries that fell within the scope of notices to produce had been redacted.¹²⁴ It became apparent that Victoria Police had interpreted ‘relevance’ very narrowly and only produced diary pages where there were specific references to Ms Gobbo’s name or human source number. Consequently, the Commission requested that the original diaries of witnesses be made available in the hearing room when the witnesses were giving evidence.

Victoria Police also resisted producing several policy-related documents on the grounds that they were not relevant to the Commission’s terms of reference; for example, policies relating to Victoria Police’s management of confidential or privileged information obtained through the use of certain covert police powers.¹²⁵ On some occasions, this diminished the Commission’s ability to ensure that its proposed recommendations were consistent with broader Victoria Police processes and operational requirements. On many occasions, in respect of both policy-related material and of information related to Ms Gobbo and the conduct of Victoria Police, the Commissioner had to issue multiple notices to produce of increasing specificity to obtain all relevant documents, after Victoria Police asserted that the material was ‘out of scope’ of the original notices.¹²⁶

Victoria Police’s response to document production issues

In a submission to the Commission in August 2020, Victoria Police asserted that, through the work of Taskforce Landow, it supported the work of the Commission ‘proactively and transparently’.¹²⁷

It noted the very large number of documents that were required to be produced and the significant financial and human resources required to coordinate that production.¹²⁸ Victoria Police submitted that it ‘pursued all reasonable lines of inquiry’ to support the work of the Commission and continued to search for and produce material even where it was clear that the production of this information would be ‘likely to draw criticism of [Victoria Police] because the material has not been available sooner’.¹²⁹ It also submitted that while the time required to locate the material and prepare witness statements was challenging, given the time constraints imposed by the Commission, this ‘was a function of the nature of the task, not a reflection on the resources nor commitment to acquitting it’.¹³⁰

Victoria Police also submitted that it took a proactive approach in responding to notices to produce. It stated that over 250 notices to produce were served on Victoria Police and its current and former officers, and that, while some of those notices required only a short investigation of Victoria Police databases, some notices were drafted ‘in a very broad-ranging way’ meaning the identification, consideration and production of material covered by these notices was a ‘substantial undertaking’.¹³¹

Victoria Police did not accept the Commission’s characterisation of its approach to notices to produce and submitted that any delays were a function of the volume and sensitivity of the material that had to be located and reviewed, as opposed to the attitude and commitment of Victoria Police to the task.¹³²

Victoria Police’s cooperation in relation to other parts of the inquiry

Victoria Police did assist and cooperate with the Commission in several ways during the inquiry. This included preparing witness statements and providing contact information for persons of interest to the inquiry.¹³³ Victoria Police also attended meetings with Commission staff in the first few months of the inquiry.¹³⁴ The purpose of these meetings was to clarify and explain the Commission’s priorities as the inquiry progressed.

The Commission would especially like to acknowledge and express its gratitude to Victoria Police officers, Executive Command and Taskforce Landow for supporting the focus groups that the Commission conducted as part of its inquiry into term of reference 3.The focus group objectives and outcomes are outlined in Chapters 11 and 12.

Victoria Police assisted the Commission by identifying possible participants and encouraging and facilitating their participation in the focus groups. The positive engagement and contribution of focus group participants was of great benefit. It helped the Commission understand the practical operation of Victoria Police’s human source management framework and the possible operational impacts of system changes and improvements.

In contrast, in November 2019, The Police Association (TPA) advised the Commission that it did not support the focus groups, due to concerns that ‘whatever might be adduced during these sessions could subsequently inform the Commissioner’s findings in respect of some or all of a cohort of our members’. It further advised that it would communicate this position to any Victoria Police officers who contacted TPA regarding the focus groups.¹³⁵

The Commission considered this position to be unhelpful and unwarranted. In response, TPA reiterated that it was providing legal representation to a particular cohort of its members and considered that their rights and interests may have been significantly affected by the matters being explored in the sessions.¹³⁶ It submitted that it took a reactive response to the focus groups; that is, explaining its position to members on an individual basis when and if they sought TPA’s advice. It maintained that this approach to the focus groups was appropriate.¹³⁷

The Commission acknowledges TPA’s response but also notes that its responsibilities are to all its members, not just those to whom it provided legal representation during this inquiry. The Commission considers it would have been in the interests of the majority of its members if TPA had supported police participation in the focus groups, which gave officers the opportunity to engage constructively with the Commission and contribute to the development of future policy and procedural reforms.

Conclusions and recommendations

As the Inquiries Act is relatively new, having commenced in 2014, this was the first Victorian royal commission that heavily relied on the use of the investigative and coercive powers the Act provides. This meant the Commission had to tackle novel issues that arose regarding the practical operation of several parts of the Act and its interaction with other areas of law.

The Inquiries Act is intended to provide a royal commission with the flexibility to conduct its inquiry in the manner it considers appropriate, subject to the express requirements of the Act and its Letters Patent. In large measure, it does so.

Below, the Commission makes only one recommendation concerning a proposed amendment to the Inquiries Act, in relation to the issue of PII. That is because the Commission considers that this issue seriously hindered the conduct of the inquiry and had a detrimental impact on the Commission’s ability to inquire into subject matter relevant to its terms of reference.

The Commission was generally able to navigate and resolve the other issues regarding the Inquiries Act and the Ombudsman Act, and consequently, does not make formal recommendations to address these issues. Nonetheless, if Government were to introduce legislative amendments to address these issues, the Commission considers that such reform would be in line with the broader objectives of the Act and would help future royal commissions and boards of inquiry operate effectively and efficiently.

In this section, the Commission presents potential reform options for Government’s consideration, to improve the legislative framework and processes for future inquiries.

Clarifying the scope of the Commission’s coercive powers

The exclusion of certain officers from the Commission’s coercive powers under section 123 of the Inquiries Act—and the ambiguity around whether that exclusion applies to conduct of an exempt office holder before they were in that role—presented some challenges for the Commission. Several witnesses who were relevant to the inquiry held multiple offices over the period the Commission was examining, and only some of these roles fell squarely within the terms of the exemption. As a result, several office holders declined to provide information or appear before the Commission voluntarily, and the Commission was unable to compel these officers to do so. There were, however, several exempt office holders and organisations who voluntarily responded to the Commission’s requests and provided documents, written submissions and informal briefings to the Commission’s staff. Their contributions greatly assisted the Commission’s work and the Commission is grateful to them.

The Commission notes the breadth of the exemption under section 123 of the Inquiries Act. In particular, it notes that in virtually all cases, the exemption attaches to the office and not to the office holder in the performance of their functions in that office.¹³⁸ This statutory exemption does not align with arrangements in other Australian jurisdictions. No equivalent inquiries legislation includes a provision similar to section 123.

The Commission suggests that the Government considers amending section 123 of the Inquiries Act to clarify the restrictions on the scope and powers of a royal commission or board of inquiry in relation to certain office holders. It suggests that the restrictions should not extend to prevent inquiry into conduct outside the performance of those roles. For the avoidance of doubt, the Commission suggests that the section be amended to allow inquiry into matters that occurred before and after these office holders held the relevant office.

Removing the ability to claim public interest immunity

As outlined earlier in this chapter, the Commission experienced a range of difficulties due to Victoria Police’s approach to PII. Victoria Police has made a number of points in response to the issues the Commission identified.¹³⁹ Overall, while it acknowledged that the PII process was difficult for the Commission, it did not accept that its approach to PII hindered the inquiry and reiterated the importance of taking steps to protect community safety given the subject matter of the inquiry.¹⁴⁰ The Commission has considered Victoria Police’s submissions carefully. It acknowledges the importance of legitimate PII claims to the protection of both individuals’ safety and confidential police methodology. It also acknowledges the difficulties under which Victoria Police was operating in responding to the Commission’s inquiry. Nonetheless, the Commission is firmly of the view that Victoria Police’s approach to PII claims was detrimental to the work of the inquiry for the reasons given earlier in this chapter.

The Commission, and some of those appearing before the Commission, spent considerable time and resources managing and resolving PII claims. While this issue arose due to the sensitivity of matters and material the Commission examined, the process for resolving PII claims hampered its ability to progress the inquiry in an effective, timely and transparent manner. It delayed the publication of hearing transcripts and exhibits on the Commission’s website. It also prevented the Commission from promptly providing documents to potentially affected persons prior to Victoria Police conducting a review and redacting any material over which it claimed PII. At the time of finalising this report, the Commission was unable to assess and resolve many of Victoria Police’s PII claims.

As outlined earlier in this chapter, the Commission set up a protocol to resolve PII claims.¹⁴¹ However, without legislative guidance in the Inquiries Act, and for the reasons explained earlier in this chapter, the protocol was unable to deal with all the issues that arose in respect of the treatment of documents that were subject to PII claims. In a submission to the Commission, Victoria Police suggested that it did not need to produce anything subject to PII to the Commission because of the Inquiries Act, but it did nonetheless produce unredacted material, and in effect allowed the Commissioner to rule on the PII claims, in order to be cooperative.¹⁴²

It is important to note that due to the current approach to PII under the Inquiries Act, if Victoria Police had refused to produce all material it claimed to be subject to PII, it would have been impossible to conduct the inquiry effectively. The Commission would have been required to determine and refer each unresolved PII claim to the Supreme Court before being able to access that material.

Ultimately, the approach to PII under the Inquiries Act impeded the Commission’s ability to conduct its inquiry. In particular, although Victoria Police often produced or permitted the Commission to review unredacted copies of documents subject to PII claims, there were several occasions where it declined to do so, either due to the operation of the Witness Protection Act, or where it considered the information was particularly sensitive. This left the Commission in the difficult position of being unable to independently assess the basis of the claim. It also inhibited the Commission’s ability to fully interpret the relevance of certain documents and potentially limited legitimate lines of inquiry.

The Commission notes that other jurisdictions appear to have abrogated the common law principle of PII from their inquiries legislation.¹⁴³ The IBAC Act also abrogates PII in relation to certain documents or information that are subject to IBAC’s coercive powers.¹⁴⁴

As it is likely that any future royal commission dealing with sensitive material will confront similar difficulties to those encountered in this inquiry, the Commission recommends that the Victorian Government amends the Inquiries Act to remove a PII claim as a reasonable excuse for a person failing to comply with a notice to produce information to, or attend, a royal commission. This would enable a commissioner to determine whether the material should be acted on or published, as for claims of legal professional privilege.¹⁴⁵

The timeframe the Commission has set for this recommendation reflects the need for Government consultation with the relevant stakeholders on the proposed legislative amendments.

Clarifying arrangements for providing confidential information

On many occasions during the inquiry, Victoria Police produced ‘confidential’ affidavits or statements that it said could only be viewed by the Commissioner and/or specified lawyers assisting the Commission. Providing information in this highly restrictive manner was often unnecessary and inappropriate. It frustrated the inquiry and delayed its work because of the time taken to obtain Victoria Police’s permission to allow other Commission staff and lawyers to view the material.

Victoria Police maintains that it was appropriate to produce information in this manner on these occasions, and that it could have exercised its rights under the Inquiries Actand claimed PII over that material, such that it was not produced in any form.¹⁴⁶ The Commission acknowledges that Victoria Police did have that right in relation to parts of the material that were subject to a legitimate claim of PII. It remains of the view, however, that it was unnecessary to limit access to so few Commission staff and lawyers, particularly given that often Victoria Police later accepted it could be accessed by a much wider group, or advised that its PII claims were confined to smaller portions of that material.

The Commission suggests that in any future inquiry where similar issues are anticipated, it may be beneficial for the royal commission or board of inquiry to develop protocols and procedures that address the provision of information in this form from the outset. The Commission suggests that, if a party participating in an inquiry considers they need to provide information on a confidential basis, they should liaise first with the commission or board of inquiry to discuss the nature of the material and be advised which staff or legal representatives need access to the material in order to effectively carry out their duties.

Building on reforms to support open justice

As noted earlier in this chapter, because so many individuals relevant to the Commission’s inquiry were the subject of suppression orders made before the Open Courts Act was introduced in 2013, many orders do not have designated termination dates, but rather operate until further order or indefinitely. These orders were often difficult to locate in the existing courts’ database. These issues delayed the Commission’s proceedings and inhibited its ability to access evidence and provide it to people affected by the inquiry.

At times, these historical suppression orders meant that the Commission had to close its hearings. Further, it was often difficult to publicly present a coherent narrative of important past events because critical aspects of the story could not be discussed or published. Some historical suppression orders still in force are so broad that they prohibited the Commission from mentioning even the existence of a court proceeding related to a person potentially affected by Ms Gobbo’s use as a human source.

Some of these issues were overcome by making applications to courts to revoke or vary suppression orders, which took up the Commission’s limited time and resources. In determining the Commission’s application to vary several suppression orders in 2019, the Court of Appeal acknowledged the high public interest in permitting the Commission to conduct a thorough analysis of the matters relevant to the inquiry.¹⁴⁷

As outlined earlier, before publishing Counsel Assisting submissions and completing this final report, the Commission successfully applied to the Court of Appeal to have 52 further suppression orders varied.¹⁴⁸ These variations were necessary for the Commission to afford procedural fairness to affected parties, to consider responsive submissions from affected parties that referred to information otherwise subject to the orders and, where necessary, to publish that information.

While this enabled the Commission to conduct its inquiry in a more transparent and public way, it also caused significant delay, cost and additional work. It is noted that Victoria Police did not oppose the Commission’s application to the Court of Appeal to have the suppression orders varied.

In addition, the lack of a central register or database of suppression orders made the task of identifying all relevant suppression orders challenging, as the Commission and the courts had to perform extensive manual searches of court databases. In many cases, even once the orders were located, it was difficult to identify the grounds upon which they had originally been made, and therefore difficult to determine if it was appropriate to apply to have them varied or revoked.

As noted earlier, the Victorian courts are implementing a new database for suppression orders, along with data entry processes to improve the ability to search for and locate orders. Statistics from the database will be publicly available, and for the first time accredited journalists will have direct access to the database.¹⁴⁹ While the Commission appreciates that the new database must have a mechanism to restrict public access to sensitive information, it also considers it important that the new database has sufficient capability so that all those with a legitimate reason to do so can obtain access to information about suppression orders (such as the grounds on which they were made) so that they can apply to vary or revoke orders. The Commission understands that the new database will have this capability.

While the implementation of this database is a very positive reform, the Commission remains supportive of the VLRC’s recommendation for the courts to conduct an audit of all historical suppression orders (that is, in addition to those dated from 2013 onwards),¹⁵⁰ as it would bolster the important principle of open justice in Victoria.

The Commission appreciates, however, the courts’ concerns that it may be difficult to justify an audit stretching back before 2013, due to the resources involved; the limited utility given a high percentage of orders are of little interest; and the fact that even the most diligent audit cannot deliver a comprehensive database retrospectively due to the imperfect quality of historical records. These challenges may make an audit of historical suppression orders impractical.

The Commission also supports the VLRC’s recommendation to amend the Open Courts Act to enable an interested party to apply to the court for the revocation of a historical suppression order made by that court.¹⁵¹ This reform would harmonise the process for revoking or varying historic suppression orders with the process that already applies under the Open Courts Act. It would therefore simplify and clarify the law.

In addition, the Commission suggests that Government should consider amending the Open Courts Act so that it applies to royal commissions and boards of inquiry under the Inquiries Act. This would further harmonise the suppression order regime in Victoria.

Navigating the interaction of the Inquiries Act and the Witness Protection Act

The Witness Protection Act and its interaction with the Inquiries Act is complex and, given the subject matter of the Commission, this legal matrix was especially difficult to navigate. The Commission addressed many of the challenges presented by using pseudonyms to protect the identity of witnesses, but not all matters the Commission examined could be fully put into the public domain.

The Witness Protection Act performs an important function and the Commission was mindful of the need to take steps to protect the safety of people in witness protection and of those close to them. The Commission does not consider it necessary to make any amendments to how the Witness Protection Act interacts with the Inquiries Act, but has addressed the issue in this report to assist any future inquiries where Witness Protection Act matters are raised.

Identifying and managing the impacts of Commonwealth secrecy and confidentiality provisions

The Commission’s ability to compel production of evidence was limited by the interaction between provisions in the Inquiries Act and certain secrecy and confidentiality provisions contained in Commonwealth legislation.

As outlined earlier in this chapter, these issues are often legally complex and can give rise to constitutional issues. The Commission notes that reform options aimed at resolving these issues are relatively limited without the cooperation of the Commonwealth, given constitutional constraints. Consequently, the Commission does not propose any reforms. Where it is anticipated that future inquiries will involve engagement with Commonwealth agencies, it may be beneficial for the inquiry to identify the potential impacts of Commonwealth legislation at the outset and consider how best to manage them.

Addressing procedural issues related to the Inquiries Act

There are three further aspects of the Inquiries Act that the Victorian Government could consider addressing through legislative amendment:

• the power to obtain written statements
• the requirement to place orders on the hearing room door
• the requirement for personal service.

Introducing a clear power to obtain written statements

As noted earlier in this chapter, some Australian jurisdictions have specific provisions giving royal commissions a power to compel a person to make a written statement without issuing them a notice to attend.

If the Commissioner had been able to rely on an equivalent power during this inquiry, it would have enabled the Commission to obtain and consider a written statement within a specified timeframe, and in so doing, to assess the need to issue a notice to attend to that person. Instead, the Commission was dependent on Victoria Police, its current and former officers, and Ms Gobbo to voluntarily produce statements within their own timeframes. When Ms Gobbo did eventually provide a statement, it did not fully address the Commission’s questions. Further, the inability to compel the production of statements from current and former officers delayed the inquiry and increased the overall hearing time. This was unsatisfactory.

It may be arguable that section 17(1) of the Inquiries Act already empowers a royal commission to compel a person to make and produce a written statement, but that submission was not made to this Commission. Given the absence of any clearly stated power to compel a written statement in a specified timeframe, the Commission considers that this could be clarified in the legislation.

Accordingly, the Commission suggests that the Victorian Government considers including a provision in the Inquiries Act to provide that a royal commission or board of inquiry can give a notice requiring a person to produce written information within a specified timeframe and in a specified way.

This suggested provision is modelled on section 5(1)(d) of the Commissions of Inquiry Act 1950 (Qld).

Modernising the requirement to publish non-publication orders

The Inquiries Act prescribes the circumstances in which a royal commission can make orders excluding access to its proceedings or preventing the publication of information relating to its inquiry. It requires that when an exclusion or non-publication order is made, a copy of the order must be posted on the hearing room door, or in another conspicuous place where notices are usually posted near the hearing room.¹⁵²

The Commission made in excess of 370 exclusion and non-publication orders due to the sensitivity of issues and material it was examining. As the number of these orders grew, the requirement to place copies of all the orders in a conspicuous place became administratively impractical. It is also inconsistent with modern paperless systems and practices.

The requirement in the Inquiries Act is clearly designed to draw public and media attention to the existence of these orders. The Commission considers that this requirement could be modernised by instead providing for orders to be made available on the Commission’s website. A notice could still be posted on the hearing room door where practical, alerting people to the existence of the orders and referring them to the inquiry’s website or a contact person to obtain access to the orders.

The Commission considers there are several benefits to this approach. The orders would be available online to the public, not only those people who are physically able to attend the hearing venue. Many people viewed the Commission’s proceedings online through the live stream. Had the Commission been able to adopt this approach, these viewers could have accessed these orders as they were viewing the live stream. This would also support openness and transparency in a royal commission’s proceedings, by providing the public with a better understanding of the orders and why the hearing was closed to the public.

Additionally, making all non-publication orders available online would help the media to determine more easily what information cannot be published and to follow the orders with greater certainty. The Commission circulated non-publication orders to media by email and dealt with multiple media clarification requests regarding whether non-publication orders had been made. This process would have been more efficient if the Commission had been able to direct the media to online versions of the relevant orders.

Introducing more flexibility in the requirement for service of notices

The Inquiries Act requires that a notice to produce or notice to attend must be served on the person personally, with no option under the Act to serve a person through alternative, ‘substituted’ service when personal service is not practicable.¹⁵³

In circumstances when the Commission was not able to contact a person to arrange service, it had to engage a process server to serve that individual. This added time and cost to the serving process.

Accordingly, the Commission suggests that the Inquiries Act be amended to allow for service of notices to produce and notices to attend through a means of substituted service, such as electronically. This would be in line with developments in how courts are allowing alternative means of service,¹⁵⁴ including where appropriate by electronic means, and would modernise this procedural requirement under the Inquiries Act. It would also provide future inquiries with greater flexibility in the service of documents.

Enabling disclosure of information by the Ombudsman

The absence of a legislative provision under the Ombudsman Act enabling the disclosure of information to a royal commission meant that, to provide relevant information to the Commission’s inquiry, the Ombudsman had to disclose that information to IBAC, which then assessed the material and disclosed it to the Commission.¹⁵⁵ This process was legally and procedurally complex.

Given the Ombudsman’s significant role in overseeing Victorian public sector organisations, the Commission suggests that Government considers amending section 26FB of the Ombudsman Act to allow for disclosure of materials to a royal commission. This would simplify future processes and provide consistency with the arrangements for other integrity and oversight agencies such as IBAC, which are able to facilitate disclosure of documents to royal commissions under their governing legislation.¹⁵⁶

Addressing document production concerns

As outlined earlier in this chapter, the Commission faced considerable challenges in relation to document production. The Commission considers that these challenges could have been avoided to a significant degree if individuals and organisations participating in the inquiry had complied with the document production protocol established at the start of the inquiry.

As noted earlier, the Commission encountered difficulties arising from Victoria Police’s non-compliance with document production and notices to produce. The Commission acknowledges that Victoria Police committed extensive resources to this task. But instead of providing its records to trusted and responsible Commission staff, Victoria Police insisted on controlling the production of the requested documents, and drip feeding them to the Commission only after it had carefully considered, vetted and, on occasions, redacted them. The Commission remains of the view that this approach had a significant and negative impact on the Commission’s work.

Victoria Police’s frequent failure to produce documents in a timely and comprehensive manner, together with its, at times, narrow view of and obdurate approach to the scope of notices to produce, unnecessarily diverted the Commission’s resources and impeded the inquiry.

At the time of finalising this report, the Commission cannot be certain that it received all information from Victoria Police it considered relevant. Therefore, the Commission’s findings and recommendations, and the submissions of Counsel Assisting, are based on the material that was available to the Commission at the time of writing.

The Commission acknowledges that Taskforce Landow faced significant challenges in locating material required to be produced to the Commission because Victoria Police has no central repository of material.¹⁵⁷

The Commission also acknowledges that many individual officers, including many of those involved with Taskforce Landow, made efforts to work effectively within these constraints and support the work of the Commission.

While it was outside the Commission’s terms of reference to examine Victoria Police’s record-keeping practices and information management systems, the Commission encourages Victoria Police to address some of the issues encountered by the Commission and ensure that they do not impede the conduct of future inquiries involving Victoria Police.

Endnotes